CSX CORPORATION
EXECUTION
COPY
CSX
CORPORATION
$1,250,000,000
FIVE-YEAR
REVOLVING
May
4,
2006
CITIBANK,
N.A.
THE
BANK
OF NOVA SCOTIA
as
Co-Syndication Agents
CREDIT
SUISSE
MIZUHO
CORPORATE BANK, LTD.
as
Co-Documentation Agents
JPMORGAN
CHASE BANK, N.A.
as
Administrative Agent
________________________
X.X.
XXXXXX SECURITIES INC.,
as
Sole
Advisor, Lead Arranger and Bookrunner
Table
of Contents
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ARTICLE II The Credits |
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ARTICLE III Representations and Warranties |
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ARTICLE IV Conditions |
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ARTICLE VI Negative Covenants |
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ARTICLE VII Events of Default |
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ARTICLE VIII The Agents |
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ARTICLE IX Miscellaneous |
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SCHEDULES:
Schedule 2.01 |
—
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Commitments |
Schedule 3.06 |
—
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Disclosed Matters
|
Schedule 6.02 |
—
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Certain Transactions |
EXHIBITS:
Exhibit A |
—
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Form of Assignment and Acceptance |
Exhibit B-1 |
—
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Form of Revolving Loan Note |
Exhibit B-2 |
—
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Form of Competitive Loan Note |
Exhibit C |
—
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Form of Opinion of Cravath, Swaine & Xxxxx LLP |
Exhibit D |
—
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Form of Opinion of General Counsel or an Assistant General Counsel |
Exhibit E |
—
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Form of Commitment Increase Supplement |
Exhibit F |
—
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Form of Augmenting Lender Supplement |
FIVE-YEAR
REVOLVING CREDIT AGREEMENT, dated as of May 4, 2006, among CSX CORPORATION,
a
Virginia corporation, as Borrower, the LENDERS parties hereto, CITIBANK, N.A.
and THE BANK OF NOVA SCOTIA, as Co-Syndication Agents, CREDIT SUISSE and MIZUHO
CORPORATE BANK, LTD., as Co-Documentation Agents, and JPMORGAN CHASE BANK,
N.A.,
as Administrative Agent.
W I T N E S S E T H
:
WHEREAS,
the Borrower and the Lenders are entering into this Agreement for the purpose
of
setting forth the terms and conditions on which the Lenders are willing to
make
extensions of credit to the Borrower as more fully described
herein;
NOW,
THEREFORE, in consideration of the premises and mutual covenants set forth
herein, subject to the satisfaction of the conditions set forth in Section
4.01,
the parties hereto agree as follows:
Definitions
SECTION
1.01. Defined
Terms.
As used
in this Agreement, the following terms have the meanings specified
below:
“ABR”,
when
used in reference to any Loan or Borrowing, refers to whether such Loan, or
the
Loans comprising such Borrowing, are bearing interest at a rate determined
by
reference to the Alternate Base Rate.
“Act”
has
the
meaning assigned to such term in Section 9.13.
“Adjusted
LIBO Rate”
means,
with respect to any Eurodollar Revolving Borrowing for any Interest Period,
an
interest rate per annum (rounded upwards, if necessary, to the next 1/16 of
1%)
equal to (a) the LIBO Rate for such Interest Period multiplied by
(b) the Statutory Reserve Rate.
“Administrative
Agent”
means
JPMorgan Chase Bank, N.A., in its capacity as administrative agent for the
Lenders hereunder.
“Administrative
Questionnaire”
means
an administrative questionnaire in a form supplied by the Administrative
Agent.
“Affiliate”
means,
with respect to a specified Person, another Person that directly, or indirectly
through one or more intermediaries, Controls or is Controlled by or is under
common Control with the Person specified.
“Agents”
means
the collective reference to the Administrative Agent, the Co-Syndication Agents
and the Co-Documentation Agents.
“Aggregate
Outstanding Extensions of Credit”
means,
at any time, an amount equal to the sum of (a) the aggregate Revolving Credit
Exposure of the Lenders at such time and (b) the aggregate principal amount
of
outstanding Competitive Loans of the Lenders at such time.
“Agreement”
means
this Five-Year Revolving Credit Agreement, as amended, supplemented or otherwise
modified from time to time.
“Allocable
CSX/NS Attributable Debt”
means
the allocable portion of any obligation of any CSX/NS Acquisition Sub Entity
which would be “Attributable
Debt”
of
the
Borrower and the Subsidiaries if such CSX/NS Acquisition Sub Entity were a
Subsidiary of the Borrower, with such allocable portion being equal to a
percentage of such obligations equal to the percentage of the capital stock
of
such CSX/NS Acquisition Sub Entity which is directly or indirectly owned by
the
Borrower, provided
that (a)
the Allocable CSX/NS Attributable Debt with respect to any obligations which
constitute CSX Conrail Attributable Debt shall be the entire amount of such
obligations, (b) the Allocable CSX/NS Attributable Debt with respect to any
obligations which constitute NS Conrail Attributable Debt shall be zero and
(c)
the Allocable CSX/NS Attributable Debt with respect to any obligations of any
CSX/NS Acquisition Sub Entity which would be included as “Attributable
Debt”
of
the
Borrower and the Subsidiaries if such CSX/NS Acquisition Sub Entity were a
Subsidiary of the Borrower and which would be permitted under Sections 6.03(a)
and 6.03(b) shall be zero.
“Allocable
CSX/NS Debt”
means
the allocable portion of any obligation of any CSX/NS Acquisition Sub Entity
which would be included as “Debt”
of
the
Borrower if such CSX/NS Acquisition Sub Entity were a Subsidiary of the
Borrower, with such allocable portion being equal to a percentage of such
obligations equal to the percentage of the capital stock of such CSX/NS
Acquisition Sub Entity which is directly or indirectly owned by the Borrower,
provided
that (a)
the Allocable CSX/NS Debt with respect to any obligations which constitute
CSX
Conrail Debt shall be the entire amount of such obligations, (b) the Allocable
CSX/NS Debt with respect to any obligations which constitute NS Conrail Debt
shall be zero and (c) the Allocable CSX/NS Debt with respect to any obligations
of any CSX/NS Acquisition Sub Entity which would be included as “Debt”
of
the
Borrower if such CSX/NS Acquisition Sub Entity were a Subsidiary of the Borrower
and which would be permitted under Sections 6.01(a), 6.01(b), 6.01(c) and
6.01(d) (assuming all CSX/NS Acquisition Sub Entities were Subsidiaries) shall
be zero.
“Allocable
Railroad Revenues”
means
a
percentage of any Railroad Revenues of any CSX/NS Entity equal to the percentage
of the capital stock of such CSX/NS Entity which is directly or indirectly
owned
by the Borrower, provided
that the
Allocable Railroad Revenues with respect to the Railroad Revenues of any CSX
Conrail Subsidiary shall be the entire amount of such Railroad
Revenues.
“Alternate
Base Rate”
means,
for any day, a rate per annum equal to the greater of (a) the Prime Rate in
effect on such day and (b) the Federal Funds Effective Rate in effect on
such day plus 1/2 of 1%. Any change in the Alternate Base Rate due to a
change in the Prime Rate or the Federal Funds Effective Rate shall be effective
from and including the effective date of such change in the Prime Rate or the
Federal Funds Effective Rate, respectively.
“Applicable
Percentage”
means,
with respect to any Lender, at any time, the percentage of the total Commitments
then in effect represented by such Lender’s Commitment at such time. If all
Commitments have terminated or expired, the Applicable Percentages shall be
determined based upon the Commitments most recently in effect, giving effect
to
any assignments. If, in connection with any extension of the Maturity Date
then
in effect pursuant to Section 2.08(e), fewer than all Lenders approve such
extension, the Applicable Percentage with respect to each Lender shall be
modified as of such Maturity Date as set forth in Section 2.08(e) effective
concurrently with the effectiveness of such extension.
“Applicable
Rate”
means,
for any day, with respect to any Eurodollar Revolving Loan, or with respect
to
the facility fees payable hereunder, as the case may be, the applicable rate
per
annum set forth below under the caption “LIBOR Margin” or “Facility Fee”, as the
case may be, based upon the ratings by Xxxxx’x and S&P, respectively,
applicable on such date to the Index Debt:
Index
Debt Ratings
(S&P/Xxxxx’x)
|
Facility
Fee
(basis
points per annum)
|
LIBOR
Margin (basis points per annum)
|
|
Category
1
|
A/A2
or higher
|
6.0
|
19.0
|
Category
2
|
A-/A3
|
7.0
|
23.0
|
Category
3
|
BBB+/Baa1
|
8.0
|
27.0
|
Category
4
|
BBB/Baa2
|
10.0
|
35.0
|
Category
5
|
BBB-/Baa3
|
12.5
|
47.5
|
Category
6
|
BB+/Bal
or lower
|
17.5
|
57.5
|
For
purposes of the foregoing, (i) if neither Xxxxx’x nor S&P shall have in
effect a rating for the Index Debt (other than by reason of the circumstances
referred to in the last two sentences of this definition), then both such rating
agencies shall be deemed to have established a rating in Category 6; (ii) if
only one of Xxxxx’x or S&P shall have in effect a rating for the Index Debt,
then the Borrower and the Lenders will negotiate in good faith to agree upon
another rating agency to be substituted by an amendment to this Agreement for
the rating agency which shall not have a rating in effect, and in the absence
of
such amendment the Applicable Rate will be determined by reference to the
available rating; (iii) if the ratings established or deemed to have been
established by Xxxxx’x and S&P for the Index Debt shall fall within
different Categories, the Applicable Rate shall be based on the higher of the
two ratings unless one of the two ratings is two or more Categories lower than
the other, in which case the Applicable Rate shall be determined by reference
to
the Category next below that of the higher of the two ratings; and (iv) if
the
ratings established or deemed to have been established by Xxxxx’x and S&P
for the Index Debt shall be changed (other than as a result of a change in
the
rating system of Xxxxx’x or S&P), such change shall be effective as of the
date on which it is first announced by the applicable rating agency. Each change
in the Applicable Rate shall apply during the period commencing on the effective
date of such change and ending on the date immediately preceding the effective
date of the next such change. If the rating system of Xxxxx’x or S&P shall
change, the Borrower and the Lenders shall negotiate in good faith to amend
this
definition to reflect such changed rating system or the unavailability of
ratings from such rating agency and, pending the effectiveness of any such
amendment, the Applicable Rate shall be determined by reference to the rating
or
ratings most recently in effect prior to such change or cessation. If both
Xxxxx’x and S&P shall cease to be in the business of rating corporate debt
obligations, the Borrower and the Lenders shall negotiate in good faith to
agree
upon a substitute rating agency and to amend the references to specific ratings
in this definition to reflect the ratings used by such substitute rating agency,
and in the absence of such amendment then both such rating agencies shall be
deemed to have established a rating in Category 6.
“Assignment
and Acceptance”
means
an assignment and acceptance entered into by a Lender and an assignee (with
the
consent of any party whose consent is required by Section 9.04), and
accepted by the Administrative Agent, in the form of Exhibit A or any other
form approved by the Administrative Agent and the Borrower.
“Attributable
Debt”
means,
at any date with respect to any Sale/Leaseback Transaction in respect of which
the obligations of the Borrower, any Subsidiary or any CSX Conrail Subsidiary
do
not constitute Capital Lease Obligations, the aggregate amount of rental
payments due from the Borrower, such Subsidiary or such CSX Conrail Subsidiary,
as the case may be, under the lease entered into in connection with such
Sale/Leaseback Transaction during the remaining term of such lease, net of
rental payments which have been defeased or secured by deposits, discounted
from
the respective due dates thereof to such date using a discount rate equal to
the
discount rate that would then be used to calculate the amount of Capital Lease
Obligations with respect to a comparable capital lease.
“Augmenting
Lender”
has
the
meaning assigned to such term in Section 2.02(e).
“Augmenting
Lender Supplement”
has
the
meaning assigned to such term in Section 2.02(e).
“Availability
Period”
means
with respect to each Lender, at any time, the period from and including the
Closing Date to but excluding the earlier of the Maturity Date then in effect
with respect to such Lender and the date of termination of the
Commitments.
“Board”
means
the Board of Governors of the Federal Reserve System of the United States of
America.
“Borrower”
means
CSX Corporation, a Virginia corporation.
“Borrowing”
means
(a) a Revolving Loan or a group of Revolving Loans of the same Type made,
converted or continued on the same date and, in the case of Eurodollar Loans,
as
to which a single Interest Period is in effect or (b) a Competitive Loan or
group of Competitive Loans of the same Type made on the same date and as to
which a single Interest Period is in effect.
“Borrowing
Request”
means
a
request by the Borrower for a Revolving Borrowing in accordance with Section
2.03.
“Business
Day”
means
any day that is not a Saturday, Sunday or other day on which commercial banks
in
New York City are authorized or required by law to remain closed; provided
that,
when used in connection with a Eurodollar Loan, the term “Business Day” shall
also exclude any day on which banks are not open for dealings in dollar deposits
in the London interbank market.
“Capital
Lease Obligations”
of
any
Person means the obligations of such Person to pay rent or other amounts under
any lease of (or other arrangement conveying the right to use) real or personal
property, or a combination thereof, which obligations are required to be
classified and accounted for as capital leases on a balance sheet of such Person
under GAAP, and the amount of such obligations shall be the capitalized amount
thereof determined in accordance with GAAP.
“Cash
Collateral Account”
has
the
meaning assigned to such term in Section 2.10(c).
“Change
in Control”
means
(a) the acquisition of ownership, directly or indirectly, beneficially or of
record, by any Person or group (within the meaning of the Securities Exchange
Act of 1934 and the rules of the Securities and Exchange Commission thereunder
as in effect on the date hereof), of shares representing more than 30% of the
aggregate ordinary voting power represented by the issued and outstanding
capital stock of the Borrower, (b) occupation of a majority of the seats (other
than vacant seats) on the board of directors of the Borrower by Persons who
were
neither (i) nominated by the board of directors of the Borrower nor (ii)
appointed by directors so nominated, or (c) the acquisition of direct or
indirect Control of the Borrower by any Person or group.
“Change
in Law”
means
(a) the adoption of any law, rule or regulation after the date of this
Agreement, (b) any change in any law, rule or regulation or in the
interpretation or application thereof by any Governmental Authority after the
date of this Agreement or (c) compliance by any Lender or any Issuing Bank
(or,
for purposes of Section 2.14(b), by any lending office of such Lender or by
such
Lender’s or Issuing Bank’s holding company, if any) with any request, guideline
or directive (whether or not having the force of law) of any Governmental
Authority made or issued after the date of this Agreement.
“Class”
refers,
when used in reference to any Loan or Borrowing, to whether such Loan, or the
Loans comprising such Borrowing, are Revolving Loans or Competitive
Loans.
“Closing
Date”
means
the date on which the conditions specified in Section 4.01 are satisfied
(or waived in accordance with Section 9.02), which date shall be no later
than May 4, 2006.
“Code”
means
the Internal Revenue Code of 1986, as amended from time to time.
“Co-Documentation
Agents”
means
the collective reference to Credit Suisse and Mizuho Corporate Bank, Ltd.,
in
their respective capacities as co-documentation agents hereunder.
“Commitment”
means,
with respect to each Lender, the commitment of such Lender to make Revolving
Loans and to acquire participations in Letters of Credit hereunder, expressed
as
an amount representing the maximum aggregate amount of such Lender’s Revolving
Credit Exposure hereunder, as such commitment may be (a) reduced from time
to
time pursuant to Section 2.08, (b) increased from time to time with respect
to
an Increasing Lender pursuant to Section 2.02(e) and (c) reduced or increased
from time to time pursuant to assignments by or to such Lender pursuant to
Section 9.04. The initial amount of each Lender’s Commitment is set forth on
Schedule 2.01, in the Assignment and Acceptance pursuant to which such Lender
shall have assumed its Commitment or in the Augmenting Lender Supplement
pursuant to which such Lender shall have assumed its Commitment, as applicable.
“Commitment
Increase Supplement”
has
the
meaning assigned to such term in Section 2.02(e).
“Competitive
Bid”
means
an offer by a Lender to make a Competitive Loan in accordance with
Section 2.04.
“Competitive
Bid Rate”
means,
with respect to any Competitive Bid, the Margin or the Fixed Rate, as
applicable, offered by the Lender making such Competitive Bid.
“Competitive
Bid Request”
means
a
request by the Borrower for Competitive Bids in accordance with
Section 2.04.
“Competitive
Loan”
means
a
Loan made pursuant to Section 2.04.
“Competitive
Loan Note”
has
the
meaning assigned to such term in Section 2.09(e).
“Conrail”
means
Conrail Inc., a Pennsylvania corporation.
“Conrail
Shares”
means
the collective reference to all of the issued and outstanding shares of common
stock of Conrail.
“Control”
means
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the ability
to exercise voting power, by contract or otherwise. “Controlling” and
“Controlled” have meanings correlative thereto.
“Co-Syndication
Agents”
means
the collective reference to Citibank, N.A. and The Bank of Nova Scotia, in
their
respective capacities as co-syndication agents hereunder.
“CSX
Conrail Assets”
means
any assets of any CSX/NS Acquisition Sub Entity made available for the separate
use and benefit of the Borrower and/or any Subsidiary pursuant to the CSX/NS
Agreement (or the definitive documentation referred to therein).
“CSX
Conrail Attributable Debt”
means
any Attributable Debt of any CSX/NS Acquisition Sub Entity which is to be paid
in full directly or indirectly by the Borrower and the Subsidiaries and/or
by
any CSX Conrail Subsidiaries.
“CSX
Conrail Debt”
means,
as to any CSX/NS Acquisition Sub Entity at any date of determination thereof,
any obligation of such CSX/NS Acquisition Sub Entity to the extent that (a)
such
obligation should be reflected in “Short Term Debt” or “Long Term Debt” on a
consolidated balance sheet or statement of financial position of such CSX/NS
Acquisition Sub Entity at such date in accordance with GAAP and (b) such
obligation is to be paid in full directly or indirectly by the Borrower and
the
Subsidiaries and/or by any CSX Conrail Subsidiaries.
“CSX
Conrail Railroad Subsidiary”
means
any CSX/NS Entity which is a Class I common carrier by rail under the rules
of
the Surface Transportation Board or has Allocable Railroad Revenues for the
most
recent period of four fiscal quarters of the Borrower that exceed an amount
equal to 5% of the sum of, without duplication, (a) the aggregate Railroad
Revenues of the Borrower and the Subsidiaries for such period and (b) the
aggregate Allocable Railroad Revenues of the CSX/NS Entities for such
period.
“CSX
Conrail Shares”
means
the Conrail Shares owned directly or indirectly by the Borrower.
“CSX
Conrail Subsidiary”
means
any CSX/NS Acquisition Sub Entity whose sole assets consist of CSX Conrail
Assets.
“CSX/NS
Acquisition Sub”
means
CRR Holdings LLC, a Delaware limited liability company.
“CSX/NS
Acquisition Sub Entity”
means
CSX/NS Acquisition Sub or any of its subsidiaries.
“CSX/NS
Agreement”
means
the Letter Agreement dated April 8, 1997 between the Borrower and NS providing
for the joint acquisition of Conrail.
“CSX/NS
Entity”
means
CSX/NS Acquisition Sub or any of its subsidiaries (other than any NS Conrail
Subsidiaries).
“Debt”
means,
as to the Borrower, any Subsidiary or any CSX Conrail Subsidiary at any date
of
determination thereof, any obligation of the Borrower, such Subsidiary or such
CSX Conrail Subsidiary, as the case may be, to the extent that such obligation
should be reflected in “Short Term Debt” or “Long Term Debt” on a consolidated
balance sheet or statement of financial position of the Borrower, such
Subsidiaries and such CSX Conrail Subsidiaries at such date in accordance with
GAAP and, for such purposes, the amount of any obligation of any CSX Conrail
Subsidiary which shall be included as “Debt”
of
the
Borrower shall be equal to the Allocable CSX/NS Debt of such CSX Conrail
Subsidiary (except that, for purposes of Section 6.05, the Allocable CSX/NS
Debt
of any CSX Conrail Subsidiary shall be calculated without giving effect to
clause (c) of the proviso to the definition of Allocable CSX/NS
Debt).
“Default”
means
any event or condition which constitutes an Event of Default or which upon
notice, lapse of time or both would, unless cured or waived, become an Event
of
Default.
“Disclosed
Matters”
means
the actions, suits and proceedings and the environmental matters disclosed
in
Schedule 3.06.
“dollars”
or
“$”
refers
to lawful money of the United States of America.
“electronic
pdf”
means
a
document that has been converted to an electronic image and is delivered or
furnished by electronic communication.
“Environmental
Laws”
means
all laws, rules, regulations, codes, ordinances, orders, decrees, judgments,
injunctions, notices or binding agreements issued, promulgated or entered into
by any Governmental Authority, relating in any way to the environment,
preservation or reclamation of natural resources or the management, release
or
threatened release of any Hazardous Material.
“Environmental
Liability”
means
any liability, contingent or otherwise (including any liability for damages,
costs of environmental remediation, fines, penalties or indemnities), of the
Borrower, any Subsidiary or any CSX/NS Entity directly or indirectly resulting
from or based upon (a) violation of any Environmental Law, (b) the
generation, use, handling, transportation, storage, treatment or disposal of
any
Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the
release or threatened release of any Hazardous Materials into the environment
or
(e) any contract, agreement or other consensual arrangement pursuant to which
liability is assumed or imposed with respect to any of the
foregoing.
“ERISA”
means
the Employee Retirement Income Security Act of 1974, as amended from time to
time.
“ERISA
Affiliate”
means
any trade or business (whether or not incorporated) that, together with the
Borrower, is treated as a single employer under Section 414(b) or (c) of
the Code or, solely for purposes of Section 302 of ERISA and Section 412 of
the
Code, is treated as a single employer under Section 414 of the
Code.
“ERISA
Event”
means
(a) any “reportable event”, as defined in Section 4043 of ERISA or the
regulations issued thereunder with respect to a Plan (other than an event for
which the 30-day notice period is waived); (b) the existence with respect
to any Plan of an “accumulated funding deficiency” (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or
Section 303(d) of ERISA of an application for a waiver of the minimum
funding standard with respect to any Plan; (d) the incurrence by the
Borrower or any of its ERISA Affiliates of any liability under Title IV of
ERISA with respect to the termination of any Plan; (e) the receipt by the
Borrower or any ERISA Affiliate from the PBGC or a plan administrator of any
notice relating to an intention to terminate any Plan or Plans or to appoint
a
trustee to administer any Plan; (f) the incurrence by the Borrower or any of
its
ERISA Affiliates of any liability with respect to the withdrawal or partial
withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by the
Borrower or any ERISA Affiliate of any notice, or the receipt by any
Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
“Eurodollar”,
when
used in reference to any Loan or Borrowing, refers to whether such Loan, or
the
Loans comprising such Borrowing, are bearing interest at a rate determined
by
reference to the Adjusted LIBO Rate (or, in the case of a Competitive Loan,
the
LIBO Rate).
“Event
of Default”
has
the
meaning assigned to such term in Article VII.
“Excluded
Taxes”
means,
with respect to the Administrative Agent, any Lender, any Issuing Bank or
any
other recipient of any payment to be made by or on account of any obligation
of
the Borrower hereunder, (a) income or franchise taxes imposed on (or measured
by) income and any branch profits taxes imposed as a result of a present
or
former connection between the Administrative Agent, any Lender, any Issuing
Bank
or other recipient of such payment 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, such Lender or such Issuing Bank having executed,
delivered or performed its obligations or received a payment under, or enforced,
this Agreement or any other Loan Document) and (b) in the case of a Foreign
Lender (other than an assignee pursuant to a request by the Borrower under
Section 2.18(b)), any withholding tax that is imposed on amounts payable
to such
Foreign Lender at the time such Foreign Lender becomes a party to this Agreement
or is attributable to such Foreign Lender’s failure or inability to comply with
Section 2.16(e), except to the extent that such Foreign Lender’s assignor (if
any) was entitled, at the time of assignment, to receive additional amounts
from
the Borrower with respect to such withholding tax pursuant to Section
2.16(a).
“Existing
364-Day Credit Agreement”
means
the 364-Day Revolving Credit Agreement, dated as of May 5, 2005, among CSX
Corporation, a Virginia corporation, as borrower, the lenders parties thereto,
Citibank, N.A. and The Bank of Nova Scotia, as co-syndication agents, Credit
Suisse First Boston and Mizuho Corporate Bank, Ltd., as co-documentation agents,
and JPMorgan Chase Bank, N.A., as administrative agent.
