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EXHIBIT 10.14
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$3,500,000,000
COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY
among
DELPHI AUTOMOTIVE SYSTEMS CORPORATION,
The Several Lenders
from Time to Time Parties Hereto
BANK OF AMERICA NT & SA, CITIBANK, N.A., DEUTSCHE BANK,
BARCLAYS BANK PLC and BANQUE NATIONALE DE PARIS,
as Syndication Agents
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
Dated as of January 4, 1999
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CHASE SECURITIES INC.,
as Lead Arranger and Book Manager
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TABLE OF CONTENTS
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SECTION 1. DEFINITIONS .............................................................. 1
1.1 Defined Terms ............................................................... 1
1.2 Other Definitional Provisions ............................................... 13
SECTION 2. AMOUNT AND TERMS OF THE FACILITIES ....................................... 13
2.1 Revolving Credit Commitments ................................................ 13
2.2 Procedure for Revolving Credit Borrowing .................................... 14
2.3 Competitive Borrowings ...................................................... 14
2.4 Termination or Reduction of Commitments ..................................... 18
2.5 Prepayments ................................................................. 18
2.6 Conversion and Continuation Options ......................................... 18
2.7 Minimum Amounts of Eurodollar Borrowings .................................... 19
2.8 Repayment of Loans; Evidence of Debt ........................................ 19
2.9 Interest Rates and Payment Dates ............................................ 20
2.10 Facility Fee ............................................................... 21
2.11 Computation of Interest and Fees ........................................... 21
2.12 Inability to Determine Interest Rate ....................................... 22
2.13 Pro Rata Treatment and Payments ............................................ 22
2.14 Illegality ................................................................. 23
2.15 Increased Costs ............................................................ 24
2.16 Taxes ...................................................................... 25
2.17 Indemnity .................................................................. 26
2.18 Notice of Amounts Payable; Relocation of Lending Office; Mandatory
Assignment.................................................................. 27
SECTION 3. REPRESENTATIONS AND WARRANTIES ........................................... 27
3.1 Financial Condition ......................................................... 28
3.2 Corporate Existence; Compliance with Law .................................... 28
3.3 Corporate Power; Authorization; Enforceable Obligations ..................... 29
3.4 No Legal Bar; No Default .................................................... 29
3.5 No Material Litigation ...................................................... 29
3.6 Federal Regulations ......................................................... 29
3.7 Investment Company Act ...................................................... 29
3.8 ERISA ....................................................................... 29
3.9 No Material Misstatements ................................................... 30
3.10 Environmental Matters ...................................................... 30
3.11 Subsidiaries ............................................................... 30
3.12 Year 2000 Matters .......................................................... 30
3.13 Purpose of Loans ........................................................... 30
SECTION 4. CONDITIONS PRECEDENT ..................................................... 31
4.1 Conditions to Initial Loans ................................................. 31
4.2 Conditions to Each Loan ..................................................... 32
SECTION 5. AFFIRMATIVE COVENANTS .................................................... 32
5.1 Financial Statements ........................................................ 32
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5.2 Certificates; Other Information ............................................ 33
5.3 Notices .................................................................... 34
5.4 Conduct of Business and Maintenance of Existence ........................... 34
5.5 Books and Records .......................................................... 34
5.6 Environmental Laws ......................................................... 34
SECTION 6. NEGATIVE COVENANTS ....................................................... 34
6.1 Consolidated Leverage Ratio ................................................ 34
6.2 Indebtedness ............................................................... 34
6.3 Liens ...................................................................... 35
6.4 Sale-Leasebacks ............................................................ 35
6.5 Merger, Consolidation, etc ................................................. 35
SECTION 7. EVENTS OF DEFAULT ........................................................ 36
