EXHIBIT 10.1
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$1,000,000,000
CREDIT AGREEMENT
AMONG
MASTERCARD INTERNATIONAL INCORPORATED,
THE SEVERAL LENDERS
FROM TIME TO TIME PARTIES HERETO,
XXXXXXX XXXXX XXXXXX INC.
AS ARRANGER
AND
CITIBANK, N.A.
AS ADMINISTRATIVE AGENT
BANK ONE, NA
FLEET NATIONAL BANK
HSBC BANK USA
AS CO-SYNDICATION AGENTS
DATED AS OF JUNE 6, 2000
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TABLE OF CONTENTS
PAGE
SECTION 1. DEFINITIONS......................................................... 1
1.1 Defined Terms....................................................... 1
1.2 Other Definitional Provisions....................................... 13
SECTION 2. AMOUNT AND TERMS OF LOANS........................................... 13
2.1 Revolving Credit Commitments........................................ 13
2.2 Procedure for Revolving Credit Borrowing............................ 13
2.3 Term Loans.......................................................... 14
2.4 Procedure for Term Loan Borrowing................................... 14
2.5 Facility Fee........................................................ 14
2.6 Termination or Restriction of Commitments........................... 15
2.7 Repayment of Revolving Credit Loans and Term Loans; Evidence of Debt 15
2.8 Optional Prepayments................................................ 16
2.9 Conversion and Continuation Options................................. 16
2.10 CAF Advances........................................................ 17
2.11 Procedure for CAF Advance Borrowing................................. 17
2.12 CAF Advance Payments................................................ 20
2.13 Evidence of Debt.................................................... 20
2.14 Certain Restrictions................................................ 21
2.15 Minimum Amounts of Tranches......................................... 21
2.16 Interest Rates and Payment Dates.................................... 21
2.17 Computation of Interest and Fees.................................... 21
2.18 Inability to Determine Interest Rate................................ 22
2.19 Pro Rata Treatment and Payments..................................... 22
2.20 Swing Line Commitment............................................... 23
2.21 Illegality.......................................................... 25
2.22 Requirements of Law................................................. 25
2.23 Taxes............................................................... 26
2.24 Indemnity........................................................... 28
2.25 Commitment Increases................................................ 28
SECTION 3. REPRESENTATIONS AND WARRANTIES...................................... 29
3.1 Financial Condition................................................. 29
3.2 No Change........................................................... 30
3.3 Corporate Existence; Compliance with Law............................ 30
3.4 Corporate Power; Authorization; Enforceable Obligations............. 30
3.5 No Legal Bar........................................................ 31
3.6 No Material Litigation.............................................. 31
3.7 No Default.......................................................... 31
3.8 Ownership of Property; Liens........................................ 31
3.9 Intellectual Property............................................... 31
3.10 No Burdensome Restrictions.......................................... 31
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PAGE
3.11 Taxes............................................................... 31
3.12 Federal Regulations................................................. 32
3.13 ERISA............................................................... 32
3.14 Investment Company Act; Other Regulations........................... 32
3.15 Subsidiaries........................................................ 32
3.16 Purpose of Loans.................................................... 33
3.17 Environmental Matters............................................... 33
SECTION 4. CONDITIONS PRECEDENT................................................ 33
4.1 Conditions to Initial Loans......................................... 33
4.2 Conditions to Each Loan............................................. 35
SECTION 5. AFFIRMATIVE COVENANTS............................................... 35
5.1 Financial Statements................................................ 35
5.2 Certificates; Other Information..................................... 36
5.3 Payment of Obligations.............................................. 36
5.4 Conduct of Business and Maintenance of Existence.................... 37
5.5 Maintenance of Property; Insurance.................................. 37
5.6 Inspection of Property; Books and Records; Discussions.............. 37
5.7 Notices............................................................. 37
5.8 Environment Laws.................................................... 38
SECTION 6. NEGATIVE COVENANTS.................................................. 38
6.1 Maintenance of Net Worth............................................ 39
6.2 Limitation on Liens................................................. 39
6.3 Limitation on Fundamental Changes................................... 40
6.4 Limitation on Sale of Assets........................................ 40
6.5 Limitation on Dividends............................................. 41
6.6 Limitation on Investments, Loans and Advances....................... 41
6.7 Limitation on Transactions with Affiliates.......................... 41
6.8 Limitation on Changes in Fiscal Year................................ 41
6.9 Limitation on Lines of Business..................................... 41
SECTION 7. EVENTS OF DEFAULT................................................... 41
SECTION 8. THE ADMINISTRATIVE AGENT............................................ 44
8.1 Appointment......................................................... 44
8.2 Delegation of Duties................................................ 44
8.3 Exculpatory Provisions.............................................. 44
8.4 Reliance by Administrative Agent.................................... 45
8.5 Notice of Default................................................... 45
8.6 Non-Reliance on Administrative Agent and Other Lenders.............. 45
8.7 Indemnification..................................................... 46
8.8 Administrative Agent in Its Individual Capacity..................... 46
8.9 Successor Administrative Agent...................................... 46
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SECTION 9. MISCELLANEOUS....................................................... 47
9.1 Amendments and Waivers.............................................. 47
9.2 Notices............................................................. 47
9.3 No Waiver; Cumulative Remedies...................................... 48
9.4 Survival of Representations and Warranties.......................... 48
9.5 Payment of Expenses and Taxes....................................... 48
9.6 Successors and Assigns; Participations and Assignments.............. 49
9.7 Adjustments; Set-off................................................ 52
9.8 Counterparts........................................................ 53
9.9 Severability........................................................ 53
9.10 Integration......................................................... 53
9.11 Termination of Commitments and Swing Line Commitments............... 53
9.12 GOVERNING LAW....................................................... 53
9.13 Submission To Jurisdiction; Waivers................................. 53
9.14 Acknowledgements.................................................... 54
9.15 WAIVERS OF JURY TRIAL............................................... 54
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CREDIT AGREEMENT, dated as of June 6,2000 among MASTERCARD
INTERNATIONAL INCORPORATED, a Delaware corporation (the "Borrower"), the several
banks and other financial institutions from time to time parties to this
Agreement (the "Lenders"), and Citibank, N.A. ("Citibank"), as administrative
agent for the Lenders hereunder (Citibank, in its capacity as administrative
agent, the "Administrative Agent").
The parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the
following terms shall have the following meanings:
"ABR": a fluctuating interest rate per annum in effect from
time to time, which rate per annum shall at all times be equal to the
highest of:
(i) the rate of interest announced publicly
by Citibank in New York City from time to time as Citibank's
base rate; and
(ii) 1.00% per annum above the latest
three-week moving average of secondary market morning offering
rates in the United States for three-month certificates of
deposit of major United States money market banks, such
three-week moving average being determined weekly on each
Monday (or, if any such day is not a Business Day, on the next
succeeding Business Day) for the three-week period ending on
the previous Friday by Citibank on the basis of such rates
reported by certificate of deposit dealers to and published by
the Federal Reserve Bank of New York or, if such publications
shall be suspended or terminated, on the basis of quotations
for such rates received by Citibank from three New York
certificate of deposit dealers of recognized standing selected
by Citibank, in either case adjusted to the nearest 0.25%, or
if there is no nearest 0.25%, to the next higher 0.25%; and
(iii) for any day, 0.50% per annum above the
Federal Funds Rate in effect on such day.
Each change in any interest rate provided for herein based
upon the ABR resulting from a change in the ABR shall take effect at
the time of such change in the ABR.
"ABR Loans": Revolving Credit Loans and Term Loans hereunder
the rate of interest applicable to which is based upon the ABR.
"Administrative Agents": as defined in the preamble hereof.
"Administrative Questionnaire": an Administrative
Questionnaire in a form supplied by the Administrative Agent.
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"Affiliate": as to any Person, any other Person (other than a
Subsidiary) which, directly or indirectly, is in control of, is
controlled by, or is under common control with, such Person. For
purposes of this definition, "control" of a Person means the power,
directly or indirectly, either to (a) vote 25% or more of the
securities having ordinary voting power for the election of directors
of such Person or (b) direct or cause the direction of the management
and policies of such Person, whether by contract or otherwise.
"Agreement": this Credit Agreement, as amended, supplemented
or otherwise modified from time to time.
"Applicable Margin": for each LIBOR Loan .23% per annum, plus,
on each day on which the drawn portion of the aggregate amount of the
Commitments (including Swing Line Loans, CAF Advances and Term Loans):
(i) exceeds 33% of the aggregate amount of the Commitments as is in
effect on the Closing Date but is less than or equal to 66% of the
aggregate amount of such Commitments, 0.025% and (ii) exceeds 66% of
the aggregate amount of the Commitments as is in effect on the Closing
Date, 0.05%.
"Assignee": as defined in subsection 9.6(c).
"Available Commitment": as to any Lender on any day, an amount
equal to the excess, if any, of (a) the amount of such Lender's
Commitment over (b) the aggregate of (i) the aggregate principal amount
of all Revolving Credit Loans and Term Loans made by such Lender then
outstanding and (ii) an amount equal to such Lender's Commitment
Percentage of the aggregate principal amount of all Swing Line Loans
then outstanding (after giving effect to any repayment of Swing Line
Loans on such day).
"Board": the Board of Governors of the Federal Reserve System
of the United States (or any successor).
"Borrowing Date": any Business Day specified in a notice
pursuant to subsections 2.2, 2.4, 2.11 or 2.20 as a date on which the
Borrower requests the Lenders or the Swing Line Lender, as the case may
be, to make Loans hereunder.
"Business": as defined in subsection 3.17.
"Business Day": a day other than a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or
required by law to close; provided that when such term is used to
describe a day on which a borrowing, payment or interest rate
determination is to be made in respect of a LIBOR Loan or a LIBOR CAF
Advance, such day shall also be a day on which dealings in foreign
currencies and exchange between banks may be carried on in London,
England.
"CAF Advance": each CAF Advance made pursuant to subsection
2.10.
"CAF Advance Availability Period": the period from and
including the Closing Date to and including the date which is 7 days
prior to the Revolving Credit Termination Date.
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"CAF Advance Confirmation": each confirmation by the Borrower
of its acceptance of CAF Advance Offers, which confirmation shall be
substantially in the form of Exhibit D-3 and shall be delivered to the
Administrative Agent by facsimile transmission.
"CAF Advance Interest Payment Date": as to each CAF Advance,
each interest payment date specified by the Borrower for such CAF
Advance in the related CAF Advance Request.
"CAF Advance Maturity Date": as to any CAF Advance, the date
specified by the Borrower pursuant to subsection 2.11(a) in its
acceptance of the related CAF Advance Offer.
"CAF Advance Offer": each offer by a Lender to make CAF
Advances pursuant to a CAF Advance Request, which offer shall contain
the information specified in Exhibit D-2 and shall be delivered to the
Administrative Agent by telephone, immediately confirmed by facsimile
transmission.
"CAF Advance Request": each request by the Borrower for
Lenders to submit bids to make CAF Advances, which request shall
contain the information in respect of such requested CAF Advances
specified in Exhibit D- 1 and shall be delivered to the Administrative
Agent in writing, by facsimile transmission, or by telephone,
immediately confirmed by facsimile transmission.
"Capital Lease": as applied to any Person, any lease of any
property (whether real, personal or mixed) by that Person as lessee
which, in conformity with GAAP, is, or is required to be, accounted for
as a capital lease on the balance sheet of that Person.
"Capitalized Lease Obligations": all obligations under Capital
Leases of any Person, in each case taken at the amount thereof
accounted for as liabilities in accordance with GAAP.
"Capital Stock": any and all shares, interests, participations
or other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests in a Person
(other than a corporation) and any and all warrants or options to
purchase any of the foregoing.
"Cash Equivalents": (i) cash equivalents in existence on March
31, 2000 as set forth on Schedule 1.1(a) (and, in the case of any such
cash equivalents described on Schedule 1.1(a), any replacement of any
such cash equivalents with substantially the same investment), (ii)
securities issued or directly and fully guaranteed or insured by the
United States or any agency or instrumentality thereof (provided that
the full faith and credit of the United States is pledged in support
thereof) having maturities of not more than one year from the date of
acquisition, (iii) Dollar denominated time deposits, certificates of
deposit and bankers acceptances of any Lender or any bank whose short-
term commercial paper rating from Standard & Poor's Corporation ("S&P")
is at least A-1 or the equivalent thereof or from Xxxxx'x Investors
Service, Inc. ("Xxxxx'x") is at least P-1 or the equivalent thereof
(any such bank, an "Approved Bank"), with maturities
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of not more than one year from the date of acquisition, (iv) repurchase
obligations with a term of not more than seven days for underlying
securities of the type described in clause (ii) entered into with an
Approved Bank, (v) commercial paper issued by, or guaranteed by, any
Approved Bank or by the parent company of any Approved Bank or
commercial paper issued by, or guaranteed by, any industrial or
financial company with a short-term commercial paper rating of at least
A-1 or the equivalent thereof by S&P or at least P-1 or the equivalent
thereof by Moody's, or issued by, or guaranteed by, any industrial or
financial company with a long term unsecured debt rating of at least A
or A2, or the equivalent of each thereof, from S&P or Moody's,
respectively, and in each case maturing within one year after the date
of acquisition and (vi) any fund or funds making substantially all of
their investments in investments of the type described in clauses (i)
through (v) above.
"C/D Assessment Rate": for any day as applied to any loan the
interest rate applicable to which is based upon the ABR, the annual
assessment rate in effect on such day which is payable by a member of
the Bank Insurance Fund maintained by the Federal Deposit Insurance
Corporation (the "FDIC") classified as well-capitalized and within
supervisory subgroup "B" (or a comparable successor assessment risk
classification) within the meaning of 12 C.F.R. Section 327.4 (or any
successor provision) to the FDIC (or any successor) for the FDIC's (or
such successor's) insuring time deposits at offices of such institution
in the United States.
"C/D Reserve Percentage": for any day as applied to any loan
the interest rate applicable to which is based upon the ABR, that
percentage (expressed as a decimal) which is in effect on such day, as
prescribed by the Board, for determining the maximum reserve
requirement for a Depositary Institution (as defined in Regulation D of
the Board) in respect of new non-personal time deposits in Dollars
having a maturity of 30 days or more.
"Citibank": as defined in the preamble hereof.
"Closing Date": the date on which the conditions precedent set
forth in subsection 4.1 shall be satisfied.
"Code": the Internal Revenue Code of 1986, as amended from
time to time.
"Commitment": as to any Lender, the obligation of such Lender
to make Revolving Credit Loans and Term Loans to the Borrower hereunder
in an aggregate principal amount at any one time outstanding not to
exceed the amount set forth opposite such Lenders name on Schedule 1.2,
as such amount may be reduced or increased from time to time in
accordance with the provisions of this Agreement.
"Commitment Increase Offer": as defined in subsection 2.25(a).
"Commitment Increase Supplement": as defined in subsection
2.25(c).
"Commitment Percentage": as to any Lender at any time, the
percentage which such Lender's Commitment then constitutes of the
aggregate Commitments (or, at any
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time after the Commitments shall have expired or terminated, the
percentage which the aggregate principal amount of such Lender's
Revolving Credit Loans and Term Loans then outstanding constitutes of
the aggregate principal amount of the Revolving Credit Loans and Term
Loans then outstanding).
"Commitment Period": the period from and including the date
hereof to but not including the Revolving Credit Termination Date or
such earlier date on which the Commitments shall terminate as provided
herein.
"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with the Borrower within
the meaning of Section 4001 of ERISA or is part of a group which
includes the Borrower and which is treated as a single employer under
Section 414 of the Code.
"Consolidated Net Income": shall mean, as at date for
determination thereof, consolidated net income of the Borrower and its
Subsidiaries, determined in accordance with GAAP.
"Consolidated Net Worth": shall mean, as at any date of
determination, the stockholders' equity of the Borrower as determined
in accordance with GAAP and as would be reflected on a consolidated
balance sheet of the Borrower prepared as of such date.
"Contractual Obligation": as to any Person, any provision of
any security issued by such Person or of any agreement, instrument or
other undertaking to which such Person is a party or by, which it or
any of its property is legally bound.
"Declined Amount": as defined in subsection 2.25(a).
"Declining Lender": as defined in subsection 2.25(a).
"Default": any of the events specified in Section 7, whether
or not any requirement for the giving of notice, the lapse of time, or
both, or any other condition, has been satisfied.
"Dollars" and "$": dollars in lawful currency of the United
States.
"Environmental Laws": any and all foreign, Federal, state,
local or municipal laws, rules, orders, regulations, statutes,
ordinances, codes, decrees, requirements of any Governmental Authority
or other Requirements of Law (including common law) regulating,
relating to or imposing liability or standards of conduct concerning
protection of human health or the environment, as now or may at any
time hereafter be in effect.
"ERISA": the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"Eurocurrency, Reserve Requirements": for any day as applied
to a LIBOR Loan or a LIBOR CAF Advance, the aggregate (without
duplication) of the rates (expressed as
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a decimal fraction) of reserve requirements in effect on such day
(including, without limitation, basic, supplemental, marginal and
emergency reserves under any regulations of the Board or other
Governmental Authority having jurisdiction with respect thereto)
dealing with reserve requirements prescribed for eurocurrency funding
(currently referred to as "Eurocurrency Liabilities" in Regulation D of
the Board) maintained by a member bank of such system.
"Event of Default": any of the events specified in Section 7,
provided that any requirement for the giving of notice, the lapse of
time, or both, or any other condition, has been satisfied.
"Executive Incentive Compensation Plan": as described in the
annual report of the Borrower.
"Federal Funds Rate" means, for any day, the rate per annum
(rounded upward, if necessary, to the nearest 1/100 of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds
brokers on such day, as published by the Federal Reserve Bank of New
York on the Business Day next succeeding such day, provided that (i) if
such day is not a Business Day, the Federal Funds Rate for such day
shall be such rate on such transactions on the next preceding Business
Day as so published on the next succeeding Business Day, and (ii) if no
such rate is so published on such next succeeding Business Day, the
Federal Funds Rate for such day shall be the average of the quotations
received by the Administrative Agent from three federal funds brokers
of recognized standing selected by the Administrative Agent.