“Existing
Credit Agreements”
means
the collective reference to the Existing 364-Day Credit Agreement and the
Existing Five-Year Credit Agreement.
“Existing
Five-Year Credit Agreement”
means
the Five-Year Revolving Credit Agreement, dated as of May 12, 2004, as amended
by the First Amendment, dated as of May 5, 2005, among CSX Corporation, as
borrower, the lenders parties thereto, Citibank, N.A. and The Bank of Nova
Scotia, as co-syndication agents, Credit Suisse First Boston and Mitzuho
Corporate Bank, Ltd., as co-documentation agents, and JPMorgan Chase Bank,
N.A.,
as administrative agent.
“Federal
Funds Effective Rate”
means,
for any day, the weighted average (rounded upwards, if necessary, to the next
1/100 of 1%) of the rates on overnight Federal funds transactions with members
of the Federal Reserve System arranged by Federal funds brokers, as published
on
the next succeeding Business Day by the Federal Reserve Bank of New York,
or, if such rate is not so published for any day that is a Business Day, the
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the
quotations for such day for such transactions received by the Administrative
Agent from three Federal funds brokers of recognized standing selected by it.
“Financial
Officer”
means
the chief financial officer, principal accounting officer, treasurer or
controller of the Borrower.
“Fixed
Rate”
means,
with respect to any Competitive Loan (other than a Eurodollar Competitive Loan),
the fixed rate of interest per annum specified by the Lender making such
Competitive Loan in its related Competitive Bid.
“Fixed
Rate Loan”
means
a
Competitive Loan bearing interest at a Fixed Rate.
“Foreign
Lender”
means
any Lender that is organized under the laws of a jurisdiction other than the
United States of America, any State thereof or the District of
Columbia.
“Foreign
Subsidiary”
means
any Subsidiary that is organized under the laws of a jurisdiction other than
the
United States of America, any State thereof or the District of
Columbia.
“GAAP”
means
generally accepted accounting principles in the United States of
America.
“Governmental
Authority”
means
the government of the United States of America, any other nation or any
political subdivision thereof, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.
“Guarantee”
of
or
by any Person (the “guarantor”)
means
any obligation, contingent or otherwise, of the guarantor guaranteeing or having
the economic effect of guaranteeing any Indebtedness or other obligation of
any
other Person (the “primary
obligor”)
in any
manner, whether directly or indirectly, and including any obligation of the
guarantor, direct or indirect, (a) to purchase or pay (or advance or supply
funds for the purchase or payment of) such Indebtedness or other obligation
or
to purchase (or to advance or supply funds for the purchase of) any collateral
security for the payment thereof, (b) to purchase or lease property,
securities or services for the purpose of assuring the owner of such
Indebtedness or other obligation of the payment thereof, (c) to maintain
working capital, equity capital or any other financial statement condition
or
liquidity of the primary obligor so as to enable the primary obligor to pay
such
Indebtedness or other obligation or (d) as an account party in respect of any
letter of credit or letter of guaranty issued to support such Indebtedness
or
obligation; provided,
that
the term Guarantee shall not include endorsements for collection or deposit
in
the ordinary course of business.
“Granting
Lender”
has
the
meaning assigned to such term in Section 9.04(h).
“Hazardous
Materials”
means
all explosive or radioactive substances or wastes and all hazardous or toxic
substances, wastes or other pollutants, including petroleum or petroleum
distillates, asbestos or asbestos containing materials, polychlorinated
biphenyls, radon gas, infectious or medical wastes and all other substances
or
wastes of any nature regulated pursuant to any Environmental Law.
“Hedging
Agreement”
means
any interest rate protection agreement, foreign currency exchange agreement,
commodity price protection agreement or other interest or currency exchange
rate
or commodity price hedging arrangement.
“Increasing
Lender”
has
the
meaning assigned to such term in Section 2.02(e).
“Indebtedness”
of
any
Person means, without duplication, (a) all payment obligations of such
Person for borrowed money or with respect to deposits or advances of any kind,
(b) all payment obligations of such Person evidenced by bonds, debentures,
notes or similar instruments, (c) all obligations of such Person upon which
interest charges are customarily paid, (d) all payment obligations of such
Person under conditional sale or other title retention agreements relating
to
property acquired by such Person, (e) all payment obligations of such
Person in respect of the deferred purchase price of property or services
(excluding current accounts payable incurred in the ordinary course of
business), (f) all Indebtedness of others secured by (or for which the
holder of such Indebtedness has an existing right, contingent or otherwise,
to
be secured by) any Lien on property owned or acquired by such Person, whether
or
not the Indebtedness secured thereby has been assumed, (g) all Guarantees
by such Person of Indebtedness of others, (h) all Capital Lease Obligations
of such Person, (i) all payment obligations, contingent or otherwise, of
such Person as an account party in respect of letters of credit and letters
of
guaranty and (j) all payment obligations, contingent or otherwise, of such
Person in respect of bankers’ acceptances. The Indebtedness of any Person shall
include the Indebtedness of any other entity (including any partnership in
which
such Person is a general partner) to the extent such Person is liable therefor
as a result of such Person’s ownership interest in or other relationship with
such entity, except to the extent the terms of such Indebtedness provide that
such Person is not liable therefor.
“Indemnified
Taxes”
means
Taxes arising directly from any payment made hereunder or from the execution,
delivery or enforcement of, or otherwise with respect to, this Agreement or
any
other Loan Document other than Excluded Taxes and Other Taxes.
“Index
Debt”
means
senior, unsecured, long-term indebtedness for borrowed money of the Borrower
that is not guaranteed by any other Person or subject to any other credit
enhancement.
“Information”
has
the
meaning assigned to such term in Section 9.12.
“Interest
Election Request”
means
a
request by the Borrower to convert or continue a Revolving Borrowing in
accordance with Section 2.07.
“Interest
Payment Date”
means
(a) with respect to any ABR Loan, the last day of each March, June,
September and December, (b) with respect to any Eurodollar Loan, the last day
of
the Interest Period applicable to the Borrowing of which such Loan is a part
and, in the case of a Eurodollar Borrowing with an Interest Period of more
than
three months’ duration, each day prior to the last day of such Interest Period
that occurs at intervals of three months’ duration after the first day of such
Interest Period and (c) with respect to any Fixed Rate Loan, the last day of
the
Interest Period applicable to the Borrowing of which such Loan is a part and,
in
the case of a Fixed Rate Borrowing with an Interest Period of more than 90
days’
duration (unless otherwise specified in the applicable Competitive Bid Request),
each day prior to the last day of such Interest Period that occurs at intervals
of 90 days’ duration after the first day of such Interest Period, and any other
dates that are specified in the applicable Competitive Bid Request as Interest
Payment Dates with respect to such Borrowing.
“Interest
Period”
means
(a) with respect to any Eurodollar Borrowing, the period commencing on the
date of such Borrowing and ending on the numerically corresponding day in the
calendar month that is one, two, three or six months thereafter, as the
Borrower may elect, and (b) with respect to any Fixed Rate Borrowing, the
period (which shall not be less than 7 days or more than 360 days) commencing
on
the date of such Borrowing and ending on the date specified in the applicable
Competitive Bid Request; provided,
that
(i) if any Interest Period would end on a day other than a Business Day, such
Interest Period shall be extended to the next succeeding Business Day unless,
in
the case of a Eurodollar Borrowing only, such next succeeding Business Day
would
fall in the next calendar month, in which case such Interest Period shall end
on
the next preceding Business Day and (ii) any Interest Period pertaining to
a
Eurodollar Borrowing that commences on the last Business Day of a calendar
month
(or on a day for which there is no numerically corresponding day in the last
calendar month of such Interest Period) shall end on the last Business Day
of
the last calendar month of such Interest Period. For purposes hereof, the date
of a Borrowing initially shall be the date on which such Borrowing is made
and,
in the case of a Revolving Borrowing, thereafter shall be the effective date
of
the most recent conversion or continuation of such Borrowing.
“Issuing
Bank”
means
each of The Bank of Nova Scotia, Credit Suisse, Mizuho Corporate Bank, Ltd.
and
JPMorgan Chase Bank, N.A. and their respective Affiliates, in their respective
capacities as issuers of Letters of Credit hereunder, and their respective
successors in such capacity as provided in Section 2.05(i).
“LC
Disbursement”
means
a
payment made by an Issuing Bank pursuant to a Letter of Credit.
“LC
Exposure”
means,
at any time, the sum of (a) the aggregate undrawn amount of all outstanding
Letters of Credit at such time plus (b) the aggregate amount of all LC
Disbursements that have not yet been reimbursed by or on behalf of the Borrower
at such time. The LC Exposure of any Lender at any time shall be its Applicable
Percentage of the total LC Exposure at such time.
“Lender
Affiliate”
means
(a) with respect to any Lender, (i) an Affiliate of such Lender or (ii) any
entity (whether a corporation, partnership, trust or otherwise) that is engaged
in making, purchasing, holding or otherwise investing in bank loans and similar
extensions of credit in the ordinary course of its business and is administered
or managed by a Lender or an Affiliate of such Lender and (b) with respect
to
any Lender that is a fund which invests in bank loans and similar extensions
of
credit, any other fund that invests in bank loans and similar extensions of
credit and is managed by the same investment advisor as such Lender or by an
Affiliate of such investment advisor.
“Lenders”
means
the Persons listed on Schedule 2.01 and any other Person that shall have
become a party hereto pursuant to an Assignment and Acceptance or an Augmenting
Lender Supplement, other than any such Person that ceases to be a party hereto
pursuant to an Assignment and Acceptance or pursuant to Section 2.08(e) or
2.18.
“Letter
of Credit”
means
any letter of credit issued pursuant to this Agreement.
“LIBO
Rate”
means,
with respect to any Eurodollar Borrowing for any Interest Period, 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 “LIBO Rate” with respect to such Eurodollar Borrowing for
such Interest Period shall be the rate at which dollar deposits of $5,000,000
and for a maturity comparable to such Interest Period are offered by the
principal London office of the Administrative Agent in immediately available
funds in the London interbank market at approximately 11:00 a.m., London
time, two Business Days prior to the commencement of such Interest
Period.
“Lien”
means,
(a) with respect to any asset, (i) any mortgage, deed of trust, lien,
pledge, hypothecation, encumbrance, charge or security interest in, on or of
such asset, or (ii) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or
any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (b) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities (other than with respect to the capital stock of any Foreign
Subsidiary, any such option or right granted consistent with the past practice
of the Borrower and the Subsidiaries).
“Loan
Documents”
means
this Agreement, the Notes, any Augmenting Lender Supplement or Commitment
Increase Supplement, and any amendment, waiver, supplement or other modification
of any of the foregoing.
“Loans”
means
the loans made by the Lenders to the Borrower pursuant to this
Agreement.
“Majority
Lenders”
means,
at any time, Lenders having Revolving Credit Exposures and unused Commitments
representing at least 51% of the sum of the total Revolving Credit Exposures
and
unused Commitments at such time; provided
that,
for purposes of declaring the Loans to be due and payable pursuant to Article
VII, and for all purposes after the Loans become due and payable pursuant to
Article VII or all Commitments expire or terminate, the outstanding
Competitive Loans of the Lenders shall be included in their respective Revolving
Credit Exposures in determining the Majority Lenders.
“Margin”
means,
with respect to any Competitive Loan bearing interest at a rate based on the
LIBO Rate, the marginal rate of interest, if any, to be added to or subtracted
from the LIBO Rate to determine the rate of interest applicable to such Loan,
as
specified by the Lender making such Loan in its related Competitive
Bid.
“Margin
Stock”
has
the
meaning assigned to such term in Regulation U (including, so long as the same
constitute Margin Stock under Regulation U, the Shares).
“Material
Adverse Effect”
means
an adverse effect on the business, assets, operations or condition, financial
or
otherwise, of the Borrower and the Subsidiaries, taken as a whole, in an
aggregate amount in excess of an amount equal to 3% of Total Shareholders’
Equity.
“Material
Indebtedness”
means
Indebtedness (other than the Loans and Letters of Credit) of any one or more
of
the Borrower, the Subsidiaries and the CSX/NS Entities in an aggregate principal
amount exceeding $80,000,000.
“Maturity
Date”
means,
with respect to each Lender, the fifth anniversary of the Closing Date, as
such
date with respect to such Lender may be extended pursuant to the terms of this
Agreement.
“Moody’s”
means
Xxxxx’x Investors Service, Inc. or any successor to its corporate debt ratings
business.
“Multiemployer
Plan”
means
a
multiemployer plan as defined in Section 4001(a)(3) of ERISA.
“Net
Cash Proceeds”
means,
with respect to any sale or other disposition of Shares, the cash proceeds
(including cash equivalents and any cash payments received by way of deferred
payment of principal pursuant to a note or installment receivable or purchase
price adjustment receivable or otherwise, but only as and when received) of
such
sale or other disposition received by the Borrower or any Subsidiary, net of
all
attorneys’ fees, accountants’ fees, investment banking fees and other customary
fees actually incurred by the Borrower or any Subsidiary and documented in
connection therewith and net of taxes paid or reasonably expected to be payable
by the Borrower or any Subsidiary as a result thereof.
“Non-Approving
Lender”
has
the
meaning assigned to such term in Section 2.08(e).
“Non-Collective
Maturity Date”
means
any date as of which any Commitment expires in accordance with its terms, but
not all Commitments expire.
“Notes”
means
the collective reference to any Competitive Loan Notes and Revolving Loan
Notes.
“NS”
means
Norfolk Southern Corporation, a Virginia corporation.
“NS
Conrail Assets”
means
any assets of any CSX/NS Acquisition Sub Entity made available for the separate
use and benefit of NS or any of its subsidiaries pursuant to the CSX/NS
Agreement (or the definitive documentation referred to therein).
“NS
Conrail Attributable Debt”
means
any Attributable Debt of any CSX/NS Acquisition Sub Entity which is to be paid
in full directly or indirectly by NS and its subsidiaries and/or by any NS
Conrail Subsidiaries.
“NS
Conrail Debt”
means,
as to any CSX/NS Acquisition Sub Entity at any date of determination thereof,
any obligation of such CSX/NS Acquisition Sub Entity to the extent that (a)
such
obligation should be reflected in “Short Term Debt” or “Long Term Debt” on a
consolidated balance sheet or statement of financial position of such CSX/NS
Acquisition Sub Entity at such date in accordance with GAAP and (b) such
obligation is to be paid in full directly or indirectly by NS and its
subsidiaries and/or by any NS Conrail Subsidiaries.
“NS
Conrail Subsidiary”
means
any CSX/NS Acquisition Sub Entity whose sole assets consist of NS Conrail
Assets.
“Other
Taxes”
means
any and all present or future stamp or documentary taxes or any other excise
or
property taxes, charges or similar levies arising directly from any payment
made
hereunder or from the execution, delivery or enforcement of, or otherwise with
respect to, this Agreement or any other Loan Document.
“Participant”
has
the
meaning assigned to such term in Section 9.04(e).
“PBGC”
means
the Pension Benefit Guaranty Corporation referred to and defined in ERISA and
any successor entity performing similar functions.
“Permitted
Encumbrances”
means:
(a) Liens
imposed by law for taxes that are not yet due or are being contested in
compliance with Section 5.04;
(b) carriers’,
warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like Liens
imposed by law, arising in the ordinary course of business;
(c) pledges
and deposits made in the ordinary course of business in compliance with workers’
compensation, unemployment insurance and other social security laws or
regulations (other than ERISA);
(d) deposits
to secure the performance of bids, trade contracts, leases, statutory
obligations, surety and appeal bonds, performance bonds and other obligations
of
a like nature, in each case in the ordinary course of business; and
(e) easements,
zoning restrictions, rights-of-way and similar encumbrances on real property
imposed by law or arising in the ordinary course of business that do not secure
any monetary obligations and do not materially detract from the value of the
affected property or interfere with the ordinary conduct of business of the
Borrower or any Subsidiary (or, with respect to any CSX Conrail Assets, any
CSX
Conrail Subsidiary);
provided
that the
term “Permitted Encumbrances” shall not include any Lien securing
Debt.
“Person”
means
any natural person, corporation, limited liability company, trust, joint
venture, association, company, partnership, Governmental Authority or other
entity.
“Plan”
means
any employee pension benefit plan (other than a Multiemployer Plan) subject
to
the provisions of Title IV of ERISA or Section 412 of the Code or
Section 302 of ERISA, and in respect of which the Borrower or any ERISA
Affiliate is (or, if such plan were terminated, would under Section 4069 of
ERISA be deemed to be) an “employer” as defined in Section 3(5) of
ERISA.
“Prime
Rate”
means
the rate of interest per annum publicly announced from time to time by JPMorgan
Chase Bank, N.A. as its prime rate in effect at its principal office in New
York
City; each change in the Prime Rate shall be effective from and including the
date such change is publicly announced as being effective.
“Railroad
Revenues”
means,
with respect to any Person for any period, all revenues of such Person from
third parties which should, in accordance with GAAP, be included in operating
revenues of such Person’s railroad subsidiaries as reflected in the consolidated
financial statements (or in the “Management’s Discussion and Analysis” section
of the report on Form 10-K or 10-Q related thereto) of such Person for such
period.
“Railroad
Subsidiary”
means
any Subsidiary that is a Class I common carrier by rail under the rules of
the
Surface Transportation Board or any other Subsidiary the Railroad Revenues
of
which for the most recent period of four fiscal quarters of the Borrower exceed
an amount equal to 5% of the sum of, without duplication, (a) the aggregate
Railroad Revenues of the Borrower and the Subsidiaries for such period and
(b)
the aggregate Allocable Railroad Revenues of the CSX/NS Entities for such
period.
“Register”
has
the
meaning assigned to such term in Section 9.04(c).
“Regulation
U”
means
Regulation U of the Board.
“Related
Parties”
means,
with respect to any specified Person, such Person’s Affiliates and the
respective directors, officers, employees, agents and advisors of such Person
and such Person’s Affiliates.
“Restricted
Margin Stock”
means
Margin Stock owned by the Borrower or any Subsidiary which represents not more
than 33-1/3% of the aggregate value (determined in accordance with Regulation
U), on a consolidated basis, of the property and assets of the Borrower and
the
Subsidiaries (other than any Margin Stock) that is subject to the provisions
of
Article 6 (including Section 6.02).
“Revolving
Credit Exposure”
means,
with respect to any Lender at any time, the sum of the outstanding principal
amount of such Lender’s Revolving Loans and its LC Exposure at such
time.
“Revolving
Loan”
means
a
Loan made pursuant to Section 2.03.
“Revolving
Loan Note”
has
the
meaning assigned to such term in Section 2.09(e).
“Sale/Leaseback
Transaction”
has
the
meaning assigned to such term in Section 6.03.
“S&P”
means
Standard & Poor’s Ratings Group or any successor to its corporate debt
ratings business.
“SEC”
means
the Securities and Exchange Commission, or any Governmental Authority succeeding
to any or all of the functions of said Commission.
“Securitization
Subsidiary”
means
any Subsidiary which (i) engages in no activities other than in connection
with
Securitization Transactions permitted by this Agreement and activities
incidental thereto and owns no assets other than a pool of accounts receivable
and the proceeds thereof, or (ii) whose primary purpose is to hold title or
ownership interests in a pool of accounts receivable and the proceeds thereof
in
connection with Securitization Transactions.
“Securitization
Transaction”
means
(i) any transaction or series of transactions that may be entered into by the
Borrower or any Subsidiary pursuant to which the Borrower or such Subsidiary
may
sell, convey or otherwise transfer a pool of accounts receivable and the
proceeds thereof (whether now existing or arising in the future) to (a) a
Securitization Subsidiary (in the case of a transfer by the Borrower or any
Subsidiary other than a Securitization Subsidiary) or (b) any other Person
(in
the case of a transfer by a Securitization Subsidiary), for the purpose of
the
incurrence by such other Person of Indebtedness secured by a Lien on such
accounts receivable and the proceeds thereof (or on beneficial interests of
such
accounts receivable and the proceeds thereof) or the issuance of certificates
representing beneficial interests in such accounts receivable and the proceeds
thereof, or (ii) any transaction or series of transactions (including, without
limitation, borrowings pursuant to any credit agreement) that may be entered
into by any Securitization Subsidiary pursuant to which such Securitization
Subsidiary may grant a security interest in its assets (whether now existing
or
arising in the future) in connection with the incurrence of Indebtedness by
such
Securitization Subsidiary.
“Shares”
means
the issued and outstanding shares of common stock of Conrail and of CSX/NS
Acquisition Sub and any subsidiary of CSX/NS Acquisition Sub which directly
or
indirectly owns the common stock of Conrail.
“Significant
CSX/NS Entity”
means
any CSX/NS Entity (other than any CSX Conrail Subsidiary) that, assuming such
CSX/NS Entity were a Subsidiary, would be a “significant subsidiary” of the
Borrower within the meaning of the SEC’s Regulation S-X (based upon the
Borrower’s direct or indirect proportionate beneficial ownership of the assets
and income of such CSX/NS Entity) and any other CSX/NS Entity that the Borrower
may from time to time designate as a “Significant CSX/NS Entity” by written
notice to such effect to the Administrative Agent.
“Significant
Subsidiary”
means
any Subsidiary that would be a “significant subsidiary” of the Borrower within
the meaning of the SEC’s Regulation S-X, any CSX Conrail Subsidiary that, if
such CSX Conrail Subsidiary were a Subsidiary, would be a “significant
subsidiary” of the Borrower within the meaning of the SEC’s Regulation S-X and
any other Subsidiary that the Borrower may from time to time designate as a
“Significant Subsidiary” by written notice to such effect to the Administrative
Agent.
“SPC”
has
the
meaning assigned to such term in Section 9.04(h).
“Statutory
Reserve Rate”
means
a
fraction (expressed as a decimal), the numerator of which is the number one
and
the denominator of which is the number one minus the aggregate of the maximum
reserve percentages (including any marginal, special, emergency or supplemental
reserves) expressed as a decimal established by the Board to which the
Administrative Agent is subject for eurocurrency funding (currently referred
to
as “Eurocurrency liabilities” in Regulation D of the Board). Such reserve
percentages shall include those imposed pursuant to such Regulation D.
Eurodollar Loans shall be deemed to constitute eurocurrency funding and to
be
subject to such reserve requirements without benefit of or credit for proration,
exemptions or offsets that may be available from time to time to any Lender
under such Regulation D or any comparable regulation. The Statutory Reserve
Rate shall be adjusted automatically on and as of the effective date of any
change in any reserve percentage.
“subsidiary”
means,
with respect to any Person (the “parent”)
at any
date, any corporation, limited liability company, partnership, association
or
other entity the accounts of which would be consolidated with those of the
parent in the parent’s consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date.
“Subsidiary”
means
any subsidiary of the Borrower, provided
that no
CSX/NS Acquisition Sub Entity shall be a Subsidiary for purposes of this
Agreement.
“Successor
Corporation”
has
the
meaning assigned to such term in Section 6.04.
“Swap
Agreement”
means
any agreement with respect to any swap, forward, future or derivative
transaction or option or similar agreement involving, or settled by reference
to, one or more rates, currencies, commodities, equity or debt instruments
or
securities, or economic, financial or pricing indices or measures of economic,
financial or pricing risk or value or any similar transaction or any combination
of these transactions; provided
that no
phantom stock or similar plan providing for payments only on account of services
provided by current or former directors, officers, employees or consultants
of
the Borrower or any of its Subsidiaries shall be a “Swap
Agreement”.
“Taxes”
means
any and all present or future taxes, levies, imposts, duties, deductions,
charges or withholdings imposed by any Governmental Authority.
“Total
Capitalization”
means,
at any date of determination thereof, the sum of Total Debt at such date
plus
Total
Shareholders’ Equity at such date.
“Total
Debt”
means,
at any date of determination thereof, without duplication, (a) all Debt of
the
Borrower and the Subsidiaries at such date plus
(b) the
Allocable CSX/NS Debt of the CSX/NS Acquisition Sub Entities at such date
(calculated without giving effect to clause (c) of the proviso to the definition
of Allocable CSX/NS Debt).
“Total
Shareholders’ Equity”
means,
as to the Borrower at any date of determination thereof, (a) the sum of all
items which would be included under shareholders’ equity on a consolidated
balance sheet or statement of financial position of the Borrower at such date
in
accordance with GAAP plus,
without
duplication, (b) the excess, if any, of (i) the aggregate purchase price of
all
CSX Conrail Shares and all Conrail Shares directly or indirectly owned by the
Borrower and the Subsidiaries over (ii) the Allocable CSX/NS Debt of the CSX/NS
Acquisition Sub Entities at such date (calculated without giving effect to
clause (c) of the proviso to the definition of Allocable CSX/NS Debt). In the
event that any CSX Conrail Assets become assets of the Borrower or any
Subsidiary, Total Shareholders’ Equity shall for all purposes of this Agreement
continue to be computed as if such assets had not become assets of the Borrower
or such Subsidiary.