SECTION 8. THE ADMINISTRATIVE AGENT ................................................. 38
8.1 Appointment ................................................................ 38
8.2 Delegation of Duties ....................................................... 38
8.3 Exculpatory Provisions ..................................................... 38
8.4 Reliance by Administrative Agent ........................................... 38
8.5 Notice of Default .......................................................... 39
8.6 Non-Reliance on Administrative Agent and Other Lenders...................... 39
8.7 Indemnification ............................................................ 40
8.8 Administrative Agent in Its Individual Capacity ............................ 40
8.9 Successor Administrative Agent ............................................ 40
8.10 Syndication Agents and Documentation Agent ................................. 41
SECTION 9. MISCELLANEOUS ............................................................ 41
9.1 Amendments and Waivers ..................................................... 41
9.2 Notices .................................................................... 42
9.3 No Waiver; Cumulative Remedies ............................................. 42
9.4 Survival of Representations and Warranties ................................. 43
9.5 Payment of Expenses and Taxes .............................................. 43
9.6 Successors and Assigns; Participations and Assignments ..................... 43
9.7 Adjustments ................................................................ 46
9.8 Counterparts ............................................................... 46
9.9 Severability ............................................................... 47
9.10 GOVERNING LAW .............................................................. 47
9.11 Confidentiality ............................................................ 47
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SCHEDULES
I Commitments; Competitive Bid Lenders
II Addresses for Notices
III Material Agreements
3.11 Subsidiaries
4.1(e) GM Agreements
EXHIBITS
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A Competitive Bid Request
B Invitation for Competitive Bids
C Competitive Bid
D Competitive Bid Accept/Reject Letter
E Assignment and Acceptance
F-1 Opinion of Drinker Xxxxxx & Xxxxx LLP, counsel for the Borrower
F-2 Opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx
G Promissory Note
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COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY, dated as of January
4, 1999, among DELPHI AUTOMOTIVE SYSTEMS CORPORATION, a Delaware corporation
(the "Borrower"), the several banks and other financial institutions from time
to time parties to this Agreement (the "Lenders"), BANK OF AMERICA NT & SA,
CITIBANK, N.A., DEUTSCHE BANK, BARCLAYS BANK PLC and BANQUE NATIONALE DE PARIS,
as syndication agents (collectively, the "Syndication Agents"), and THE CHASE
MANHATTAN BANK, as administrative agent for the Lenders hereunder (in such
capacity, the "Administrative Agent").
The parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms
shall have the following meanings:
"ABR": for any day, a rate per annum (rounded upwards, if necessary, to
the next 1/16 of 1%) equal to the greater of (a) the Prime Rate in effect on
such day, (b) the Federal Funds Effective Rate in effect on such day plus
1/2 of 1% and (c) the Base CD Rate in effect on such day plus 1%. "Base CD
Rate" shall mean the sum of (a) the product of (i) the Three-Month Secondary
CD Rate and (ii) a fraction, the numerator of which is one and the
denominator of which is one minus the C/D Reserve Percentage and (b) the C/D
Assessment Rate; "Three-Month Secondary CD Rate" shall mean, for any day,
the secondary market rate for three-month certificates of deposit reported
as being in effect on such day (or, if such day shall not be a Business Day,
the next preceding Business Day) by the Board through the public information
telephone line of the Federal Reserve Bank of New York (which rate will,
under the current practices of the Board, be published in Federal Reserve
Statistical Release H.15(519) during the week following such day), or, if
such rate shall not be so reported on such day or such next preceding
Business Day, the average of the secondary market quotations for three-month
certificates of deposit of major money center banks in New York City
received at approximately 10:00 A.M., New York City time, on such day (or,
if such day shall not be a Business Day, on the next preceding Business Day)
by the Administrative Agent from three New York City negotiable certificate
of deposit dealers of recognized standing selected by it. If for any reason
the Administrative Agent shall have determined (which determination shall be
conclusive absent manifest error) that it is unable to ascertain the Federal
Funds Effective Rate for any reason, the ABR shall be determined without
regard to clause (b) of the first sentence of this definition until the
circumstances giving rise to such inability no longer exist. Any change in
the ABR due to a change in the Prime Rate, the Federal Funds Effective Rate
or the Three-Month Secondary CD Rate shall be effective as of the opening of
business on the effective day of such change in the Prime Rate, the Federal
Funds Effective Rate or the Three-Month Secondary CD Rate, respectively.