"Fixed Rate CAF Advance Request": any CAF Advance made
pursuant to a Fixed Rate CAF Advance Request.
"Fixed Rate CAF Advance": any CAF Advance Request requesting
the Lenders to offer to make CAF Advances at a fixed rate of interest
(as opposed to a rate composed of the London Interbank Offered Rate
plus (or minus) a margin).
"Foreign Subsidiaries": any Subsidiary of the Borrower
organized under the laws of any jurisdiction outside the United States.
"GAAP": generally accepted accounting principles in the United
States in effect from time to time.
"Governmental Authority": any nation or government, any state
or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Guarantee Obligation": as to any Person (the "guaranteeing
person"), any obligation of (a) the guaranteeing person or (b) another
Person (including, without limitation, any bank under any letter of
credit) to induce the creation of which the guaranteeing person has
issued a reimbursement, counterindemnity or similar obligation, in
either case guaranteeing or in effect guaranteeing any Indebtedness,
leases, dividends
CREDIT AGREEMENT
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or other obligations (the "primary obligations") of any other third
Person (the "primary obligor") in any manner, whether directly or
indirectly, including, without limitation, any obligation of the
guaranteeing person, whether or not contingent, (i) to purchase any
such primary obligation or any property constituting direct or indirect
security therefor, (ii) to advance or supply funds (1) for the purchase
or payment of any such primary obligation or (2) to maintain working
capital or equity capital of the primary obligor or otherwise to
maintain the net worth or solvency of the primary obligor, (iii) to
purchase property, securities or services primarily for the purpose of
assuring the owner of any such primary obligation of the ability of the
primary obligor to make payment of such primary obligation or (iv)
otherwise to assure or hold harmless the owner of any such primary
obligation against loss in respect thereof, provided, however, that the
term Guarantee Obligation shall not include endorsements of instruments
for deposit or collection in the ordinary course of business. The
amount of any Guarantee Obligation of any guaranteeing person shall be
deemed to be the lower of (a) an amount equal to the stated or
determinable amount of the primary obligation in respect of which such
Guarantee Obligation is made and (b) the maximum amount for which such
guaranteeing person may be liable pursuant to the terms of the
instrument embodying such Guarantee Obligation, unless such primary
obligation and the maximum amount for which such guaranteeing person
may be liable are not stated or determinable, in which case the amount
of such Guarantee Obligation shall be such guaranteeing person's
maximum reasonably anticipated liability in respect thereof as
determined by the Borrower in good faith.
"Indebtedness": as to any Person, (a) all indebtedness of such
Person for borrowed money, (b) the deferred purchase price of assets or
services which in accordance with GAAP would be shown on the liability
side of the balance sheet of such Person, (c) the face amount of all
letters of credit issued for the account of such Person and, without
duplication, all drafts drawn thereunder, (d) all Indebtedness of a
second Person secured by any Lien on any property owned by such first
Person, whether or not such Indebtedness has been assumed, (e) all
Capitalized Lease Obligations of such Person, (f) all obligations of
such Person to pay a specified purchase price for goods or services
whether or not delivered or accepted, eg., take-or-pay and similar
obligations, (g) all obligations of such Person under Interest Rate
Agreements, and (h) without duplication, all Guarantee Obligations of
such Person, provided that Indebtedness shall not include trade
payables and accrued expenses relating to employees, in each case
arising in the ordinary course of business.
"Insolvency": with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of Section
4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Interest Payment Date": (a) as to any Loan the rate of
interest applicable to which is based upon the ABR, the last day of
each March, June, September and December, on the Revolving Credit
Termination Date and on the Termination Date, (b) as to any LIBOR Loan
or LIBOR CAF Advance having an Interest Period of three months or less,
or any Fixed Rate CAF Advance having an Interest Period of 90 days or
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less, the last day of such Interest Period and (c) as to any LIBOR Loan
or any Fixed Rate CAF Advance having an Interest Period longer than
three months or 90 days, respectively, each day which is three months
or 90 days, respectively, or a whole multiple thereof, after the first
day of such Interest Period and the last day of such Interest Period.
"Interest Period": (a) with respect to any LIBOR Loan:
(i) initially, the period commencing on the
borrowing or conversion date, as the case may be, with respect
to such LIBOR Loan and ending one, two, three or six months
thereafter, as selected by the Borrower in its notice of
borrowing or notice of conversion, as the case may be, given
with respect thereto; and
(ii) thereafter, each period commencing on
the last day of the next preceding Interest Period applicable
to such LIBOR Loan and ending one, two, three or six months
thereafter, as selected by the Borrower by irrevocable notice
to the Administrative Agent not less than three Business Days
prior to the last day of the then current Interest Period with
respect thereto;
(b) with respect to any CAF Advance, the period specified in
the CAF Advance Confirmation with respect to such CAF Advance;
provided that all of the foregoing provisions relating to Interest
Periods are subject to the following:
(A) if any Interest Period would otherwise end on a
day that is not a Business Day, such Interest Period shall be
extended to the next succeeding Business Day unless, in the
case of LIBOR Loans or LIBOR CAF Advances, the result of such
extension would be to carry such Interest Period into another
calendar month in which event such Interest Period shall end
on the immediately preceding Business Day;
(B) any Interest Period that would otherwise extend
beyond the Revolving Credit Termination Date or beyond the
date final payment is due on the Term Loans shall end on the
Revolving Credit Termination Date or such date of final
payment, as the case may be; and
(C) any Interest Period pertaining to a LIBOR Loan or
a LIBOR CAF Advance that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Business Day of a
calendar month.
"Interest Rate Agreement": any interest rate swap agreement,
interest rate cap agreement, interest rate collar agreement, interest
rate futures contract, interest rate option contract or other similar
agreement or arrangement designed to protect any Person against
fluctuations in interest rates.
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"LIBOR CAF Advance": any CAF Advance made pursuant to a LIBOR
CAF Advance Request.
"LIBOR CAF Advance Request": any CAF Advance Request
requesting the Lenders to offer to make CAF Advances at an interest
rate equal to the London Interbank Offered Rate plus (or minus) a
margin.
"LIBOR Loans": Revolving Credit Loans and Term Loans hereunder
the rate of interest applicable to which is based upon the London
Interbank Offered Rate.
"Lien": any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), charge or
other security interest or any preference, priority or other security
agreement or preferential arrangement of any kind or nature whatsoever
(including, without limitation, any conditional sale or other title
retention agreement and any Capital Lease having substantially the same
economic effect as any of the foregoing).
"Loan": any Revolving Credit Loan, Term Loan, CAF Advance or
Swing Line Loan made by any Lender pursuant to this Agreement.
"Loan Documents": this Agreement and any Notes issued
hereunder.
"London Interbank Offered Base Rate": with respect to each day
during each Interest Period pertaining to a LIBOR Loan or a LIBOR CAF
Advance, the rate appearing on Page 3750 of the Telerate Service (or on
any successor or substitute page of such service, or any successor to
or substitute for such service, providing rate quotations comparable to
those currently provided on such page of such Service, as determined by
the Administrative Agent from time to time for purposes of providing
quotations of interest rates applicable to dollar deposits in the
London interbank market) at approximately 11:00 A.M., London time, two
Business Days prior to the commencement of such Interest Period, as the
rate for dollar deposits with a maturity comparable to such Interest
Period. In the event that such rate is not available at such time for
any reason, then the `London Interbank Offered Base Rate" with respect
to such LIBOR Loan or LIBOR CAF Advance for such Interest Period shall
be the rate at which dollar deposits of $5,000,000 and for a maturity
comparable to such Interest Period are offered by the principal London
office of Citibank 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.
"London Interbank Offered Rate": with respect to each day
during each Interest Period pertaining to a LIBOR Loan or a LIBOR CAF
Advance, a rate per annum determined for such day in accordance with
the following formula (rounded upward to the nearest 1/100th of 1%):
London Interbank Offered Base Rate
--------------------------------------------
1.00 - Eurocurrency Reserve Requirements
"Margin Stock" means margin stock within the meaning of
Regulation U.
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"Material Adverse Effect": a material adverse effect on (a)
the business, assets, operations, property or condition (financial or
otherwise) of the Borrower and its Subsidiaries taken as a whole (it
being understood that a settlement failure by one or more members, in
and of itself, shall not be deemed an event, development or
circumstance that has a "Material Adverse Effect") or (b) the validity
or enforceability of this or any of the other Loan Documents or the
rights or remedies of the Administrative Agent or the Lenders hereunder
or thereunder.
"Materials of Environmental Concern": any gasoline or
petroleum (including crude oil or any fraction thereof) or petroleum
products or any hazardous or toxic substances, materials or wastes,
defined or regulated as such in or under any Environmental Law,
including, without limitation, asbestos, polychlorinated biphenyls and
urea-formaldehyde insulation.
"Multiemployer Plan": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"New Lender": as defined in subsection 2.25(b).
"New Lender Supplement": as defined in subsection 2.25(b).
"Non-Excluded Taxes": as defined in subsection 2.23.
"Notes": the collective reference to the Revolving Credit
Notes, the Term Notes and the Swing Line Note.
"Participant": as defined in subsection 9.6(b).
"PRGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
"Permitted Investments": shall mean: (a) investments in Cash
Equivalents; (b) investments in existence on the date of this Agreement
and disclosed in the financial statements previously delivered to the
Administrative Agent and the Lenders and as set forth on Schedule
1.1(b) (and, in the case of any investments described on Schedule
1.1(b), any replacement of any such investment with substantially the
same investment in no greater amounts); (c) investments in any
Subsidiary by the Borrower, including any investment made to acquire
such Subsidiary; (d) investments in the Borrower by any existing or
future Subsidiary of the Borrower; (e) sales of goods or services on
trade credit terms in the ordinary course of business; (f) loans and
advances to employees in the ordinary course of business; (g) loans or
advances to vendors or contractors of the Borrower in the ordinary
course of business; (h) lease, utility and other similar deposits in
the ordinary course of business; (i) stock, obligations or securities
received in the ordinary course of business in settlement of debts
owing to the Borrower or a Subsidiary as a result of foreclosure,
perfection or enforcement of any Lien, or in connection with good faith
settlement of delinquent obligations owing to the Borrower or a
Subsidiary; (j) investments in partnerships or joint ventures engaged
in a business related to that engaged in by the Borrower on the date of
this Agreement and investments
CREDIT AGREEMENT
11
in other entities engaged in the development or production of new
technologies directly related to the businesses engaged in by the
Borrower and its Subsidiaries on the date of this Agreement, which
investments do not exceed an aggregate amount at any time outstanding
of 25% of the total assets of the Borrower and its consolidated
Subsidiaries; (k) investments in securities of member banks by the
Borrower pursuant to the Executive Incentive Compensation Plan in an
aggregate amount not to exceed at any time outstanding not more than
15% of the total assets of the Borrower and its consolidated
Subsidiaries; (1) investments or assumed Indebtedness under Interest
Rate Agreements and currency exchange and protection agreements entered
into in the ordinary course of business; and (m) in addition to
Permitted Investments described in the foregoing clauses (a) through
(1), investments in an aggregate amount not to exceed 20% of the total
assets of the Borrower and its consolidated Subsidiaries at any one
time outstanding.
"Person": an individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint
venture, Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan which
is covered by ERISA and in respect of which the Borrower or a Commonly
Controlled Entity is (or, if such plan were terminated at such time,
would under Section 4069 of ERISA be deemed to be) an "employer" as
defined in Section 3(5) of ERISA.
"Properties": as defined in subsection 3.17.
"Register": as defined in subsection 9.6(e).
"Regulation U": Regulation U of the Board as in effect from
time to time.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of
Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section
4043(c) of ERISA, other than those events as to which the thirty day
notice period is waived under subsections .22, .23, .25, .27 or .28 of
PBGC Reg. Section 4043.
"Required Lenders": at any time, Lenders the Commitment
Percentages of which aggregate more than 50%.
"Requirement of Law": as to any Person, the certificate of
incorporation and by-laws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulation or
determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or
any of its property or to which such Person or any of its property is
subject.
"Responsible Officer": the chief executive officer and
president or the executive vice president, global resources of the
Borrower or, with respect to financial matters, the chief financial
officer or the treasurer of the Borrower.
CREDIT AGREEMENT
12
"Revolving Credit Loans": as defined in subsection 2.1.
"Revolving Credit Note": as defined in subsection 2.7(e).
"Revolving Credit Termination Date": June 5, 2001 or such
earlier date as the Commitments shall terminate pursuant to the terms
hereof; provided that if said date is not a Business Day, the Revolving
Credit Termination Date shall be the immediately preceding Business
Day.
"Single Employer Plan": any Plan which is covered by Title IV
of ERISA, but which is not a Multiemployer Plan.
"Subsidiary": (i) as to any Person, a corporation, partnership
or other entity of which shares of stock or other ownership interests
having ordinary voting power (other than stock or such other ownership
interests having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or other
managers of such corporation, partnership or other entity are at the
time owned, or the management of which is otherwise controlled,
directly or indirectly through one or more intermediaries, or both, by
such Person and (ii) Mondex International . Unless otherwise qualified,
all references to a "Subsidiary" or to "Subsidiaries" in this Agreement
shall refer to a Subsidiary or Subsidiaries of the Borrower.
"Swing Line Commitment": the Swing Line Lender's obligation to
make Swing Line Loans pursuant to subsection 2.20.
"Swing Line Lender": Citibank in its capacity as provider of
the Swing Line Loans.
"Swing Line Loan Participation Certificate": a certificate in
substantially the form of Exhibit E.
"Swing Line Loans": as defined in subsection 2.20(a).
"Swing Line Note": as defined in subsection 2.20(b).
"Term Loans": as defined in subsection 2.3.
"Term Note": as defined in subsection 2.7(e).
"Termination Date": the date that is the first anniversary of
the Revolving Credit Termination Date.
"Tranche": the collective reference to LIBOR Loans the then
current Interest Periods with respect to all of which begin on the same
date and end on the same later date (whether or not such loans shall
originally have been made on the same day); Tranches may be identified
as "LIBOR Tranches"
"Transferee": as defined in subsection 9.6(g).
CREDIT AGREEMENT
13
"Type": as to any Revolving Credit Loan or Term Loan, its
nature as an ABR Loan or a LIBOR Loan.
"United States": the United States of America.
1.2 Other Definitional Provisions. (a) Unless otherwise
specified therein, all terms defined in this Agreement shall have the defined
meanings when used in any Notes or any certificate or other document made or
delivered pursuant hereto.
(b) As used herein and in any Notes, and any certificate
or other document made or delivered pursuant hereto, accounting terms relating
to the Borrower and its Subsidiaries not defined in subsection 1-1 and
accounting terms partly defined in subsection 1.1, to the extent not defined,
shall have the respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and
words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement, and
Section, subsection, Schedule and Exhibit references are to this Agreement
unless otherwise specified.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
(e) The words "asset" and "property" shall be construed
to have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and
contract rights.
SECTION 2. AMOUNT AND TERMS OF LOANS
2.1 Revolving Credit Commitments. (a) Subject to the
terms and conditions hereof, each Lender severally agrees to make revolving
credit loans ("Revolving Credit Loans") to the Borrower from time to time during
the Commitment Period in an aggregate principal amount at any one time
outstanding, when added to such Lender's Commitment Percentage of all
outstanding Swing Line Loans, not to exceed the amount of such Lender's
Commitment, provided that the aggregate principal amount of all Loans
outstanding at any time shall not exceed the aggregate amount of the Commitments
at such time. During the Commitment Period the Borrower may use the Commitments
by borrowing, prepaying the Revolving Credit Loans in whole or in part, and
reborrowing, all in accordance with the terms and conditions hereof.
(b) The Revolving Credit Loans may from time to time be
LIBOR Loans, ABR Loans, or a combination thereof, as determined by the Borrower
and notified to the Administrative Agent in accordance with subsections 2.2 and
2.9, provided that no Revolving Credit Loan shall be made as a LIBOR Loan after
the day that is one month prior to the Revolving Credit Termination Date.
2.2 Procedure for Revolving Credit Borrowing. The
Borrower may borrow under the Commitments during the Commitment Period on any
Business Day, provided that the Borrower shall give the Administrative Agent
irrevocable notice (which notice must be received
CREDIT AGREEMENT
14
by the Administrative Agent prior to 10:00 A.M., New York City time, (a) three
Business Days prior to the requested Borrowing Date, if all or any part of the
requested Revolving Credit Loans are to be initially LIBOR Loans, or (b) on the
same Business Day of the requested Borrowing Date, otherwise), specifying (i)
the amount to be borrowed, (ii) the requested Borrowing Date, (iii) whether the
borrowing is to be of LIBOR Loans, ABR Loans, or a combination thereof and (iv)
if the borrowing is to be entirely or partly of LIBOR Loans, the respective
amounts of each such Type of Revolving Credit Loan and the respective lengths of
the initial Interest Periods therefor. Each borrowing under the Commitments
shall be in an amount equal to at least $10,000,000 or a whole multiple of
$1,000,000 in excess thereof (or, if the then aggregate Available Commitments
are less than $10,000,000, such lesser amount). Upon receipt of any such notice
from the Borrower, the Administrative Agent shall promptly notify each Lender
thereof. Each Lender will make the amount of its pro rata share of each
borrowing available to the Administrative Agent for the account of the Borrower
at the office of the Administrative Agent specified in subsection 9.2 prior to
12:00 Noon, New York City time, on the Borrowing Date requested by the Borrower
in funds immediately available to the Administrative Agent. Such borrowing will
then be made available to the Borrower by the Administrative Agent crediting the
account of the Borrower on the books of such office with the aggregate of the
amounts made available to the Administrative Agent by the Lenders and in like
funds as received by the Administrative Agent.
2.3 Term Loans. The Revolving Credit Loans outstanding at
the close of business on the Revolving Credit Termination Date shall, at the
option of the Borrower, convert on such date into term loans (the "Term Loans")
to the Borrower. The Term 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 subsections 2.4 and 2.9.