“Transactions”
means
the execution, delivery and performance by the Borrower of this Agreement and
any Notes, the borrowing of Loans, the use of the proceeds thereof, the request
for the issuance of Letters of Credit hereunder and, to the extent utilized
by
the Borrower, any increase of Commitments and any extension of the Maturity
Date.
“Type”,
when
used in reference to any Loan or Borrowing, refers to whether the rate of
interest on such Loan, or on the Loans comprising such Borrowing, is determined
by reference to the Adjusted LIBO Rate, the Alternate Base Rate or, in the
case
of a Competitive Loan or Borrowing, the LIBO Rate or a Fixed Rate.
“Unrestricted
Margin Stock”
means
any Margin Stock owned by the Borrower or any Subsidiary which is not Restricted
Margin Stock.
“Withdrawal
Liability”
means
liability to a Multiemployer Plan as a result of a complete or partial
withdrawal from such Multiemployer Plan, as such terms are defined in
Part I of Subtitle E of Title IV of ERISA.
SECTION
1.02. Classification
of Loans and Borrowings.
For
purposes of this Agreement, Loans may be classified and referred to by Class
(e.g., a “Revolving Loan”) or by Type (e.g., a “Eurodollar Loan”) or by Class
and Type (e.g., a “Eurodollar Revolving Loan”). Borrowings also may be
classified and referred to by Class (e.g., a “Revolving Borrowing”) or by Type
(e.g., a “Eurodollar Borrowing”) or by Class and Type (e.g., a “Eurodollar
Revolving Borrowing”).
SECTION
1.03. Terms
Generally.
The
definitions of terms herein shall apply equally to the singular and plural
forms
of the terms defined. Whenever the context may require, any pronoun shall
include the corresponding masculine, feminine and neuter forms. The words
“include”, “includes” and “including” shall be deemed to be followed by the
phrase “but not limited to”. The word “will” shall be construed to have the same
meaning and effect as the word “shall”. Unless the context requires otherwise
(a) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument
or
other document as from time to time amended, supplemented or otherwise modified
(subject to any restrictions on such amendments, supplements or modifications
set forth herein), (b) any reference herein to any Person shall be construed
to
include such Person’s successors and assigns, (c) the words “herein”, “hereof”
and “hereunder”, and words of similar import, shall be construed to refer to
this Agreement in its entirety and not to any particular provision hereof,
(d)
all references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules
to,
this Agreement and (e) the words “asset” and “property” shall be construed to
have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and
contract rights.
SECTION
1.04. Accounting
Terms; GAAP. Except
as
otherwise expressly provided herein, all terms of an accounting or financial
nature shall be construed in accordance with GAAP, as in effect from time to
time; provided
that, if
the Borrower notifies the Administrative Agent that the Borrower requests an
amendment to any provision hereof to eliminate the effect of any change
occurring after the date hereof in GAAP or in the application thereof on the
operation of such provision (or if the Administrative Agent notifies the
Borrower that the Majority Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have
been
withdrawn or such provision amended in accordance herewith.
The
Credits
SECTION
2.01. Commitments. Subject
to the terms and conditions set forth herein, each Lender agrees to make
Revolving Loans to the Borrower from time to time during the Availability Period
in an aggregate principal amount that will not result in (a) such Lender’s
Revolving Credit Exposure exceeding such Lender’s Commitment or (b) the
Aggregate Outstanding Extensions of Credit exceeding the total Commitments.
Within the foregoing limits and subject to the terms and conditions set forth
herein, the Borrower may borrow, prepay and reborrow Revolving Loans.
SECTION
2.02. Loans
and Borrowings. (a) Each
Revolving Loan shall be made as part of a Borrowing consisting of Revolving
Loans made by the Lenders ratably in accordance with their respective
Commitments. Each Competitive Loan shall be made in accordance with the
procedures set forth in Section 2.04. The failure of any Lender to make any
Loan
required to be made by it shall not relieve any other Lender of its obligations
hereunder; provided
that the
Commitments and Competitive Bids of the Lenders are several and no Lender shall
be responsible for any other Lender’s failure to make Loans as
required.
(b) Subject
to Section 2.13, (i) each Revolving Borrowing shall be comprised entirely
of ABR Loans or Eurodollar Loans as the Borrower may request in accordance
herewith, and (ii) each Competitive Borrowing shall be comprised entirely
of Eurodollar Loans or Fixed Rate Loans as the Borrower may request in
accordance herewith. Each Lender at its option may make any Eurodollar Loan
by
causing any domestic or foreign branch or Affiliate of such Lender to make
such
Loan; provided
that any
exercise of such option shall not affect the obligation of the Borrower to
repay
such Loan in accordance with the terms of this Agreement.
(c) At
the
commencement of each Interest Period for any Eurodollar Revolving Borrowing,
such Borrowing shall be in an aggregate amount that is an integral multiple
of
$1,000,000 and not less than $10,000,000. At the time that each ABR Revolving
Borrowing is made, such Borrowing shall be in an aggregate amount that is an
integral multiple of $1,000,000 and not less than $5,000,000; provided
that an
ABR Revolving Borrowing may be in an aggregate amount that is equal to the
entire unused balance of the total Commitments then in effect or that is
required to finance the reimbursement of an LC Disbursement as contemplated
by
Section 2.05(e). Each Competitive Borrowing shall be in an aggregate amount
that
is an integral multiple of $1,000,000 and not less than $5,000,000. Borrowings
of more than one Type and Class may be outstanding at the same time;
provided
that
there shall not at any time be more than a total of 20 Eurodollar Revolving
Borrowings outstanding.
(d) Notwithstanding
any other provision of this Agreement, the Borrower shall not be entitled to
request, or to elect to convert or continue, any Loan included in any Borrowing
if the Interest Period requested with respect to such Loan would end after
the
Maturity Date in effect for any Lender making such Loan.
(e) The
Borrower may from time to time elect to increase the Commitments then in effect
in a minimum amount of $25,000,000 so long as, after giving effect thereto,
the
aggregate amount of the Commitments then in effect does not exceed
$1,750,000,000. The Borrower may arrange for any such increase to be provided
by
one or more Lenders (each Lender so agreeing to an increase in its Commitment,
an “Increasing
Lender”),
or by
one or more banks, financial institutions or other entities (each such bank,
financial institution or other entity, an “Augmenting
Lender”),
to
increase their existing Commitments, or extend Commitments, as the case may
be,
provided
that (i)
each Augmenting Lender shall be subject to the approval of the Borrower, each
Issuing Bank and the Administrative Agent (which approval shall, in each case,
not be unreasonably withheld) and (ii) (x) in the case of an Increasing Lender,
the Borrower and such Increasing Lender execute an agreement substantially
in
the form of Exhibit E hereto (a “Commitment
Increase Supplement”),
reasonably approved by the Administrative Agent, and (y) in the case of an
Augmenting Lender, the Borrower and such Augmenting Lender execute an agreement
substantially in the form of Exhibit F hereto (an “Augmenting
Lender Supplement”),
reasonably approved by the Administrative Agent. Subject to the terms and
conditions of this Section 2.02(e), increases in and new Commitments created
pursuant hereto shall become effective on the date agreed by the Borrower,
the
Administrative Agent and the relevant Lenders, and the
Administrative
Agent shall notify each affected Lender thereof. Notwithstanding the foregoing,
no increase in the Commitments (or in the Commitment of any Lender), shall
become effective under this paragraph unless, (i) on the proposed date of the
effectiveness of such increase, the conditions set forth in paragraphs (a)
and
(b) of Section 4.02 shall be satisfied (or waived in accordance with Section
9.02) and the Administrative Agent shall have received a Commitment Increase
Supplement or Augmenting Lender Supplement with a certification to this effect
and (ii) the Administrative Agent shall have received documents consistent
with
those delivered on the Closing Date under Section 4.01(c) as to the corporate
power and authority of the Borrower to borrow hereunder after giving effect
to
such increase. On the effective date of any increase in the Commitments, (i)
each relevant Increasing Lender and Augmenting Lender shall make available
to
the Administrative Agent such amounts in immediately available funds as the
Administrative Agent shall determine, for the benefit of the other relevant
Lenders, as being required in order to cause, after giving effect to such
increase and the use of such amounts to make payments to such other relevant
Lenders, each Lender’s portion of the outstanding Loans of all the Lenders to
equal its then effective Applicable Percentage of such outstanding Loans, and
(ii) the Borrower shall be deemed to have repaid and reborrowed all outstanding
Loans as of the date of any increase in the Commitments (with such reborrowing
to consist of the Types of Loans, with related Interest Periods if applicable,
specified in a notice delivered by the Borrower in accordance with the
requirements of Section 2.03). The deemed payments made pursuant to clause
(ii)
of the immediately preceding sentence in respect of each Eurodollar Loan shall
be subject to indemnification by the Borrower pursuant to the provisions of
Section 2.15 if the deemed payment occurs other than on the last day of any
related Interest Period.
SECTION
2.03. Requests
for Revolving Borrowings.
To
request
a Revolving Borrowing, the Borrower shall notify the Administrative Agent of
such request by telephone (a) in the case of a Eurodollar Borrowing, not later
than 11:00 a.m., New York City time, three Business Days before the date of
the proposed Borrowing or (b) in the case of an ABR Borrowing, not later
than 11:00 a.m., New York City time, one Business Day before the date of
the proposed Borrowing; provided
that any
such notice of an ABR Revolving Borrowing to finance the reimbursement of an
LC
Disbursement as contemplated by Section 2.05(e) may be given not later than
10:00 a.m., New York City time, on the date of the proposed Borrowing. Each
such
telephonic Borrowing Request shall be irrevocable and shall be confirmed
promptly by hand delivery, telecopy or electronic pdf to the Administrative
Agent of a written Borrowing Request in a form approved by the Administrative
Agent and signed by the Borrower. Each such telephonic and written Borrowing
Request shall specify the following information in compliance with
Section 2.02:
(i) the
aggregate amount of the requested Borrowing;
(ii) the
date
of such Borrowing, which shall be a Business Day;
(iii) whether
such Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing;
(iv) in
the
case of a Eurodollar Borrowing, the initial Interest Period to be applicable
thereto, which shall be a period contemplated by the definition of the term
“Interest Period”; and
(v) the
location and number of the Borrower’s account to which funds are to be
disbursed, which shall comply with the requirements of Section
2.06.
If
no
election as to the Type of Revolving Borrowing is specified, then the requested
Revolving Borrowing shall be an ABR Borrowing. If no Interest Period is
specified with respect to any requested Eurodollar Revolving Borrowing, then
the
Borrower shall be deemed to have selected an Interest Period of one month’s
duration. Promptly following receipt of a Borrowing Request in accordance with
this Section, the Administrative Agent shall advise each Lender of the details
thereof and of the amount of such Lender’s Loan to be made as part of the
requested Borrowing.
SECTION
2.04. Competitive
Bid Procedure.
(a)
Subject
to the terms and conditions set forth herein, from time to time during the
Availability Period the Borrower may request Competitive Bids and may (but
shall
not have any obligation to) accept Competitive Bids and borrow Competitive
Loans; provided
that the
Aggregate Outstanding Extensions of Credit at any time shall not exceed the
total Commitments at such time. To request Competitive Bids, the Borrower shall
notify the Administrative Agent of such request by telephone, in the case of
a
Eurodollar Borrowing, not later than 11:00 a.m., New York City time, four
Business Days before the date of the proposed Borrowing and, in the case of
a
Fixed Rate Borrowing, not later than 10:00 a.m., New York City time, one
Business Day before the date of the proposed Borrowing; provided
that the
Borrower may submit up to (but not more than) three Competitive Bid Requests
at
the same time on the same day, but a Competitive Bid Request shall not be made
within three Business Days after the date of any previous Competitive Bid
Request, unless any and all such previous Competitive Bid Requests shall have
been withdrawn or all Competitive Bids received in response thereto rejected.
Each such telephonic Competitive Bid Request shall be confirmed promptly by
hand
delivery, telecopy or electronic pdf to the Administrative Agent of a written
Competitive Bid Request in a form approved by the Administrative Agent and
signed by the Borrower. Each such telephonic and written Competitive Bid Request
shall specify the following information in compliance with Section
2.02:
(i) the
aggregate amount of the requested Borrowing;
(ii) the
date
of such Borrowing, which shall be a Business Day;
(iii) whether
such Borrowing is to be a Eurodollar Borrowing or a Fixed Rate
Borrowing;
(iv) the
Interest Period to be applicable to such Borrowing, which shall be a period
contemplated by the definition of the term “Interest Period”; and
(v) the
location and number of the Borrower’s account to which funds are to be
disbursed, which shall comply with the requirements of Section
2.06.
Promptly
following receipt of a Competitive Bid Request in accordance with this Section,
the Administrative Agent shall notify the Lenders of the details thereof by
telecopy or electronic pdf, inviting the Lenders to submit Competitive Bids.
(b) Each
Lender may (but shall not have any obligation to) make one or more Competitive
Bids to the Borrower in response to a Competitive Bid Request. Each Competitive
Bid by a Lender must be in a form approved by the Administrative Agent and
must
be received by the Administrative Agent by telecopy or electronic pdf, in the
case of a Eurodollar Competitive Borrowing, not later than 9:30 a.m., New
York City time, three Business Days before the proposed date of such Competitive
Borrowing and, in the case of a Fixed Rate Borrowing, not later than
9:30 a.m., New York City time, on the proposed date of such Competitive
Borrowing. Competitive Bids that do not conform substantially to the form
approved by the Administrative Agent may be rejected by the Administrative
Agent, and the Administrative Agent shall notify the applicable Lender as
promptly as practicable. Each Competitive Bid shall specify (i) the
principal amount (which shall be a minimum of $5,000,000 and an integral
multiple of $1,000,000 and which may equal the entire principal amount of the
Competitive Borrowing requested by the Borrower) of the Competitive Loan or
Loans that the Lender is willing to make, (ii) the Competitive Bid Rate or
Rates at which the Lender is prepared to make such Loan or Loans (expressed
as a
percentage rate per annum in the form of a decimal to no more than four decimal
places) and (iii) the Interest Period applicable to each such Loan and the
last day thereof.
(c) The
Administrative Agent shall promptly notify the Borrower by telecopy or
electronic pdf of the Competitive Bid Rate and the principal amount specified
in
each Competitive Bid and the identity of the Lender that shall have made
such
Competitive Bid.
(d) Subject
only to the provisions of this paragraph, the Borrower may accept or reject
any
Competitive Bid. The Borrower shall notify the Administrative Agent by
telephone, confirmed by telecopy or electronic pdf in a form approved by the
Administrative Agent, whether and to what extent it has decided to accept or
reject each Competitive Bid, in the case of a Eurodollar Competitive Borrowing,
not later than 10:30 a.m., New York City time, three Business Days before
the date of the proposed Competitive Borrowing and, in the case of a Fixed
Rate
Borrowing, not later than 10:30 a.m., New York City time, on the proposed
date of the Competitive Borrowing; provided
that
(i) the failure of the Borrower to give such notice shall be deemed to be a
rejection of each Competitive Bid, (ii) the Borrower shall not accept a
Competitive Bid made at a particular Competitive Bid Rate if the Borrower
rejects a Competitive Bid made at a lower Competitive Bid Rate, (iii) the
aggregate amount of the Competitive Bids accepted by the Borrower shall not
exceed the aggregate amount of the requested Competitive Borrowing specified
in
the related Competitive Bid Request, (iv) to the extent necessary to comply
with clause (iii) above, the Borrower may accept Competitive Bids at the same
Competitive Bid Rate in part, which acceptance, in the case of multiple
Competitive Bids at such Competitive Bid Rate, shall be made pro rata in
accordance with the amount of each such Competitive Bid, and (v) except
pursuant to clause (iv) above, no Competitive Bid shall be accepted for a
Competitive Loan unless such Competitive Loan is in a minimum principal amount
of $5,000,000 and an integral multiple of $1,000,000; provided
further
that, if
a Competitive Loan must be in an amount less than $5,000,000 because of the
provisions of clause (iv) above, such Competitive Loan may be for a minimum
of
$1,000,000 or any integral multiple thereof, and in calculating the pro rata
allocation of acceptances of portions of multiple Competitive Bids at a
particular Competitive Bid Rate pursuant to clause (iv) the amounts shall be
rounded to integral multiples of $1,000,000 in a manner determined by the
Borrower. A notice given by the Borrower pursuant to this paragraph shall be
irrevocable.
(e) The
Administrative Agent shall promptly notify each bidding Lender by telecopy
or
electronic pdf whether or not its Competitive Bid has been accepted (and, if
so,
the amount and Competitive Bid Rate so accepted), and each successful bidder
will thereupon become bound, subject to the terms and conditions hereof, to
make
the Competitive Loan in respect of which its Competitive Bid has been
accepted.
(f) If
the
Administrative Agent shall elect to submit a Competitive Bid in its capacity
as
a Lender, it shall submit such Competitive Bid directly to the Borrower at
least
one quarter of an hour earlier than the time by which the other Lenders are
required to submit their Competitive Bids to the Administrative Agent pursuant
to paragraph (b) of this Section.
SECTION
2.05. Letters
of Credit.
(a) General.
Subject
to the terms and conditions set forth herein, the Borrower (and, if a Letter
of
Credit is issued for the benefit of any Subsidiary, such Subsidiary) may request
the issuance of Letters of Credit for the account of the Borrower (and, if
such
Letter of Credit is issued for the benefit of any Subsidiary, for the account
of
the Borrower and such Subsidiary, jointly and severally), in a form reasonably
acceptable to the Administrative Agent and the relevant Issuing Bank, at any
time and from time to time during the Availability Period. In the event of
any
inconsistency between the terms and conditions of this Agreement and the terms
and conditions of any form of letter of credit application or other agreement
submitted by the Borrower to, or entered into by the Borrower with, the Issuing
Bank with respect to any Letter of Credit, the terms and conditions of this
Agreement shall control.
(b) Notice
of Issuance, Amendment, Renewal, Extension; Certain Conditions.
To
request the issuance of a Letter of Credit (or the amendment, renewal or
extension of an outstanding Letter of Credit), the Borrower shall hand deliver,
telecopy or electronically pdf to the relevant Issuing Bank and the
Administrative Agent (reasonably in advance of the requested date of issuance,
amendment, renewal or extension) a notice requesting the issuance of a Letter
of
Credit, or identifying the Letter of Credit to be amended, renewed or extended,
the date of issuance, amendment, renewal or extension, the date on which such
Letter of Credit is to expire (which shall comply with paragraph (c) of
this Section), the amount of such Letter of Credit, the name and address of
the
beneficiary thereof and such other information as shall be necessary to prepare,
amend, renew or extend such Letter of Credit. If requested by the relevant
Issuing Bank, the Borrower also shall submit a letter of credit application
on
the relevant Issuing Bank’s standard form in connection with any request for a
Letter of Credit. A Letter of Credit shall be issued, amended, renewed or
extended only if (and upon issuance, amendment, renewal or extension of each
Letter of Credit the Borrower shall be deemed to represent and warrant that),
after giving effect to such issuance, amendment, renewal or extension,
(i) the LC Exposure shall not exceed $50,000,000 and (ii) the
Aggregate Outstanding Extensions of Credit shall not exceed the total
Commitments at such time.
(c) Expiration
Date.
Each
Letter of Credit shall expire at or prior to the close of business on the
earlier of (i) the date that is five Business Days prior to the earlier of
(whether or not such date shall have passed already) (A) the Maturity Date
then
in effect and (B) any Non-Collective Maturity Date and (ii) the date one year
after the date of the issuance of such Letter of Credit, provided
that,
subject to clause (i) above, any Letter of Credit may, at the request of the
Borrower as set forth in the application for such Letter of Credit, be
automatically renewed on each anniversary of the issuance thereof for an
additional period of one year unless the Issuing Bank which issued such Letter
of Credit shall have given prior written notice to the Borrower and the
beneficiary of such Letter of Credit that such Letter of Credit will not be
renewed.
(d) Participations.
By the
issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing
the amount thereof) by an Issuing Bank and without any further action on the
part of such Issuing Bank or the Lenders, such Issuing Bank hereby grants to
each Lender, and each Lender hereby acquires from such Issuing Bank, a
participation in such Letter of Credit equal to such Lender’s Applicable
Percentage of the aggregate amount available to be drawn under such Letter
of
Credit. In consideration and in furtherance of the foregoing, each Lender hereby
absolutely and unconditionally agrees to pay to the Administrative Agent, for
the account of such Issuing Bank, such Lender’s Applicable Percentage of each LC
Disbursement made by such Issuing Bank and not reimbursed by the Borrower on
the
date due as provided in paragraph (e) of this Section, or of any reimbursement
payment required to be refunded to the Borrower for any reason. Each Lender
acknowledges and agrees that its obligation to acquire participations pursuant
to this paragraph in respect of Letters of Credit is absolute and unconditional
and shall not be affected by any circumstance whatsoever, including any
amendment, renewal or extension of any Letter of Credit or the occurrence and
continuance of a Default or reduction or termination of any Commitments, and
that each such payment shall be made without any offset, abatement, withholding
or reduction whatsoever.
(e) Reimbursement.
If an
Issuing Bank shall make any LC Disbursement in respect of a Letter of Credit
issued by it, the Borrower shall reimburse such LC Disbursement by paying to
the
Administrative Agent an amount equal to such LC Disbursement not later than
12:00 noon, New York City time, on the date that such LC Disbursement is made,
if the Borrower shall have received notice of such LC Disbursement prior to
10:00 a.m., New York City time, on such date, or, if such notice has not been
received by the Borrower prior to such time on such date, then not later than
12:00 noon, New York City time, on the Business Day immediately following the
day that the Borrower receives such notice; provided
that the
Borrower may, subject to the conditions to borrowing set forth herein, request
in accordance with Section 2.03 that such payment be financed with an ABR
Revolving Borrowing in an equivalent amount and, to the extent so financed,
the
Borrower’s obligation to make such payment shall be discharged and replaced by
the resulting ABR Revolving Borrowing. If the Borrower fails to make such
payment when due, the Administrative Agent shall notify each Lender of the
applicable LC Disbursement, the payment then due from the Borrower in respect
thereof and such Lender’s Applicable Percentage thereof. Promptly following
receipt of such notice, each Lender shall pay to the Administrative Agent such
Lender’s Applicable Percentage of the payment then due from the Borrower, in the
same manner as provided in Section 2.06 with respect to Loans made by such
Lender (and Section 2.06 shall apply, mutatis mutandis,
to the
payment obligations of the Lenders), and the Administrative Agent shall promptly
pay to the relevant Issuing Bank the amounts so received by it from the Lenders.
Promptly following receipt by the Administrative Agent of any payment from
the
Borrower pursuant to this paragraph, the Administrative Agent shall distribute
such payment to the relevant Issuing Bank or, to the extent that Lenders have
made payments pursuant to this paragraph to reimburse the relevant Issuing
Bank,
then to such Lenders and the relevant Issuing Bank as their interests may
appear. Any payment made by a Lender pursuant to this paragraph to reimburse
an
Issuing Bank for any LC Disbursement (other than the funding of ABR Revolving
Loans as contemplated above) shall not constitute a Loan and shall not relieve
the Borrower of its obligation to reimburse such LC Disbursement.
(f) Obligations
Absolute.
The
Borrower’s obligation to reimburse LC Disbursements as provided in
paragraph (e) of this Section shall be absolute, unconditional and
irrevocable, and shall be performed strictly in accordance with the terms of
this Agreement under any and all circumstances whatsoever and irrespective
of:
(i) any
lack
of validity or enforceability of any Letter of Credit or this Agreement, or
any
term or provision therein;
(ii) any
amendment or waiver of or any consent to departure from all or any of the
provisions of any Letter of Credit or this Agreement;
(iii) the
existence of any claim, setoff, defense or other right that the Borrower, any
other party guaranteeing, or otherwise obligated with, the Borrower, any
Subsidiary or other Affiliate thereof or any other Person may at any time have
against the beneficiary under any Letter of Credit, any Issuing Bank, the
Administrative Agent or any Lender or any other Person, whether in connection
with this Agreement, any other Loan Document or any other related or unrelated
agreement or transaction;
(iv) any
draft
or other document presented under a Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein being untrue
or
inaccurate in any respect;
(v) payment
by any Issuing Bank under a Letter of Credit against presentation of a draft
or
other document that does not comply with the terms of such Letter of Credit;
and
(vi) any
other
act or omission to act or delay of any kind of any Issuing Bank, the Lenders,
the Administrative Agent or any other Person or any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but
for
the provisions of this Section, constitute a legal or equitable discharge of
the
Borrower’s obligations hereunder.