"ABR Loans": Loans the rate of interest applicable to which is based
upon the ABR.
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"Agreement": this Agreement, as amended, supplemented or otherwise
modified from time to time.
"Applicable Margin": as defined in subsection 2.9(e).
"Assignee": as defined in subsection 9.6(c).
"Available Commitment": as to any Lender at any time, the excess, if
any, of such Lender's Commitment over such Lender's Revolving Credit Loans.
"Board": the Board of Governors of the Federal Reserve System of the
United States (or any successor).
"Borrowing": a group of Loans of a single Type made by the Lenders (or,
in the case of a Competitive Borrowing, by the Lender or Lenders whose
Competitive Bids have been accepted pursuant to subsection 2.3) on a single
date and as to which a single Interest Period is in effect.
"Business Day": a day other than a Saturday, Sunday or other day on
which commercial banks in New York City are authorized or required by law to
close; provided that when 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 Contribution": the contribution by GM or any wholly-owned
Subsidiary of GM of cash to the Borrower in respect of the issuance of, or
its ownership of, capital stock of the Borrower.
"C/D Assessment Rate": for any day as applied to any ABR Loan, the
annual assessment rate in effect on such day which is payable by a member of
the Bank Insurance Fund maintained by the Federal Deposit Insurance
Corporation (the "FDIC") classified as well-capitalized and within
supervisory subgroup "B" (or a comparable successor assessment risk
classification) within the meaning of 12 C.F.R. Section 327.4 (or any
successor provision) to the FDIC (or any successor) for the FDIC's (or such
successor's) insuring time deposits at offices of such institution in the
United States.
"C/D Reserve Percentage": for any day as applied to any ABR Loan, that
percentage (expressed as a decimal) which is in effect on such day, as
prescribed by the Board, for determining the maximum reserve requirement for
a Depositary Institution (as defined in Regulation D of the Board as in
effect from time to time) in respect of new non-personal time deposits in
Dollars having a maturity of 30 days or more.
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"Change of Control": (a) prior to an IPO and/or Offering which, when
combined with the Net Cash Proceeds from any Capital Contributions, yields
aggregate Net Cash Proceeds to the Borrower of at least $1,250,000,000, GM
or any wholly-owned Subsidiary of GM shall fail to own 100% of the issued
and outstanding capital stock of the Borrower and (b) following an IPO
and/or Offering which, when combined with the Net Cash Proceeds from any
Capital Contributions, yields aggregate Net Cash Proceeds to the Borrower of
at least $1,250,000,000, any of (i) 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) other than GM or any wholly-owned Subsidiary of GM, of shares
representing more than 20% of the aggregate ordinary voting power
represented by the issued and outstanding capital stock of the Borrower; or
(ii) occupation of a majority of the seats (other than vacant seats) on the
board of directors of the Borrower by Persons who were neither (X) nominated
by the board of directors of the Borrower or the board of directors of GM
nor (Y) appointed by directors so nominated; or (iii) the acquisition of
direct or indirect Control of the Borrower by any Person or group other than
GM or any wholly-owned Subsidiary of GM.
"Chase": The Chase Manhattan Bank.
"Closing Date": the date on which each of the conditions precedent set
forth in subsection 4.1 shall have been satisfied.
"Code": the Internal Revenue Code of 1986, as amended from time to
time.
"Commitment": as to any Lender, the obligation of such Lender to make
Revolving Credit Loans to the Borrower hereunder in an aggregate principal
amount at any one time outstanding not to exceed the amount set forth
opposite such Lender's name on Schedule I, as such amount may be reduced
from time to time in accordance with the provisions of this Agreement.