2.4 Procedure for Term Loan Borrowing. The Borrower shall
give the Administrative Agent irrevocable notice (which notice must be received
by the Administrative Agent prior to 10:00 A.M., New York City time, (a) three
Business Days prior to the Revolving Credit Termination Date, if all or any part
of the Term Loans are to be initially LIBOR Loans or (b) one Business Day prior
to the Revolving Credit Termination Date, otherwise) requesting that the Lenders
make the Term Loans on the Revolving Credit Termination Date and specifying (i)
the amount to be borrowed, (ii) whether the Term Loans are to be initially LIBOR
Loans, ABR Loans or a combination thereof, and (iii) if the Term Loans are to be
entirely or partly LIBOR Loans the respective lengths of the initial Interest
Periods therefor. Upon receipt of such notice the Administrative Agent shall
promptly notify each Lender thereof. The aggregate principal amount of the Term
Loans shall be equal to the aggregate principal amount of the Revolving Credit
Loans outstanding on the Revolving Credit Termination Date and the Term Loans
shall be made without any payments being made by the Lenders. Promptly after the
making of its Term Loan each Lender shall xxxx any Revolving Credit Note held by
it "cancelled" and deliver the same to the Borrower.
2.5 Facility Fee. The Borrower agrees to pay to the
Administrative Agent for the account of each Lender a facility fee for the
period from and including the first day of the Commitment Period to the
Termination Date, computed at the rate of .07% per annum on (i) the average
daily Commitment of such Lender, whether or not utilized, from and including the
first
CREDIT AGREEMENT
15
day of the Commitment Period until the Revolving Credit Termination Date, and on
(ii) the outstanding principal amount of the Term Loans of such Lender, if any,
thereafter. Such facility fee shall be payable quarterly in arrears on the last
day of each March, June, September and December, on the Revolving Credit
Termination Date or such earlier date as the Commitments shall terminate as
provided herein and on the Termination Date, commencing on the first of such
dates to occur after the date hereof.
2.6 Termination or Restriction of Commitments. The
Borrower shall have the right, upon not less than five Business Days' notice to
the Administrative Agent, to terminate the Commitments or, from time to time, to
reduce the amount of the Commitments, provided that after giving effect to such
termination or reduction, the aggregate outstanding principal amount of the
Loans shall not exceed the aggregate Commitments. Any such reduction shall be in
an amount equal to $ 10,000,000 or a whole multiple of $ 1,000,000 in excess
thereof and shall reduce permanently the Commitments then in effect. Termination
of the Commitments shall also terminate the obligation of the Lenders to make
the Term Loans.
2.7 Repayment of Revolving Credit Loans and Term Loans;
Evidence of Debt. (a) The Borrower hereby unconditionally promises to pay to the
Administrative Agent for the account of each Lender (i) the then unpaid
principal amount of each Revolving Credit Loan of such Lender on the Revolving
Credit Termination Date (or such earlier date on which the Revolving Credit
Loans become due and payable pursuant to Section 7), and (ii) the principal
amount of the Term Loan of such Lender on the Termination Date (or the then
unpaid principal amount of such Term Loan, on the date that the Term Loans
become due and payable pursuant to Section 7). The Borrower hereby further
agrees to pay interest on the unpaid principal amount of the Revolving Credit
Loans and Term 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
subsection 2.16.
(b) Each Lender shall maintain in accordance with its
usual practice appropriate records evidencing indebtedness of the Borrower to
such Lender resulting from each Revolving Credit Loan and Term 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.
(c) The Administrative Agent shall maintain the Register
pursuant to subsection 9.6(e), and a record therein for each Lender, in which
shall be recorded (i) the amount of each Revolving Credit Loan and Term Loan
made hereunder, the 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.
(d) The entries made in the Register and the records of
each Lender maintained pursuant to subsection 2.7(b) 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 record, or any error therein, shall not in any manner
affect the
CREDIT AGREEMENT
16
obligation of the Borrower to repay (with applicable interest) the Revolving
Credit Loans and Term Loans made to such Borrower by such Lender in accordance
with the terms of this Agreement.
(e) The Borrower agrees that, upon the request to the
Administrative Agent by any Lender, the Borrower will execute and deliver to
such Lender (i) a promissory note of the Borrower evidencing the Revolving
Credit Loans of such Lender, substantially in the form of Exhibit A attached
hereto with appropriate insertions as to date and principal amount (a "Revolving
Credit Note"), and/or (ii) a promissory note of the Borrower evidencing the Term
Loan of such Lender, substantially in the form of Exhibit B with appropriate
insertions as to date and principal amount (a "Term Note").
2.8 Optional Prepayments. The Borrower may on the last
day of any Interest Period with respect thereto, in the case of LIBOR Loans, or
at any time and from time to time, in the case of ABR Loans, prepay the
Revolving Credit Loans or the Term Loans, in whole or in part, without premium
or penalty, upon at least two Business Days' irrevocable notice to the
Administrative Agent, if such prepayment is to be applied in whole or in part to
LIBOR Loans, and upon same day notice otherwise (which notices shall be made on
the relevant day not later than 10:00 A.M., New York City time), specifying the
date and amount of prepayment and whether the prepayment is of LIBOR Loans, or a
combination of LIBOR and ABR Loans, and, if of a combination thereof, the amount
allocable to each; in the case of ABR Loans, notice shall be same day. Upon
receipt of any such notice the Administrative Agent shall promptly notify each
Lender thereof. If any such notice is given, the amount specified in such notice
shall be due and payable on the date specified therein, together with any
accrued interest to such date on the amount prepaid and any other amounts
payable pursuant to subsection 2.24. Amounts prepaid on account of the Term
Loans may not be reborrowed. Partial prepayments shall be in an aggregate
principal amount of $10,000,000 or a whole multiple of $ 1,000,000 in excess
thereof. The Borrower shall not have the right to prepay any principal amount of
any CAF Advance except as provided in subsection 2.12(a). Prepayments of any
Swing Line Loan shall be as provided in subsection 2.20(a).
2.9 Conversion and Continuation Options. (a) The Borrower
may elect from time to time to convert LIBOR Loans to ABR Loans, by giving the
Administrative Agent at least three Business Days' prior irrevocable notice of
such election, provided that any such conversion of LIBOR Loans may only be made
on the last day of an Interest Period with respect thereto. The Borrower may
elect from time to time to convert ABR Loans to LIBOR Loans by giving the
Administrative Agent at least three Business Days' prior irrevocable notice of
such election. Any such notice of conversion to LIBOR Loans shall specify the
length of the initial Interest Period or Interest Periods therefor. Upon receipt
of any such notice the Administrative Agent shall promptly notify each Lender
thereof. All or any part of outstanding LIBOR Loans and ABR Loans may be
converted as provided herein, provided that (i) no Revolving Credit Loan or Term
Loan may be converted into a LIBOR Loan when any Event of Default has occurred
and is continuing and the Administrative Agent has or the Required Lenders have
determined that such a conversion is not appropriate, (ii) no Revolving Credit
Loan or Term Loan may be converted into a LIBOR Loan after the date that is one
month prior to the Revolving Credit Termination Date or the Termination Date, as
the case may be, and (iii) no Swing Line Loan may be converted into a loan that
bears interest at any rate other than the ABR.
CREDIT AGREEMENT
17
(b) Any LIBOR Loans may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
Borrower giving notice to the Administrative Agent, in accordance with the
applicable provisions of the term "Interest Period" set forth in subsection 1.1,
of the length of the next Interest Period to be applicable to such Revolving
Credit Loans, provided that no LIBOR Loan may be continued as such (i) when any
Event of Default has occurred and is continuing and the Administrative Agent has
or the Required Lenders have determined that such a continuation is not
appropriate or (ii) after the date that is one month prior to, the Revolving
Credit Termination Date (in the case of continuations of Revolving Credit Loans)
or the date of the final installment of principal of the Term Loans and
provided, further, that if the Borrower shall fail to give such notice or if
such continuation is not permitted such Revolving Credit Loans shall be
automatically converted to ABR Loans on the last day of such then expiring
Interest Period.
2.10 CAF Advances. Subject to the terms and conditions of
this Agreement, the Borrower may borrow CAF Advances from time to time on any
Business Day during the CAF Advance Availability Period. CAF Advances may be
borrowed in amounts such that the aggregate principal amount of all Loans
outstanding at any time shall not exceed the aggregate amount of the Commitments
at such time. Within the limits and on the conditions hereinafter set forth with
respect to CAF Advances, the Borrower from time to time may borrow, repay and
reborrow CAF Advances.
2.11 Procedure for CAF Advance Borrowing. (a) The Borrower
shall request CAF Advances by delivering a CAF Advance Request to the
Administrative Agent, not later than 12:00 Noon (New York City time) four
Business Days prior to the proposed Borrowing Date (in the case of a LIBOR CAF
Advance Request), and not later than 10:00 A.M., New York City time, one
Business Day prior to the proposed Borrowing Date (in the case of a Fixed Rate
CAF Advance Request). Each CAF Advance Request in respect of any Borrowing Date
may solicit bids for CAF Advances on such Borrowing Date in an aggregate
principal amount of $10,000,000 or an integral multiple of $1,000,000 in excess
thereof and having not more than three alternative CAF Advance Maturity Dates.
The CAF Advance Maturity Date for each CAF Advance shall be the date set forth
therefor in the relevant CAF Advance Request, which date shall be (i) not less
than 7 days nor more than 60 days after the Borrowing Date therefor, in the case
of a Fixed Rate CAF Advance, (ii) one or two months after the Borrowing Date
therefor, in the case of a LIBOR CAF Advance and (iii) not later than the
Revolving Credit Termination Date, in the case of any CAF Advance. The
Administrative Agent shall notify each Lender promptly by facsimile transmission
of the contents of each CAF Advance Request received by the Administrative
Agent.
(b) In the case of a LIBOR CAF Advance Request, upon
receipt of notice from the Administrative Agent of the contents of such CAF
Advance Request, each Lender may elect, in its sole discretion, to offer
irrevocably to make one or more CAF Advances at the applicable London Interbank
Offered Rate plus (or minus) a margin determined by such Lender in its sole
discretion for each such CAF Advance. Any such irrevocable offer shall be made
by delivering a CAF Advance Offer to the Administrative Agent, before 10:30
A.M., New York City time, on the day that is three Business Days before the
proposed Borrowing Date, setting forth:
CREDIT AGREEMENT
18
(i) the maximum amount of CAF Advances for each
CAF Advance Maturity Date and the aggregate maximum amount of CAF
Advances for all CAF Advance Maturity Dates which such Lender would be
willing to make (which amounts may, subject to subsection 2.10, exceed
such Lender's Commitment); and
(ii) the margin above or below the applicable
London Interbank Offered Rate at which such Lender is willing to make
each such CAF Advance.
The Administrative Agent shall advise the Borrower before 11:00 A.M., New York
City time, on the date which is three Business Days before the proposed
Borrowing Date of the contents of each such CAF Advance Offer received by it. If
the Administrative Agent, in its capacity as a Lender, shall elect, in its sole
discretion, to make any such CAF Advance Offer, it shall advise the Borrower of
the contents of its CAF Advance Offer before 10:15 A.M., New York City time, on
the date which is three Business Days before the proposed Borrowing Date.
(c) In the case of a Fixed Rate CAF Advance Request, upon
receipt of notice from the Administrative Agent of the contents of such CAF
Advance Request, each Lender may elect, in its sole discretion, to offer
irrevocably to make one or more CAF Advances at a rate of interest determined by
such Lender in its sole discretion for each such CAF Advance. Any such
irrevocable offer shall be made by delivering a CAF Advance Offer to the
Administrative Agent before 9:30 A.M., New York City time, on the proposed
Borrowing Date, setting forth:
(i) the maximum amount of CAF Advances for each
CAF Advance Maturity Date, and the aggregate maximum amount for all CAF
Advance Maturity Dates, which such Lender would be willing to make
(which amounts may, subject to subsection 2.10, exceed such Lender's
Commitment); and
(ii) the rate of interest at which such Leader is
willing to make each such CAF Advance.
The Administrative Agent shall advise the Borrower before 10:00 A.M., New York
City time, on the proposed Borrowing Date of the contents of each such CAF
Advance Offer received by it. If the Administrative Agent, in its capacity as a
Lender, shall elect, in its sole discretion, to make any such CAF Advance Offer,
it shall advise the Borrower of the contents of its CAF Advance Offer before
9:15 A.M., New York City time, on the proposed Borrowing Date.
(d) Before 11:30 A.M., New York City time, three
Business Days before the proposed Borrowing Date (in the case of CAF Advances
requested by a LIBOR CAF Advance Request) and before 10:30 A.M., New York City
time, on the proposed Borrowing Date (in the case of CAF Advances requested by a
Fixed Rate CAF Advance Request), the Borrower, in its absolute discretion,
shall:
(i) cancel such CAF Advance Request by giving
the Administrative Agent telephone notice to that effect, or
(ii) by giving telephone notice to the
Administrative Agent (immediately confirmed by delivery to the
Administrative Agent of a CAF Advance Confirmation by facsimile
transmission) (A) subject to the provisions of subsection
CREDIT AGREEMENT
19
2.11(e), accept one or more of the offers made by any Lender or Lenders
pursuant to subsection 2.11(b) or subsection 2.11(c), as the case may
be, and (B) reject any remaining offers made by Lenders pursuant to
subsection 2.11(b) or subsection 2.11(c), as the case may be.
(e) The Borrower's acceptance of CAF Advances in response
to any CAF Advance Offers shall be subject to the following limitations:
(i) the amount of CAF Advances accepted for each
CAF Advance Maturity Date specified by any Lender in its CAF Advance
Offer shall not exceed the maximum amount for such CAF Advance Maturity
Date specified in such CAF Advance Offer;
(ii) the aggregate amount of CAF Advances
accepted for all CAF Advance Maturity Dates specified by any Lender in
its CAF Advance Offer shall not exceed the aggregate maximum amount
specified in such CAF Advance Offer for all such CAF Advance Maturity
Dates;
(iii) the Borrower may not accept offers for CAF
Advances for any CAF Advance Maturity Date in an aggregate principal
amount in excess of the maximum principal amount requested in the
related CAF Advance Request; and
(iv) if the Borrower accepts any of such offers,
it must accept offers based solely upon pricing for each relevant CAF
Advance Maturity Date and upon no other criteria whatsoever, and if two
or more Lenders submit offers for any CAF Advance Maturity Date at
identical pricing and the Borrower accepts any of such offers but does
not wish to (or, by reason of the limitations set forth in subsection
2.10, cannot) borrow the total amount offered by such Lenders with such
identical pricing, the Borrower shall accept offers from all of such
Lenders in amounts allocated among them pro rata according to the
amounts offered by such Lenders (with appropriate rounding, in the sole
discretion of the Borrower, to assure that each accepted CAF Advance is
an integral multiple of $1,000,000); provided that if the number of
Lenders that submit offers for any CAF Advance Maturity Date at
identical pricing is such that, after the Borrower accepts such offers
pro rata in accordance with the foregoing provisions of this paragraph,
the CAF Advance to be made by any such Lender would be less than
$5,000,000 principal amount, the number of such Lenders shall be
reduced by the Administrative Agent by lot until the CAF Advances to be
made by each such remaining Lender would be in a principal amount of
$5,000,000 or an integral multiple of $1,000,000 in excess thereof.
(f) If the Borrower notifies the Administrative Agent
that a CAF Advance Request is cancelled pursuant to subsection 2.11(d)(i), the
Administrative Agent shall give prompt telephone notice thereof to the Lenders.
(g) If the Borrower accepts pursuant to subsection
2.11(d)(ii) one or more of the offers made by any Lender or Lenders, the
Administrative Agent promptly shall notify each Lender which has made such an
offer of (i) the aggregate amount of such CAF Advances to be
CREDIT AGREEMENT
20
made on such Borrowing Date for each CAF Advance Maturity Date and (ii) the
acceptance or rejection of any offers to make such CAF Advances made by such
Lender. Before 12:00 Noon (New York City time) on the Borrowing Date specified
in the applicable CAF Advance Request, each Lender whose CAF Advance Offer has
been accepted shall make available to the Administrative Agent at its office set
forth in subsection 9.2 the amount of CAF Advances to be made by such Lender, in
immediately available funds. The Administrative Agent will make such funds
available to the Borrower as soon as practicable on such date at such office of
the Administrative Agent. As soon as practicable after each Borrowing Date, the
Administrative Agent shall notify each Lender of the aggregate amount of CAF
Advances advanced on such Borrowing Date and the respective CAF Advance Maturity
Dates thereof.
2.12 CAF Advance Payments. (a) The Borrower hereby
unconditionally promises to pay to the Administrative Agent, for the account of
each Lender which has made a CAF Advance, on the applicable CAF Advance Maturity
Date, the then unpaid principal amount of such CAF Advance. The Borrower shall
not have the right to prepay any principal amount of any CAF Advance without the
consent of the Lender to which such CAF Advance is owed.
(b) The Borrower hereby further agrees to pay interest on
the unpaid principal amount of each CAF Advance from the Borrowing Date of such
CAF Advance to the applicable CAF Advance Maturity Date at the rate of interest
specified in the CAF Advance Offer accepted by the Borrower in connection with
such CAF Advance (calculated on the basis of a 360-day year for actual days
elapsed), payable on each applicable CAF Advance Interest Payment Date.
(c) If any principal of, or interest on, any CAF Advance
shall not be paid when due (whether at the stated maturity, by acceleration or
otherwise), such CAF Advance shall, without limiting any rights of any Lender
under this Agreement, bear interest from the date on which such payment was due
at a rate per annum which is 2% per annum above the rate which would otherwise
be applicable to such CAF Advance until the stated CAF Advance Maturity Date of
such CAF Advance, and for each day thereafter at a rate per annum which is 2%
per annum above the ABR, in each case until paid in fall (as well after as
before judgment). Interest accruing pursuant to this paragraph (c) shall be
payable from time to time on demand.
2.13 Evidence of Debt. Each Lender shall maintain in
accordance with its usual practice appropriate records evidencing indebtedness
of the Borrower to such Lender resulting from each CAF Advance of such Lender
from time to time, including the amounts of principal and interest payable and
paid to such Lender from time to time in respect of such CAF Advance. The
Administrative Agent shall maintain the Register pursuant to subsection 9.6(e),
and a record therein for each Lender, in which shall be recorded (i) the amount
of each CAF Advance made by such Lender, the CAF Advance Maturity Date thereof,
the interest rate applicable thereto and each CAF Advance Interest Payment Date
applicable thereto, and (ii) the amount of any sum received by the
Administrative Agent hereunder from the Borrower on account of such CAF Advance.