Neither
the Administrative Agent, the Lenders nor any Issuing Bank, nor any of their
Related Parties, shall have any liability or responsibility by reason of or
in
connection with the issuance or transfer of any Letter of Credit or any payment
or failure to make any payment thereunder, including any of the circumstances
specified in clauses (i) through (vi) above, as well as any error, omission,
interruption, loss or delay in transmission or delivery of any draft, notice
or
other communication under or relating to any Letter of Credit (including any
document required to make a drawing thereunder), any error in interpretation
of
technical terms or any consequence arising from causes beyond the control of
such Issuing Bank; provided
that the
foregoing shall not be construed to excuse any Issuing Bank from liability
to
the Borrower to the extent of any direct damages (as opposed to consequential
damages, claims in respect of which are hereby waived by the Borrower to the
extent permitted by applicable law) suffered by the Borrower that are caused
by
such Issuing Bank’s failure to exercise the agreed standard of care (as set
forth below) in determining whether drafts and other documents presented under
a
Letter of Credit comply with the terms thereof. The parties hereto expressly
agree that each Issuing Bank shall have exercised the agreed standard of care
in
the absence of gross negligence or willful misconduct on the part of such
Issuing Bank, except to the extent that applicable law requires a different
standard of care. Without limiting the generality of the foregoing, it is
understood that an Issuing Bank may accept documents that appear on their face
to be in substantial compliance with the terms of a Letter of Credit, without
responsibility for further investigation, regardless of any notice or
information to the contrary, and may make payment upon presentation of documents
that appear on their face to be in substantial compliance with the terms of
such
Letter of Credit; provided
that
such Issuing Bank shall have the right, in its sole discretion, to decline
to
accept such documents and to make such payment if such documents are not in
strict compliance with the terms of such Letter of Credit.
(g) Disbursement
Procedures.
Each
Issuing Bank shall, promptly following its receipt thereof, examine all
documents purporting to represent a demand for payment under a Letter of Credit.
Each Issuing Bank shall promptly notify the Administrative Agent and the
Borrower by telephone (confirmed by telecopy or electronic pdf) of such demand
for payment and whether such Issuing Bank has made or will make an LC
Disbursement thereunder; provided
that any
failure to give or delay in giving such notice shall not relieve the Borrower
of
its obligation to reimburse such Issuing Bank and the Lenders with respect
to
any such LC Disbursement.
(h) Interim
Interest.
If an
Issuing Bank shall make any LC Disbursement, then, unless the Borrower shall
reimburse such LC Disbursement in full on the date such LC Disbursement is
made,
the unpaid amount thereof shall bear interest, payable on demand, for each
day
from and including the date such LC Disbursement is made to but excluding the
date that the Borrower reimburses such LC Disbursement, at the rate per annum
then applicable to ABR Revolving Loans; provided
that, if
the Borrower fails to reimburse such LC Disbursement when due pursuant to
paragraph (e) of this Section, then Section 2.12(d) shall apply. Interest
accrued pursuant to this paragraph shall be for the account of the relevant
Issuing Bank, except that interest accrued on and after the date of payment
by
any Lender pursuant to paragraph (e) of this Section to reimburse an Issuing
Bank shall be for the account of such Lender to the extent of such
payment.
(i) Replacement
of the Issuing Banks.
Each
Issuing Bank may be replaced at any time by written agreement among the
Borrower, the Administrative Agent, the replaced Issuing Bank and the successor
Issuing Bank, provided
that the
successor Issuing Bank must be a Lender or an Affiliate of a Lender. The
Administrative Agent shall notify the Lenders of any such replacement of an
Issuing Bank. At the time any such replacement shall become effective, the
Borrower shall pay all unpaid fees accrued for the account of the replaced
Issuing Bank pursuant to Section 2.11(b). From and after the effective date
of
any such replacement, (i) the successor Issuing Bank shall have all the rights
and obligations of an Issuing Bank under this Agreement with respect to Letters
of Credit to be issued by it thereafter and (ii) references herein to the term
“Issuing Bank” shall be deemed to refer to such successor Issuing Bank, any
other Issuing Bank, or any previous Issuing Bank, or to such successor Issuing
Bank, all other Issuing Banks and all previous Issuing Banks, as the context
shall require. After the replacement of an Issuing Bank hereunder, the replaced
Issuing Bank shall remain a party hereto and shall continue to have all the
rights and obligations of an Issuing Bank under this Agreement with respect
to
Letters of Credit issued by it prior to such replacement, but shall not be
required to issue additional Letters of Credit.
(j) Cash
Collateralization.
If any
Event of Default shall occur and be continuing, on the Business Day that the
Borrower receives notice from the Administrative Agent or the Majority Lenders
(or, if the maturity of the Loans has been accelerated, Lenders with LC Exposure
representing at least 51% of the total LC Exposure) demanding the deposit of
cash collateral pursuant to this paragraph, the Borrower shall deposit in an
account with the Administrative Agent, in the name of the Administrative Agent
and for the benefit of the Lenders, an amount in cash equal to the LC Exposure
as of such date plus any accrued and unpaid interest thereon; provided
that the
obligation to deposit such cash collateral shall become effective immediately,
and such deposit shall become immediately due and payable, without demand or
other notice of any kind, upon the occurrence of any Event of Default with
respect to the Borrower described in clause (f) or (g) of Article VII.
Such deposit shall be held in New York by the Administrative Agent as collateral
for the payment and performance of the obligations of the Borrower under this
Agreement. The Administrative Agent shall have exclusive dominion and control,
including the exclusive right of withdrawal, over such account. Investment
of
such deposits shall, to the extent reasonably practicable, be made at the
direction of the Administrative Agent and at the Borrower’s
risk
and
expense. Unless invested in accordance with the preceding sentence, such
deposits shall not bear interest. Interest or profits, if any, on such
investments shall accumulate in such account. Moneys in such account shall
be
applied by the Administrative Agent to reimburse the relevant Issuing Bank
for
LC Disbursements for which it has not been reimbursed and, to the extent not
so
applied, shall be held for the satisfaction of the reimbursement obligations
of
the Borrower for the LC Exposure at such time or, if the maturity of the Loans
has been accelerated (but subject to the consent of Lenders with LC Exposure
representing at least 51% of the total LC Exposure), be applied to satisfy
other
obligations of the Borrower under this Agreement. If the Borrower is required
to
provide an amount of cash collateral hereunder as a result of the occurrence
of
an Event of Default, such amount (to the extent not applied as aforesaid) shall
be returned to the Borrower within three Business Days after all Events of
Default have been cured or waived.
SECTION
2.06. Funding
of Borrowings.
(a)
Each
Lender shall make each Loan to be made by it hereunder on the proposed date
thereof by wire transfer of immediately available funds by 12:00 noon, New
York
City time, to the account of the Administrative Agent most recently designated
by it for such purpose by notice to the Lenders. The Administrative Agent will
make such Loans available to the Borrower by promptly crediting the amounts
so
received, in like funds, to an account of the Borrower maintained with the
Administrative Agent in New York City and designated by the Borrower in the
applicable Borrowing Request or Competitive Bid Request; provided
that ABR
Revolving Loans made to finance the reimbursement of an LC Disbursement as
provided in Section 2.05(e) shall be remitted by the Administrative Agent to
the
relevant Issuing Bank.
(b) Unless
the Administrative Agent shall have received notice from a Lender prior to
the
proposed date of any Borrowing that such Lender will not make available to
the
Administrative Agent such Lender’s share of such Borrowing, the Administrative
Agent may assume that such Lender has made such share available on such date
in
accordance with paragraph (a) of this Section and may, in reliance upon such
assumption, make available to the Borrower a corresponding amount. In such
event, if a Lender has not in fact made its share of the applicable Borrowing
available to the Administrative Agent, then the applicable Lender and the
Borrower severally agree to pay to the Administrative Agent forthwith on demand
such corresponding amount with interest thereon, for each day from and including
the date such amount is made available to the Borrower to but excluding the
date
of payment to the Administrative Agent, at (i) in the case of such Lender,
the
Federal Funds Effective Rate or (ii) in the case of the Borrower, the interest
rate applicable to ABR Loans. If such Lender pays such amount to the
Administrative Agent, then such amount shall constitute such Lender’s Loan
included in such Borrowing and the Administrative Agent shall promptly return
to
the Borrower any amount (including interest) paid by the Borrower to the
Administrative Agent pursuant to the immediately preceding sentence, together
with any interest thereon paid by such Lender for any day not covered by the
Borrower’s payment.
SECTION
2.07. Interest
Elections.
(a)
Each
Revolving Borrowing initially shall be of the Type specified in the applicable
Borrowing Request and, in the case of a Eurodollar Revolving Borrowing, shall
have an initial Interest Period as specified in such Borrowing Request.
Thereafter, the Borrower may elect to convert such Borrowing to a different
Type
or to continue such Borrowing and, in the case of a Eurodollar Revolving
Borrowing, may elect Interest Periods therefor, all as provided in this Section.
The Borrower may elect different options with respect to different portions
of
the affected Borrowing, in which case each such portion shall be allocated
ratably among the Lenders holding the Loans comprising such Borrowing, and
the
Loans comprising each such portion shall be considered a separate Borrowing.
This Section shall not apply to Competitive Borrowings, which may not be
converted or continued.
(b) To
make
an election pursuant to this Section, the Borrower shall notify the
Administrative Agent of such election by telephone by the time that a Borrowing
Request would be required under Section 2.03 if the Borrower were requesting
a
Revolving Borrowing of the Type resulting from such election to be made on
the
effective date of such election. Each such telephonic Interest Election Request
shall be irrevocable and shall be confirmed promptly by hand delivery, telecopy
or electronic pdf to the Administrative Agent of a written Interest Election
Request in a form approved by the Administrative Agent and signed by the
Borrower.
(c) Each
telephonic and written Interest Election Request shall specify the following
information in compliance with Section 2.02:
(i) the
Borrowing to which such Interest Election Request applies and, if different
options are being elected with respect to different portions thereof, the
portions thereof to be allocated to each resulting Borrowing (in which case
the
information to be specified pursuant to clauses (iii) and (iv) below shall
be
specified for each resulting Borrowing);
(ii) the
effective date of the election made pursuant to such Interest Election Request,
which shall be a Business Day;
(iii) whether
the resulting Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing;
and
(iv) if
the
resulting Borrowing is a Eurodollar Borrowing, the Interest Period to be
applicable thereto after giving effect to such election, which shall be a period
contemplated by the definition of the term “Interest Period”.
If
any
such Interest Election Request requests a Eurodollar Borrowing but does not
specify an Interest Period, then the Borrower shall be deemed to have selected
an Interest Period of one month’s duration.
(d) Promptly
following receipt of an Interest Election Request, the Administrative Agent
shall advise each Lender of the details thereof and of such Lender’s portion of
each resulting Borrowing.
(e) If
the
Borrower fails to deliver a timely Interest Election Request with respect to
a
Eurodollar Revolving Borrowing prior to the end of the Interest Period
applicable thereto, then, unless such Borrowing is repaid as provided herein,
at
the end of such Interest Period such Borrowing shall be converted to an ABR
Borrowing. Notwithstanding any contrary provision hereof, if an Event of Default
has occurred and is continuing and the Administrative Agent, at the request
of
the Majority Lenders, so notifies the Borrower, then, so long as an Event of
Default is continuing (i) no outstanding Revolving Borrowing may be converted
to
or continued as a Eurodollar Borrowing and (ii) unless repaid, each Eurodollar
Revolving Borrowing shall be converted to an ABR Borrowing at the end of the
Interest Period applicable thereto.
SECTION
2.08. Expiration,
Termination, Reduction and Extension of Commitments.
(a)
Unless
previously terminated, the Commitment of each Lender shall expire on the
Maturity Date in effect from time to time with respect to such
Lender.
(b) Upon
any
direct or indirect sale or other disposition of Shares (other than Shares
constituting Unrestricted Margin Stock) directly or indirectly beneficially
owned by the Borrower (other than (i) to the Borrower’s direct or indirect
Subsidiaries, (ii) to any wholly-owned subsidiary of CSX/NS Acquisition Sub
so long as the Borrower’s direct or indirect proportionate beneficial ownership
of the Shares shall not be reduced as a result thereof, or (iii) to NS or
its subsidiaries or any CSX/NS Acquisition Sub Entity in consideration of the
acquisition of any assets of Conrail or any of its subsidiaries by the Borrower
or any Subsidiary), the Commitments shall be automatically reduced, on a ratable
basis, in an aggregate amount equal to 100% of the Net Cash Proceeds to the
Borrower and the Subsidiaries of any such sale or other disposition of Shares
(other than Shares constituting Unrestricted Margin Stock). Each such reduction
shall become effective on the fifth Business Day following receipt by the
Borrower or any Subsidiary, as the case may be, of any such Net Cash
Proceeds.
(c) The
Borrower may at any time terminate, or from time to time reduce, the
Commitments; provided
that (i)
each reduction of the Commitments shall be in an amount that is an integral
multiple of $1,000,000 and not less than $10,000,000 and (ii) the Borrower
shall
not terminate or reduce the Commitments if, after giving effect to any
concurrent prepayment of the Loans in accordance with Section 2.10, the
Aggregate Outstanding Extensions of Credit would exceed the total
Commitments.
(d) The
Borrower shall notify the Administrative Agent of any election to terminate
or
reduce the Commitments under paragraph (c) of this Section at least three
Business Days prior to the effective date of such termination or reduction,
specifying such election and the effective date thereof. Promptly following
receipt of any notice, the Administrative Agent shall advise the Lenders of
the
contents thereof. Each notice delivered by the Borrower pursuant to this Section
shall be irrevocable; provided
that a
notice of termination of the Commitments delivered by the Borrower may state
that such notice is conditioned upon the effectiveness of other credit
facilities, in which case such notice may be revoked by the Borrower (by notice
to the Administrative Agent on or prior to the specified effective date) if
such
condition is not satisfied. Any termination or reduction of the Commitments
shall be permanent. Each reduction of the Commitments shall be made ratably
among the Lenders in accordance with their respective Commitments then in
effect.
(e) On
each
of the first and second anniversary of the Closing Date (each, an “Extension
Date”),
the
Borrower shall have the right, with the consent of the Majority Lenders and
subject to the terms and conditions of this Section 2.08(e), to extend the
Maturity Date then in effect (each, an “Extension
Effective Date”)
by one
additional year from such Extension Date; provided,
that
(i) the representations and warranties of the Borrower set forth in this
Agreement shall be true and correct on such Extension Date both before and
immediately after giving effect to the proposed Maturity Date extension, (ii)
no
Default shall have occurred and be continuing on such Extension Date both before
and immediately after giving effect to the proposed Maturity Date extension,
(iii) on or prior to the Extension Effective Date, the Administrative Agent
shall have received payment of all fees and interest accrued and payable on
the
Extension Effective Date and (iv) the Maturity Date shall not be extended with
respect to any Lender without the consent of such Lender. At least 30 days
prior
to the relevant Extension Date, the Borrower shall provide written notice to
the
Administrative Agent of the proposed Maturity Date extension. Upon receipt
of
any such notice, the Administrative Agent shall promptly notify each Lender
thereof. Any Lender that shall not have provided its written consent to the
proposed Maturity Date extension by the date that is 10 Business Days prior
to
the relevant Extension Date shall be deemed to have elected not to approve
of
such extension. In the event any Lender does not (or is deemed to not) consent
to an extension of the Maturity Date then in effect with respect to such Lender
(with respect to such extension, a “Non-Approving
Lender”),
such
Lender’s Commitment shall expire on the Maturity Date then in effect with
respect to such Lender and for all purposes of this Agreement “Maturity Date” in
respect of such Lender, the Loans made by it and any other amounts owing to
such
Lender hereunder shall mean such Maturity Date. As of the Maturity Date then
being extended, upon effectiveness of such extension, the Applicable Percentages
of the Lenders shall be deemed modified as appropriate to reflect the expiration
of the Commitment of any Non-Approving Lender with respect to such extension.
The Borrower shall have the right, at its sole expense, upon notice to the
Administrative Agent and any Non-Approving Lender in respect of any Maturity
Date extension, to require such Lender to assign and delegate, prior to the
relevant Extension Date, without recourse (in accordance with and subject to
the
restrictions contained in Section 9.04) all its interests, rights and
obligations under this Agreement and the other Loan Documents to which it is
a
party (other than any Competitive Loans held by it) to an assignee that shall
assume such obligations (which assignee may be another Lender that accepts
such
assignment), provided,
such
assignee concurrently with such assignment approves such extension; and
provided,
further,
that
(i) the Borrower (unless the assignee is a Lender) shall have received the
prior
written consent of the Administrative Agent and each Issuing Bank (which consent
shall not unreasonably be withheld) and (ii) such Lender shall have received
payment of an amount equal to the outstanding principal of its Loans (other
than
Competitive Loans) and participations in LC Disbursements, accrued interest
thereon, accrued fees and all other amounts payable to it hereunder, from the
assignee (to the extent of such outstanding principal, participations in LC
Disbursements and accrued interest and fees) or the Borrower (in the case of
all
other amounts).
SECTION
2.09. Repayment of
Loans; Evidence of Debt.
(a)
The
Borrower hereby unconditionally promises to pay (i) to the Administrative Agent
for the account of each Lender the then unpaid principal amount of each
Revolving Loan on the Maturity Date in effect from time to time, with respect
to
such Lender and (ii) to the Administrative Agent for the account of each Lender
that has made a Competitive Loan the then unpaid principal amount of such
Competitive Loan on the last day of the Interest Period applicable to such
Loan.
(b) Each
Lender shall maintain in accordance with its usual practice an account or
accounts evidencing the indebtedness of the Borrower to such Lender resulting
from each Loan made by such Lender, including the amounts of principal and
interest payable and paid to such Lender from time to time
hereunder.
(c) The
Administrative Agent shall maintain accounts in which it shall record
(i) the amount of each Loan made hereunder, the Class and Type thereof and
the Interest Period applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to
each
Lender hereunder and (iii) the amount of any sum received by the
Administrative Agent hereunder for the account of the Lenders and each Lender’s
share thereof. In case of any discrepancy between the entries made by the
Administrative Agent pursuant to this paragraph and the entries made by any
Lender pursuant to paragraph (b) of this Section, such Lender’s entries shall be
considered correct, in the absence of manifest error.
(d) In
case
of any dispute, action or proceeding relating to any Loan, the entries made
in
the accounts maintained pursuant to paragraph (b) or (c) of this
Section shall be prima facie
evidence
of the existence and amounts of the obligations recorded therein; provided
that the
failure of any Lender or the Administrative Agent to maintain such accounts
or
any error therein shall not in any manner affect the obligation of the Borrower
to repay the Loans in accordance with the terms of this Agreement.
(e) Any
Lender may request of the Borrower that (i) Revolving Loans made by it be
evidenced by a promissory note, substantially in the form of Exhibit B-1 (a
“Revolving
Loan Note”)
and
(ii) Competitive Loans made by it be evidenced by a promissory note,
substantially in the form of Exhibit B-2 (a “Competitive
Loan Note”).
In
such event, the Borrower shall prepare, execute and deliver to such Lender
promissory notes in such forms payable to the order of such Lender (or, if
requested by such Lender, to such Lender and its registered assigns).
Thereafter, the Loans evidenced by such promissory notes and interest thereon
shall at all times (including after assignment pursuant to Section 9.04) be
represented by one or more promissory notes in such forms payable to the order
of the payee named therein (or, if any such promissory note is a registered
note, to such payee and its registered assigns).
SECTION
2.10. Optional
and Mandatory Prepayment of Loans.
(a) The
Borrower shall have the right at any time and from time to time to prepay any
Borrowing in whole or in part, subject to prior notice in accordance with
paragraph (b) of this Section; provided
that the
Borrower shall not have the right to prepay any Competitive Loan without the
prior written consent of the Lender thereof.
(b) The
Borrower shall notify the Administrative Agent by telephone (confirmed by
telecopy or electronic pdf) of any prepayment to be made pursuant to paragraph
(a) of this Section (i) in the case of prepayment of a Eurodollar Revolving
Borrowing, not later than 11:00 a.m., New York City time, three Business Days
before the date of prepayment or (ii) in the case of prepayment of an ABR
Revolving Borrowing, not later than 11:00 a.m., New York City time, one Business
Day before the date of prepayment. Each such notice shall be irrevocable and
shall specify the prepayment date and the principal amount of each Borrowing
or
portion thereof to be prepaid; provided
that, if
a notice of prepayment is given in connection with a conditional notice of
termination of the Commitments as contemplated by Section 2.08, then such
notice of prepayment may be revoked if such notice of termination is revoked
in
accordance with Section 2.08. Promptly following receipt of any such notice
relating to a Revolving Borrowing, the Administrative Agent shall advise the
Lenders of the contents thereof. Each partial prepayment of any Revolving
Borrowing shall be in an amount that would be permitted in the case of an
advance of a Revolving Borrowing of the same Type as provided in Section 2.02.
Except as set forth in paragraph (d) below, each prepayment of a Revolving
Borrowing shall be applied ratably to the Loans included in the prepaid
Borrowing. Prepayments shall be accompanied by payment of accrued interest
to
the extent required by Section 2.12.
(c) If,
following any reduction of the total Commitments in connection with any sale
or
other disposition of Shares by the Borrower or any Subsidiary, the Aggregate
Outstanding Extensions of Credit at such time exceed the total then effective
Commitments, the Borrower shall, without notice or demand, immediately repay
Revolving Loans in an aggregate principal amount equal to the lesser of (i)
the
amount of such excess and (ii) the aggregate principal amount of Revolving
Loans
then outstanding, together with interest accrued to the date of such payment
or
prepayment on the principal so prepaid and any amounts payable under Section
2.15 in connection therewith. To the extent that after giving effect to any
prepayment of Revolving Loans required by the preceding sentence, the Aggregate
Outstanding Extensions of Credit at such time still exceed the total then
effective Commitments, the Borrower shall, without notice or demand, immediately
deposit in a Cash Collateral Account upon terms reasonably satisfactory to
the
Administrative Agent an amount equal to the amount of such remaining excess.
The
Administrative Agent shall apply any cash deposited in the Cash Collateral
Account (to the extent thereof) to repay the principal of each Competitive
Loan
on the date such principal becomes due and payable hereunder and/or to
reimburse, pursuant to Section 2.05(e), any LC Disbursement made thereafter,
provided
that the
Administrative Agent shall release to the Borrower from time to time such
portion of the amount on deposit in the Cash Collateral Account which is equal
to the amount by which the total Commitments at such time plus the amount on
deposit in the Cash Collateral Account exceeds the Aggregate Outstanding
Extensions of Credit at such time. “Cash
Collateral Account”
means
an account, in the name of the Administrative Agent for the benefit of the
Lenders, established by the Borrower with the Administrative Agent and over
which the Administrative Agent shall have exclusive dominion and control,
including the exclusive right of withdrawal for application in accordance with
this Section.
(d) The
provisions of Section 2.09(a) notwithstanding, the Borrower shall, without
notice or demand, repay all Loans of each Non-Approving Lender on the Maturity
Date then in effect with respect to such Lender.
SECTION
2.11. Fees.
(a) The
Borrower agrees to pay to the Administrative Agent for the account of each
Lender a facility fee, which shall accrue at the Applicable Rate on the daily
amount of the then effective Commitment of such Lender (whether used or unused)
during the period from and including the Closing Date to but excluding the
date
on which such Commitment expires or is terminated; provided
that, if
such Lender continues to have any Revolving Credit Exposure after its Commitment
terminates or expires, then such facility fee shall continue to accrue on the
daily amount of such Lender’s Revolving Credit Exposure from and including the
date on which its Commitment terminates to but excluding the date on which
such
Lender ceases to have any Revolving Credit Exposure. Accrued facility fees
with
respect to each Lender shall be payable in arrears on the last day of March,
June, September and December of each year and on the date on which the
Commitment of such Lender terminates or expires, commencing on the first such
date to occur after the date hereof; provided
that any
facility fees accruing after the date on which the Commitment of such Lender
terminates or expires shall be payable on demand. All facility fees shall be
computed on the basis of a year of 365 (or 366 in the case of a leap year)
days
and shall be payable for the actual number of days elapsed (including the first
day but excluding the last day).