"Commitment Percentage": as to any Lender at any time, the percentage
which such Lender's Commitment then constitutes of the aggregate Commitments
(or, at any time after the Commitments shall have expired or terminated, the
percentage which the aggregate principal amount of such Lender's Loans then
outstanding constitutes of the aggregate principal amount of the Loans then
outstanding).
"Commitment Period": the period from and including the date hereof to
but not including the Termination Date or such earlier date on which the
Commitments shall terminate as provided herein.
"Competitive Bid": an offer by a Lender to make a Competitive Loan
pursuant to subsection 2.3.
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"Competitive Bid Accept/Reject Letter": a notification made by the
Borrower pursuant to subsection 2.3(f) in the form of Exhibit D.
"Competitive Bid Lenders": the Lenders specified on Schedule I as being
"Competitive Bid Lenders."
"Competitive Bid Rate": as to any Competitive Bid made by a Lender
pursuant to subsection 2.3, (i) in the case of a Eurodollar Competitive
Loan, the Eurodollar Rate plus (or minus) the Margin, and (ii) in the case
of a Fixed Rate Loan, the fixed rate of interest offered by the Lender
making such Competitive Bid.
"Competitive Bid Request": a request made pursuant to subsection 2.3(b)
in the form of Exhibit A.
"Competitive Borrowing": a Borrowing consisting of a Competitive Loan
or concurrent Competitive Loans from the Lender or Lenders whose Competitive
Bids for such Borrowing have been accepted by a Borrower under the bidding
procedure described in subsection 2.3.
"Competitive Loan": a Loan (which shall be a Eurodollar Competitive
Loan or a Fixed Rate Loan) made by a Lender pursuant to the bidding
procedure described in subsection 2.3.
"Confidential Information Memorandum": the Confidential Information
Memorandum dated November 1998 and furnished to the Lenders.
"Consolidated EBITDA": for any period, Consolidated Net Income for such
period plus, without duplication and to the extent reflected as a charge in
the statement of such Consolidated Net Income for such period, the sum of
(a) income tax expense, (b) interest expense (other than interest expense or
discount during such period attributable to Permitted Receivables Financing
with an aggregate principal amount not in excess of $1,500,000,000), (c)
amortization or writeoff of debt discount and debt issuance costs and
commissions, discounts and other fees and charges associated with
Indebtedness (including the Loans), (d) depreciation and amortization
expense, (e) amortization of intangibles (including, but not limited to,
goodwill) and organization costs and (f) any extraordinary, unusual or
non-recurring non-cash expenses or losses, and minus, to the extent included
in the statement of such Consolidated Net Income for such period, the sum of
(a) interest income and (b) any extraordinary, unusual or non-recurring
income or gains, all as determined on a consolidated basis. For the purposes
of calculating Consolidated EBITDA for any period of four consecutive fiscal
quarters (each, a "Reference Period") pursuant to any determination of the
Consolidated Leverage Ratio, if during such Reference Period the Borrower or
any Subsidiary shall have made a Material Acquisition, Consolidated EBITDA
for such Reference Period shall be calculated after giving pro forma effect
thereto as if such Material Acquisition occurred on the first day of such
Reference Period. As used in this paragraph, "Material Acquisition" means
any
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acquisition of property or series of related acquisitions of property that
involves the payment of consideration (including, without limitation, the
assumption of debt) by the Borrower and its Subsidiaries in excess of
$10,000,000.
"Consolidated Leverage Ratio": as at any day, the ratio of (a)
Consolidated Total Debt on such day (other than any Permitted Receivables
Financing outstanding on such date in an aggregate principal amount not to
exceed $1,500,000,000 and any other Non-Recourse Debt not related to
accounts receivable of the Borrower or any of its Subsidiaries) to (b)
Consolidated EBITDA for the period of four fiscal quarters ending on or most
recently prior to such day; provided, that for the purposes of determining
the Consolidated Leverage Ratio for the fiscal quarters of the Borrower
ending March 31, 1999, June 30, 1999 and September 30, 1999, Consolidated
EBITDA for the relevant period shall be deemed to equal Consolidated EBITDA
for the period beginning on the Closing Date and ending on such dates, plus
Consolidated EBITDA for the segments and Subsidiaries of GM constituting the
Delphi Automotive Systems business of GM for the number of fiscal quarters
immediately preceding the Closing Date which, when added to the number of
fiscal quarters which have begun since the Closing Date and have ended on or
prior to such dates, equals four.