The entries made in the Register and the records of each Lender maintained
pursuant to this subsection 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 record, or any
error therein, shall not in any manner affect the obligation of the Borrower to
CREDIT AGREEMENT
21
repay (with applicable interest) the CAF Advances made by such Lender in
accordance with the terms of this Agreement.
2.14 Certain Restrictions. A CAF Advance Request may
request offers for CAF Advances to be made on not more than one Borrowing Date
and to mature on not more than three CAF Advance Maturity Dates. No CAF Advance
Request may be submitted earlier than five Business Days after submission of any
other CAF Advance Request.
2.15 Minimum Amounts of Tranches. All borrowings,
conversions and continuations of Revolving Credit Loans and Term Loans hereunder
and all selections of Interest Periods hereunder shall be in such amounts and be
made pursuant to such elections so that, after giving effect thereto, the
aggregate principal amount of the Revolving Credit Loans and Term Loans
comprising each LIBOR Tranche shall be equal to $10,000,000 or a whole multiple
of $1,000,000 in excess thereof. In no event shall there be more than five LIBOR
Tranches outstanding at any time.
2.16 Interest Rates and Payment Dates. (a) Each LIBOR Loan
shall bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the London Interbank Offered Rate
determined for such day plus the Applicable Margin.
(b) Each ABR Loan and Swing Line Loan shall bear interest
at a rate per annum equal to the ABR. Each CAF Advance shall bear interest as
provided in subsection 2.10.
(c) If all or a portion of (i) any principal of any
Revolving Credit Loan, Term Loan or Swing Line Loan, (ii) any interest payable
thereon, (iii) any facility fee or (iv) any other amount payable hereunder
(other than overdue CAF payments provided for in subsection 2.12(c)) shall not
be paid when due (whether at the stated maturity, by acceleration or otherwise),
the principal of the Revolving Credit Loans, Term-Loans and the Swing Line Loans
and any such overdue interest, facility fee or other amount shall bear interest
at a rate per annum which is (x) in the case of principal, the rate that would
otherwise be applicable thereto pursuant to the foregoing provisions of this
subsection plus 2% per annum or (y) in the case of any such overdue interest,
facility fee or other amount, the rate applicable to ABR Loans pursuant to
subsection 2.16(b) plus 2% per annum, in each case from the date of such
non-payment until such overdue principal, interest, facility fee or other amount
is paid in full (as well after as before judgment).
(d) Interest on Revolving Credit Loans, Term Loans and
Swing Line Loans shall be payable in arrears on each Interest Payment Date,
provided that interest accruing pursuant to paragraph (c) of this subsection
shall be payable from time to time on demand.
2.17 Computation of Interest and Fees. (a) Whenever it is
calculated on the basis of the Prime Rate, interest shall be calculated on the
basis of a 365- (or 366-, as the case may be) day year for the actual days
elapsed; and, otherwise, interest and the facility fee shall be calculated on
the basis of a 360-day year for the actual days elapsed. The Administrative
Agent shall as soon as practicable notify the Borrower and the Lenders of each
determination of a London Interbank Offered Rate. Any change in the interest
rate on a Loan resulting from a change in the ABR, the Eurocurrency Reserve
Requirements, the C/D Assessment Rate or the C/D Reserve Percentage shall become
effective as of the opening of business on the day on
CREDIT AGREEMENT
22
which such change becomes effective. The Administrative Agent shall as soon as
practicable notify the Borrower and the Lenders of the effective date and the
amount of each such change in interest rate.
(b) Each determination of an interest rate by the
Administrative Agent pursuant to any provision of this Agreement shall be
conclusive and binding on the Borrower and the Lenders in the absence of
manifest error. The Administrative Agent shall, at the request of the Borrower,
deliver to the Borrower a statement showing the quotations used by the
Administrative Agent in determining any interest rate pursuant to subsection
2.16(a) or 2.9(b).
2.18 Inability to Determine Interest Rate. If prior to the
first day of any Interest Period:
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that,
by reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the London Interbank
Offered Rate for such Interest Period, or
(b) the Administrative Agent shall have received notice
from the Required Lenders that the London Interbank Offered Rate
determined or to be determined for such Interest Period will not
adequately and fairly reflect the cost to such Lenders (as conclusively
certified by such Lenders) of making or maintaining their affected
Loans during such Interest Period, the Administrative Agent shall give
telecopy or telephonic notice thereof to the Borrower and the Lenders
as soon as practicable thereafter. If such notice is given (x) any
LIBOR Loans requested to be made on the first day of such Interest
Period shall be made as ABR Loans, (y) any Loans that were to have been
converted on the first day of such Interest Period to LIBOR Loans,
shall be converted to or continued as ABR Loans and (z) any outstanding
LIBOR Loans shall be converted, on the first day of such Interest
Period, to ABR Loans. Until such notice has been withdrawn by the
Administrative Agent, no further LIBOR Loans shall be made or continued
as such, nor shall the Borrower have the right to convert Loans to
LIBOR Loans, as the case may be.
2.19 Pro Rata Treatment and Payments. (a) Each borrowing
of Revolving Credit Loans and Term Loans by the Borrower from the Lenders
hereunder, each payment by the Borrower on account of any facility fee hereunder
and any reduction of the Commitments of the Lenders shall be made pro rata
according to the respective Commitment Percentages of the Lenders. Each payment
(including each prepayment) by the Borrower on account of principal of and
interest on any Loans shall be made pro rata according to the respective
outstanding principal amounts of such Loans then held by the Lenders. All
payments (including prepayments) to be made by the Borrower hereunder, whether
on account of principal, interest, fees or otherwise, shall be made without
set-off or counterclaim and shall be made prior to 12:00 Noon, New York City
time, on the due date thereof to the Administrative Agent, for the account of
the Lenders, at the Administrative Agent's office specified in subsection 9.2,
in Dollars and in immediately available funds. The Administrative Agent shall
distribute such payments to the Lenders promptly upon receipt in like funds as
received. If any payment hereunder becomes due and payable on a day other than a
Business Day, such payment shall be extended to the next
CREDIT AGREEMENT
23
succeeding Business Day, and, with respect to payments of principal, interest
thereon shall be payable at the then applicable rate during such extension.
(b) Unless the Administrative Agent shall have been
notified in writing by any Lender prior to a borrowing that such Lender will not
make the amount that would constitute its allocable share of such borrowing
available to the Administrative Agent, the Administrative Agent may assume that
such Lender is making such amount available to the Administrative Agent, and the
Administrative Agent may, in reliance upon such assumption, make available to
the Borrower a corresponding amount. If such amount is not made available to the
Administrative Agent by the required time on the Borrowing Date therefor, such
Lender shall pay to the Administrative Agent, on demand, such amount with
interest thereon at a rate equal to the daily average Federal Funds Effective
Rate for the period until such Lender makes such amount immediately available to
the Administrative Agent. A certificate of the Administrative Agent submitted to
any Lender with respect to any amounts owing under this subsection shall be
conclusive in the absence of manifest error. If such Lender's Commitment
Percentage of such borrowing is not made available to the Administrative Agent
by such Lender within three Business Days of such Borrowing Date, the
Administrative Agent shall also be entitled to recover such amount with interest
thereon at the rate per annum applicable to ABR Loans hereunder, on demand, from
the Borrower.
2.20 Swing Line Commitment. (a) Subject to the terms and
conditions hereof, the Swing Line Lender agrees to make swing line loans ("Swing
Line Loans") to the Borrower from time to time during the Commitment Period in
an aggregate principal amount at any one time outstanding not to exceed
$10,000,000, provided that the aggregate principal amount of all Loans
outstanding at any one time shall not exceed the aggregate amount of the
Commitments at such time. During the Commitment Period, the Borrower may use the
Swing Line Commitment by borrowing, prepaying the Swing Line Loans in whole or
in part, and reborrowing, all in accordance with the terms and conditions
hereof. All Swing Line Loans shall bear interest based upon the ABR and shall
not be entitled to be converted into loans that bear interest at any other rate.
The Borrower shall give the Swing Line Lender irrevocable notice (which notice
must be received by the Swing Line Lender prior to 11:00 A.M., New York City
time, on the requested Borrowing Date specifying the amount of the requested
Swing Line Loan which shall be in a minimum amount of $100,000 or a whole
multiple of $50,000 in excess thereof. The proceeds of the Swing Line Loan will
be made available by the Swing Line Lender to the Borrower at the office of the
Swing Line Lender by 3:00 P.M., New York City time, on the Borrowing Date by
crediting the account of the Borrower at such office with such proceeds. The
Borrower may, at any time and from time to time, prepay the Swing Line Loans, in
whole or in part, without premium or penalty, by notifying the Swing Line Lender
prior to 11:00 A.M., New York City time, on any Business Day of the date and
amount of prepayment. If any such notice is given, the amount specified in such
notice shall be due and payable on the date specified therein. Partial
prepayments shall be in an aggregate principal amount of $100,000 or a whole
multiple of $50,000 in excess thereof.
(b) The Swing Line Loans shall be evidenced by a
promissory note of the Borrower substantially in the form of Exhibit C to this
Agreement, with appropriate insertions (the "Swing Line Note"), payable to the
order of the Swing Line Lender and representing the obligation of the Borrower
to pay the amount of the Swing Line Commitment or, if less, the
CREDIT AGREEMENT
24
unpaid principal amount of the Swing Line Loans, with interest thereon as
prescribed in subsection 2.16. The Swing Line Lender is hereby authorized to
record the Borrowing Date, the amount of each Swing Line Loan and the date and
amount of each payment or prepayment of principal thereof, on the schedule
annexed to and constituting a part of the Swing Line Note and any such
recordation shall constitute prima facie evidence of the accuracy of the
information so recorded, provided that the failure by the Swing Line Lender to
make any such recordation shall not affect any of the obligations of the
Borrower under such Swing Line Note or this Agreement. The Swing Line Note shall
(a) be dated the Closing Date, (b) be stated to mature on the Revolving Credit
Termination Date and (c) bear interest for the period from the date thereof
until paid in full on the unpaid principal amount thereof from time to time
outstanding at the applicable interest rate per annum determined as provided in,
and payable as specified in, subsection 2.16.
(c) The Swing Line Lender, at any time in its sole and
absolute discretion may, on behalf of the Borrower (which hereby irrevocably
directs the Swing Line Lender to act on its behalf) request each Lender
including the Swing Line Lender, to make a Revolving Credit Loan in an amount
equal to such Lender's Commitment Percentage of the amount of the Swing Line
Loans outstanding on the date such notice is given (the "Outstanding Swing Line
Loans"). Unless any of the events described in paragraph (f) of Section 7 shall
have occurred with respect to the Borrower (in which event the procedures of
paragraph (e) of this subsection shall apply) each Lender shall make the
proceeds of its Revolving Credit Loan available to the Administrative Agent for
the account of the Swing Line Lender at the office of the Administrative Agent
specified in subsection 9.2 prior to 12:00 Noon (New York City time) in funds
immediately available on the Business Day next succeeding the date such notice
is given. The proceeds of such Revolving Credit Loans shall be immediately
applied to repay the Outstanding Swing Line Loans. Effective on the day such
Revolving Credit Loans are made, the portion of the Swing Line Loans so paid
shall no longer be outstanding as Swing Line Loans, shall no longer be due under
the Swing Line Note and shall be evidenced as provided in subsection 2.7(b). The
Borrower authorizes the Swing Line Lender to charge the Borrower's accounts with
the Administrative Agent (up to the amount available in each such account) in
order to immediately pay the amount of such Outstanding Swing Line Loans to the
extent amounts received from the Lenders are not sufficient to repay in full
such Outstanding Swing Line Loans.
(d) Notwithstanding anything herein to the contrary, the
Swing Line Lender shall not be obligated to make any Swing Line Loans if the
conditions set forth in subsection 4.2 have not been satisfied.
(e) If prior to the making of a Revolving Credit Loan
pursuant to paragraph (c) of subsection 2.20 one of the events described in
paragraph (f) of Section 7 shall have occurred and be continuing with respect to
the Borrower, each Lender will, on the date such Revolving Credit Loan was to
have been made pursuant to the notice in subsection 2.20(c), purchase an
undivided participating interest in the Outstanding Swing Line Loan in an amount
equal to (i) its Commitment Percentage times (ii) the aggregate principal amount
of Swing Line Loans then outstanding. Each Lender will immediately transfer to
the Swing Line Lender, in immediately available funds, the amount of its
participation, and upon receipt thereof the Swing
CREDIT AGREEMENT
25
Line Lender will deliver to such Lender a Swing Line Loan Participation
Certificate dated the date of receipt of such funds and in such amount.
(f) Whenever, at any time after any Lender has purchased
a participating interest in a Swing Line Loan, the Swing Line Lender receives
any payment on account thereof, the Swing Line Lender will distribute to such
Lender its participating interest in such amount (appropriately adjusted, in the
case of interest payments, to reflect the period of time during which such
Lender's participating interest was outstanding and funded); provided, however,
that in the event that such payment received by the Swing Line Lender is
required to be returned, such Lender will return to the Swing Line Lender any
portion thereof previously distributed by the Swing Line Lender to it.
(g) Each Lender's obligation to make the Revolving Credit
Loans referred to in subsection 2.20(c) and to purchase participating interests
pursuant to subsection 2.20(e) shall be absolute and unconditional and shall not
be affected by any circumstance, including, without limitation, (i) any set-off,
counterclaim, recoupment, defense or other right which such Lender or the
Borrower may have against the Swing Line Lender, the Borrower or any other
Person for any reason whatsoever, (ii) the occurrence or continuance of a
Default or an Event of Default; (iii) any adverse change in the condition
(financial or otherwise) of the Borrower; (iv) any breach of this Agreement or
any other Loan Document by the Borrower, any Subsidiary or any other Lender; or
(v) any other circumstance, happening or event whatsoever, whether or not
similar to any of the foregoing.
2.21 Illegality. Notwithstanding any other provision
herein, if the adoption of or any change in any Requirement of Law or in the
interpretation or application thereof shall make it unlawful for any Lender to
make or maintain LIBOR Loans as contemplated by this Agreement, (a) the
commitment of such Lender hereunder to make LIBOR Loans, continue LIBOR Loans as
such and convert ABR Loans to LIBOR Loans shall forthwith be cancelled and (b)
such Lender's Loans then outstanding as LIBOR Loans, if any, shall be converted
automatically to ABR Loans on the respective last days of the then current
Interest Periods with respect to such Loans or within such earlier period as
required by law. If any such conversion of a LIBOR Loan occurs on a day which is
not the last day of the then current Interest Period with respect thereto, the
Borrower shall pay to such Lender such amounts, if any, as may be required
pursuant to subsection 2.22.
2.22 Requirements of Law. (a) If the adoption of or any
change in any Requirement of Law or in the interpretation or application thereof
or compliance by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority made
subsequent to the date hereof:
(i) shall subject any Lender to any tax of any
kind whatsoever with respect to this Agreement, any Note or any LIBOR
Loan made by it, or change the basis of taxation of payments to such
Lender in respect thereof (except for Non-Excluded Taxes covered by
subsection 2.23 and changes in the rate of tax on the overall net
income of such Lender);
CREDIT AGREEMENT
26
(ii) shall impose, modify or hold applicable any
reserve, special deposit, compulsory loan or similar requirement
against assets held by, deposits or other liabilities in or for the
account of, advances, loans or other extensions of credit by, or any
other acquisition of funds by, any office of such Lender which is not
otherwise included in the determination of the London Interbank Offered
Rate hereunder; or
(iii) shall impose on such Lender any other
condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining LIBOR Loans or to reduce any amount receivable
hereunder in respect thereof, then, in any such case, the Borrower shall
promptly pay such Lender such additional amount or amounts as will compensate
such Lender for such increased cost or reduced amount receivable.
(b) If any Lender shall have determined that the adoption
of or any change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof shall have the effect of reducing
the rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder to a level below that which such Lender
or such corporation could have achieved but for such adoption, change or
compliance (taking into consideration such Lender's or such corporation's
policies with respect to capital adequacy) by an amount deemed by such Lender to
be material, then from time to time, the Borrower shall promptly pay to such
Lender such additional amount or amounts as will compensate such Lender for such
reduction.
(c) If any Lender becomes entitled to claim any
additional amounts pursuant to this subsection, it shall promptly notify the
Borrower (with a copy to the Administrative Agent) of the event by reason of
which it has become so entitled and of the basis for the calculation of such
additional amounts. A certificate as to any additional amounts payable pursuant
to this subsection submitted by such Lender to the Borrower (with a copy to the
Administrative Agent) shall be conclusive in the absence of manifest error. The
agreements in this subsection shall survive the termination of this Agreement
and the payment of the Loans and all other amounts payable hereunder.
2.23 Taxes. (a) All payments made by the Borrower under
this Agreement and any Notes shall be made free and clear of, and without
deduction or withholding for or on account of, any present or future income,
stamp or other taxes, levies, imposts, duties, charges, fees, deductions or
withholdings, now or hereafter imposed, levied, collected, withheld or assessed
by any Governmental Authority, excluding net income taxes and franchise taxes
(imposed in lieu of net income taxes) imposed on the Administrative Agent or any
Lender as a result of a present or former connection between the Administrative
Agent or such Lender and the jurisdiction of the Governmental Authority imposing
such tax or any political subdivision or taxing authority thereof or therein
(other than any such connection arising solely from the Administrative Agent or
such Lender having executed, delivered or performed its obligations or received
a payment under, or enforced, this Agreement or any Note). If any such
non-excluded taxes, levies, imposts, duties, charges, fees deductions or
withholdings ("Non-Excluded Taxes")
CREDIT AGREEMENT
27
are required to be withheld from any amounts payable to the Administrative Agent
or any Lender hereunder or under any Note, the amounts so payable to the
Administrative Agent or such Lender shall be increased to the extent necessary
to yield to the Administrative Agent or such Lender (after payment of all
Non-Excluded Taxes) interest or any such other amounts payable hereunder at the
rates or in the amounts specified in this Agreement, provided, however, that the
Borrower shall not be required to increase any such amounts payable to any
Lender that is not organized under the laws of the United States or a state
thereof if such Lender fails to comply with the requirements of paragraph (b) of
this subsection. Whenever any Non-Excluded Taxes are payable by the Borrower, as
promptly as possible thereafter the Borrower shall send to the Administrative
Agent for its own account or for the account of such Lender, as the case may be,
a certified copy of an original official receipt received by the Borrower
showing payment thereof. If the Borrower fails to pay any Non-Excluded Taxes
when due to the appropriate taxing authority or fails to remit to the
Administrative Agent the required receipts or other required documentary
evidence, the Borrower shall indemnify the Administrative Agent and the Lenders
for any incremental taxes, interest or penalties that may become payable by the
Administrative Agent or any Lender as a result of any such failure. The
agreements in this subsection shall survive the termination of this Agreement
and the payment of the Loans and all other amounts payable hereunder.