(b) The
Borrower agrees to pay (i) to the Administrative Agent for the account of each
Lender a participation fee with respect to its participations in Letters of
Credit, which shall accrue at a rate per annum equal to the Applicable Rate
applicable to interest on Eurodollar Revolving Loans on the average daily amount
of such Lender’s LC Exposure (excluding any portion thereof attributable to
unreimbursed LC Disbursements) during the period from and including the Closing
Date to but excluding the later of the date on which such Lender’s Commitment
terminates and the date on which such Lender ceases to have any LC Exposure,
and
(ii) to each Issuing Bank a fronting fee, which shall accrue at the rate or
rates per annum separately agreed upon between the Borrower and such Issuing
Bank on the average daily amount of the LC Exposure (excluding any portion
thereof attributable to unreimbursed LC Disbursements) relating to the Letters
of Credit issued by such Issuing Bank during the period from and including
the
Closing Date to but excluding the later of the date of termination of the
Commitments and the date on which there ceases to be any such LC Exposure,
as
well as such Issuing Bank’s standard fees with respect to the issuance,
amendment, renewal or extension of any Letter of Credit or processing of
drawings thereunder. Participation fees and fronting fees with respect to each
Lender and Issuing Bank, respectively, accrued through and including the last
day of March, June, September and December of each year shall be payable on
the
third Business Day following such last day, commencing on the first such date
to
occur after the Closing Date; provided
that all
such fees shall be payable on the date on which such Lender’s or Issuing Bank’s
Commitments terminate or expire and any such fees accruing after the date on
which the Commitments terminate or expire shall be payable on demand. Any other
fees payable to any Issuing Bank pursuant to this paragraph shall be payable
within 10 days after demand. All participation fees and fronting fees shall
be
computed on the basis of a year of 365 (or 366 in the case of a leap year)
days
and shall be payable for the actual number of days elapsed (including the first
day but excluding the last day).
(c) The
Borrower agrees to pay to the Administrative Agent for the account of each
Lender a utilization fee, which shall accrue at a rate per annum of 0.10% on
the
daily amount of such Lender’s Revolving Credit Exposure, for any periods during
which the Aggregate Outstanding Extensions of Credit hereunder exceed 50% of
the
aggregate amount of Commitments hereunder. Accrued
utilization fees with respect to each Lender shall be payable in arrears on
the
last day of March, June, September and December of each year and on the date
on
which the Commitment of such Lender terminates or expires, commencing on the
first applicable such date to occur after the date hereof. All utilization
fees
shall be computed on the basis of a year of 365 (or 366 in the case of a leap
year) days and shall be payable for the actual number of days elapsed (including
the first day but excluding the last day).
(d) The
Borrower agrees to pay to the Administrative Agent, for its own account, fees
payable in the amounts and at the times separately agreed upon between the
Borrower and the Administrative Agent.
(e) All
fees
payable hereunder shall be paid on the dates due, in immediately available
funds, to the Administrative Agent (or to an Issuing Bank, in the case of fees
payable to it) for distribution, in the case of facility fees, utilization
fees
and participation fees, to the Lenders. Fees paid shall not be refundable under
any circumstances.
SECTION
2.12. Interest.
(a)
The
Loans comprising each ABR Borrowing shall bear interest at a rate per annum
equal to the Alternate Base Rate.
(b) The
Loans
comprising each Eurodollar Borrowing shall bear interest at a rate per annum
equal to (i) in the case of a Eurodollar Revolving Loan, the Adjusted LIBO
Rate
for the Interest Period in effect for such Borrowing plus the Applicable Rate
or
(ii) in the case of a Eurodollar Competitive Loan, the LIBO Rate for the
Interest Period in effect for such Borrowing plus (or minus, as applicable)
the
Margin applicable to such Loan.
(c) Each
Fixed Rate Loan shall bear interest at a rate per annum equal to the Fixed
Rate
applicable to such Loan.
(d) Notwithstanding
the foregoing, if any principal of or interest on any Loan or any fee or other
amount payable by the Borrower hereunder is not paid when due, whether at stated
maturity, upon acceleration or otherwise, such overdue amount shall bear
interest, after as well as before judgment, from and including the date such
amount shall become due, but excluding the date such amount shall be paid in
accordance with Section 2.17, at a rate per annum equal to (i) in the case
of
overdue principal of any Loan, 2% plus the rate otherwise applicable to such
Loan as provided above or (ii) in the case of any other amount, 2% plus the
rate
applicable to ABR Loans as provided above.
(e) Accrued
interest on each Loan shall be payable in arrears on each Interest Payment
Date
for such Loan; provided
that (i)
interest accrued pursuant to paragraph (d) of this Section shall be payable
on
demand, (ii) in the event of any repayment or prepayment of any Loan (other
than
a prepayment of an ABR Revolving Loan prior to the end of the Availability
Period), accrued interest on the principal amount repaid or prepaid shall be
payable on the date of such repayment or prepayment, (iii) in the event of
any
conversion of any Eurodollar Revolving Loan prior to the end of the current
Interest Period therefor, accrued interest on such Loan shall be payable on
the
effective date of such conversion and (iv) all accrued interest on each Loan
shall be payable upon termination or expiration of the Commitment of the Lender
making such Loan.
(f) All
interest hereunder shall be computed on the basis of a year of 360 days, except
that interest computed by reference to the Alternate Base Rate at times when
the
Alternate Base Rate is based on the Prime Rate shall be computed on the basis
of
a year of 365 days (or 366 days in a leap year), and in each case shall be
payable for the actual number of days elapsed (including the first day but
excluding the last day). The applicable Alternate Base Rate, Adjusted LIBO
Rate
or LIBO Rate shall be determined by the Administrative Agent, and such
determination shall be presumptively correct absent manifest error.
SECTION
2.13. Alternate
Rate of Interest.
If
prior to the commencement of any Interest Period for a Eurodollar
Borrowing:
(a) the
Administrative Agent determines (which determination shall be presumptively
correct, absent manifest error) that adequate and reasonable means do not exist
for ascertaining the Adjusted LIBO Rate or the LIBO Rate, as applicable, for
such Interest Period; or
(b) the
Administrative Agent is advised by the Majority Lenders (or, in the case of
a
Eurodollar Competitive Loan, the Lender that is required to make such Loan)
that
the Adjusted LIBO Rate or the LIBO Rate, as applicable, for such Interest Period
will not adequately and fairly reflect the cost to such Lenders (or Lender)
of
making or maintaining their Loans (or its Loan) included in such Borrowing
for
such Interest Period;
then
the
Administrative Agent shall give notice thereof to the Borrower and the Lenders
by telephone, telecopy or electronic pdf as promptly as practicable thereafter
and, until the Administrative Agent notifies the Borrower and the Lenders that
the circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Revolving Borrowing to,
or
continuation of any Revolving Borrowing as, a Eurodollar Borrowing shall be
ineffective, (ii) if any Borrowing Request requests a Eurodollar Revolving
Borrowing, such Borrowing shall be made as an ABR Borrowing and (iii) any
request by the Borrower for a Eurodollar Competitive Borrowing shall be
ineffective; provided
that (A)
if the circumstances giving rise to such notice do not affect all the Lenders,
then requests by the Borrower for Eurodollar Competitive Borrowings may be
made
to Lenders that are not affected thereby and (B) if the circumstances giving
rise to such notice affect only one Type of Borrowings, then the other Type
of
Borrowings shall be permitted.
SECTION
2.14. Increased
Costs.
(a) If
any Change in Law shall:
(i) impose,
modify or deem applicable any reserve, special deposit or similar requirement
against assets of, deposits with or for the account of, or credit extended
by,
any Lender (except any such reserve requirement reflected in the Adjusted LIBO
Rate) or any Issuing Bank; or
(ii) impose
on
any Lender or any Issuing Bank or the London interbank market any other
condition affecting this Agreement, any of the other Loan Documents or
Eurodollar Loans or Fixed Rate Loans made by such Lender or any Letter of Credit
or participation therein;
and
the
result of any of the foregoing shall be to increase the cost to such Lender
of
making or maintaining any Eurodollar Loan or Fixed Rate Loan or to increase
the
cost to such Lender or any Issuing Bank of participating in, issuing or
maintaining any Letter of Credit or to reduce the amount of any sum received
or
receivable by such Lender or such Issuing Bank hereunder in respect of such
Loan
or Letter of Credit by an amount deemed by such Lender to be material, then
the
Borrower will pay to such Lender or such Issuing Bank, as the case may be,
such
additional amount or amounts as will compensate such Lender or such Issuing
Bank, as the case may be, for such additional costs incurred or reduction
suffered.
(b) If
any
Lender or any Issuing Bank determines that any Change in Law regarding capital
requirements has or would have the effect of reducing the rate of return on
such
Lender’s or such Issuing Bank’s capital or on the capital of such Lender’s or
such Issuing Bank’s holding company, if any, as a consequence of this Agreement,
any of the other Loan Documents or the Loans made by, or participations in
Letters of Credit held by, such Lender, or the Letters of Credit issued by
such
Issuing Bank, to a level below that which such Lender or such Issuing Bank
or
such Lender’s or such Issuing Bank’s holding company could have achieved but for
such Change in Law (taking into consideration such Lender’s or such Issuing
Bank’s policies and the policies of such Lender’s or such Issuing Bank’s holding
company with respect to capital adequacy) by an amount deemed by such Lender
or
such Issuing Bank to be material, then from time to time the Borrower will
pay
to such Lender or such Issuing Bank, as the case may be, such additional amount
or amounts as will compensate such Lender or such Issuing Bank or such Lender’s
or such Issuing Bank’s holding company for any such reduction
suffered.
(c) A
certificate of a Lender or an Issuing Bank setting forth the amount or amounts
(including the basis therefor and the calculation thereof) necessary to
compensate such Lender or such Issuing Bank or its holding company, as the
case
may be, as specified in paragraph (a) or (b) of this Section shall be
delivered to the Borrower and shall be presumptively correct absent manifest
error. The Borrower shall pay such Lender or such Issuing Bank, as the case
may
be, the amount shown as due on any such certificate within 10 days after
receipt thereof.
(d) Failure
or delay on the part of any Lender or any Issuing Bank to demand compensation
pursuant to this Section shall not constitute a waiver of such Lender’s or such
Issuing Bank’s right to demand such compensation; provided
that the
Borrower shall not be required to compensate a Lender or an Issuing Bank
pursuant to this Section for any increased costs or reductions incurred more
than three months prior to the date that such Lender or such Issuing Bank,
as
the case may be, notifies the Borrower of the Change in Law giving rise to
such
increased costs or reductions and of such Lender’s or such Issuing Bank’s
intention to claim compensation therefor; provided further
that, if
the Change in Law giving rise to such increased costs or reductions is
retroactive, then the three-month period referred to above shall be extended
to
include the period of retroactive effect thereof.
(e) Notwithstanding
the foregoing provisions of this Section, a Lender shall not be entitled to
compensation pursuant to this Section in respect of any Competitive Loan if
the
Change in Law that would otherwise entitle it to such compensation shall have
been publicly announced prior to submission of the Competitive Bid pursuant
to
which such Loan was made.
SECTION
2.15. Break
Funding Payments.
In
the event of (a) the payment of any principal of any Eurodollar Loan or Fixed
Rate Loan other than on the last day of an Interest Period applicable thereto
(including as a result of an Event of Default), (b) the conversion of any
Eurodollar Loan other than on the last day of the Interest Period applicable
thereto, (c) the failure to borrow, convert, continue or prepay any Revolving
Loan on the date specified in any notice delivered pursuant hereto (regardless
of whether such notice is permitted to be revocable under Section 2.10(b) and
is
revoked in accordance herewith), (d) the failure to borrow any Competitive
Loan after accepting the Competitive Bid to make such Loan, or (e) the
assignment of any Eurodollar Loan or Fixed Rate Loan other than on the last
day
of the Interest Period applicable thereto as a result of a request by the
Borrower pursuant to Section 2.18, then, in any such event, the Borrower
shall compensate each Lender for the loss and the actual cost and expense
attributable to such event. In the case of a Eurodollar Loan, the loss to any
Lender attributable to any such event shall be deemed to include an amount
reasonably determined by such Lender to be equal to the excess, if any, of
(i) the amount of interest that such Lender would pay for a deposit equal
to the principal amount of such Loan for the period from the date of such
payment, conversion, failure or assignment to the last day of the then current
Interest Period for such Loan (or, in the case of a failure to borrow, convert
or continue, the duration of the Interest Period that would have resulted from
such borrowing,
conversion
or continuation) if the interest rate payable on such deposit were equal to
the
Adjusted LIBO Rate (in the case of a Eurodollar Revolving Loan) or the LIBO
Rate
(in the case of a Eurodollar Competitive Loan) for such Interest Period, over
(ii) the amount of interest that such Lender would earn on such principal
amount for such period if such Lender were to invest such principal amount
for
such period at the interest rate that would be bid by such Lender (or an
Affiliate of such Lender) for dollar deposits from other banks in the eurodollar
market at the commencement of such period. A certificate of any Lender setting
forth any amount or amounts that such Lender is entitled to receive (including
the basis therefor and the calculation thereof) pursuant to this Section shall
be delivered to the Borrower and shall be presumptively correct absent manifest
error. The Borrower shall pay such Lender the amount shown as due on any such
certificate within 10 days after receipt thereof.
SECTION
2.16. Taxes.
(a) Any
and all payments by or on account of any obligation of the Borrower hereunder
shall be made free and clear of and without deduction for any Indemnified Taxes
or Other Taxes; provided
that if
the Borrower shall be required to deduct any Indemnified Taxes or Other Taxes
from such payments, then (i) the sum payable shall be increased as
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section) the Administrative
Agent, each Lender or each Issuing Bank (as the case may be) receives an amount
equal to the sum it would have received had no such deductions been made,
(ii) the Borrower shall make such deductions and (iii) the Borrower
shall pay the full amount deducted to the relevant Governmental Authority in
accordance with applicable law.
(b) In
addition, the Borrower shall pay any Other Taxes to the relevant Governmental
Authority in accordance with applicable law.
(c) The
Borrower shall indemnify the Administrative Agent, each Lender and each Issuing
Bank, within 30 days after written demand therefor, for the full amount of
any
Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes
imposed or asserted on or attributable to amounts payable under this Section)
paid by the Administrative Agent, such Lender or such Issuing Bank, as the
case
may be, and any penalties, interest and reasonable expenses arising therefrom
or
with respect thereto to the extent such penalties, interest and expenses shall
not result from any action or inaction on the part of the Administrative Agent,
such Lender or such Issuing Bank, as the case may be, whether or not such
Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted
by the relevant Governmental Authority. A certificate as to the amount of such
payment or liability (including the basis therefor and the calculation thereof)
delivered to the Borrower by a Lender or an Issuing Bank, or by the
Administrative Agent on its own behalf or on behalf of a Lender or an Issuing
Bank, shall be presumptively correct absent manifest error.
(d) As
soon
as practicable after any payment of Indemnified Taxes or Other Taxes by the
Borrower to a Governmental Authority, the Borrower shall deliver to the
Administrative Agent the original or a certified copy of a receipt issued by
such Governmental Authority evidencing such payment, a copy of the return
reporting such payment or other evidence of such payment reasonably satisfactory
to the Administrative Agent.
(e) Unless
after the date any Foreign Lender becomes a Lender hereunder there is a Change
in Law which would prevent such Foreign Lender from duly completing and
delivering such documentation and such Foreign Lender so advises the
Administrative Agent and the Borrower, such Foreign Lender shall deliver to
the
Borrower (with a copy to the Administrative Agent), at the time or times
prescribed by applicable law or reasonably requested by the Borrower, such
properly completed and executed documentation prescribed by applicable law
as
will permit payments made under this Agreement to be made without
withholding.
(f) If
the
Borrower determines in good faith that a reasonable basis exists for contesting
a Tax, the relevant Lender or the Administrative Agent, as applicable, shall
cooperate with the Borrower in challenging such Tax at the Borrower’s expense if
requested by the Borrower. If any Lender or the Administrative Agent, as
applicable, obtains a credit against or receives a refund or reduction (whether
by way of direct payment or by offset) of any Tax for which payment has been
made pursuant to this Section, which credit, refund or reduction in the good
faith judgment of such Lender or the Administrative Agent, as the case may
be,
(and without any obligation to disclose its tax records) is allocable to such
payment made under this Section, the amount of such credit, refund or reduction
(together with any interest received thereon) promptly shall be paid to the
Borrower to the extent payment has been made in full by the Borrower pursuant
to
this Section.
SECTION
2.17. Payments
Generally; Pro Rata Treatment; Sharing of Set-offs.
(a)
The
Borrower shall make each payment required to be made by it hereunder (whether
of
principal, interest, fees or reimbursement of LC Disbursements, or under Section
2.14, 2.15 or 2.16, or otherwise) prior to 12:00 noon, New York City time,
on
the date when due, in immediately available funds, without set-off or
counterclaim. Any amounts received after such time on any date may, in the
discretion of the Administrative Agent, be deemed to have been received on
the
next succeeding Business Day for purposes of calculating interest thereon.
All
such payments shall be made to the Administrative Agent at its offices at 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, except payments to be made directly to an
Issuing Bank as expressly provided herein and except that payments pursuant
to
Sections 2.14, 2.15, 2.16 and 9.03 shall be made directly to the Persons
entitled thereto. The Administrative Agent shall distribute any such payments
received by it for the account of any other Person to the appropriate recipient
promptly following receipt thereof. If any payment hereunder shall be due on
a
day that is not a Business Day, the date for payment shall be extended to the
next succeeding Business Day, and, in the case of any payment accruing interest,
interest thereon shall be payable for the period of such extension at the same
applicable rate. All payments hereunder shall be made in dollars.
(b) If
at any
time insufficient funds are received by and available to the Administrative
Agent to pay fully all amounts of principal, unreimbursed LC Disbursements,
interest and fees then due hereunder, such funds shall be applied (i) first,
to
pay interest and fees then due hereunder, ratably among the parties entitled
thereto in accordance with the amounts of interest and fees then due to such
parties, and (ii) second, to pay principal and unreimbursed LC Disbursements
then due hereunder, ratably among the parties entitled thereto in accordance
with the amounts of principal and unreimbursed LC Disbursements then due to
such
parties.
(c) Except
as
provided in Sections 2.09(a) and 2.10(d) with respect to Loans of a
Non-Approving Lender, if any Lender shall, by exercising any right of set-off
or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans or participations in LC Disbursements
resulting in such Lender receiving payment of a greater proportion of the
aggregate amount of its Revolving Loans and participations in LC Disbursements
and accrued interest thereon than the proportion received by any other Lender,
then the Lender receiving such greater proportion shall purchase (for cash
at
face value) participations in the Revolving Loans and participations in LC
Disbursements of other Lenders to the extent necessary so that the benefit
of
all such payments shall be shared by the Lenders ratably in accordance with
the
aggregate amount of principal of and accrued interest on their respective
Revolving Loans and participations in LC Disbursements; provided
that (i)
if any such participations are purchased and all or any portion of the payment
giving rise thereto is recovered, such participations shall be rescinded and
the
purchase price restored to the extent of such recovery, without interest, and
(ii) the provisions of this paragraph shall not be construed to apply to any
payment made by the Borrower pursuant to and in accordance with the express
terms of this Agreement or any payment obtained by a Lender as consideration
for
the assignment of or sale of a participation in any of its Loans or
participations in LC Disbursements to any assignee or participant, other than
to
the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions
of this paragraph shall apply). The Borrower consents to the foregoing and
agrees, to the extent it may effectively do so under applicable law, that any
Lender acquiring a participation pursuant to the foregoing arrangements may,
subject to Section 9.08, exercise against the Borrower rights of set-off and
counterclaim with respect to such participation as fully as if such Lender
were
a direct creditor of the Borrower in the amount of such
participation.
(d) Unless
the Administrative Agent shall have received notice from the Borrower prior
to
the date on which any payment is due to the Administrative Agent for the account
of the Lenders or an Issuing Bank hereunder that the Borrower will not make
such
payment, the Administrative Agent may assume that the Borrower has made such
payment on such date in accordance herewith and may, in reliance upon such
assumption, distribute to the Lenders or such Issuing Bank, as the case may
be,
the amount due. In such event, if the Borrower has not in fact made such
payment, then each of the Lenders or such Issuing Bank, as the case may be,
severally agrees to repay to the Administrative Agent forthwith on demand the
amount so distributed to such Lender or such Issuing Bank with interest thereon,
for each day from and including the date such amount is distributed to it to
but
excluding the date of payment to the Administrative Agent, at the Federal Funds
Effective Rate.
(e) If
any
Lender shall fail to make any payment required to be made by it pursuant to
Section 2.05(d) or (e), 2.06(b) or 2.17(d), then the Administrative Agent may,
in its discretion (notwithstanding any contrary provision hereof), apply any
amounts thereafter received by the Administrative Agent for the account of
such
Lender to satisfy such Lender’s obligations under such Sections until all such
unsatisfied obligations are fully paid.
SECTION
2.18. Mitigation
Obligations; Replacement of Lenders.
(a) If
any Lender or a Participant in such Lender’s Loans requests compensation under
Section 2.14, or if the Borrower is required to pay any additional
amount to any Lender or a Participant in such Lender’s Loans or any Governmental
Authority for the account of any Lender or Participant pursuant to
Section 2.16, then such Lender or Participant shall use reasonable efforts
to designate a different lending office for funding or booking its Loans
hereunder or to assign its rights and obligations hereunder to another of its
offices, branches or Affiliates, if, in the reasonable judgment of such Lender
or Participant, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.14 or 2.16, as the case may be, in the
future and (ii) would not subject such Lender or Participant to any unreimbursed
cost or expense and would not otherwise be disadvantageous to such Lender or
Participant. The Borrower hereby agrees to pay all reasonable costs and expenses
incurred
by any Lender or Participant in connection with any such designation or
assignment. Without limiting the generality of the foregoing, each Lender and
Participant shall use all reasonable efforts to mitigate the effect upon the
Borrower of any increased capital requirement and shall assess any cost related
to such increased capital on a nondiscriminatory basis among the Borrower and
other borrowers of such Lender or Participant to which such cost applies and
such Lender or Participant shall not be entitled to be compensated for any
increased capital requirement unless it is, as a result of such law, regulation,
guideline or request, such Lender’s or Participant’s policy generally to seek to
exercise such rights, where available, against other borrowers of such Lender
or
Participant.
(b) If
any
Lender or a Participant in such Lender’s Loans requests compensation under
Section 2.14, or if the Borrower is required to pay any additional amount
to any Lender or Participant or any Governmental Authority for the account
of
any Lender or Participant pursuant to Section 2.16, or if any Lender
defaults in its obligation to fund Loans hereunder, or if any Lender shall
have
a credit rating of C/D (or its equivalent) or lower by Thomson BankWatch, Inc.
(or any successor thereto), then the Borrower shall have the right, at its
sole
expense, upon notice to such Lender and the Administrative Agent, to require
such Lender to assign and delegate, without recourse (in accordance with and
subject to the restrictions contained in Section 9.04), all its interests,
rights and obligations under this Agreement and the other Loan Documents (other
than any outstanding Competitive Loans held by it) to an assignee that shall
assume such obligations (which assignee may be another Lender, if a Lender
accepts such assignment); provided
that (i)
the Borrower shall have received the prior written consent of the Administrative
Agent (and, if a Commitment is being assigned, each Issuing Bank) which consent
shall not unreasonably be withheld, (ii) such Lender shall have received payment
of an amount equal to the outstanding principal of its Loans (other than
Competitive Loans) and participations in LC Disbursements, accrued interest
thereon, accrued fees and all other amounts payable to it hereunder, from the
assignee (to the extent of such outstanding principal and accrued interest
and
fees) or the Borrower (in the case of all other amounts) and (iii) in the
case of any such assignment resulting from a claim for compensation under
Section 2.14 or payments required to be made pursuant to Section 2.16,
such assignment will result in a reduction in such compensation or payments.
A
Lender shall not be required to make any such assignment and delegation if,
prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling the Borrower to require such assignment and delegation
cease to apply.
Representations
and Warranties
The
Borrower represents and warrants to the Lenders that:
SECTION
3.01. Organization;
Powers.
Each of
the Borrower and the Significant Subsidiaries is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization, has all requisite power and authority to carry on its business
as
now conducted and, except where the failure to do so, individually or in the
aggregate, would not result in a Material Adverse Effect, is qualified to do
business in, and is in good standing in, every jurisdiction where such
qualification is required.
SECTION
3.02. Authorization;
Enforceability.