"Consolidated Net Income": for any period, the consolidated net income
(or loss) of the Borrower and its Subsidiaries, determined on a consolidated
basis in accordance with GAAP.
"Consolidated Total Assets": at any date, all amounts that would, in
conformity with GAAP, be set forth opposite the caption "total assets" (or
any like caption) on a consolidated balance sheet of the Borrower and its
Subsidiaries at such date.
"Consolidated Total Debt": at any date and without duplication, (i) the
aggregate principal amount of (i) all Indebtedness of the Borrower and its
Subsidiaries on a consolidated basis and (ii) all guarantees by the Borrower
or any of its Subsidiaries of Indebtedness on a consolidated basis of any
other Person (other than the Borrower or a Subsidiary) at such date.
"Contractual Obligation": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"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.
"Default": any of the events specified in Section 7, whether or not any
requirement for the giving of notice, the lapse of time, or both, or any
other condition, has been satisfied.
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"Dollars" and "$": dollars in lawful currency of the United States of
America.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"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 to the environment, preservation or reclamation of
natural resources, the management, release or threatened release of any
Hazardous Material or to health and safety matters relating to the
environment.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation,
fines, penalties or indemnities), of the Borrower or any Subsidiary directly
or indirectly resulting from or based upon (a) violation of any
Environmental Law, (b) the generation, use, handling, transportation,
storage, treatment or disposal of any Hazardous Materials, (c) exposure to
any Hazardous Materials, (d) the release or threatened release of any
Hazardous Materials into the environment or (e) any contract, agreement or
other consensual arrangement pursuant to which liability is assumed or
imposed with respect to any of the foregoing.
"Eurocurrency Reserve Requirements": for any day as applied to a
Eurodollar Loan, the aggregate (without duplication) of the maximum rates
(expressed as a decimal fraction) of reserve requirements in effect on such
day (including, without limitation, basic, supplemental, marginal and
emergency reserves under any regulations of the Board or other Governmental
Authority having jurisdiction with respect thereto) dealing with reserve
requirements prescribed for eurocurrency funding (currently referred to as
"Eurocurrency liabilities" in Regulation D of the Board) maintained by a
member bank of such System.
"Eurodollar Borrowing": a Borrowing comprised of Eurodollar Loans.
"Eurodollar Competitive Loan": any Competitive Loan bearing interest at
a rate determined by reference to the Eurodollar Rate.
"Eurodollar Loan": any Eurodollar Competitive Loan or Eurodollar
Revolving Credit Loan.
"Eurodollar Rate": with respect to each day during each Interest Period
pertaining to a Eurodollar Loan, the rate of interest determined on the
basis of the rate for deposits in Dollars for a period equal to such
Interest Period commencing on the first day of such Interest Period
appearing on Page 3750 of the Dow Xxxxx Markets Page as of 11:00 A.M.,
London time, two Business Days prior to the beginning of such Interest
Period. In the event that such rate does not appear on Page 3750 of the Dow
Xxxxx Markets Page (or otherwise on such service), the "Eurodollar Rate"
shall be determined by reference to
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such other publicly available service for displaying eurodollar rates as may
be agreed upon by the Administrative Agent and the Borrower or, in the
absence of such agreement, the "Eurodollar Rate" shall instead be the rate
per annum equal to the average (rounded upward to the nearest 1/16th of 1%)
of the respective rates notified to the Administrative Agent by each of the
Reference Lenders as the rate at which such Reference Lender is offered
Dollar deposits at or about 10:00 A.M., New York City time, two Business
Days prior to the beginning of such Interest Period in the interbank
eurodollar market where the eurodollar and foreign currency and exchange
operations in respect of its Eurodollar Loans are then being conducted for
delivery on the first day of such Interest Period for the number of days
comprised therein and in an amount comparable to the amount of its
Eurodollar Loan to be outstanding during such Interest Period.