(b) Each Lender that is not incorporated under the laws
of the United States or a state thereof shall:
(i) deliver to the Borrower and the
Administrative Agent two duly completed copies of United States
Internal Revenue Service Form W-8 BEN or W-8 ECI, or successor
applicable form, as the case may be;
(ii) deliver to the Borrower and the
Administrative Agent two further copies of any such form or
certification on or before the date that any such form or certification
expires or becomes obsolete and after the occurrence of any event
requiring a change in the most recent form previously delivered by it
to the Borrower; and
(iii) obtain such extensions of time for filing
and complete such forms or certifications as may reasonably be
requested by the Borrower or the Administrative Agent;
unless in any such case an event (including, without limitation, any change in
treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms inapplicable
or which would prevent such Lender from duly completing and delivering any such
form with respect to it and such Lender so advises the Borrower and the
Administrative Agent. Such Lender shall certify that it is entitled to receive
payments under this Agreement without deduction or withholding of any United
States federal income taxes. Each Person that shall become a Lender or a
Participant pursuant to subsection 9.6 shall, upon the effectiveness of the
related transfer, be required to provide all of the forms and statements
required pursuant to this subsection, provided that in the case of a Participant
such Participant shall furnish all such required forms and statements to the
Lender from which the related participation shall have been purchased.
CREDIT AGREEMENT
28
2.24 Indemnity. The Borrower agrees to indemnify each
Lender and to hold each Lender harmless from any loss or expense which such
Lender may sustain or incur as a consequence of (a) default by the Borrower in
making either (i) a borrowing of LIBOR Loans or LIBOR CAF Advances or (ii) a
conversion into or continuation of LIBOR Loans, in each case after the Borrower
has given a notice requesting the same in accordance with the provisions of this
Agreement (in the case of a borrowing of LIBOR CAF Advances, so long as the
Borrower shall have accepted a CAF Advance offered in connection with any such
notice), (b) default by the Borrower in making any prepayment after the Borrower
has given a notice thereof in accordance with the provisions of this Agreement
or (c) the making of either (i) a prepayment of LIBOR Loans, LIBOR CAF Advances
or Fixed Rate CAF Advances or (ii) a conversion of LIBOR Loans, in each case on
a day which is not the last day of an Interest Period with respect thereto. Such
indemnification may include an amount equal to the excess, if any, of (i) the
amount of interest which would have accrued on the amount so prepaid, or not so
borrowed, converted or continued, for the period from the date of such
prepayment or of such failure to borrow, convert or continue to the last day of
such Interest Period (or, in the case of a failure to borrow, convert or
continue, the Interest Period that would have commenced on the date of such
failure) in each case at the applicable rate of interest for such Loans provided
for herein (excluding, however, the Applicable Margin included therein, if any)
over (ii) the amount of interest (as reasonably determined by such Lender) which
would have accrued to such Lender on such amount by placing such amount on
deposit for a comparable period with leading banks in the interbank eurodollar
market. This covenant shall survive the termination of this Agreement and the
payment of the Loans and all other amounts payable hereunder.
2.25 Commitment Increases. (a) In the event that Borrower
wishes to increase the aggregate Commitments, it shall notify the Lenders
(through the Administrative Agent) of the amount of such proposed increase (such
notice, a "Commitment Increase Offer"). Each Commitment Increase Offer shall
offer the Lenders the opportunity to participate in the increased Commitments
ratably in accordance with their respective Commitment Percentages. In the event
that any Lender (each, a "Declining Lender") shall fail to accept in writing a
Commitment Increase Offer within 10 Business Days after receiving notice
thereof, all or any portion of the proposed increase in the Commitments offered
to the Declining Lenders (the aggregate of such offered amounts, the "Declined
Amount") may instead be allocated to any one or more additional banks, financial
institutions or other entities pursuant to paragraph (b) below and/or to any one
or more existing Lenders pursuant to paragraph (c)(ii) below.
(b) Any additional bank, financial institution or other
entity which, with the consent of the Borrower and the Administrative Agent,
elects to become a party to this Agreement and obtain a Commitment in an amount
equal to all or any portion of a Declined Amount shall execute a New Lender
Supplement (each, a "New Lender Supplement") with the Borrower and the
Administrative Agent, substantially in the form of Exhibit K-1, 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 1.2 shall be deemed to be amended to add the name and Commitment of
such New Lender.
(c) Any Lender which (i) accepts a Commitment Increase
Offer pursuant to subsection 2.25(a) or (ii) with the consent of the Borrower,
elects to increase its Commitment by
CREDIT AGREEMENT
29
an amount equal to all or any portion of a Declined Amount shall, in each case,
execute a Commitment Increase Supplement (each, a "Commitment Increase
Supplement") with the Borrower and the Administrative Agent, substantially in
the form of Exhibit K-2, 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 1.2 shall be deemed to be amended to so increase
the Commitment of such Lender.
(d) If on the date upon which a bank, financial
institution or other entity becomes a New Lender pursuant to subsection 2.25(b)
or upon which a Lender's Commitment is increased pursuant to subsection 2.25(a)
or (c) there is an unpaid principal amount of Revolving Credit Loans, the
Borrower shall borrow Revolving Credit Loans from the Lenders and/or (subject to
compliance by the Borrower with subsection 2.24) prepay Revolving Credit Loans
of the Lenders such that, after giving effect thereto, the Revolving Credit
Loans (including, without limitation, the Types thereof and Interest Periods
with respect thereto) shall be held by the Lenders (including for such purposes
the New Lenders) pro rata according to their respective Commitment Percentages.
(e) Notwithstanding anything to the contrary in this
subsection, (i) in no event shall any transaction effected pursuant to this
subsection cause (x) the aggregate Commitments to exceed $1,500,000,000 or (y)
an increase in the aggregate Commitments of an amount less than $100,000,000,
(ii) the aggregate amount of any increase in Commitments pursuant to subsection
2.25(b) or (c)(ii) shall be limited to the relevant Declined Amount and (iii) no
Lender shall have any obligation to increase its Commitment unless it agrees to
do so in its sole discretion.
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter
into this Agreement and to make the Loans, the Borrower hereby represents and
warrants to the Administrative Agent and each Lender that:
3.1 Financial Condition. The consolidated balance sheet
of the Borrower and its consolidated Subsidiaries as at December 31, 1999 and
the related consolidated statements of income and of cash flows for the fiscal
year ended on such date, reported on by Price Waterhouse LLP, copies of which
have heretofore been furnished to each Lender, are complete and correct in all
material respects and present fairly the consolidated financial condition of the
Borrower and its consolidated Subsidiaries as at such date, and the consolidated
results of their operations and their consolidated cash flows for the fiscal
year then ended. The unaudited consolidated balance sheet of the Borrower and
its consolidated Subsidiaries as at March 31, 2000 and the related unaudited
consolidated statements of income and of cash flows for the three-month period
ended on such date, certified by a Responsible Officer, copies of which have
heretofore been furnished to each Lender, are complete and correct in all
material respects and present fairly the consolidated financial condition of the
Borrower and its consolidated Subsidiaries as at such date, and the consolidated
results of their operations and their consolidated cash flows for the
three-month period then ended (subject to normal year-end audit adjustments).
All such financial statements have been prepared in accordance with GAAP
CREDIT AGREEMENT
30
applied consistently throughout the periods involved (except as approved by such
accountants or Responsible Officer, as the case may be, and as disclosed
therein). Neither the Borrower nor any of its consolidated Subsidiaries had, at
the date of the most recent balance sheet referred to above, any material
Guarantee Obligation outside the ordinary course of business, contingent
liability or liability for taxes, or any long-term lease or unusual forward or
long-term commitment which in the aggregate may reasonably be expected to have a
Material Adverse Effect, including, without limitation, any interest rate or
foreign currency swap or exchange transaction (except as listed on Schedule 3.1
attached hereto), which is not reflected in the foregoing statements or in the
notes thereto. Except as heretofore disclosed to the Lenders, during the period
from December 31, 1999 to and including the date hereof there has been no sale,
transfer or other disposition by the Borrower or any of its consolidated
Subsidiaries of any material part of its business or property and no purchase or
other acquisition of any business or property (including any capital stock of
any other Person) material in relation to the consolidated financial condition
of the Borrower and its consolidated Subsidiaries at December 31, 1999.
3.2 No Change. Since December 31, 1999 there has been no
development or event which has had or could reasonably be expected to have a
Material Adverse Effect.
3.3 Corporate Existence; Compliance with Law. Each of the
Borrower and its Subsidiaries (a) is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization, (b) has the corporate power and authority, and the legal right, to
own and operate its property, to lease the property it operates as lessee and to
conduct the business in which it is currently engaged, (c) is duly qualified as
a foreign corporation and in good standing under the laws of each jurisdiction
(other than that of its incorporation) where its ownership, lease or operation
of property or the conduct of its business requires such qualification and (d)
is in compliance with all Requirements of Law, except in the case of clause (c)
or (d) above, to the extent that the failure to qualify as a foreign corporation
or to be in good standing or to comply with any Requirement of Law could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
3.4 Corporate Power; Authorization; Enforceable
Obligations. The Borrower has the corporate power and authority, and the legal
right, to make, deliver, and perform the Loan Documents to which it is a party
and to borrow hereunder and has taken all necessary corporate action to
authorize the borrowings on the terms and conditions of this Agreement and any
Notes and to authorize the execution, delivery and performance of the Loan
Documents to which it is a party. No consent or authorization of, filing with,
notice to or other act by or in respect of, any Governmental Authority or any
other Person is required in connection with the borrowings hereunder or with the
execution, delivery, performance, validity or enforceability of the Loan
Documents to which the Borrower is a party. This Agreement has been, and each
other Loan Document to which it is a party will be, duly executed and delivered
on behalf of the Borrower. This Agreement constitutes, and each other Loan
Document to which it is a party when executed and delivered will constitute, a
legal, valid and binding obligation of the Borrower enforceable against the
Borrower in accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
CREDIT AGREEMENT
31
3.5 No Legal Bar. The execution, delivery and performance
of the Loan Documents to which the Borrower is a party, the borrowings hereunder
and the use of the proceeds thereof will not violate any Requirement of Law or
Contractual Obligation of the Borrower or of any of its Subsidiaries and will
not result in, or require, the creation or imposition of any Lien on any of its
or their respective properties or revenues pursuant to any such Requirement of
Law or Contractual Obligation.
3.6 No Material Litigation. Except as listed on Schedule
3.6, no litigation, investigation or proceeding of or before any arbitrator or
Governmental Authority is pending or, to the knowledge of the Borrower,
threatened by or against the Borrower or any of its Subsidiaries or against any
of its or their respective properties or revenues (a) with respect to any of the
Loan Documents or any of the transactions contemplated hereby or thereby, or (b)
which could, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
3.7 No Default. Neither the Borrower nor any of its
Subsidiaries is in default under or with respect to any of its Contractual
Obligations in any respect which could, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. No Default or Event of
Default has occurred and is continuing.
3.8 Ownership of Property; Liens. Each of the Borrower
and its Subsidiaries has good record and marketable title in fee simple to, or a
valid leasehold interest in, all its real property, and good title to, or a
valid leasehold interest in, all its other material property, and none of such
property is subject to any Lien except as permitted by subsection 6.2.
3.9 Intellectual Property. The Borrower and each of its
Subsidiaries owns, or is licensed to use, all trademarks, tradenames,
copyrights, technology, know-how and processes necessary for the conduct of its
business as currently conducted except for those the failure to own or license
which could not reasonably be expected to have a Material Adverse Effect (the
"Intellectual Property"). No claim has been asserted and is pending by any
Person challenging or questioning the use of any such Intellectual Property or
the validity or effectiveness of any such Intellectual Property, nor does the
Borrower know of any valid basis for any such claim. The use of such
Intellectual Property by the Borrower and its Subsidiaries does not infringe on
the rights of any Person, except for such claims and infringements that, in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.
3.10 No Burdensome Restrictions. No Requirement of Law or
Contractual Obligation of the Borrower or any of its Subsidiaries could
reasonably be expected to have a Material Adverse Effect.
3.11 Taxes. Each of the Borrower and its Subsidiaries has
filed or caused to be filed all tax returns which, to the knowledge of the
Borrower, are required to be filed and has paid all taxes shown to be due and
payable on said returns or on any assessments made against it or any of its
property and all other taxes, fees or other charges imposed on it or any of its
property by any Governmental Authority (other than any the amount or validity of
which are currently being contested in good faith by appropriate proceedings and
with respect to which reserves in conformity with GAAP have been provided on the
books of the Borrower or its
CREDIT AGREEMENT
32
Subsidiaries, as the case may be); no tax Lien has been filed, and, to the
knowledge of the Borrower, no claim is being asserted, with respect to any such
tax, fee or other charge.
3.12 Federal 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 (whether immediate,
incidental or ultimate) of buying or carrying Margin Stock. No part of the
proceeds of any Loans will be used directly or indirectly for the purpose
(whether immediate, incidental or ultimate) of buying or carrying Margin Stock
or for any purpose that violates the provisions of the regulations of the Board.
If requested by any Lender or the Administrative Agent, the Borrower will
furnish to each Lender and the Administrative Agent a statement in conformity
with the requirements of Federal Reserve Form FR U-1 or FR G-3, as appropriate,
referred to in Regulation U, as to demonstrate the compliance of any borrowing
hereunder with Regulation U.
3.13 ERISA. Neither a Reportable Event nor an "accumulated
funding deficiency" (within the meaning of Section 412 of the Code or Section
302 of ERISA) has occurred during the five-year period prior to the date on
which this representation is made or deemed made with respect to any Single
Employer Plan, and each Plan has complied in all material respects with the
applicable provisions of ERISA and the Code. No termination of a Single Employer
Plan has occurred (other than via a "standard termination" as defined in Section
4041 (b) of ERISA), and no Lien in favor of the PBGC or a Single Employer Plan
has arisen, during such five-year period. The present value of all accrued
benefits under each Single Employer Plan (based on those assumptions used to
fund such Plans) did not, as of the last annual valuation date prior to the date
on which this representation is made or deemed made, exceed the value of the
assets of such Plan allocable to such accrued benefits by more than $10,000,000.
Neither the Borrower nor any Commonly Controlled Entity has had a complete or
partial withdrawal from any Multiemployer Plan, and neither the Borrower nor any
Commonly Controlled Entity would become subject to any liability under ERISA if
the Borrower or any such Commonly Controlled Entity were to withdraw completely
from all Multiemployer Plans as of the valuation date most closely preceding the
date on which this representation is made or deemed made. To the best knowledge
of the Borrower, no such Multiemployer Plan is in Reorganization or Insolvent.
The present value (determined using actuarial and other assumptions which are
reasonable in respect of the benefits provided and the employees participating)
of the liability of the Borrower and each Commonly Controlled Entity for post
retirement benefits to be provided to their current and former employees under
Plans which are welfare benefit plans (as defined in Section 3(l) of ERISA) does
not, in the aggregate, exceed the assets under all such Plans allocable to such
benefits by an amount in excess of $20,000,000.
3.14 Investment Company Act; Other Regulations. The
Borrower is not an "investment company", or a company "controlled" by an
"investment company", within the meaning of the Investment Company Act of 1940,
as amended. The Borrower is not subject to regulation under any Federal or State
statute or regulation (other than Regulation X of the Board) which limits its
ability to incur Indebtedness.
3.15 Subsidiaries. Schedule 3.15 lists each Subsidiary of
the Borrower (and the direct and indirect ownership interest of the Borrower
therein), in each case existing on March 31, 2000. The Borrower will at all
times own directly or indirectly the percentage of the
CREDIT AGREEMENT
33
outstanding capital stock, if any, of said Subsidiaries indicated on Schedule
3.15 as owned by the Borrower as of the date hereof except to the extent the
disposition thereof would not violate subsection 6.4.
3.16 Purpose of Loans. The proceeds of the Loans shall be
used by the Borrower and its Subsidiaries solely to ensure the integrity of the
settlement process in the event of settlement failure by one or more members.
3.17 Environmental Matters. (a) To the best knowledge of
the Borrower, the facilities and properties owned, leased or operated by the
Borrower or any of its Subsidiaries (the "Properties") do not contain, and have
not previously contained, any Materials of Environmental Concern in amounts or
concentrations which (i) constitute or constituted a violation of, or (ii) could
reasonably be expected to give rise to liability under, any Environmental Law.
(b) The Properties and all operations at the Properties
are in compliance in all material respects with all applicable Environmental
Laws, and there is no contamination at, under or about the Properties or
violation of any Environmental Law with respect to the Properties or the
business operated by the Borrower or any of its Subsidiaries (the "Business")
which could materially interfere with the continued operation of the Properties
or materially impair the fair saleable value thereof
(c) Neither the Borrower nor any of its Subsidiaries has
received any notice of violation, alleged violation, non-compliance, liability
or potential liability regarding environmental matters or compliance with
Environmental Laws with regard to any of the Properties or the Business, nor
does the Borrower have knowledge or reason to believe that any such notice will
be received or is being threatened.
(d) No judicial proceeding or governmental or
administrative action is pending or, to the knowledge of the Borrower,
threatened, under any Environmental Law to which the Borrower or any Subsidiary
is or will be named as a party with respect to the Properties or the Business,
nor are there any consent decrees or other decrees, consent orders,
administrative orders or other orders, or other administrative or judicial
requirements outstanding under any Environmental Law with respect to the
Properties or the Business.