The
Transactions are within the Borrower’s corporate powers and have been duly
authorized by all necessary corporate action of the Borrower. This Agreement
has
been duly executed and delivered by the Borrower and constitutes, and each
Note
and each other Loan Document when executed and delivered by the Borrower will
constitute, a legal, valid and binding obligation of the Borrower, enforceable
in accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors’ rights generally
and subject to general principles of equity, regardless of whether considered
in
a proceeding in equity or at law.
SECTION
3.03. Governmental
Approvals; No Conflicts.
The
Transactions (a) do not require any consent or approval of, registration or
filing with, or any other action by, any Governmental Authority, except such
as
have been obtained or made and are in full force and effect, (b) will not
violate any applicable law or regulation or the charter, by-laws or other
organizational documents of the Borrower, any Subsidiary or any CSX/NS Entity
or
any order of any Governmental Authority, (c) will not violate or result in
a
default, or give rise to a right to require any material payment, under any
indenture, agreement or other instrument binding upon the Borrower, any
Subsidiary or any of their respective assets (or, in the case of CSX/NS
Acquisition Sub or Conrail or any of its subsidiaries (excluding any NS Conrail
Subsidiaries), any indenture, agreement or other instrument a violation, default
or required payment under which would result in a Material Adverse Effect),
and
(d) will not result in the creation or imposition of any Lien on any material
asset of the Borrower or any Subsidiary (or, in the case of CSX/NS Acquisition
Sub or Conrail or any of its subsidiaries (excluding any NS Conrail
Subsidiaries), any Lien on any of its assets if such Lien would result in a
Material Adverse Effect).
SECTION
3.04. Financial
Condition; No Material Adverse Change.
(a)
The
Borrower has heretofore furnished to the Lenders its consolidated statement
of
financial position, and statements of earnings, changes in shareholders’ equity
and cash flows (i) as of and for the fiscal year ended December 30, 2005,
reported on by Ernst & Young LLP, independent public accountants, and (ii)
except for statements of changes in shareholders’ equity, as of and for the
fiscal quarter ended March 31, 2006, certified by a Financial Officer. Such
financial statements present fairly, in all material respects, the financial
position and results of operations and cash flows of the Borrower and its
consolidated Subsidiaries as of such dates and for such periods in accordance
with GAAP, subject to year-end audit adjustments and the absence of footnotes
in
the case of the statements referred to in clause (ii) above.
(b) Since
December 30, 2005, there has been no Material Adverse Effect.
SECTION
3.05. Properties.
(a)
Each of
the Borrower and the Subsidiaries has good title to, or valid leasehold
interests in or rights to use, all its real and personal property material
to
its business, except for such irregularities that, individually or in the
aggregate, would not result in a Material Adverse Effect.
(b) Each
of
the Borrower and the Subsidiaries owns, or is licensed to use, all trademarks,
tradenames, copyrights, patents and other intellectual property material to
its
business, and the use thereof by the Borrower and the Subsidiaries does not
infringe upon the rights of any other Person, except for any such infringements
that, individually or in the aggregate, would not result in a Material Adverse
Effect.
SECTION
3.06. Litigation
and Environmental Matters.
(a)
There is
no pending litigation or administrative proceeding or other legal or regulatory
development that is reasonably likely to result in a Material Adverse Effect
or
to materially adversely affect the rights and remedies of the Lenders hereunder.
(b) Except
for the Disclosed Matters and except with respect to any other matters that,
individually or in the aggregate, would not result in a Material Adverse Effect,
neither the Borrower nor any Subsidiary nor any CSX/NS Entity (i) has
failed to comply with any Environmental Law or to obtain, maintain or comply
with any permit, license or other approval required under any Environmental
Law,
(ii) has become subject to any Environmental Liability, (iii) has
received notice of any claim with respect to any Environmental Liability or
(iv)
knows of any basis for any Environmental Liability.
SECTION
3.07. Compliance
with Laws and Agreements.
Each of
the Borrower, the Subsidiaries and the CSX/NS Entities is in compliance with
all
laws, regulations and orders (other than Environmental Laws) of any Governmental
Authority applicable to it or its property (including Regulation U) and all
indentures, agreements and other instruments binding upon it or its property,
except where the failure to do so, individually or in the aggregate, would
not
result in a Material Adverse Effect. No Default has occurred and is
continuing.
SECTION
3.08. Investment
Company Status.
Neither
the Borrower nor any Subsidiary is an “investment company” as defined in,
or subject to regulation under, the Investment Company Act of 1940.
SECTION
3.09. Taxes.
Each of
the Borrower, the Subsidiaries and the CSX/NS Entities has timely filed or
caused to be filed all Tax returns and reports required to have been filed
and
has paid or caused to be paid all Taxes required to have been paid by it, except
(a) Taxes that are being contested in good faith by appropriate proceedings
and for which the Borrower, such Subsidiary or such CSX/NS Entity, as
applicable, has set aside on its books adequate reserves or (b) to the
extent that the failure to do so would not result in a Material Adverse
Effect.
SECTION
3.10. ERISA.
No
ERISA Event has occurred or is reasonably expected to occur that, when taken
together with all other such ERISA Events for which liability is reasonably
expected to occur, would result in a Material Adverse Effect.
SECTION
3.11. Disclosure.
None of
the reports, financial statements, certificates or other information furnished
by or on behalf of the Borrower to the Administrative Agent or any Lender in
connection with the negotiation of this Agreement or any other Loan Document
or
delivered hereunder or thereunder (as modified or supplemented by other
information so furnished) contains any material misstatement of fact or omits
to
state any material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading; provided
that,
with respect to projected or pro forma financial information, the Borrower
represents only that such information was prepared in good faith based upon
assumptions believed to be reasonable at the time, it being understood that
such
pro forma statements or projections are inherently subjective and are subject
to
significant uncertainties and contingencies many of which are beyond the control
of the Borrower and that no assurance can be given that such projections or
pro
forma financial statements will be realized.
Conditions
SECTION
4.01. Closing
Date.
This
Agreement shall not become effective until the date on which each of the
following conditions is satisfied (or waived in accordance with Section
9.02):
(a) The
Administrative Agent (or its counsel) shall have received from the Borrower
and
the Lenders either (i) counterparts of this Agreement signed on behalf of
such parties or (ii) written evidence satisfactory to the Administrative Agent
(which may include telecopy or electronic pdf transmission of a signed signature
page of this Agreement) that such parties have each signed a counterpart of
this
Agreement.
(b) The
Administrative Agent shall have received a favorable written opinion (addressed
to the Administrative Agent and the Lenders and dated the Closing Date) of
(i)
Cravath, Swaine & Xxxxx LLP, special counsel for the Borrower, substantially
in the form of Exhibit C, and (ii) the General Counsel or an Assistant General
Counsel of the Borrower, substantially in the form of Exhibit D. The Borrower
hereby requests such counsel to deliver such opinions.
(c) The
Administrative Agent shall have received (i) a certificate of the Borrower,
dated the Closing Date, as to the incumbency and signature of the officers
of
the Borrower executing this Agreement and authorized to execute Notes reasonably
satisfactory in form and substance to the Administrative Agent and (ii) 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.
(d) The
Administrative Agent shall have received a certificate, dated the Closing Date
and signed by the President, a Vice President or a Financial Officer of the
Borrower, confirming that (i) the representations and warranties of the Borrower
set forth in this Agreement are true and correct as of the Closing Date and
(ii)
upon the effectiveness of this Agreement, no Default shall have occurred and
be
continuing.
(e) The
Borrower shall have paid all fees required to be paid, and all expenses required
to be paid and for which invoices have been presented, on or before the Closing
Date.
(f) Concurrently
with the effectiveness of this Agreement, (i) the Borrower shall (and does
hereby) terminate the commitments under the Existing Credit Agreements and
(ii)
all principal, interest and fees under the Existing Credit Agreements shall
be
paid in full. Any advance notice required in connection with such termination
or
prepayment is hereby waived by the Lenders (to the extent such Lenders are
parties to the Existing Credit Agreements).
The
Administrative Agent shall notify the Borrower and the Lenders of the Closing
Date, and such notice shall be conclusive and binding.
SECTION
4.02. Each
Credit Event.
The
obligation of each Lender to make a Loan on the occasion of any Borrowing,
and
of each Issuing Bank to issue, amend, renew or extend any Letter of Credit,
is
subject to the satisfaction of the following conditions:
(a) The
representations and warranties of the Borrower set forth in this Agreement
(other than the representations and warranties set forth in Sections 3.04(b)
and
3.06) or any other Loan Document shall be true and correct on and as of the
date
of such Borrowing or the date of issuance, amendment, renewal or extension
of
such Letter of Credit, as applicable.
(b) At
the
time of and immediately after giving effect to such Borrowing or the issuance,
amendment, renewal or extension of such Letter of Credit, as applicable, no
Default shall have occurred and be continuing.
Each
Borrowing and each issuance, amendment, renewal or extension of a Letter of
Credit shall be deemed to constitute a representation and warranty by the
Borrower on the date thereof as to the matters specified in paragraphs (a)
and
(b) of this Section.
Affirmative
Covenants
Until
all
Commitments shall have expired or been terminated and the principal of and
interest on each Loan and all fees payable hereunder shall have been paid in
full and all Letters of Credit shall have expired or been terminated and all
LC
Disbursements shall have been reimbursed, the Borrower covenants and agrees
with
the Lenders that:
SECTION
5.01. Financial
Statements and Other Information.
The
Borrower will furnish to each Lender through the Administrative
Agent:
(a) as
soon
as available but in any event within 120 days after the end of each fiscal
year of the Borrower, its audited consolidated statement of financial position
and related statements of earnings, changes in shareholders’ equity and cash
flows as of the end of and for such year, setting forth in each case in
comparative form the figures for the previous fiscal year, all reported on
by
Ernst & Young LLP or other independent public accountants of recognized
national standing (without a “going concern” or like qualification or exception
and without any qualification or exception as to the scope of such audit) to
the
effect that such consolidated financial statements present fairly in all
material respects the financial position, results of operations and cash flows
of the Borrower and its consolidated Subsidiaries on a consolidated basis in
accordance with GAAP; provided,
however,
that
the Borrower may deliver, in lieu of the foregoing, the annual report of the
Borrower for such fiscal year on Form 10-K filed with the SEC, but only so
long
as the financial statements contained in such annual report on Form 10-K are
substantially the same in content as the financial statements referred to in
the
preceding provisions of this paragraph (a);
(b) as
soon
as available but in any event within 60 days after the end of each of the
first three fiscal quarters of each fiscal year of the Borrower, its
consolidated
statement
of financial position and related statements of earnings and cash flows as
of
the end of and for such fiscal quarter and the then elapsed portion of the
fiscal year, setting forth in each case in comparative form the figures for
the
corresponding period or periods of (or, in the case of the balance sheet, as
of
the end of) the previous fiscal year, all certified by one of its Financial
Officers as presenting fairly in all material respects the financial position,
results of operations and cash flows of the Borrower and its consolidated
Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal
year-end audit adjustments and the absence of footnotes; provided,
however,
that
the Borrower may deliver, in lieu of the foregoing, the quarterly report of
the
Borrower for such fiscal quarter on Form 10-Q filed with the SEC, but only
so
long as the financial statements contained in such quarterly report on Form
10-Q
are substantially the same in content as the financial statements referred
to in
the preceding provisions of this paragraph (b);
(c) concurrently
with each delivery of financial statements under clause (a) or
(b) above, a certificate of a Financial Officer of the Borrower
(i) certifying as to whether, to the best knowledge of such Financial
Officer, a Default has occurred and is continuing and, if a Default has occurred
and is continuing, specifying the details thereof and any action taken or
proposed to be taken with respect thereto, (ii) setting forth reasonably
detailed calculations demonstrating compliance with Section 6.05 and
(iii) stating whether any change in GAAP or in the application thereof has
occurred since the date of the audited financial statements referred to in
Section 3.04 and, if any such change has occurred, specifying the effect of
such change on the financial statements accompanying such
certificate;
(d) concurrently
with each delivery of financial statements under clause (a) above, a letter
signed by the accounting firm that reported on such financial statements to
the
effect that, in the course of the examination upon which their report for such
fiscal year was based (but without any special or additional audit procedures
for that purpose other than review of the terms and provisions of this
Agreement), nothing came to their attention that caused them to believe that
there were any Defaults or Events of Default involving accounting matters or,
if
such accountants became aware of any such Defaults or Events of Default,
specifying the nature thereof;
(e) promptly
after the same become publicly available, copies of all periodic and other
reports on Forms 8-K, 10-Q and 10-K and all proxy statements filed by the
Borrower or any Subsidiary with the SEC or any other documents distributed
by
the Borrower to its shareholders generally which contain the equivalent
information to that contained in such Forms or proxy statements;
(f) upon
any
sale or other disposition of Shares by the Borrower or any Subsidiary, a
certificate of a Financial Officer setting forth in reasonable detail the
calculations required to determine the portion of such Shares which constitute
Restricted Margin Stock, the portion of such Shares which constitute
Unrestricted Margin Stock and the Net Cash Proceeds attributable to each such
portion; and
(g) promptly
following any request therefor, such other information regarding the operations
and financial condition of the Borrower or any Subsidiary, or compliance with
the terms of this Agreement or any other Loan Document, as the Administrative
Agent or any Lender may reasonably request.
Information
required to be delivered pursuant to this Section 5.01 shall be deemed to have
been delivered to the Lenders on the date on which the Borrower provides written
notice to the Lenders that such information has been posted on the Borrower’s
website on the Internet at xxxx://xxx.xxx.xxx
or is
available on the website of the SEC at xxxx://xxx.xxx.xxx
(to the
extent such information has been posted or is available as described in such
notice). Information required to be delivered pursuant to this Section 5.01
may
also be delivered by electronic communication pursuant to procedures approved
by
the Administrative Agent pursuant to Section 9.01(b).
SECTION
5.02. Notices
of Material Events.
The
Borrower will furnish to each Lender through the Administrative Agent prompt
written notice of the following:
(a) within
three Business Days after any Financial Officer obtains knowledge of the
occurrence of any Default which is continuing, the occurrence of such
Default;
(b) the
filing or commencement of any action, suit or proceeding by or before any
arbitrator or Governmental Authority against or affecting the Borrower or any
Subsidiary that would, in the reasonable judgment of the Borrower, result in
a
Material Adverse Effect;
(c) the
occurrence of any ERISA Event that, alone or together with any other ERISA
Events that have occurred, would, in the reasonable judgment of the Borrower,
result in a Material Adverse Effect; and
(d) any
other
development that results in, or would in the reasonable judgment of the Borrower
result in, a Material Adverse Effect.
Each
notice delivered under this Section shall be accompanied by a statement of
a
Financial Officer or other executive officer of the Borrower setting forth
the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
SECTION
5.03. Existence;
Conduct of Business.
The
Borrower will, and will cause each Significant Subsidiary to, do or cause to
be
done all things necessary to preserve, renew and keep in full force and effect
its legal existence and the rights, licenses, permits, privileges and franchises
it reasonably deems necessary to the conduct of its business; provided
that the
foregoing shall not prohibit any merger, consolidation or disposition not
prohibited under Section 6.04 or prohibit the Borrower or any Significant
Subsidiary from discontinuing any business or forfeiting any right, license,
permit, privilege or franchise to the extent it reasonably deems appropriate
in
the ordinary course of its business.
SECTION
5.04. Payment
of Obligations.
The
Borrower will, and will cause each Subsidiary and each CSX Conrail Subsidiary
to, pay its obligations, including Tax liabilities, that, if not paid, would
result in a Material Adverse Effect before the same shall become delinquent
or
in default, except where the validity or amount thereof is being contested
in
good faith by appropriate proceedings.
SECTION
5.05. Maintenance
of Properties; Insurance.
The
Borrower will, and will cause each Significant Subsidiary to, (a) keep and
maintain all property material to the conduct of its business in good working
order and condition, ordinary wear and tear excepted, and (b) maintain
insurance with financially sound insurance companies (including captive or
affiliated insurance companies) or, to the extent consistent with prudent
business practice, programs of self-insurance, in each case in such amounts,
with such deductibles and against such risks as are reasonably
appropriate.
SECTION
5.06. Books
and Records; Inspection Rights.
The
Borrower will, and will cause each Significant Subsidiary to, keep and maintain
proper books of record and account in accordance with GAAP. The Borrower will,
and will cause each Subsidiary and each CSX Conrail Subsidiary to, permit any
representatives designated by the Administrative Agent or any Lender, upon
reasonable prior notice and coordinated with the Administrative Agent, to visit
and inspect its properties, to examine and make extracts from its books and
records, and to discuss its affairs, finances and condition with its officers
and independent accountants, all during normal business hours and at such
reasonable times and as often as reasonably requested.
SECTION
5.07. Compliance
with Laws.
The
Borrower will, and will cause each Subsidiary and CSX Conrail Subsidiary to,
comply with all laws, rules, regulations and orders of any Governmental
Authority applicable to it or its property, except where the failure to do
so,
individually or in the aggregate, would not result in a Material Adverse
Effect.
SECTION
5.08. Use
of
Proceeds, Commitments and Letters of Credit.
The
proceeds of the Loans may be used for working capital and other general
corporate purposes, and a portion of the Commitments may be used to support
commercial paper issued by the Borrower. Letters of Credit will be issued only
to support obligations of the Borrower and the Subsidiaries, contingent or
otherwise, incurred or arising in the ordinary course of business.
SECTION
5.09. Federal
Regulations.
No part
of the proceeds of any Loan will be used for “purchasing” or “carrying” (within
the respective meanings of each of the quoted terms under Regulation U of the
Board as now and from time to time hereafter in effect) any Margin Stock in
violation of the applicable requirements of such Regulation. If requested by
any
Lender or the Administrative Agent, the Borrower will furnish to the
Administrative Agent and each Lender a statement to the foregoing effect in
conformity with the requirements of FR Form G-3 or FR Form U-1 referred to
in
said Regulation U, as the case may be.
Negative
Covenants
Until
all
Commitments shall have expired or been terminated and the principal of and
interest on each Loan and all fees payable hereunder shall have been paid in
full and all Letters of Credit shall have expired or been terminated and all
LC
Disbursements shall have been reimbursed, the Borrower covenants and agrees
with
the Lenders that:
SECTION
6.01. Limitation
on Subsidiary Debt.
The
Borrower will not permit any Subsidiary or any CSX Conrail Subsidiary to create,
incur or assume any Debt (other than Debt substantially secured by a Lien or
Liens on assets of such Subsidiary or such CSX Conrail Subsidiary permitted
under Section 6.02) after the Closing Date, except:
(a) extensions,
renewals and replacements of any Debt existing on the date hereof that do not
increase the outstanding principal amount thereof (other than to finance
payments made in connection therewith);
(b) Debt
of
any Subsidiary or CSX Conrail Subsidiary to the Borrower or any other Subsidiary
or CSX Conrail Subsidiary;
(c) Debt
of
any Person that becomes a Subsidiary after the date hereof; provided
that
such Debt exists at the time such Person becomes a Subsidiary and is not created
in contemplation of or in connection with such Person becoming a
Subsidiary;
(d) Debt
of
any Subsidiary or CSX Conrail Subsidiary as an account party in respect of
letters of credit; and
(e) other
Debt; provided
that (i)
at the time of the creation, incurrence or assumption of such Debt and after
giving effect thereto, the aggregate principal amount of all such Debt of the
Subsidiaries does not exceed an amount equal to 10% of Total Capitalization
at
such time and (ii) any Allocable CSX/NS Debt of the CSX/NS Acquisition Sub
Entities incurred after the Closing Date shall, without duplication, be treated
as “Debt” of a Subsidiary for purposes of clause (i) of this
proviso.
SECTION
6.02. Liens.
The
Borrower will not, and will not permit any Subsidiary or CSX Conrail Subsidiary
to, create, incur, assume or permit to exist any Lien on any property or asset
now owned or hereafter acquired by it (other than Unrestricted Margin Stock)
to
secure Debt of the Borrower, any Subsidiary or any CSX Conrail Subsidiary,
except:
(a) Permitted
Encumbrances;
(b) any
Lien
on any property or asset of the Borrower or any Subsidiary or Conrail or any
of
its subsidiaries existing on the date hereof; provided
that (i)
such Lien shall not apply to any other property or asset of the Borrower, any
Subsidiary or any CSX Conrail Subsidiary and (ii) such Lien shall secure only
those obligations which it secures on the date hereof and extensions, renewals
and replacements thereof that do not increase the outstanding principal amount
thereof (other than to finance payments made in connection
therewith);
(c) any
Lien
existing on any property or asset prior to the acquisition thereof by the
Borrower, any Subsidiary or any CSX/NS Entity or existing on any property or
asset of any Person that becomes a Subsidiary or CSX/NS Entity after the date
hereof prior to the time such Person becomes a Subsidiary or CSX/NS Entity;
provided
that
(i) such Lien is not created in contemplation of or in connection with such
acquisition or such Person becoming a Subsidiary or CSX/NS Entity, as the case
may be, (ii) such Lien shall not apply to any other property or assets of
the Borrower, any Subsidiary or any CSX Conrail Subsidiary and (iii) such Lien
shall secure only those obligations which it secures on the date of such
acquisition or the date such Person becomes a Subsidiary or CSX/NS Entity,
as
the case may be, and extensions, renewals and replacements thereof that do
not
increase the outstanding principal amount thereof (other than to finance
payments made in connection therewith);
(d) Liens
on
railroad locomotives, auto racks, rolling stock, vessels, barges, containers,
vehicles, terminals and other fixed or capital assets acquired, constructed,
improved or refurbished by or for the Borrower, any Subsidiary or any CSX
Conrail Subsidiary; provided
that
(i) such Liens and the Debt secured thereby are incurred (A) prior to or
within three years after such acquisition or the completion of such
construction, improvement or refurbishment or (B) with respect to the assets
of
Conrail or any of its subsidiaries, not later than August 22, 2001,
(ii) the Debt secured thereby does not exceed 100% of the cost of
acquiring, constructing, improving or refurbishing such assets and
(iii) such Liens shall not apply to any other property or assets of the
Borrower, any Subsidiary or any CSX Conrail Subsidiary;
(e) Liens
securing Debt in respect of the transactions described in Schedule
6.02;
(f) Liens
on
assets owned by a Securitization Subsidiary granted in connection with a
Securitization Transaction so long as the aggregate principal amount of
Indebtedness outstanding with respect to all such Securitization Transactions
does not exceed $750,000,000 at any time; and
(g) Liens
not
otherwise permitted hereunder; provided
that, at
the time of the creation, incurrence or assumption of any Debt secured by any
such Lien and after giving effect thereto, the aggregate principal amount of
Debt of the Borrower and the Subsidiaries secured by Liens permitted under
this
clause (g), together with, without duplication, the sum of (i) the Attributable
Debt then outstanding in respect of Sale/Leaseback Transactions permitted under
Section 6.03(c) in respect of which the obligations of the Borrower or any
Subsidiary do not constitute Capital Lease Obligations, (ii) the aggregate
then
outstanding principal amount of Allocable CSX/NS Debt of the CSX/NS Acquisition
Sub Entities incurred after the Closing Date then secured by Liens on the assets
of any CSX/NS Entity (other than Liens which would be permitted under paragraphs
(a) through (f) of this Section assuming the CSX/NS Acquisition Sub Entities
were Subsidiaries) and (iii) the aggregate then outstanding Allocable CSX/NS
Attributable Debt of the CSX/NS Acquisition Sub Entities incurred after the
Closing Date, does not exceed an amount equal to 10% of Total Capitalization
at
such time.
SECTION
6.03. Limitation
on Sale/Leaseback Transactions.