"Eurodollar Reserve Rate": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, a rate per annum determined
for such day in accordance with the following formula (rounded upward to the
nearest 1/100th of 1%):
Eurodollar Rate
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1.00 - Eurocurrency Reserve Requirements
"Eurodollar Revolving Credit Loan": any Revolving Credit Loan bearing
interest at a rate determined by reference to the Eurodollar Rate.
"Event of Default": any of the events specified in Section 7; provided
that any requirement for the giving of notice, the lapse of time, or both,
or any other condition, has been satisfied.
"Federal Funds Effective Rate" shall mean, for any day, the weighted
average of the rates on overnight federal funds transactions with members of
the Federal Reserve System arranged by federal funds brokers, as published
on the next succeeding Business Day by the Federal Reserve Bank of New York,
or, if such rate is not so published for any day which is a Business Day,
the average of the quotations for such day of such rates on such
transactions received by the Administrative Agent from three federal funds
brokers of recognized standing selected by it.
"Financial Officer": with respect to any Person, the chief financial
officer, principal accounting officer, a financial vice president, treasurer
or assistant treasurer of such Person.
"Fixed Rate Borrowing": a Borrowing comprised of Fixed Rate Loans.
"Fixed Rate Loan": any Competitive Loan bearing interest at a fixed
percentage rate per annum specified by the Lender making such Loan in its
Competitive Bid.
"GAAP": generally accepted accounting principles in the United States
of America as in effect from time to time and as applied by the Borrower in
the preparation
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of its most recent financial statements delivered pursuant to subsection
3.1(b); 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.
"GM": General Motors Corporation, a Delaware corporation.
"Governmental Authority": any nation or government, any state or other
political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of government.
"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.
"Indebtedness": of any Person at any date, the amount outstanding on
such date under notes, bonds, debentures or other similar evidences of
indebtedness for money borrowed (including, without limitation, indebtedness
for borrowed money evidenced by a loan account).
"Interest Payment Date": (a) as to any ABR Loan, the last day of each
March, June, September and December to occur while such Loan is outstanding
and on the date such Loan is paid in full, (b) as to any Eurodollar Loan or
Fixed Rate Loan, the last day of the Interest Period applicable thereto and
(c) as to any Eurodollar Loan or Fixed Rate Loan, having an Interest Period
longer than three months or 90 days, as the case may be, each day which is
three months or 90 days, as the case may be, after the first day of the
Interest Period applicable thereto; provided that, in addition to the
foregoing, each of (x) the date upon which both the Commitments have been
terminated and the Loans have been paid in full and (y) the Termination Date
shall be deemed to be an "Interest Payment Date" with respect to any
interest which is then accrued hereunder.
"Interest Period": (a) with respect to any Eurodollar Loan:
(i) initially, the period commencing on the borrowing or
conversion date, as the case may be, with respect to such Eurodollar
Loan and ending one, two, three or six (or if available to all the
Lenders (or, in the case of Eurodollar Competitive Loans, the Lender
making such Loans) nine) months thereafter, as selected by the
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Borrower in its notice of borrowing or notice of conversion, as the
case may be, given with respect thereto; and
(ii) thereafter, each period commencing on the last day of the
next preceding Interest Period applicable to such Eurodollar Loan and
ending one, two, three or six (or if available to all the Lenders (or,
in the case of Eurodollar Competitive Loans, the Lender making such
Loans) nine) months thereafter, as selected by the Borrower by
irrevocable notice to the Administrative Agent not less than three
Business Days prior to the last day of the then current Interest Period
with respect thereto; and
(b) with respect to any Fixed Rate Loan, the period
commencing on the borrowing date with respect to such Fixed Rate Loan and
ending such number of days thereafter (which shall be not less than seven
days or more than 180 days after the date of such borrowing) as selected by
the Borrower in its Competitive Bid Request given with respect thereto.