SECTION 4. CONDITIONS PRECEDENT
4.1 Conditions to Initial Loans. The agreement of each
Lender to make the initial Loan requested to be made by it is subject to the
satisfaction, prior to or concurrently with the making of such Loan on the
Closing Date, of the following conditions precedent:
(a) Loan Documents. The Administrative Agent shall have
received (i) this Agreement, executed and delivered by a duly
authorized officer of the Borrower, with a counterpart for each Lender,
and (ii) for the account of the Swing Line Lender, the Swing Line Note
conforming to the requirements hereof and executed by a duly authorized
officer of the Borrower.
CREDIT AGREEMENT
34
(b) Related Agreements. The Administrative Agent shall
have received, with a copy for each Lender, true and correct copies,
certified as to authenticity by the Borrower, of such other documents
or instruments as may be reasonably requested by the Administrative
Agent, including, without limitation, a copy of any debt instrument,
security agreement or other material contract to which the Borrower or
its Subsidiaries may be a party.
(c) Closing Certificate. The Administrative Agent shall
have received, with a copy for each Lender, a closing certificate of
the Borrower, dated the Closing Date, substantially in the form of
Exhibit I, with appropriate insertions and attachments, satisfactory in
form and substance to the Administrative Agent, executed by the
President or any Vice President and the Secretary or any Assistant
Secretary of the Borrower.
(d) Corporate Proceedings. The Administrative Agent shall
have received, with a copy for each Lender, a copy of the resolutions,
in form and substance satisfactory to the Administrative Agent, of the
Board of Directors of the Borrower authorizing (i) the execution,
delivery and performance of this Agreement and the other Loan Documents
to which it is a party and (ii) the borrowings contemplated hereunder,
certified by the Secretary or an Assistant Secretary of the Borrower as
of the Closing Date, which certificate shall be in form and substance
satisfactory to the Administrative Agent and shall state that the
resolutions thereby certified have not been amended, modified, revoked
or rescinded.
(e) Incumbency Certificate. The Administrative Agent
shall have received, with a copy for each Lender, a certificate of the
Borrower, dated the Closing Date, as to the incumbency and signature of
the officers of the Borrower executing any Loan Document satisfactory
in form and substance to the Administrative Agent, executed by the
President or any Vice President and the Secretary or any Assistant
Secretary of the Borrower.
(f) Corporate Documents. The Administrative Agent shall
have received, with a copy for each Lender, true and complete copies of
the certificate of incorporation and by-laws of the Borrower, certified
as of the Closing Date as complete and correct copies thereof by the
Secretary or an Assistant Secretary of the Borrower.
(g) Fees. The Administrative Agent shall have received
the fees to be received on the Closing Date.
(h) Legal Opinions. The Administrative Agent shall have
received, with a counterpart for each Lender, the executed legal
opinion of Xxxxxx X. Xxxxxx, Xx., Senior Vice President, General
Counsel and Secretary of the Borrower (or such other person who then
holds the position of General Counsel of the Borrower), substantially
in the form of Exhibit F. Such legal opinion shall cover such other
matters incident to the transactions contemplated by this Agreement as
the Administrative Agent may reasonably require.
CREDIT AGREEMENT
35
(i) Existing Agreement. The Administrative Agent shall
have received evidence satisfactory to it that the commitments under
the Borrower's existing $742,500,000 Credit Agreement, dated as of June
8, 1999, shall have been canceled and all amounts outstanding
thereunder shall have been repaid.
4.2 Conditions to Each Loan. The agreement of each Lender
to make any Loan requested to be made by it on any date (including, without
limitation, its initial Loan and its Term Loan) is subject to the satisfaction
of the following conditions precedent:
(a) Representations and Warranties. Each of the
representations and warranties made by the Borrower in or pursuant to
the Loan Documents shall be true and correct in all material respects
on and as of such date as if made on and as of such date.
(b) No Default. No Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to the
Loans requested to be made on such date.
(c) Additional Matters. All corporate and other
proceedings, and all documents, instruments and other legal matters in
connection with the transactions contemplated by this Agreement and the
other Loan Documents shall be satisfactory in form and substance to the
Administrative Agent, and the Administrative Agent shall have received
such other documents and legal opinions in respect of any aspect or
consequence of the transactions contemplated hereby or thereby as it
shall reasonably request.
Each borrowing by the Borrower hereunder shall constitute a representation and
warranty by the Borrower as of the date thereof that the conditions contained in
this subsection have been satisfied.
SECTION 5. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments
remain in effect or any amount is owing to any Lender or the Administrative
Agent hereunder or under any other Loan Document, the Borrower shall and (except
in the case of delivery of financial information, reports and notices) shall
cause each of its Subsidiaries to:
5.1 Financial Statements. Furnish to each Lender:
(a) as soon as available, but in any event within 120
days after the end of each fiscal year of the Borrower, a copy of the
consolidated balance sheet of the Borrower and its consolidated
Subsidiaries as at the end of such year and the related consolidated
statements of income and retained earnings and of cash flows for such
year, setting forth in each case in comparative form the figures for
the previous year, reported on without a "going concern" or like
qualification or exception, or qualification arising out of the scope
of the audit, by Price Waterhouse LLP or other independent certified
public accountants of nationally recognized standing; and
CREDIT AGREEMENT
36
(b) as soon as available, but in any event not later than
45 days after the end of each of the first three quarterly periods of
each fiscal year of the Borrower, the unaudited consolidated balance
sheet of the Borrower and its consolidated Subsidiaries as at the end
of such quarter and the related unaudited consolidated statements of
income and retained earnings of such quarter and of cash flows of the
Borrower and its consolidated Subsidiaries for the portion of the
fiscal year through the end of such quarter, setting forth in each case
in comparative form the figures for the previous year or, in the case
of such consolidated balance sheet, for the last day of the prior
fiscal year, certified by a Responsible Officer as being fairly stated
in all material respects (subject to normal yearend audit adjustments);
all such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or officer, as the case may be,
and disclosed therein).
5.2 Certificates; Other Information. Furnish to the
Administrative Agent:
(a) concurrently with the delivery of the financial
statements referred to in subsection 5.1(a), a certificate of the
independent certified public accountants reporting on such financial
statements stating that in making the examination necessary therefor no
knowledge was obtained of any failure by the Borrower or any of its
Subsidiaries to comply with subsections 6.1, 6.4 or 6.5, except as
specified in such certificate;
(b) concurrently with the delivery of the financial
statements referred to in subsections 5.1(a) and (b), a certificate of
a Responsible Officer, substantially in the form of Exhibit J attached
hereto, stating that, to the best of such Officer's knowledge, during
such period the Borrower has observed or performed all of its covenants
and other agreements, and satisfied every condition, contained in this
Agreement and the other Loan Documents to be observed, performed or
satisfied by it, and that such Officer has obtained no knowledge of any
Default or Event of Default except as specified in such certificate;
(c) within five days after the same are sent, copies of
all financial statements and reports which the Borrower sends to its
members generally, and within five days after the same are filed,
copies of all financial statements and reports which the Borrower may
make to, or file with, the Securities and Exchange Commission or any
successor or analogous Governmental Authority; and .
(d) promptly, such additional financial and other
information (other than any non-public information or materials
pertaining to (i) the Borrower's proprietary new products, systems or
services, (ii) the Borrower's proprietary marketing programs,
strategies or plans, or (iii) any member specific billing, contractual
or other arrangements) as the Administrative Agent may from time to
time reasonably request.
5.3 Payment of Obligations. Pay, discharge or otherwise
satisfy at or before maturity or before they become delinquent, as the case may
be, all its obligations of whatever
CREDIT AGREEMENT
37
nature, except (i) where the amount or validity thereof is currently being
contested in good faith by appropriate proceedings and reserves in conformity
with GAAP with respect thereto have been provided on the books of the Borrower
or its Subsidiaries, as the case may be or (ii) to the extent that failure to
comply therewith could not, in the aggregate, be reasonably expected to have a
Material Adverse Effect.
5.4 Conduct of Business and Maintenance of Existence.
Continue to engage in business of the same general type as now conducted by it
and preserve, renew and keep in full force and effect its corporate existence
and take all reasonable action to maintain all rights, privileges and franchises
necessary or desirable in the normal conduct of its business except as otherwise
permitted pursuant to subsection 6.9; and comply with all Contractual
Obligations and Requirements of Law except to the extent that failure to comply
therewith could not, in the aggregate, be reasonably expected to have a Material
Adverse Effect.
5.5 Maintenance of Property; Insurance. Keep all property
useful and necessary in its business in good working order and condition;
maintain with financially sound and reputable insurance companies insurance on
all its property in at least such amounts and against at least such risks as are
usually insured against in the same general area by companies engaged in the
same or a similar business; and furnish to each Lender, upon written request,
full information as to the insurance carried.
5.6 Inspection of Property; Books and Records;
Discussions. Keep proper books of records and account in which full, true and
correct entries in conformity with GAAP (or such other commonly accepted
accounting practice which has been previously disclosed to the Administrative
Agent) and all Requirements of Law shall be made of all dealings and
transactions in relation to its business and activities; and permit
representatives of any Lender to, upon reasonable notice, visit and inspect any
of its properties (not more than one time in any fiscal year) and examine and
make abstracts from any of its books and records (other than any non-public
information or materials pertaining to (i) the Borrower's proprietary new
products, systems or services, (ii) the Borrower's proprietary marketing
programs, strategies or plans, or (iii) any member specific billing, contractual
or other arrangements) at any reasonable time and as often as may reasonably be
desired and to discuss the business, operations, properties and financial and
other condition of the Borrower and its Subsidiaries with officers and employees
of the Borrower and its Subsidiaries and with its independent certified public
accountants; provided that if a Default or Event of Default shall have occurred
and be continuing, such visits and inspections may be conducted at any time upon
reasonable notice.
5.7 Notices. Promptly give notice to the Administrative
Agent of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any
Contractual Obligation of the Borrower or any of its Subsidiaries or
(ii) litigation, investigation or proceeding which may exist at any
time between the Borrower or any of its Subsidiaries and any
Governmental Authority, which in either case, if not cured or if
adversely determined, as the case may be, could reasonably be expected
to have a Material Adverse Effect;
CREDIT AGREEMENT
38
(c) any litigation or proceeding affecting the Borrower
or any of its Subsidiaries in which the amount involved is $10,000,000
or more and not covered by insurance or in which injunctive or similar
relief is sought;
(d) the following events, as soon as possible and in any
event within 30 days after the Borrower knows or has reason to know
thereof: (i) the occurrence or expected occurrence of any Reportable
Event with respect to any Plan, a failure to make any required
contribution to any "pension plan" (as defined in Section 3(2) of
ERISA), the creation of any Lien in favor of the PBGC or a Plan or any
withdrawal from, or the termination, Reorganization or Insolvency of,
any Multiemployer Plan or (ii) the institution of proceedings or the
taking of any other action by the PBGC or the Borrower or any Commonly
Controlled Entity or any Multiemployer Plan with respect to the
withdrawal from, or the terminating, Reorganization or Insolvency of,
any Multiemployer Plan, except where the termination, Reorganization or
Insolvency of any Multiemployer Plan could not reasonably be expected
to result in a liability in excess of $10,000,000; and
(e) any material adverse change in the business,
operations, property or condition (financial or otherwise) of the
Borrower and its Subsidiaries taken as a whole.
Each notice pursuant to this subsection shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action the Borrower proposes to take with respect thereto.
5.8 Environment Laws. (a) Comply with, and ensure
compliance by all tenants and subtenants, if any, with, all applicable
Environmental Laws and obtain and comply in all material respects with and
maintain, and ensure that all tenants and subtenants obtain and comply in all
material respects with and maintain, any and all licenses, approvals,
notifications, registrations or permits required by applicable Environmental
Laws except to the extent that failure to do so could not be reasonably expected
to have a Material Adverse Effect.
(b) Conduct and complete all investigations, studies,
sampling and testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply in all material respects with all lawful
orders and directives of all Governmental Authorities regarding Environmental
Laws except to the extent that the same are being contested in good faith by
appropriate proceedings and the pendency of such proceedings could not be
reasonably expected to have a Material Adverse Effect.
SECTION 6. NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments
remain in effect or any amount is owing to any Lender or the Administrative
Agent hereunder or under any other Loan Document, the Borrower shall not and
shall not permit any of its Subsidiaries to, directly or indirectly:
CREDIT AGREEMENT
39
6.1 Maintenance of Net Worth. Permit Consolidated Net
Worth at any time to be less than the sum of (i) $273,216,000 plus (ii) 50% of
the sum of Consolidated Net Income (if positive) of the Borrower for each
quarter ending after December 31, 1999.
6.2 Limitation on Liens. Create, incur, assume or suffer
to exist any Lien upon any of its property, assets or revenues, whether now
owned or hereafter acquired, except for:
(a) Liens for taxes not yet due or which are being
contested in good faith by appropriate proceedings, provided that
adequate reserves with respect thereto are maintained on the books of
the Borrower or its Subsidiaries, as the case may be, in conformity
with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of
business which are not overdue for a period of more than 60 days or
which are being contested in good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security
legislation and deposits securing liability to insurance carriers under
insurance or self-insurance arrangements;
(d) deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory
obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of
business;
(e) easements, rights-of-way, restrictions and other
similar encumbrances which, in the aggregate, do not in any case
materially detract from the value of the property subject thereto or
materially interfere with the ordinary conduct of the business of the
Borrower and its Subsidiaries taken as a whole;
(f) Liens in existence on the date hereof listed on
Schedule 6.2(f), provided that no such Lien is spread to cover any
additional property after the Closing Date and that the amount of
Indebtedness secured thereby is not increased;
(g) Liens securing Indebtedness of the Borrower and its
Subsidiaries incurred to finance the acquisition of fixed or capital
assets, provided that (i) such Liens shall be created substantially
simultaneously with the acquisition of such fixed or capital assets and
(ii) such Liens do not at any time encumber any property other than the
property financed by such Indebtedness;
(h) bankers' liens arising by operation of law;
(i) Liens on the property or assets of a corporation
which becomes a Subsidiary on or after the date hereof securing
Indebtedness of such corporation, provided that (i) such Liens existed
at the time such corporation became a Subsidiary and were not created
in anticipation thereof and (ii) any such Lien is not spread to cover
any
CREDIT AGREEMENT
40
property or assets of such corporation after the time such corporation
becomes a Subsidiary;
(j) Liens arising out of judgments or awards (x) which
are bonded or (y) with respect to which an appeal or a proceeding for
review is being prosecuted in good faith and adequate reserves have
been provided for the payment of such judgment or award;
(k) Liens in favor of the Borrower which secure the
obligation of any Subsidiary to the Borrower; and
(l) Liens (not otherwise permitted hereunder) which
secure obligations not exceeding (as to the Borrower and all
Subsidiaries) $20,000,000 in aggregate amount at any time outstanding.
6.3 Limitation on Fundamental Changes. Enter into any
merger, consolidation or amalgamation, or liquidate, wind up or dissolve itself
(or suffer any liquidation or dissolution), or convey, sell, lease, assign,
transfer or otherwise dispose of, all or substantially all of its property,
business or assets, or make any material change in its present method of
conducting business (taking the Borrower and its Subsidiaries as a whole),
except:
(a) any Subsidiary of the Borrower may be merged or
consolidated with or into the Borrower (provided that the Borrower
shall be the continuing or surviving corporation) or with or into any
one or more wholly owned Subsidiaries of the Borrower (provided that
the wholly owned Subsidiary or Subsidiaries shall be the continuing or
surviving corporation);
(b) any wholly owned Subsidiary may sell, lease, transfer
or otherwise dispose of any or all of its assets (upon voluntary
liquidation or otherwise) to the Borrower or any other wholly owned
Subsidiary of the Borrower; and
(c) as permitted by subsection 6.4.
6.4 Limitation on Sale of Assets. Convey, sell, lease,
assign, transfer or otherwise dispose of any of its property, business or assets
(including, without limitation, receivables and leasehold interests), whether
now owned or hereafter acquired, or, in the case of any Subsidiary, issue or
sell any shares of such Subsidiary's Capital Stock to any Person other than the
Borrower or any wholly owned Subsidiary, except:
(a) the sale or other disposition of obsolete or worn out
property in the ordinary course of business;
(b) the sale or other disposition of any property in the
ordinary course of business; provided that the aggregate book value of
all assets so sold or disposed of in any period of twelve consecutive
months shall not exceed 20% of consolidated total assets of the
Borrower and its Subsidiaries as at the beginning of such twelve-month
period;
CREDIT AGREEMENT
41
(c) the sale or disposition of the headquarters of the
Borrower located at 0000 Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx
00000-0000;
(d) the sale of inventory in the ordinary course of
business;
(e) the sale or discount without recourse of accounts
receivable arising in the ordinary course of business in connection
with the compromise or collection thereof; and
(f) as permitted by subsection 6.3(b).
6.5 Limitation on Dividends. Declare or pay any dividend
exceeding 40% of net income in any fiscal year (other than dividends payable
solely in common stock of the Borrower) on, or make any payment on account of,
or set apart assets for a sinking or other analogous fund for, the purchase,
redemption, defeasance, retirement or other acquisition of, any shares of any
class of Capital Stock of the Borrower or any warrants or options to purchase
any such Stock, whether now or hereafter outstanding, or make any other
distribution in respect thereof, either directly or indirectly, whether in cash
or property or in obligations of the Borrower or any Subsidiary. The provisions
hereunder shall in no way limit the ability of any Subsidiary to make dividend
payments to the Borrower or any other shareholder of such Subsidiary.
6.6 Limitation on Investments, Loans and Advances. Make
any advance, loan, extension of credit or capital contribution to, or purchase
any stock, bonds, notes, debentures or other securities of or any assets
constituting a business unit of, or make any other investment in, any Person,
except Permitted Investments.
6.7 Limitation on Transactions with Affiliates. Enter
into any transaction, including, without limitation, any purchase, sale, lease
or exchange of property or the rendering of any service, with any Affiliate
unless such transaction is (a) in the ordinary course of the Borrower's or such
Subsidiary's business and (b) upon fair and reasonable terms.