The
Borrower will not, and will not permit any Subsidiary or any CSX Conrail
Subsidiary to, enter into any arrangement with any Person providing for the
leasing by the Borrower, any Subsidiary or any CSX Conrail Subsidiary of real
or
personal property (other than Unrestricted Margin Stock) which has been or
is to
be sold or transferred by the Borrower, such Subsidiary or such CSX Conrail
Subsidiary to such Person or to any other Person to whom funds have been or
are
to be advanced by such Person on the security of such property or rental
obligations of the Borrower, such Subsidiary or such CSX Conrail Subsidiary
(a
“Sale/Leaseback
Transaction”),
except:
(a) any
Sale/Leaseback Transaction described in Schedule 6.02;
(b) any
arrangement with respect to any railroad locomotive, auto rack, rolling stock,
vessel, barge, container, vehicle, terminal or other fixed or capital asset;
provided
that
such arrangement is entered into (A) prior to or within three years after the
acquisition, construction, improvement or refurbishment of such railroad
locomotive, auto rack, rolling stock, vessel, barge, container, vehicle,
terminal or other fixed or capital asset or (B) with respect to the assets
of
Conrail or any of its subsidiaries, not later than August 22, 2001;
and
(c) Sale/Leaseback
Transactions not otherwise permitted hereunder; provided
that,
(i) if the obligations of the Borrower, any Subsidiary or any CSX Conrail
Subsidiary in respect of any such Sale/Leaseback Transaction constitute Capital
Lease Obligations, the Liens created in respect of such Sale/Leaseback
Transactions are permitted under Section 6.02 and (ii) if the obligations of
the
Borrower, any Subsidiary or any CSX Conrail Subsidiary in respect of any such
Sale/Leaseback Transaction do not constitute Capital Lease Obligations, at
the
time of the creation, incurrence or assumption of any Attributable Debt in
connection with such Sale/Leaseback Transaction and after giving effect thereto,
the aggregate principal amount of Attributable Debt of the Borrower and the
Subsidiaries then outstanding in respect of leases entered into in connection
with Sale/Leaseback Transactions permitted under this clause (ii), together
with, without duplication, the aggregate principal amount of Debt of the
Borrower and the Subsidiaries then secured by Liens permitted under Section
6.02(g), the aggregate principal amount of Allocable CSX/NS Debt of the CSX/NS
Acquisition Sub Entities incurred after the Closing Date then secured by Liens
on the assets of any CSX/NS Entity (other than Liens which would be permitted
under paragraphs (a) through (f) of Section 6.02 assuming the CSX/NS Acquisition
Sub Entities were Subsidiaries) and the aggregate then outstanding Allocable
CSX/NS Attributable Debt of the CSX/NS Acquisition Sub Entities incurred after
the Closing Date, does not exceed an amount equal to 10% of Total Capitalization
at such time.
SECTION
6.04. Fundamental
Changes.
The
Borrower will not merge into or consolidate with any other Person, or permit
any
other Person to merge into or consolidate with it, or sell, transfer, lease
or
otherwise dispose of (in one transaction or in a series of transactions) all
or
substantially all of its assets (whether now owned or hereafter acquired),
unless (a) the surviving corporation in any such merger or consolidation or
the
Person which acquires all or substantially all of the assets of the Borrower
shall be a corporation organized and existing under the laws of the United
States of America, any State thereof or the District of Columbia (the
“Successor
Corporation”)
and
shall expressly assume, by amendment to this Agreement executed by the Borrower,
the Successor Corporation and the Administrative Agent, the due and punctual
payment of the principal of and interest on the Loans and all other amounts
payable under this Agreement and any Notes and the payment and performance
of
every covenant hereof on the part of the Borrower to be performed or observed,
(b) immediately after giving effect to such transaction, no Default or Event
of
Default shall have occurred and be continuing and (c) the Borrower shall have
delivered a certificate of a Financial Officer and a written opinion of counsel
reasonably satisfactory to the Administrative Agent (who may be counsel to
the
Borrower), each stating that such transaction and amendment comply with this
Section and that all conditions precedent herein provided for relating to such
transaction have been satisfied; provided
that the
Borrower and the Subsidiaries will be permitted to sell, transfer and otherwise
dispose of Unrestricted Margin Stock without regard to the foregoing
restrictions.
SECTION
6.05. Financial
Covenant.
The
Borrower shall not permit the ratio of Total Debt to Total Capitalization to
exceed 0.55 to 1.00.
SECTION
6.06. Ownership
of Railroad Subsidiaries.
The
Borrower shall not (a) permit any Railroad Subsidiary to cease to be a
wholly-owned Subsidiary of the Borrower or (b) directly or indirectly, sell,
transfer or otherwise dispose of any capital stock of any CSX Conrail Railroad
Subsidiary; provided
that (i)
neither the Borrower nor any Subsidiary shall be in any way restricted under
this Section from selling or otherwise disposing of Unrestricted Margin Stock
and (ii) neither the Borrower nor any Subsidiary shall be prohibited pursuant
to
clause (b) from transferring the capital stock of any CSX Conrail Railroad
Subsidiary (A) to the Borrower’s direct or indirect Subsidiaries, (B) to any
wholly-owned subsidiary of CSX/NS Acquisition Sub so long as the Borrower’s
direct or indirect proportionate beneficial ownership of such capital stock
shall not be reduced as a result thereof or (C) to NS or its subsidiaries or
any
CSX/NS Acquisition Sub Entity in consideration of the acquisition of any assets
of Conrail or any of its subsidiaries by the Borrower or any
Subsidiary.
SECTION
6.07. Sales
of Unrestricted Margin Stock.
The
Borrower shall not, and shall not permit any Subsidiary or CSX/NS Entity to,
(a)
sell or otherwise dispose of any Shares constituting Unrestricted Margin Stock
other than in exchange for cash or cash equivalents or (b) fail to maintain
the
proceeds of any such sale or other disposition as cash, cash equivalents or
short-term investments; provided
that (i)
to the extent that the Borrower shall elect to reduce the Commitments pursuant
to Section 2.08(c) at any time after any such sale or other disposition, the
requirements of clause (b) above shall cease to apply to the portion of such
proceeds as shall be equal to the aggregate amount of any such reductions and
(ii) this Section shall not apply to sales or other dispositions of Unrestricted
Margin Stock (A) to the Borrower’s direct or indirect Subsidiaries, (B) to any
wholly-owned subsidiary of CSX/NS Acquisition Sub so long as the Borrower’s
direct or indirect proportionate beneficial ownership of the Shares shall not
be
reduced as a result thereof, or (C) to NS or its subsidiaries or any CSX/NS
Acquisition Sub Entity in consideration of the acquisition of any assets of
Conrail or any of its subsidiaries by the Borrower or any Subsidiary.
SECTION
6.08. Limitation
on Guarantees and Liens of CSX/NS
Entities.
The
Borrower shall not permit any CSX/NS Entity to create, incur, assume or suffer
to exist any Guarantee in respect of, or Liens upon any of the property, assets
or revenues, whether now owned or hereafter acquired, of such CSX/NS Entity
to
secure, Indebtedness of NS or any of its subsidiaries (other than CSX/NS
Entities).
SECTION
6.09. CSX/NS
Agreement.
The
Borrower shall not agree to any material modification or amendment of any of
the
terms of the CSX/NS Agreement if, in the reasonable judgment of at least three
of the Agents, such modification or amendment would be reasonably likely to
result in a Material Adverse Effect.
SECTION
6.10. Final
Asset Division.
Notwithstanding any provision to the contrary in Article VI (but without
prejudice to Sections 6.05, 6.08 and 6.09), the Borrower and its Subsidiaries
shall be permitted to incur, assume, refinance, replace, guarantee or otherwise
assume direct or indirect responsibility for the payment of the Allocable CSX/NS
Debt (calculated without giving effect to clause (c) of the proviso to the
definition thereof) or Allocable CSX/NS Attributable Debt (calculated without
giving effect to clause (c) of the proviso to the definition thereof) of the
CSX/NS Acquisition Sub Entities in connection with the final asset division
contemplated by the CSX/NS Agreement, either on an unsecured basis or secured
by
Liens on the assets of any CSX/NS Acquisition Sub Entity (whether such assets
remain assets of such CSX/NS Acquisition Sub Entity or are acquired by the
Borrower or any of its Subsidiaries) and any resulting Debt, Lien or, to the
extent applicable, Sale/Leaseback Transaction of the Borrower or any of its
Subsidiaries shall not be included for purposes of determining compliance with
the limitations contained in Sections 6.01(e), 6.02(g) and 6.03(c).
Events
of Default
If
any of
the following events (“Events
of Default”)
shall
occur:
(a) the
Borrower shall fail to pay any principal of any Loan or any reimbursement
obligation in respect of any LC Disbursement when and as the same shall become
due and payable, whether at the due date thereof or at a date fixed for
prepayment thereof or otherwise; provided
that, if
any such failure shall result from the malfunctioning or shutdown of any wire
transfer or other payment system reasonably employed by the Borrower to make
such payment or from an inadvertent error of a technical or clerical nature
by
the Borrower or any bank or other entity reasonably employed by the Borrower
to
make such payment, no Event of Default shall result under this paragraph (a)
during the period (not in excess of two Business Days) required by the Borrower
to make alternate payment arrangements;
(b) the
Borrower shall fail to pay any interest on any Loan or any fee or any other
amount (other than an amount referred to in clause (a) of this Article)
payable under this Agreement, when and as the same shall become due and payable,
and such failure shall continue unremedied for a period of ten
days;
(c) any
representation or warranty made or deemed made by or on behalf of the Borrower
or any Subsidiary in or in connection with this Agreement, any other Loan
Document or any amendment or modification hereof or thereof, or in any report,
certificate, financial statement or other document furnished pursuant to or
in
connection with this Agreement, any other Loan Document or any amendment or
modification hereof or thereof, shall prove to have been incorrect in any
material respect when made or deemed made;
(d) the
Borrower shall fail to observe or perform any covenant, condition or agreement
contained in this Agreement (other than those specified in clause (a), (b)
or
(c) of this Article) or any other Loan Document, and such failure shall continue
unremedied for a period of 30 days after notice thereof from the
Administrative Agent (given at the request of any Lender) to the
Borrower;
(e) any
event
of default or similar event or condition occurs (and continues after any
applicable grace period) under any mortgage, indenture or instrument under
which
there may be issued, or by which there may be secured or evidenced, any Material
Indebtedness, whether such Material Indebtedness now exists or shall hereafter
be created and shall result in any Material Indebtedness becoming due prior
to
its scheduled maturity (other than any such event or condition arising solely
out of the violation by the Borrower or any Subsidiary of any covenant in any
way restricting the Borrower’s, or any such Subsidiary’s, right or ability to
sell, pledge or otherwise dispose of Unrestricted Margin Stock) and such
acceleration shall not be rescinded or annulled in accordance with the terms
of
such mortgage, indenture or investment, as the same case may be; provided
that (i)
this clause (e) shall not apply to secured Indebtedness that becomes due as
a result of the voluntary permitted sale or transfer of the property or assets
securing such Indebtedness and (ii) any acceleration of Indebtedness of any
CSX/NS Entity (other than a CSX Conrail Subsidiary) shall not be included for
purposes of determining if an Event of Default has occurred under this paragraph
so long as such acceleration (x) does not result from a breach by the Borrower
of its obligations under the CSX/NS Agreement (or the definitive documentation
referred to therein) or (y) would not result in a Material Adverse
Effect;
(f) an
involuntary proceeding shall be commenced or an involuntary petition shall
be
filed seeking (i) liquidation, reorganization or other relief in respect of
the Borrower or any Significant Subsidiary or Significant CSX/NS Entity or
its
debts, or of a substantial part of its assets, under any Federal, state or
foreign bankruptcy, insolvency, receivership or similar law now or hereafter
in
effect or (ii) the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Borrower or any
Significant Subsidiary or Significant CSX/NS Entity or for a substantial part
of
its assets, and, in any such case, such proceeding or petition shall continue
undismissed for 60 days or an order or decree approving or ordering any of
the foregoing shall be entered;
(g) the
Borrower or any Significant Subsidiary or Significant CSX/NS Entity shall
(i) voluntarily commence any proceeding or file any petition seeking
liquidation, reorganization or other relief under any Federal, state or foreign
bankruptcy, insolvency, receivership or similar law now or hereafter in effect,
(ii) consent to the institution of, or fail to contest in a timely and
appropriate manner, any proceeding or petition described in clause (f) of this
Article, (iii) apply for or consent to the appointment of a receiver,
trustee, custodian, sequestrator, conservator or similar official for the
Borrower or any Significant Subsidiary or Significant CSX/NS Entity or for
a
substantial part of its assets, (iv) file an answer admitting the material
allegations of a petition filed against it in any such proceeding, (v) make
a general assignment for the benefit of creditors or (vi) take any action
for the purpose of effecting any of the foregoing;
(h) the
Borrower or any Significant Subsidiary or Significant CSX/NS Entity shall become
unable, admit in writing or fail generally to pay its debts as they become
due;
(i) one
or
more judgments for the payment of money in an aggregate amount (to the extent
not covered by insurance) in excess of $80,000,000 shall be rendered against
the
Borrower, any Subsidiary, any CSX/NS Entity or any combination thereof and
the
same shall remain unpaid or undischarged for a period of 60 consecutive
days during which execution shall not be effectively stayed, provided
that any
judgment rendered against any CSX/NS Entity (other than a CSX Conrail
Subsidiary) shall not be included for purposes of determining if an Event of
Default has occurred under this paragraph so long as such judgment (x) does
not
result from a breach by the Borrower of its obligations under the CSX/NS
Agreement (or the definitive documentation referred to therein) or (y) would
not
result in a Material Adverse Effect;
(j) an
ERISA
Event shall have occurred that, in the reasonable opinion of the Majority
Lenders, when taken together with all other ERISA Events that have occurred,
would result in a Material Adverse Effect; or
(k) a
Change
in Control shall occur and on the date which is four months after the occurrence
of such Change in Control the Applicable Rate shall be determined by reference
to Category 6;
then,
and
in every such event (other than an event with respect to the Borrower described
in clause (f) or (g) of this Article as a result of which the Administrative
Agent and the Lenders shall not be permitted, without special relief, to
exercise their rights or remedies under clause (i) or (ii) below), and at any
time thereafter during the continuance of such event, the Administrative Agent
(with the consent of the Majority Lenders) may, and at the request of the
Majority Lenders shall, by notice to the Borrower, take either or both of the
following actions, at the same or different times: (i) terminate
the Commitments, and thereupon the Commitments shall terminate immediately,
and
(ii) declare the Loans then outstanding to be due and payable in whole (or
in part, in which case any principal not so declared to be due and payable
may
thereafter be declared to be due and payable), and thereupon the principal
of
the Loans so declared to be due and payable, together with accrued interest
thereon and all fees and other obligations of the Borrower accrued hereunder,
shall become due and payable immediately, without presentment, demand, protest
or other notice of any kind, all of which are hereby waived by the Borrower;
and
in case of any event with respect to the Borrower described in clause (f) or
(g)
of this Article described above, the Commitments shall automatically terminate
and the principal of the Loans then outstanding, together with accrued interest
thereon and all fees and other obligations of the Borrower accrued hereunder,
shall automatically become due and payable, without presentment, demand, protest
or other notice of any kind, all of which are hereby waived by the
Borrower.
The
Agents
Each
of
the Lenders and Issuing Banks hereby irrevocably appoints JPMorgan Chase Bank,
N.A. as its agent and authorizes JPMorgan Chase Bank, N.A. to take such actions
on its behalf and to exercise such powers as are delegated to the Administrative
Agent by the terms hereof, together with such actions and powers as are
reasonably incidental thereto. Each Lender acknowledges that Citibank, N.A.
and
The Bank of Nova Scotia shall be Co-Syndication Agents with respect to this
Agreement and that Credit Suisse and Mizuho Corporate Bank, Ltd. shall be
Co-Documentation Agents with respect to this Agreement. The Co-Syndication
Agents and Co-Documentation Agents shall have no duties in such capacities
in
addition to any duties in their capacity as Lenders.
Each
bank
serving as an Agent hereunder shall have the same rights and powers in its
capacity as a Lender as any other Lender and may exercise the same as though
it
were not an Agent, and such bank and its Affiliates may accept deposits from,
lend money to and generally engage in any kind of business with the Borrower
or
any Subsidiary or other Affiliate thereof as if it were not an Agent
hereunder.
No
Agent
shall have any duties or obligations except those expressly set forth herein.
Without limiting the generality of the foregoing, (a) no Agent shall be
subject to any fiduciary or other implied duties, regardless of whether a
Default has occurred and is continuing, (b) no Agent shall have any duty to
take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated hereby that the
Administrative Agent is required to exercise in writing by the Lenders entitled
to so require, and (c) except as expressly set forth herein, no Agent shall
have
any duty to disclose, nor shall such Agent be liable for the failure to
disclose, any information relating to the Borrower or any of the Subsidiaries
that is communicated to or obtained by such Agent or any of its Affiliates
in
any capacity. The Administrative Agent shall not be liable for any action taken
or not taken by it with the consent or at the request of the Lenders entitled
to
so require or in the absence of its own gross negligence or willful misconduct.
No Agent shall be deemed to have knowledge of any Default unless and until
written notice thereof is given to the Administrative Agent by the Borrower
or a
Lender, and no Agent shall be responsible for or have any duty to ascertain
or
inquire into (i) any statement, warranty or representation made to any
Lender in or in connection with this Agreement or any other Loan Document,
(ii) the contents of any certificate, report or other document delivered
hereunder or in connection herewith or any other Loan Document, (iii) the
performance or observance by the Borrower of any of the covenants, agreements
or
other terms or, except as provided in clause (v) below, conditions set forth
herein, (iv) with respect to parties other than such Agent, the validity,
enforceability, effectiveness or genuineness of this Agreement or any other
agreement, instrument or document, or (v) the satisfaction of any condition
set forth in Article IV or elsewhere herein, other than to confirm receipt
of items expressly required to be delivered to the Administrative Agent.
Each
Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument,
document or other writing believed by it in good faith to be genuine and to
have
been signed or sent by the proper Person. Each Agent also may rely upon any
statement made to it orally or by telephone and believed by it in good faith
to
be made by the proper Person, and shall not incur any liability for relying
thereon. Each Agent may consult with legal counsel (who may be counsel for
the
Borrower), independent accountants and other experts selected by it, and shall
not be liable for any action taken or not taken by it in good faith in
accordance with the advice of any such counsel, accountants or
experts.
The
Administrative Agent may perform any and all its duties and exercise its rights
and powers by or through any one or more sub-agents appointed by the
Administrative Agent and for which it is responsible. The Administrative Agent
and any such sub-agent may perform any and all its duties and exercise its
rights and powers through their respective Related Parties. The exculpatory
provisions of the preceding paragraphs shall apply to any such sub-agent
reasonably selected by the Administrative Agent and to the Related Parties
of
the Agents and any such sub-agent, and shall apply to their respective
activities in connection with the syndication of the credit facilities provided
for herein as well as activities as Agent.
Subject
to the appointment and acceptance of a successor Administrative Agent as
provided in this paragraph, the Administrative Agent may resign at any time
by
notifying the Lenders, the Issuing Banks and the Borrower. Upon any such
resignation, the Majority Lenders shall have the right, with the consent of
the
Borrower (which consent shall not be required if at the time of such appointment
any Default or Event of Default shall have occurred and be continuing), to
appoint a successor. If no successor shall have been so appointed by the
Majority Lenders and shall have accepted such appointment within 30 days
after the retiring Administrative Agent gives notice of its resignation, then
the retiring Administrative Agent may, on behalf of the Lenders and the Issuing
Banks, appoint a successor Administrative Agent which shall be a commercial
bank
with an office in New York, New York and having a combined capital and surplus
of at least $1,000,000,000. Upon the acceptance of its appointment as
Administrative Agent hereunder by a successor, such successor shall succeed
to
and become vested with all the rights, powers, privileges and duties of the
retiring Administrative Agent, and the retiring Administrative Agent shall
be
discharged from its duties and obligations hereunder. The fees payable by the
Borrower to a successor Administrative Agent shall be the same as those payable
to its predecessor unless otherwise agreed between the Borrower and such
successor. After the Administrative Agent’s resignation hereunder, the
provisions of this Article and Section 9.03 shall continue in effect for
its benefit in respect of any actions taken or omitted to be taken by it while
it was acting as Administrative Agent.
Each
Lender acknowledges that it has, independently and without reliance upon any
Agent or any other Lender and based on such documents and information as it
has
deemed appropriate, made its own credit analysis and decision to enter into
this
Agreement and each other Loan Document to which it is a party. Each Lender
represents that it has not relied upon the Unrestricted Margin Stock in its
credit analysis or its decision to enter into this Agreement and each other
Loan
Document to which it is a party. Each Lender also acknowledges that it will,
independently and without reliance upon any Agent or any other Lender and based
on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action
under or based upon this Agreement, each other Loan Documents to which it is
a
party, any related agreement or any document furnished hereunder or
thereunder.
Miscellaneous
SECTION
9.01. Notices.
(a)
Except in the case of notices and other communications expressly permitted
to be
given by telephone, all notices and other communications provided for herein
shall be in writing and shall be delivered by hand or overnight courier service,
mailed by certified or registered mail or sent by telecopy or, subject to
paragraph (b) below, electronic pdf, as follows:
(i) if
to the
Borrower, to it at CSX Corporation, 000 Xxxxx Xxxxxx, X.X. X000, Xxxxxxxxxxxx,
XX 00000, Attention of Treasurer (Telecopy No. (000) 000-0000 and
electronic mail: Xxxxx_Xxxxx@xxx.xxx);
(ii) if
to the
Administrative Agent, to JPMorgan Chase Bank, N.A., Loan and Agency Services
Group, 0000 Xxxxxx Xxxxxx, 00xx
Xxxxx,
Xxxxxxx, XX 00000-0000, Attention of Khuyen Ta (Telephone No. 000-000-0000;
Facsimile No. 713-750-2938), with a copy to JPMorgan Chase Bank, N.A. 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of Xxxxxx Xxxxxx (Telecopy No.
(000)
000-0000 and electronic mail: Xxxxxx.Xxxxxx@xxxxxxxx.xxx); and
(iii) if
to any
Issuing Bank or any other Lender, to it at its address (or telecopy number
or
electronic mail address) set forth in its Administrative
Questionnaire.
Any
party
hereto may change its address, telecopy number or electronic mail address for
notices and other communications hereunder by notice to the other parties
hereto. All notices and other communications given to any party hereto in
accordance with the provisions of this Agreement shall be deemed to have been
given on the date of receipt.
(b) Notices
and other communications to the Lenders hereunder may be delivered or furnished
by electronic communications pursuant to procedures approved by the
Administrative Agent (upon any such procedures’ approval, the Administrative
Agent shall provide notice thereof to the applicable Lender); provided
that the
foregoing shall not apply to notices pursuant to Article II unless otherwise
agreed by the Administrative Agent and the applicable Lender. The Administrative
Agent or the Borrower may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures approved by it prior to such communication (upon any such procedures’
approval, the Administrative Agent shall provide notice thereof to the Lenders);
provided
that
approval of such procedures may be limited to particular notices or
communications.
SECTION
9.02. Waivers;
Amendments.
(a) No failure or delay by the Administrative Agent, any Issuing Bank
or any Lender in exercising any right or power hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right
or
power, or any abandonment or discontinuance of steps to enforce such a right
or
power, preclude any other or further exercise thereof or the exercise of any
other right or power. The rights and remedies of the Administrative Agent,
the
Issuing Banks and the Lenders hereunder are cumulative and are not exclusive
of
any rights or remedies that they would otherwise have. No waiver of any
provision of this Agreement or consent to any departure by the Borrower
therefrom shall in any event be effective unless the same shall be permitted
by
paragraph (b) of this
Section, and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. Without limiting the generality
of
the foregoing, the making of a Loan or issuance of a Letter of Credit shall
not
be construed as a waiver of any Default, regardless of whether the
Administrative Agent, any Lender or any Issuing Bank may have had notice or
knowledge of such Default at the time.
(b) Neither
this Agreement, any other Loan Document nor any provision hereof or thereof
may
be waived, amended or modified except pursuant to an agreement or agreements
in
writing entered into by the Borrower and the Majority Lenders or by the Borrower
and the Administrative Agent with the consent of the Majority Lenders;
provided
that no
such agreement shall (i) increase the Commitment of any Lender without the
written consent of such Lender, (ii) reduce the principal amount of any Loan
or
LC Disbursement or reduce the rate of interest thereon, or reduce any fees
payable hereunder, without the written consent of each Lender affected thereby,
(iii) postpone the scheduled date of payment of the principal amount of any
Loan
or LC Disbursement, or any interest thereon, or any fees payable hereunder,
or
reduce the amount of, waive or excuse any such payment, or postpone the
scheduled date of expiration of any Commitment, without the written consent
of
each Lender affected thereby (it being understood, for the avoidance of doubt,
that a Lender who does not (or is deemed to not) approve an extension of the
Maturity Date then in effect in accordance with the terms of this Agreement
shall not be considered affected by such extension, so long as (A) such Lender’s
Commitment shall expire on the Maturity Date then in effect with respect to
such
Lender, (B) for all purposes of this Agreement “Maturity Date” in respect of
such Lender, the Loans made by it and any other amounts owing to such Lender
hereunder shall mean such Maturity Date and (C) as of the Maturity Date then
being extended, upon effectiveness of such extension, the Applicable Percentages
of the Lenders shall be deemed modified as appropriate to reflect the expiration
of the Commitment of any Non-Approving Lender with respect to such extension),
(iv) change Section 2.08(d) or change 2.17(b) or (c) in a manner that would
alter the pro rata sharing of payments required thereby, in either case without
the written consent of each Lender, or (v) change any of the provisions of
this
Section or the definition of “Majority Lenders” or any other provision hereof
specifying the number or percentage of Lenders required to waive, amend or
modify any rights hereunder or make any determination or grant any consent
hereunder, without the written consent of each Lender; provided
further
that no
such agreement shall amend, modify or otherwise affect the rights or duties
of
the Administrative Agent or any Issuing Bank hereunder without the prior written
consent of the Administrative Agent or such Issuing Bank, as the case may
be.