6.8 Limitation on Changes in Fiscal Year. Permit the
fiscal year of the Borrower to end on a day other than December 31; provided
that, the Borrower may change its fiscal year with the consent of the
Administrative Agent, which consent shall not unreasonably be withheld.
6.9 Limitation on Lines of Business. Enter into any
business, either directly or through any Subsidiary, except for businesses (a)
in which the Borrower and its Subsidiaries are engaged on the date of this
Agreement or (b) which, after giving effect to such new business, would not
result in a change in the primary business of the Borrower and its Subsidiaries,
taken as a whole, on the date hereof.
CREDIT AGREEMENT
42
SECTION 7. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any
Loan when due in accordance with the terms thereof or hereof, or the
Borrower shall fail to pay any interest on any Loan, or any other
amount payable hereunder, within five days after any such interest or
other amount becomes due in accordance with the terms thereof or
hereof; or
(b) Any representation or warranty made or deemed made by
the Borrower or any of its subsidiaries herein or in any other Loan
Document or which is contained in any certificate, document or
financial or other statement furnished by it at any time under or in
connection with this Agreement shall prove to have been incorrect in
any material respect on or as of the date made or deemed made; or
(c) The Borrower shall default in the observance or
performance of any agreement contained in Section 6; or
(d) The Borrower shall default in the observance or
performance of any other term, covenant or agreement contained in this
Agreement (other than as provided in paragraphs (a) through (c) of this
Section), and such default shall continue unremedied for a period of 30
days after notice to the Borrower by the Administrative Agent or the
Required Lenders; or
(e) The Borrower or any of its Subsidiaries shall (i)
default in any payment of principal of or interest of any Indebtedness
(other than the Loans) or in the payment of any Guarantee Obligation,
in either case in excess of $5,000,000 individually or $10,000,000 in
the aggregate, beyond the period of grace (not to exceed 30 days), if
any, provided in the instrument or agreement under which such
Indebtedness or Guarantee Obligation was created; or (ii) default in
the observance or performance of any other agreement or condition
relating to any such Indebtedness or Guarantee Obligation or contained
in any instrument or agreement evidencing, securing or relating
thereto, or any other event shall occur or condition exist, the effect
of which default or other event or condition is to cause, or to permit
the holder or holders of such Indebtedness or beneficiary or
beneficiaries of such Guarantee Obligation (or a trustee or agent on
behalf of such holder or holders or beneficiary or beneficiaries) to
cause, with the giving of notice if required, such Indebtedness to
become due prior to its stated maturity or such Guarantee Obligation to
become payable; or
(f) (i) The Borrower or any of its Subsidiaries shall commence
any case, proceeding or other action (A) under any existing or future
law of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to have an
order for relief entered with respect to it, or seeking to adjudicate
it a bankrupt or insolvent, or seeking reorganization, arrangement,
adjustment, winding-up, liquidation, dissolution, composition or other
relief with respect to it or its debts, or (B) seeking appointment of a
receiver, trustee, custodian, conservator or other similar official for
it or for all or any substantial part of its assets, or the Borrower or
any of its Subsidiaries shall make a general assignment for the benefit
of its creditors; or (ii) there shall be commenced against the Borrower
or any of its Subsidiaries any case, proceeding or other action of a
nature referred to in clause (i) above which (A) results in the entry
of an order for relief or any such adjudication or appointment or (B)
remains
CREDIT AGREEMENT
43
undismissed, undischarged or unbonded for a period of 90 days; or (iii)
there shall be commenced against the Borrower or any of its
Subsidiaries any case, proceeding or other action seeking issuance of a
warrant of attachment, execution, distraint or similar process against
all or any substantial part of its assets which results in the entry of
an order for any such relief which shall not have been vacated,
discharged, or stayed or bonded pending appeal within 60 days from the
entry thereof; or (iv) the Borrower or any of its Subsidiaries shall
take any action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any of the acts set forth in clause
(i), (ii), or (iii) above; or (v) the Borrower or any of its
Subsidiaries shall generally not, or shall be unable to, or shall admit
in writing its inability to, pay its debts as they become due; or
(g) (i) Any Person shall engage in any "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975 of the
Code) involving any Plan, (ii) any "accumulated funding deficiency" (as
defined in Section 302 of ERISA), whether or not waived, shall exist
with respect to any Plan or any Lien in favor of the PBGC or a Plan
shall arise on the assets of the Borrower or any Commonly Controlled
Entity, (iii) a Reportable Event shall occur with respect to, or
proceedings shall commence to have a trustee appointed, or a trustee
shall be appointed, to administer or to terminate, any Single Employer
Plan, which Reportable Event or commencement of proceedings or
appointment of a trustee is, in the reasonable opinion of the Required
Lenders, likely to result in the termination of such Plan for purposes
of Title IV of ERISA, (iv) any Single Employer Plan shall terminate for
purposes of Title IV of ERISA, (v) the Borrower or any Commonly
Controlled Entity shall, or in the reasonable opinion of the Required
Lenders is likely to, incur any liability in connection with a
withdrawal from, or the Insolvency or Reorganization of, a
Multiemployer Plan or (vi) any other event or condition shall occur or
exist with respect to a Plan; and in each case in clauses (i) through
(vi) above, such event or condition, together with all other such
events or conditions, if any, could reasonably be expected to have a
Material Adverse Effect; or
(h) One or more judgments or decrees shall be entered
against the Borrower or any of its Subsidiaries involving a liability
(not paid or fully covered by insurance) of $5,000,000 or more in the
case of any one such judgment or $10,000,000 or more in the aggregate
for all such judgments and decrees, and all such judgments or decrees
shall not have been vacated, discharged, stayed or bonded pending
appeal within 90 days from the entry thereof; or
(i) Any Person or "group" (within the meaning of Section
13(d) or 14(d) of the Securities Exchange Act of 1934, as amended) (i)
shall have acquired beneficial ownership of 20% or more of any
outstanding class of Capital Stock having ordinary voting power in the
election of directors of the Borrower or (ii) shall obtain the power
(whether or not exercised) to elect a majority of the Borrower's
directors;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) of this Section with respect to the
Borrower, automatically the Commitments shall immediately terminate and the
Loans hereunder (with accrued interest thereon) and all other amounts owing
under this Agreement shall immediately become due and payable, and (B) if such
event is any other Event of Default, either or both of the following actions may
be taken:
CREDIT AGREEMENT
44
(i) with the consent of the Required Lenders, the Administrative Agent may, or
upon the request of the Required Lenders, the Administrative Agent shall, by
notice to the Borrower declare the Commitments to be terminated forthwith,
whereupon the Commitments shall immediately terminate; and (ii) with the consent
of the Required Lenders, the Administrative Agent may, or upon the request of
the Required Lenders, the Administrative Agent shall, by notice to the Borrower,
declare the Loans hereunder (with accrued interest thereon) and all other
amounts owing under this Agreement to be due and payable forthwith, whereupon
the same shall immediately become due and payable. Except as expressly provided
above in this Section, presentment, demand, protest and all other notices of any
kind are hereby expressly waived.
SECTION 8. THE ADMINISTRATIVE AGENT
8.1 Appointment. Each Lender hereby irrevocably
designates and appoints the Administrative Agent as the agent of such Lender
under this Agreement and the other Loan Documents, and each such Lender
irrevocably authorizes the Administrative Agent, in such capacity, to take such
action on its behalf under the provisions of this Agreement and the other Loan
Documents and to exercise such powers and perform such duties as are expressly
delegated to the Administrative Agent by the terms of this Agreement and the
other Loan Documents, together with such other powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary elsewhere in
this Agreement, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any, Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the
Administrative Agent.
8.2 Delegation of Duties. The Administrative Agent may
execute any of its duties under this Agreement and the other Loan Documents by
or through agents or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties. The Administrative
Agent shall not be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care.
8.3 Exculpatory Provisions. Neither the Administrative
Agent nor any of its officers, directors, employees, agents, attorneys-in-fact
or Affiliates shall be (i) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement or any
other Loan Document (except for its or such Person's own gross negligence or
willful misconduct) or (ii) responsible in any manner to any of the Lenders for
any recitals, statements, representations or warranties made by the Borrower or
any officer thereof contained in this Agreement or any other Loan Document or in
any certificate, report, statement or other document referred to or provided for
in, or received by the Administrative Agent under or in connection with, this
Agreement or any other Loan Document or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other Loan
Document or for any failure of the Borrower to perform its obligations hereunder
or thereunder. The Administrative Agent shall not be under any obligation to any
Lender to ascertain or to inquire as to the observance or performance of any of
the agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of the Borrower.
CREDIT AGREEMENT
45
8.4 Reliance by Administrative Agent. The Administrative
Agent shall be entitled to rely, and shall be fully protected in relying, upon
any Note, writing, resolution, notice, consent, certificate, affidavit, letter,
telecopy, or teletype message, statement, order or other document or
conversation believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons and upon advice and statements of
legal counsel (including, without limitation, counsel to the Borrower),
independent accountants and other experts selected by the Administrative Agent.
The Administrative Agent may deem and treat the payee of any Note as the owner
thereof for all purposes unless a written notice of assignment, negotiation or
transfer thereof shall have been filed with the Administrative Agent. The
Administrative Agent shall be fully justified in failing or refusing to take any
action under this Agreement or any other Loan Document unless it shall first
receive such advice or concurrence of the Required Lenders as it deems
appropriate or it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. The Administrative Agent shall
in all cases be fully protected in acting, or in refraining from acting, under
this Agreement and the other Loan Documents in accordance with a request of the
Required Lenders, and such request and any action taken or failure to act
pursuant thereto shall be binding upon all the Lenders and all future holders of
the Loans.
8.5 Notice of Default. The Administrative Agent shall not
be deemed to have knowledge or notice of the occurrence of any Default or Event
of Default hereunder unless the Administrative Agent has received notice from a
Lender or the Borrower referring to this Agreement, describing such Default or
Event of Default and stating that such notice is a "notice of default." In the
event that the Administrative Agent receives such a notice, the Administrative
Agent shall give prompt notice thereof to the Lenders. The Administrative Agent
shall take such action with respect to such Default or Event of Default as shall
be reasonably directed by the Required Lenders; provided that unless and until
the Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it shall
deem advisable in the best interests of the Lenders.
8.6 Non-Reliance on Administrative Agent and Other
Lenders. Each Lender expressly acknowledges that neither the Administrative
Agent nor any of its officers, directors, employees, agents, attorneys-in-fact
or Affiliates has made any representations or warranties to it and that no act
by the Administrative Agent hereinafter taken, including any review of the
affairs of the Borrower, shall be deemed to constitute any representation or
warranty by the Administrative Agent to any Lender. Each Lender represents to
the Administrative Agent that it has, independently and without reliance upon
the Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of the Borrower and made its own decision to make
its Loans hereunder and enter into this Agreement. Each Lender also represents
that it will, independently and without reliance upon 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 analysis,
appraisals and decisions in taking or not taking action under this Agreement and
the other Loan Documents, and to make such investigation as it deems necessary
to inform itself as to the business, operations, property, financial and other
condition and creditworthiness of the
CREDIT AGREEMENT
46
Borrower. Except for notices, reports and other documents expressly required to
be furnished to the Lenders by the Administrative Agent hereunder, the
Administrative Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the business, operations,
property, condition (financial or otherwise), prospects or creditworthiness of
the Borrower which may come into the possession of the Administrative Agent or
any of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates.
8.7 Indemnification. The Lenders agree to indemnify the
Administrative Agent in its capacity as such (to the extent not reimbursed by
the Borrower and without limiting the obligation of the Borrower to do so),
ratably according to their respective Commitment Percentages in effect on the
date on which indemnification is sought, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind whatsoever which may at any time
(including, without limitation, at any time following the payment of the Loans)
be imposed on, incurred by or asserted against the Administrative Agent in any
way relating to or arising out of, the Commitments, this Agreement, (including,
without limitation, enforcement of the Administrative Agent's rights under this
subsection) any of the other Loan Documents or any documents contemplated by or
referred to herein or therein or the transactions contemplated hereby or thereby
or any action taken or omitted by the Administrative Agent under or in
connection with any of the foregoing, provided that no Lender shall be liable
for the payment of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the Administrative Agent's gross negligence or willful
misconduct. The agreements in this subsection shall survive the payment of the
Loans and all other amounts payable hereunder.
8.8 Administrative Agent in Its Individual Capacity. The
Administrative Agent and its Affiliates may make loans to, accept deposits from
and generally engage in any kind of business with the Borrower as though the
Administrative Agent were not the Administrative Agent hereunder and under the
other Loan Documents. With respect to the Loans made by it, the Administrative
Agent shall have the same rights and powers under this Agreement and the other
Loan Documents as any Lender and may exercise the same as though it were not the
Administrative Agent, and the terms "Lender" and "Lenders" shall include the
Administrative Agent in its individual capacity.
8.9 Successor Administrative Agent. The Administrative
Agent may resign as Administrative Agent upon 10 days' notice to the Lenders. If
the Administrative Agent shall resign as Administrative Agent under this
Agreement and the other Loan Documents, then the Required Lenders shall appoint
from among the Lenders a successor agent for the Lenders, which successor agent
(provided that it shall have been approved by the Borrower (such approval not to
be unreasonably withheld)), shall succeed to the rights, powers and duties of
the Administrative Agent hereunder. Effective upon such appointment and
approval, the term "Administrative Agent" shall mean such successor agent, and
the former Administrative Agent's rights, powers and duties as Administrative
Agent shall be terminated, without any other or further act or deed on the part
of such former Administrative Agent or any of the parties to this Agreement or
any holders of the Loans. After any retiring Administrative Agent's resignation
as Administrative Agent, the provisions of this Section 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 and the other Loan Documents.
CREDIT AGREEMENT
47
SECTION 9. MISCELLANEOUS
9.1 Amendments and Waivers. Neither this Agreement nor
any other Loan Document, nor any terms hereof or thereof may be amended,
supplemented or modified except in accordance with the provisions of this
subsection. The Required Lenders may, or, with the written consent of the
Required Lenders, the Administrative Agent may, from time to time, (a) enter
into with the Borrower written amendments, supplements or modifications hereto
and to the other Loan Documents for the purpose of adding any provisions to this
Agreement or the other Loan Documents or changing in any manner the rights of
the Lenders or of the Borrower hereunder or thereunder or (b) waive, on such
terms and conditions as the Required Lenders or the Administrative Agent, as the
case may be, may specify in such instrument, any of the requirements of this
Agreement or the other Loan Documents or any Default or Event of Default and its
consequences; provided, however, that no such waiver and no such amendment,
supplement or modification shall (i) reduce the amount or extend the scheduled
date of maturity of any Loan, or reduce the stated rate of any interest or fee
payable hereunder or extend the scheduled date of any payment thereof or
increase the amount or extend the expiration date of any Lender's Commitment, in
each case without the consent of each Lender affected thereby, or (ii) amend,
modify or waive any provision of this subsection or subsection 9.6(a) or reduce
the percentage specified in the definition of Required Lenders, or consent to
the assignment or transfer by the Borrower of any of its rights and obligations
under this Agreement and the other Loan Documents, in each case without the
written consent of all the Lenders, or (iii) amend, modify or waive an),
provision of Section 8 without the written consent of the then Administrative
Agent. Any such waiver and any such amendment, supplement or modification shall
apply equally to each of the Lenders and shall be binding upon the Borrower, the
Lenders, the Administrative Agent and all future holders of the Loans. In the
case of any waiver, the Borrower, the Lenders and the Administrative Agent shall
be restored to their former positions and rights hereunder and under the other
Loan Documents, and any Default or Event of Default waived shall be deemed to be
cured and not continuing; no such waiver shall extend to any subsequent or other
Default or Event of Default or impair any right consequent thereon.
9.2 Notices. All notices, requests and demands to or upon
the respective parties hereto to be effective shall be in writing (including by
facsimile transmission) and, unless otherwise expressly provided herein, shall
be deemed to have been duly given or made (a) in the case of delivery by hand,
when delivered, (b) in the case of delivery by mail, three Business Days after
being deposited in the mails, certified or registered postage prepaid, or (c) in
the case of delivery by facsimile transmission, when sent and receipt has been
confirmed, addressed as follows in the case of the Borrower and the
Administrative Agent, and as set forth in an Administrative Questionnaire
delivered to the Administrative Agent in the case of the Lenders, or to such
other address as may be hereafter notified by the respective parties hereto:
The Borrower: MasterCard International Incorporated
0000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000-0000
Attention: Xxxx Xxxxxxx (with a copy to
Xxxxxxx Xxxxxxxxxx)
Fax: 000-000-0000
Telephone: 000-000-0000
CREDIT AGREEMENT
48
The Administrative
Agent or the
Swing Line Lender: Citibank, N.A.
0 Xxxxx Xxx, Xxxxx 000
Xxx Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxx
Fax: 000-000-0000
Telephone: 000-000-0000
provided that any notice, request or demand to or upon the Administrative Agent
or the Lenders pursuant to subsection 2.2, 2.4, 2.6, 2.8, 2.9, 2.11, 2.19 or
2.20 shall not be effective until received.
9.3 No Waiver; Cumulative Remedies. No failure to
exercise and no delay in exercising, on the part of the Administrative Agent or
any Lender, any right, remedy, power or privilege hereunder or under the other
Loan Documents shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, remedy, power or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other right, remedy,
power or privilege. The rights, remedies, powers and privileges herein provided
are cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
9.4 Survival of Representations and Warranties. All
representations and warranties made hereunder, in the other Loan Documents and
in any document, certificate or statement delivered pursuant hereto or in
connection herewith shall survive the execution and delivery of this Agreement
and the making of the Loans hereunder.
9.5 Payment of Expenses and Taxes. The Borrower agrees
(a) to pay or reimburse the Administrative Agent for all reasonable fees,
charges and disbursements of counsel incurred in connection with this Agreement
and the other Loan Documents or the amendment, modification or waiver thereof
and all reasonable and documented out-of-pocket expenses of the Administrative
Agent incurred in connection with any amendment, modification or waiver with
respect to this Agreement and the other Loan Documents, (b) to pay or reimburse
each Lender and the Administrative Agent for all its costs and expenses incurred
in connection with the enforcement or preservation of any rights under this
Agreement (including, without limitation, this subsection), the other Loan
Documents and any such other documents, including, without limitation, the
reasonable fees and disbursements of counsel (including, without limitation, the
non-duplicative documented allocated cost of in-house counsel) to each Lender
and of counsel to the Administrative Agent, (c) to pay, indemnify, and hold
harmless each Lender, the Administrative Agent, their respective affiliates and
their respective officers, directors, employees, agents and advisors (each, an
"Indemnitee") from, any and all recording and filing fees and any and all
liabilities with respect to, or resulting from any delay in paying, stamp,
excise and other taxes, if any, which may be payable or determined to be payable
in connection with the execution and delivery of, or consummation or
administration of any of the transactions contemplated by, or any amendment,
supplement or modification of, or any waiver or consent under or in respect of,
this Agreement, the other Loan Documents and any such other documents, and (d)
to pay, indemnify, and hold harmless each Indemnitee from and against any
CREDIT AGREEMENT
49
and all other liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever (including, without limitation, reasonable legal fees) with respect
to the execution, delivery, enforcement, performance and administration of this
Agreement (including, without limitation, this subsection), the other Loan
Documents and any such other documents, including, without limitation, any
investigative, administrative or judicial proceeding relating to the foregoing
or any of the foregoing relating to any actual or proposed use of proceeds of
the Loans or the violation of, noncompliance with or liability under, any
Environmental Law applicable to the operations of the Borrower, any of its
Subsidiaries or any of the Properties or arising out of the Commitments (all the
foregoing in this clause (d), collectively, the "indemnified liabilities"),
provided that the Borrower shall have no obligation hereunder to any Indemnitee
with respect to indemnified liabilities arising from the gross negligence or
willful misconduct of such Indemnitee. The agreements in this subsection shall
survive repayment of the Loans and all other amounts payable hereunder.
9.6 Successors and Assigns; Participations and
Assignments. (a) This Agreement shall be binding upon and inure to the benefit
of the Borrower, the Lenders, the Administrative Agent and their respective
successors and assigns, except that the Borrower may not assign or transfer any
of its rights or obligations under this Agreement without the prior written
consent of each Lender.
(b) Any Lender may, in the ordinary course of its
commercial banking business and in accordance with applicable law, at any time
sell to one or more banks or other entities ("Participants") participating
interests in any Loan owing to such Lender, any Commitment or Swing Line
Commitment of such Lender or any other interest of such Lender hereunder and
under the other Loan Documents. In the event of any such sale by a Lender of a
participating interest to a Participant, such Lender's obligations under this
Agreement to the other parties to this Agreement shall remain unchanged, such
Lender shall remain solely responsible for the performance thereof, such Lender
shall remain the holder of any such Loan for all purposes under this Agreement
and the other Loan Documents, and the Borrower and the Administrative Agent
shall continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this Agreement and the other Loan
Documents. No Lender shall be entitled to create in favor of any Participant, in
the participation agreement pursuant to which such Participants participating
interest shall be created or otherwise, any right to vote on, consent to or
approve any matter relating to this Agreement or any other Loan Document except
for those specified in clauses (i) and (ii) of the proviso to subsection 9.1.
The Borrower agrees that if amounts outstanding under this Agreement are due or
unpaid, or shall have been declared or shall have become due and payable upon
the occurrence of an Event of Default, each Participant shall, to the maximum
extent permitted by applicable law, be deemed to have the right of setoff in
respect of its participating interest in amounts owing under this Agreement to
the same extent as if the amount of its participating interest were owing
directly to it as a Lender under this Agreement, provided that, in purchasing
such participating interest, such Participant shall be deemed to have agreed to
share with the Lenders the proceeds thereof as provided in subsection 9.7(a) as
fully as if it were a Lender hereunder. The Borrower also agrees that each
Participant shall be entitled to the benefits of subsections 2.19, 2.20, 2.22
and 2.23 with respect to its participation in the Commitments, Swing Line
Commitments and the Loans outstanding from time to time as if it was a Lender;
provided that, in the case of subsection 2.23, such Participant shall have
complied with the requirements of said subsection and provided,
CREDIT AGREEMENT
50
further, that no Participant shall be entitled to receive any greater amount
pursuant to any such subsection than the transferor Lender would have been
entitled to receive in respect of the amount of the participation transferred by
such transferor Lender to such Participant had no such transfer occurred.
(c) Subject to the provisions of subsection 9.6(d)
relating to the assignment of CAF Advances, any Lender may, in the ordinary
course of its commercial banking business and in accordance with applicable law,
at any time and from time to time assign to one or more banks or other financial
institutions (an "Assignee") all or any part of its rights and obligations under
this Agreement and the other Loan Documents; provided, however, that
(i) except in the case of an assignment (A) to a
Lender or an Affiliate of a Lender which is a bank or financial
institution or (B) of CAF Advances, each of the Administrative Agent
and (except when a Default or Event of Default shall have occurred and
be continuing) the Borrower must give its consent to such assignment
(which in each case shall not be unreasonably withheld or delayed);
(ii) the Swing Line Lender may not transfer any
portion of the Swing Line Commitment without the consent of the
Borrower (such consent not to be unreasonably withheld or delayed);
(iii) in the case of any assignment to an
additional bank or financial institution that is not a Lender or an
Affiliate thereof, the sum of the aggregate principal amount of the
Loans and the aggregate amount of the Commitments and Swing Line
Commitments being assigned and, if such assignment is of less than all
of the rights and obligations of the assigning Lender, the sum of the
aggregate principal amount of the Loans and the aggregate amount of the
Commitments and Swing Line Commitments remaining with the assigning
Lender are each not less than $5,000,000 (or such lesser amount as may
be agreed to by the Borrower and the Administrative Agent); and
(iv) such assignment shall be evidenced by an
Assignment and Acceptance, substantially in the form of Exhibit H,
executed by such Assignee, such assigning Lender (and, in the case of
an Assignee that is not then a Lender or an Affiliate thereof, by the
Borrower and the Administrative Agent) and delivered to the
Administrative Agent for its acceptance and recording in the Register.
Upon such execution, delivery, acceptance and recording, from and after the
effective date determined pursuant to such Assignment and Acceptance, (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
with a Commitment or Swing Line Commitment as set forth therein, 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 an
assigning Lender's rights and obligations under this Agreement such assigning
Lender shall cease to be a party hereto). Notwithstanding any provision of this
paragraph (c) and paragraph (f) of this subsection, the consent of the Borrower
shall not be required, and, unless requested by the Assignee and/or the
assigning Lender, new Notes shall not be required to be executed and delivered
by the
CREDIT AGREEMENT
51
Borrower, for any assignment which occurs at any time when any of the events
described in Section 7(f) shall have occurred and be continuing.
(d) Any Lender may, in the ordinary course of its
commercial banking business and in accordance with applicable law, at any time
and from time to time assign to one or more banks or other entities ("CAF
Advance Assignees") any CAF Advance owing to such Lender, pursuant to a CAF
Advance Assignment, substantially in the form of Exhibit D-4 attached hereto,
executed by the assignor Lender and the CAF Advance Assignee. Upon such
execution, from and after the date of such CAF Advance Assignment, the CAF
Advance Assignee shall, to the extent of the assignment provided for in such CAF
Advance Assignment, be deemed to have the same rights and benefits of payment
and enforcement with respect to such CAF Advance and the same rights of set-off
and obligation to share pursuant to subsection 9.7 as it would have had if it
were a Lender hereunder; provided that unless such CAF Advance Assignment shall
otherwise specify and a copy of such CAF Advance Assignment shall have been
delivered to the Administrative Agent for its acceptance and recording in the
Register in accordance with subsection 9.6(e), the assignor thereunder shall act
as collection agent for the CAF Advance Assignee thereunder, and the
Administrative Agent shall pay all amounts received from the Borrower which are
allocable to the assigned CAF Advance directly to such assignor without any
further liability to such CAF Advance Assignee. A CAF Advance Assignee under a
CAF Advance Assignment shall not, by virtue of such CAF Advance Assignment,
become a party to this Agreement or have any rights to consent to or refrain
from consenting to any amendment, waiver or other modification of any provision
of this Agreement or any related document; provided that (x) the assignor under
such CAF Advance Assignment and such CAF Advance Assignee may, in their
discretion, agree between themselves upon the manner in which such assignor will
exercise its rights under this Agreement and any related document except no
Lender shall sell any CAF Advance pursuant to which the CAF Advance Assignee
shall have rights to approve any amendment or waiver to this Agreement except to
the extent such amendment or waiver would (i) reduce the principal amount of any
CAF Advance which has been assigned to such CAF Advance Assignee, (ii) reduce
the rate of interest on any such CAF Advance or any fees payable in connection
with such CAF Advance or (iii) extend the time of payment of principal or, or
interest on, any such CAF Advance or any other amount owing under this Agreement
and in connection with such CAF Advance, and (y) if a copy of such CAF Advance
Assignment shall have been delivered to the Administrative Agent for its
acceptance and recording in the Register in accordance with subsection 9.6(e),
neither the principal amount of, the interest rate on, nor the maturity date of,
any CAF Advance assigned to such CAF Advance Assignee thereunder will be
modified without the written consent of such CAF Advance Assignee. If a CAF
Advance Assignee has caused a CAF Advance Assignment to be recorded in the
Register in accordance with subsection 9.6(e), such CAF Advance Assignee may
thereafter, in the ordinary course of its business and in accordance with
applicable law, assign the CAF Advance assigned to it to any Lender, to any
affiliate or subsidiary of such CAF Advance Assignee or to any other financial
institution with the consent of the Borrower (which shall not be unreasonably
withheld), and the foregoing provisions of this paragraph (c) shall apply,
mutatis mutandis, to any such assignment by a CAF Advance Assignee. Except in
accordance with the preceding sentence, CAF Advances may not be further assigned
by a CAF Advance Assignee, subject to any legal or regulatory requirement that
the CAF Advance Assignee's assets must remain under its control.
CREDIT AGREEMENT
52
(e) The Administrative Agent, on behalf of the Borrower,
shall maintain at the address of the Administrative Agent referred to in
subsection 9.2 a copy of each Assignment and Acceptance delivered to it and a
register (the "Register") for the recordation of the names and addresses of the
Lenders and the Commitment of, and principal amount of the Loans owing to, each
Lender from time to time. The entries in the Register shall be conclusive, in
the absence of manifest error, and the Borrower, the Administrative Agent and
the Lenders may (and, in the case of any Loan or other obligation hereunder not
evidenced by a Note, shall) treat each Person whose name is recorded in the
Register as the owner of a Loan or other obligation hereunder as the owner
thereof for all purposes of this Agreement and the other Loan 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 (and, in the case of an Assignee
that is not then a Lender or an affiliate thereof, by the Borrower and the
Administrative Agent) together with payment to the Administrative Agent of a
registration and processing fee of $2,000 and (if the Assignee is not a Lender)
delivery to the Administrative Agent of such Assignee's Administrative
Questionnaire, the Administrative Agent shall (i) promptly accept such
Assignment and Acceptance and (ii) on the effective date determined pursuant
thereto record the information contained therein in the Register and give notice
of such acceptance and recordation to the Lenders and the Borrower.
(g) The Borrower authorizes each Lender to disclose to
any Participant or Assignee (each, a "Transferee") and any prospective
Transferee any and all financial information in such Lender's possession
concerning the Borrower and its Affiliates which has been delivered to such
Lender by or on behalf of the Borrower pursuant to this Agreement or which has
been delivered to such Lender by or on behalf of the Borrower in connection with
such Lender's credit evaluation of the Borrower and its Affiliates prior to
becoming a party to this Agreement.
(h) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this subsection concerning assignments of
Loans and Notes relate only to absolute assignments and that such provisions do
not prohibit assignments creating security interests, including, without
limitation, any pledge or assignment by a Lender of any Loan or Note to any
Federal Reserve Bank in accordance with applicable law.
9.7 Adjustments; Set-off. (a) If any Lender (a "benefited
Lender") shall at any time receive any payment of all or part of its Loans, or
interest thereon, or receive any collateral in respect thereof (whether
voluntarily or involuntarily, by set-off, pursuant to events or proceedings of
the nature referred to in Section 7(f), or otherwise), in a greater proportion
than any such payment to, or collateral received by any other Lender, if any, in
respect of such other Lender's Loans, or interest thereon, such benefited Lender
shall purchase for cash from the other Lenders a participating interest in such
portion of each such other Lender's Loan, or shall provide such other Lenders
with the benefits of any such collateral, or the proceeds thereof, as shall be
necessary to cause such benefited Lender to share the excess payment or benefits
of such collateral or proceeds ratably with each of the Lenders; provided,
however, that if all or any
CREDIT AGREEMENT
53
portion of such excess payment or benefits is thereafter recovered from such
benefited Lender, such purchase shall be rescinded, and the purchase price and
benefits returned, to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders
provided by law, each Lender shall have the right, without prior notice to the
Borrower, any such notice being expressly waived by the Borrower to the extent
permitted by applicable law, upon any amount becoming due and payable by the
Borrower hereunder (whether at the stated maturity, by acceleration or
otherwise) to set off and appropriate and apply against such amount any and all
deposits (general or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in any currency, in
each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by such Lender or any branch or agency
thereof to or for the credit or the account of the Borrower, provided that no
such set-off and application may be made against deposits in the accounts listed
on Schedule 9.7(b) attached hereto. Each Lender agrees promptly to notify the
Borrower and the Administrative Agent after any such set-off and application
made by such Lender, provided that the failure to give such notice shall not
affect the validity of such set-off and application.
9.8 Counterparts. This Agreement may be executed by one
or more of the parties to this Agreement on any number of separate Counterparts
(including by facsimile transmission), and all of said counterparts taken
together shall be deemed to constitute one and the same instrument. A set of the
copies of this Agreement signed by all the parties shall be lodged with the
Borrower and the Administrative Agent.
9.9 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 enforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
9.10 Integration. This Agreement and the other Loan
Documents represent the agreement of the Borrower, the Administrative Agent and
the Lenders with respect to the subject matter hereof, and there are no
promises, undertakings, representations or warranties by the Administrative
Agent or any Lender relative to subject matter hereof not expressly set forth or
referred to herein or in the other Loan Documents.
9.11 Termination of Commitments and Swing Line
Commitments. The Commitments and Swing Line Commitments shall terminate if the
conditions to closing set forth in subsection 4.1 shall not be satisfied on or
before June 30, 2000.
9.12 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
9.13 Submission To Jurisdiction; Waivers. The Borrower
hereby irrevocably and unconditionally:
CREDIT AGREEMENT
54
(a) submits for itself and its property in any legal
action or proceeding relating to this, Agreement and the other Loan
Documents to which it is a party, or for recognition and enforcement of
any judgment in respect thereof, to the non-exclusive general
jurisdiction of the Courts of the State of New York, the courts of the
United States for the Southern District of New York, and appellate
courts from any thereof;
(b) consents that any such action or proceeding may be
brought in such courts and waives any objection that it may now or
hereafter have to the venue of any such action or proceeding in any
such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to the Borrower at its address set forth in subsection 9.2 or
at such other address of which the Administrative Agent shall have been
notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall
limit the right to xxx in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law,
any right it may have to claim or recover in any legal action or
proceeding referred to in this subsection any special, exemplary,
punitive or consequential damages.
9.14 Acknowledgements. The Borrower hereby acknowledges
that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Loan Documents;
(b) neither the Administrative Agent nor any Lender has
any fiduciary relationship with or duty to the Borrower arising out of
or in connection with this Agreement or any of the other Loan
Documents, and the relationship between Administrative Agent and
Lenders, on one hand, and the Borrower, on the other hand, in
connection herewith or therewith is solely that of debtor and creditor;
and
(c) no joint venture is created hereby or by the other
Loan Documents or otherwise exists by virtue of the transactions
contemplated hereby among the Lenders or among the Borrower and the
Lenders.
9.15 WAIVERS OF JURY TRIAL. THE BORROWER, THE
ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
CREDIT AGREEMENT
55
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
MASTERCARD INTERNATIONAL INCORPORATED
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxx
Title: SVP & Treasurer
CITIBANK, N.A.
as Administrative Agent and as a Lender
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
CREDIT AGREEMENT
56
LENDERS
BANK ONE, NA
By: /s/ Xxxxx X. Xxxxx
-----------------------------------
Name: Xxxxx X. Xxxxx
Title: Commercial Banking Officer
FLEET NATIONAL BANK
By: /s/ Xxxx X. Xxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
HSBC BANK USA
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
ABN AMRO BANK N.V.
By: /s/ Xxxxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Group Vice President
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Group Vice President
COMMONWEALTH BANK OF AUSTRALIA --
GRAND CAYMAN BRANCH
By: /s/ Xxxxx Xxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Head of Risk Management
Americas Region
CREDIT AGREEMENT
57
BANK OF MONTREAL
By: /s/ Xxxx Xxxx
------------------------------------
Name: Xxxx Xxxx
Title: Director
CREDIT AGRICOLE INDOSUEZ
By: /s/ Xxxxx Xxxxx
------------------------------------
Name: Xxxxx Xxxxx
Title: Managing Director
By: /s/ Xxxx XxXxxxxxx
---------------------------------
Name: Xxxx XxXxxxxxx
Title: First Vice President
NATIONAL WESTMINSTER BANK PLC,
New York and Nassau Branches
By: /s/ Xxxxx Xxxxxx
------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
BAYERISCHE HYPO-UND VEREINSBANK AG,
NEW YORK BRANCH
By: /s/ Xxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Managing Director
By: /s/ Xxxxx von Richthofen
---------------------------------
Name: Xxxxx von Richthofen
Title: Associate
CREDIT AGREEMENT
00
XXX XXXXX XXXXXXXXX BANK
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
DAI-ICHI KANGYO BANK, LIMITED
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
SUNTRUST BANK
By: /s/ W. Xxxxx Xxxxxx
------------------------------------
Name: W. Xxxxx Xxxxxx
Title: Vice President
XXXXX FARGO BANK
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
CREDIT AGREEMENT