SECTION
9.03. Expenses;
Indemnity; Damage Waiver.
(a) The Borrower shall pay (i) all reasonable out-of-pocket expenses
incurred by the Administrative Agent and its Affiliates, including the
reasonable fees, charges and disbursements of counsel for the Administrative
Agent, in connection with the syndication of the credit facilities provided
for
herein, the preparation and administration of this Agreement, any other Loan
Document or any amendments, modifications or waivers of the provisions hereof
or
thereof (whether or not the transactions contemplated hereby or thereby shall
be
consummated), (ii) all out-of-pocket expenses incurred by each Issuing Bank
in
connection with the issuance, amendment, renewal or extension
by it of any Letter of Credit or any demand for payment thereunder and (iii)
all
out-of-pocket expenses incurred by the Administrative Agent, any Issuing Bank
or
any Lender, including the reasonable fees, charges and disbursements of any
counsel for the Administrative Agent, any Issuing Bank or any Lender, in
connection with the enforcement or protection of its rights in connection with
this Agreement or any other Loan Document, including its rights under this
Section, or in connection with the Loans made or Letters of Credit issued
hereunder, including in connection with any workout, restructuring or
negotiations in respect thereof.
(b) The
Borrower shall indemnify the Administrative Agent, each Issuing Bank and each
Lender, and each Related Party of any of the foregoing Persons (each such Person
being called an “Indemnitee”)
against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including the reasonable fees,
charges and disbursements of any counsel for any Indemnitee, incurred by or
asserted against any Indemnitee arising out of, in connection with, or as a
result of (i) the execution or delivery of this Agreement, any other Loan
Document or any agreement or instrument contemplated hereby or thereby, the
performance by the parties hereto of their respective obligations hereunder
or
thereunder or the consummation of the Transactions or any other transactions
contemplated hereby, (ii) any Loan or Letter of Credit or the use of the
proceeds therefrom (including any refusal by an Issuing Bank to honor a demand
for payment under a Letter of Credit issued by it if the documents presented
in
connection with such demand do not strictly comply with the terms of such Letter
of Credit), or (iii) any actual or prospective claim, litigation, investigation
or proceeding relating to any of the foregoing, whether based on contract,
tort
or any other theory and regardless of whether any Indemnitee is a party thereto;
provided
that
such indemnity shall not, as to any Indemnitee, be available to the extent
that
such losses, claims, damages, liabilities or related expenses resulted from
the
gross negligence or willful misconduct of such Indemnitee. The foregoing
indemnification shall not cover any such claims, damages, losses, liabilities
or
expenses relating to (i) any Taxes or (ii) any costs or capital requirements
(whenever imposed) to any Lender or any corporation controlling such Lender
as a
result of such Lender’s Commitment or its Loans or participations in Letters of
Credit, but in each case without prejudice to Sections 2.14, 2.15, 2.16 and
9.03.
(c) To
the
extent that the Borrower fails to pay any amount required to be paid by it
to
the Administrative Agent or an Issuing Bank under paragraph (a) or (b) of this
Section, each Lender severally agrees to pay to the Administrative Agent or
such
Issuing Bank, as the case may be, such Lender’s Applicable Percentage
(determined as of the time that the applicable unreimbursed expense or indemnity
payment is sought) of such unpaid amount; provided
that the
unreimbursed expense or indemnified loss, claim, damage, liability or related
expense, as the case may be, was incurred by or asserted against the
Administrative Agent or such Issuing Bank in its capacity as such.
(d) To
the
extent permitted by applicable law, the Borrower shall not assert, and hereby
waives, any claim against any Indemnitee, on any theory of liability, for
special, indirect, consequential or punitive damages (as opposed to direct
or
actual damages) arising out of, in connection with, or as a result of, this
Agreement, any other Loan Document or any agreement or instrument contemplated
hereby or thereby, the Transactions, any Loan or Letter of Credit or the use
of
the proceeds thereof.
(e) All
amounts due under this Section shall be payable promptly after written demand
therefor, accompanied by such documentation as the Borrower may reasonably
request to evidence the basis for, and calculation of, such amount.
SECTION
9.04. Successors
and Assigns.
(a) The
provisions of this Agreement shall be binding upon and inure to the benefit
of
the parties hereto and their respective successors and assigns permitted hereby,
except that the Borrower may not assign or otherwise transfer any of its rights
or obligations hereunder or any other Loan Document without the prior written
consent of each Lender (and any attempted assignment or transfer by the Borrower
without such consent shall be null and void). Nothing in this Agreement or
any
other Loan Document, expressed or implied, shall be construed to confer upon
any
Person (other than the parties hereto, their respective successors and assigns
permitted hereby and, to the extent expressly contemplated hereby, the Related
Parties of each of the Administrative Agent, the Issuing Banks and the Lenders)
any legal or equitable right, remedy or claim under or by reason of this
Agreement.
(b) Any
Lender may, at no additional cost to the Borrower, assign to one or more
assignees all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans at the time owing
to
it); provided
that
(i) except in the case of an assignment to a Lender Affiliate (to the
extent the obligations of such Lender Affiliate are guaranteed by or otherwise
remain the obligations of the relevant Lender), the Borrower must give its
prior
written consent to such assignment (which consent shall not be unreasonably
withheld), (ii) except in the case of an assignment to a Lender, each of
the
Administrative Agent and the Issuing Banks must give its prior written consent
to such assignment (which consent shall not be unreasonably withheld), (iii)
except in the case of an assignment to a Lender or a Lender Affiliate or
an assignment of the entire remaining amount of the assigning Lender’s then
effective Commitment, the amount of the Commitment of the assigning Lender
subject to each such assignment and the amount of its Commitment remaining
thereafter (determined in each case as of the date the Assignment and Acceptance
with respect to such assignment is delivered to the Administrative Agent)
shall
not be less than $10,000,000 unless each of the Borrower and the Administrative
Agent otherwise consent, (iv) each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender’s rights and
obligations under this Agreement (including its Revolving Loans), except
that
this clause (iv) shall not apply to rights in respect of outstanding Competitive
Loans, (v) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Acceptance, together with a processing
and recordation fee of $3,500, and (vi) the assignee, if it shall not be a
Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire; provided
further
that any
consent of the Borrower otherwise required under this paragraph shall not
be
required if an Event of Default under clause (a), (b), (f) or (g) of Article
VII
has occurred and is continuing. Upon acceptance and recording pursuant to
paragraph (d) of this Section, from and after the effective date specified
in each Assignment and Acceptance, the assignee thereunder shall be a party
hereto and, to the extent of (but not greater than) the interest assigned
by
such Assignment and Acceptance, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the extent
of the interest assigned by such Assignment and Acceptance, be released from
its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender’s rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 2.14, 2.15, 2.16 and 9.03 and be
subject to Section 9.12). Any
assignment or transfer by a Lender of rights or obligations under this Agreement
that does not comply with this paragraph shall be treated for purposes of
this
Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (e) of this Section.
(c) The
Administrative Agent, acting for this purpose as an agent of the Borrower,
shall
maintain at one of its offices in The City of New York a copy of each Assignment
and Acceptance delivered to it and a register for the recordation of the names
and addresses of the Lenders, and the Commitment of, and principal amount of
the
Loans and LC Disbursements owing to, each Lender pursuant to the terms hereof
from time to time (the “Register”).
The
entries in the Register shall be prima facie
evidence
thereof absent manifest error, and the Borrower, the Administrative Agent,
the
Issuing Banks and the Lenders may treat each Person whose name is recorded
in
the Register pursuant to the terms hereof as a Lender hereunder for all purposes
of this Agreement, notwithstanding notice to the contrary. The Register shall
be
available for inspection during normal business hours by the Borrower at any
reasonable time and from time to time upon reasonable advance
notice.
(d) Upon
its
receipt of a duly completed Assignment and Acceptance executed by an assigning
Lender and an assignee, the assignee’s completed Administrative Questionnaire
(unless the assignee shall already be a Lender hereunder), the processing and
recordation fee referred to in paragraph (b) of this Section and any
written consent to such assignment required by paragraph (b) of this Section,
the Administrative Agent shall accept such Assignment and Acceptance and record
the information contained therein in the Register. No assignment shall be
effective for purposes of this Agreement unless it has been recorded in the
Register as provided in this paragraph.
(e) Any
Lender may, without the consent of, and at no additional cost to, the Borrower,
the Administrative Agent or the Issuing Banks, sell participations to one or
more banks or other entities (a “Participant”)
in all
or a portion of such Lender’s rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans owing to it);
provided
that
(i) such Lender’s obligations under this Agreement shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (iii) the Borrower, the
Administrative Agent, the Issuing Banks and the other Lenders shall continue
to
deal solely and directly with such Lender in connection with such Lender’s
rights and obligations under this Agreement. Any agreement or instrument
pursuant to which a Lender sells such a participation shall provide that such
Lender shall retain the sole right to enforce this Agreement and to approve
any
amendment, modification or waiver of any provision of this Agreement;
provided
that
such agreement or instrument may provide that such Lender will not, without
the
consent of the Participant, agree to any amendment, modification or waiver
described in the first proviso to Section 9.02(b) that affects such Participant.
Subject to paragraph (f) of this Section, the Borrower agrees that each
Participant shall be entitled to the benefits of Sections 2.14, 2.15 and 2.16
to
the same (but no greater) extent as if it were a Lender and had acquired its
interest by assignment pursuant to paragraph (b) of this Section.
(f) A
Participant shall not be entitled to receive any greater payment under Section
2.14, 2.15 or 2.16 than the applicable Lender would have been entitled to
receive with respect to the participation sold to such Participant.
(g) Any
Lender may at any time pledge or assign a security interest in all or any
portion of its rights under this Agreement to secure obligations of such Lender,
including any such pledge or assignment to a Federal Reserve Bank, and this
Section shall not apply to any such pledge or assignment of a security interest;
provided
that no
such pledge or assignment of a security interest shall release a Lender from
any
of its obligations hereunder or substitute any such assignee for such Lender
as
a party hereto.
(h) Notwithstanding
anything to the contrary contained herein, any Lender (a “Granting
Lender”)
may,
at no additional cost to the Borrower, grant to a special purpose funding
vehicle (an “SPC”),
identified as such in writing from time to time by the Granting Lender to the
Administrative Agent and the Borrower, the option to provide to the Borrower
all
or any part of any Loan that such Granting Lender would otherwise be obligated
to make to the Borrower pursuant to this Agreement; provided
that (i)
nothing herein shall constitute a commitment by any SPC to make any Loan and
(ii) if an SPC elects not to exercise such option or otherwise fails to provide
all or any part of such Loan, the Granting Lender shall be obligated to make
such Loan pursuant to the terms hereof in the same manner and to the same extent
as if such option had not been granted. The making of a Loan by an SPC hereunder
shall utilize the Commitment of the Granting Lender to the same extent, and
as
if, such Loan were made by such Granting Lender, (1) the Granting Lender shall
have the sole right and responsibility to deliver all consents and waivers
required or requested, and to perform all obligations required, under this
Agreement with respect to its SPC, and (2) no SPC shall be entitled to receive
any greater amounts pursuant to any provision of this Agreement than the
Granting Lender would have been entitled to receive in respect of any Loan
made
by such SPC. Each party hereto hereby agrees that no SPC shall be liable for
any
indemnity or similar payment obligation under this Agreement (all liability
for
which shall remain with the Granting Lender). In furtherance of the foregoing,
each party hereto hereby agrees (which agreement shall survive the termination
of this Agreement) that, prior to the date that is one
year
and one day after the payment in full of all outstanding commercial paper or
other senior indebtedness of any SPC, it will not institute against, or join
any
other person in instituting against, such SPC any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under the laws of the United
States or any State thereof; provided,
that no
such restriction shall apply with respect to the Granting Lender. In addition,
notwithstanding anything to the contrary contained in this Section 9.04, any
SPC
may, at no additional cost to the Borrower, (x) with notice to, but without
the
prior written consent of, the Borrower and the Administrative Agent and without
paying any processing fee therefor, assign all or a portion of its interests
in
any Loan such SPC has made hereunder to its Granting Lender or to any financial
institutions (consented to by the Borrower and Administrative Agent) providing
liquidity and/or credit support to or for the account of such SPC to support
the
funding or maintenance of any such Loan and (y) disclose on a confidential
basis
any non-public information relating to its Loans to any rating agency,
commercial paper dealer or provider of any surety, guarantee or credit or
liquidity enhancement to such SPC. This subsection 9.04(h) may not be amended
without the written consent of any SPC with Loans outstanding
hereunder.
SECTION
9.05. Survival.
All
covenants, agreements, representations and warranties made by the Borrower
herein, in the other Loan Documents and in the certificates or other instruments
delivered in connection with or pursuant to this Agreement shall be considered
to have been relied upon by the other parties hereto and shall survive the
execution and delivery of this Agreement and any other Loan Document and the
making of any Loans and issuance of any
Letters of Credit, regardless of any investigation made by any such other party
or on its behalf and notwithstanding that any Agent, any Issuing Bank or any
Lender may have had notice or knowledge of any Default or incorrect
representation or warranty at the time any credit is extended hereunder, and
shall continue in full force and effect as long as the principal of or any
accrued interest on any Loan or any fee or any other amount payable under this
Agreement is outstanding and unpaid or any Letter of Credit is outstanding
and
so long as any Commitment has not expired or terminated. The provisions of
Sections 2.14, 2.15, 2.16, 9.03 and 9.12 and Article VIII shall survive and
remain in full force and effect regardless of the consummation of the
transactions contemplated hereby, the repayment of the Loans, the expiration
or
termination of any Letter of Credit or Commitment or the termination of this
Agreement or any other Loan Document or any provision hereof or
thereof.
SECTION
9.06. Counterparts;
Integration; Effectiveness.
This
Agreement, any Augmenting Lender Supplement, any Commitment Increase Supplement
and any amendment hereto or thereto may be executed in counterparts (and by
different parties hereto on different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute
a
single contract. This Agreement, the other Loan Documents and any separate
letter agreements with respect to fees payable to the Administrative Agent
or
any Issuing Bank constitute the entire contract among the parties relating
to
the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except
as provided in Section 4.01, this Agreement shall become effective when it
shall
have been executed by the Administrative Agent and when the Administrative
Agent
shall have received counterparts hereof which, when taken together, bear the
signatures of each of the other parties hereto, and thereafter shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns. Delivery of an executed counterpart of a
signature page of this Agreement by telecopy or electronic pdf shall be
effective as delivery of a manually executed counterpart of this
Agreement.
SECTION
9.07. Severability.
Any
provision of this Agreement held to be invalid, illegal or unenforceable in
any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such invalidity, illegality or unenforceability without affecting the validity,
legality and enforceability of the remaining provisions hereof; and the
invalidity of a particular provision in a particular jurisdiction shall not
invalidate such provision in any other jurisdiction.
SECTION
9.08. Right
of Setoff.
If an
Event of Default shall have occurred and be continuing, each Lender is hereby
authorized at any time and from time to time, to the fullest extent permitted
by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other indebtedness at any
time owing by such Lender to or for the credit or the account of the Borrower
against any of and all the obligations of the Borrower now or hereafter existing
under this Agreement held by such Lender, irrespective of whether or not such
Lender shall have made any demand under this Agreement and although such
obligations may be unmatured. The rights of each Lender under this Section
are
in addition to other rights and remedies (including other rights of setoff)
which such Lender may have.
SECTION
9.09. Governing
Law; Jurisdiction; Consent to Service of Process.
(a)
This Agreement shall be construed in accordance with and governed by the law
of
the State of New York.
(b) The
Borrower hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of the Supreme Court of the State
of
New York sitting in New York County and of the United States District Court
of
the Southern District of New York, and any appellate court from any thereof,
in
any action or proceeding arising out of or relating to this Agreement or any
other Loan Document, or for recognition or enforcement of any judgment resulting
therefrom, and each of the parties hereto hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may be heard
and determined in such New York State court or, to the extent permitted by
law, in such Federal court. Each of the parties hereto agrees that a final
and
non-appealable judgment in any such action or proceeding shall be conclusive
and
may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. Nothing in this Agreement shall affect any right that
the Administrative Agent, any Issuing Bank or any Lender may otherwise have
to
bring any action or proceeding relating to this Agreement or any other Loan
Document against the Borrower or its properties in the courts of any
jurisdiction.
(c) The
Borrower hereby irrevocably and unconditionally waives, to the fullest extent
it
may legally and effectively do so, any objection which it may now or hereafter
have to the laying of venue of any suit, action or proceeding arising out of
or
relating to this Agreement or any other Loan Document in any court referred
to
in paragraph (b) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such
court.
(d) Each
party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 9.01. Nothing in this Agreement will affect
the right of any party to this Agreement to serve process in any other manner
permitted by law.
SECTION
9.10. WAIVER
OF JURY TRIAL.
EACH
PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR
INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT
OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT,
TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION,
SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION
9.11. Headings.
Article
and Section headings and the Table of Contents used herein are for convenience
of reference only, are not part of this Agreement and shall not affect the
construction of, or be taken into consideration in interpreting, this
Agreement.
SECTION
9.12. Confidentiality.
Each of
the Administrative Agent, the Issuing Banks and the Lenders agrees to maintain
the confidentiality of the Information (as defined below), except that
Information may be disclosed (i) to its and its Affiliates’ directors, officers,
employees, representatives and agents, including accountants, legal counsel
and
other advisors (it being understood that the Persons to whom such disclosure
is
made will be informed of the confidential nature of such Information and
instructed to keep such Information confidential), (ii) to the extent required
by applicable laws or regulations or by any subpoena or similar legal process,
or requested by any regulatory authority, but only, except with respect to
bank
examiners, after the Administrative Agent or the relevant Issuing Bank or Lender
provides such written notice to the Borrower of such proposed disclosure as
is
reasonable under the circumstances and permitted by law, (iii) to any other
party to this Agreement, (iv) in connection with the exercise of any remedies
hereunder or any suit, action or proceeding relating to this Agreement or any
Note or the enforcement of rights hereunder or thereunder, (v) subject to an
agreement containing provisions substantially the same as those of this Section,
to any assignee of or Participant in, or any prospective assignee of or
Participant in, any of its rights or obligations under this Agreement, (vi)
subject to an agreement containing provisions substantially the same as those
of
this Section, to any direct or indirect counterparty to any Swap Agreement
(or
any professional advisor to such counterparty), (vii) with the consent of the
Borrower or (viii) to the extent such Information (x) becomes publicly
available other than as a result of a breach of this Section, (y) becomes
available to the Administrative Agent, any Issuing Bank or any Lender on a
nonconfidential basis from a source other than the Borrower (other than a source
known to be disclosing such Information in violation of a confidentiality
agreement with the Borrower) or (z) was available to the Administrative Agent
or
the relevant Issuing Bank or Lender prior to such Person becoming a Lender.
For
the purposes of this Section, “Information”
means
all information received from the Borrower relating to the Borrower or its
business, other than any such information that is available to the
Administrative Agent, any Issuing Bank or any Lender on a nonconfidential basis
prior to disclosure by the Borrower; provided
that, in
the case of information received from the Borrower after the date hereof, such
information is clearly identified at the time of delivery as confidential.
Any
Person required to maintain the confidentiality of Information as provided
in
this Section shall be considered to have complied with its obligation to do
so
if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information.
SECTION
9.13. USA
PATRIOT Act.
Each
Lender hereby notifies the Borrower that pursuant to the requirements of the
USA
Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001))
(the “Act”),
it is
required to obtain, verify and record information that identifies the Borrower,
which information includes the name and address of the Borrower and other
information that will allow such Lender to identify the Borrower in accordance
with the Act.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective authorized officers as of the day and year first
above written.
CSX
CORPORATION
as
Borrower
|
|
By:
|
/s/ Xxxxx
X. Xxxx
Name: Xxxxx
X. Xxxx
Title:
Vice
President - Tax and Treasurer
|
JPMORGAN
CHASE BANK, N.A.,
as
Administrative Agent and as a Lender
|
|
By:
|
/s/ Xxxxxx
X. Xxxxxx
Name: Xxxxxx
X. Xxxxxx
Title:
Vice
President
|
Citibank
N.A.
|
|
By:
|
/s/ Xxxxxxx
Xxx
Name: Xxxxxxx
Xxx
Title:
Managing
Director
|
The
Bank of Nova Scotia
|
|
By:
|
/s/ Xxxxx
Xxxxx
Name: Xxxxx
Xxxxx
Title:
Managing
Director
|
CREDIT
SUISSE, CAYMAN ISLANDS
BRANCH
|
|
By:
|
/s/ Xxx
Xxxxx
Name: Xxx
Xxxxx
Title:
Director
|
By:
|
/s/ Xxxxx
Xxxxx
Name: Xxxxx
Xxxxx
Title:
Associate
|
MIZUHO
CORPORATE BANK, LTD.
|
|
By:
|
/s/ Xxxxxx
Xxxxxxxxx
Name: Xxxxxx
Xxxxxxxxx
Title:
Senior
Vice President
|
BARCLAYS
BANK PLC
|
|
By:
|
/s/ Xxxxxx
XxXxxxxx
Name: Xxxxxx
XxXxxxxx
Title: Associate
Director
|
Bank
of Tokyo-Mitsubishi UFJ, Ltd.
|
|
By:
|
/s/ Xxxxxx
Xxxxxxxxx
Name: Xxxxxx
Xxxxxxxxx
Title:
Authorized
Signatory
|
DEUTSCHE
BANK AG NEW YORK BRANCH
|
|
By:
|
/s/ Xxxxxxxx
Xxxxxx
Name: Xxxxxxxx
Xxxxxx
Title:
Managing
Director
|
By:
|
/s/ Xxxxxx
Xxxxxxxxx
Name: Xxxxxx
Xxxxxxxxx
Title:
Assistant
Vice President
|
XXXXXX
XXXXXXX BANK
|
|
By:
|
/s/ Xxxxxx
Xxxxxx
Name: Xxxxxx
Xxxxxx
Title:
Vice
President Xxxxxx Xxxxxxx Bank
|
UBS
AG, STAMFORD BRANCH
|
|
By:
|
/s/ Xxxxxxx
X. Xxxxxx
Name: Xxxxxxx
X. Xxxxxx
Title:
Director
|
By:
|
/s/ Xxxx
X. Xxxx
Name: Xxxx
X. Xxxx
Title:
Associate
Director
|
PNC
Bank, National Association
|
|
By:
|
/s/ Xxxxxxx
X. Xxxxxxx
Name: Xxxxxxx
X. Xxxxxxx
Title:
Senior
Vice President
|
SunTrust
Bank
|
|
By:
|
/s/ Xxxxx
X. Xxxxx
Name: Xxxxx
X. Xxxxx
Title:
Vice
President
|
Bank
of America, N.A.
|
|
By:
|
/s/ Xxxxxxx
Xxxxxx
Name: Xxxxxxx
Xxxxxx
Title:
Director
|
THE
BANK OF NEW YORK
|
|
By:
|
/s/ J.
Xxxxx Xxxxxx, Jr.
Name: J.
Xxxxx Xxxxxx, Jr.
Title:
Vice
President
|
THE
NORTHERN TRUST COMPANY
|
|
By:
|
/s/ Xxxxx
X. Xxxx
Name: Xxxxx
X. Xxxx
Title:
Vice
President
|
ABN
AMRO Bank N.V.
|
|
By:
|
/s/ Xxxxxx
X. Xxxx
Name: Xxxxxx
X. Xxxx
Title:
Senior
Vice President
|
WACHOVIA
BANK, NATIONAL ASSOCIATION
|
|
By:
|
/s/ Xxxxxxx
X. Xxxxxxxx
Name: Xxxxxxx
X. Xxxxxxxx
Title:
Senior
Vice President
|
Fifth
Third Bank, A Michigan Banking Corporation
|
|
By:
|
/s/ Xxxx
X. Xxxxxx
Name: Xxxx
X. Xxxxxx
Title:
Vice
President
|