provided that all of the foregoing provisions relating to Interest Periods
are subject to the following:
(1) if any Interest Period would otherwise end on a day that
is not a Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless, in the case of an Interest Period
pertaining to a Eurodollar Loan, the result of such extension would be
to carry such Interest Period into another calendar month in which
event such Interest Period shall end on the immediately preceding
Business Day; and
(2) any Interest Period that begins on the last Business Day
of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of a calendar month.
Notwithstanding anything to the contrary contained in this Agreement, no
Interest Period shall be selected by the Borrower which ends on a date after
the Termination Date.
"Invitation for Competitive Bids": an invitation made by the Borrower
pursuant to subsection 2.3(c) in the form of Exhibit B.
"IPO": the initial underwritten public offering by the Borrower of
common stock of the Borrower pursuant to a registration statement filed with
the Securities and Exchange Commission in accordance with the Securities Act
of 1933, as amended.
"Level I Status": exists at any date if, at such date, the Borrower has
senior unsecured long-term debt outstanding, without third-party credit
enhancement, which is rated A- or better by S&P and A3 or better by Moody's;
provided that if either S&P or
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Moody's shall cease to issue ratings of debt securities generally, then the
Administrative Agent and the Borrower shall negotiate in good faith to agree
upon a substitute rating agency (and to correlate the system of ratings of
such substitute rating agency with that of the rating agency for which it is
substituting) and (a) until such substitute rating agency is agreed upon,
the foregoing test may be satisfied on the basis of the rating assigned by
the other such rating agency and (b) after such substitute rating agency is
agreed upon, the foregoing test may be satisfied on the basis of the rating
assigned by the other rating agency and such substitute rating agency.
"Level II Status": exists at any date if, at such date, Level I Status
does not exist and the Borrower has senior unsecured long-term debt
outstanding, without third-party credit enhancement, which is rated BBB+ or
better by S&P and Baa1 or better by Moody's; provided that if either S&P or
Moody's shall cease to issue ratings of debt securities generally, then the
Administrative Agent and the Borrower shall negotiate in good faith to agree
upon a substitute rating agency (and to correlate the system of ratings of
such substitute rating agency with that of the rating agency for which it is
substituting) and (a) until such substitute rating agency is agreed upon,
the foregoing test may be satisfied on the basis of the rating assigned by
the other such rating agency and (b) after such substitute rating agency is
agreed upon, the foregoing test may be satisfied on the basis of the rating
assigned by the other rating agency and such substitute rating agency.
"Level III Status": exists at any date if, at such date, neither Level
I Status nor Level II Status exists and the Borrower has senior unsecured
long-term debt outstanding, without third party credit enhancement, which is
rated BBB or better by S&P and Baa2 or better by Moody's; provided that if
either S&P or Moody's shall cease to issue ratings of debt securities
generally, then the Administrative Agent and the Borrower shall negotiate in
good faith to agree upon a substitute rating agency (and to correlate the
system of ratings of such substitute rating agency with that of the rating
agency for which it is substituting) and (a) until such substitute rating
agency is agreed upon, the foregoing test may be satisfied on the basis of
the rating assigned by the other such rating agency and (b) after such
substitute rating agency is agreed upon, the foregoing test may be satisfied
on the basis of the rating assigned by the other rating agency and such
substitute rating agency.
"Level IV Status": exists at any date if, at such date, none of Level I
Status, Level II Status or Level III Status exists and the Borrower has
senior unsecured long-term debt outstanding, without third party credit
enhancement, which is rated BBB- or better by S&P and Baa3 or better by
Moody's; provided that if either S&P or Moody's shall cease to issue ratings
of debt securities generally, then the Administrative Agent and the Borrower
shall negotiate in good faith to agree upon a substitute rating agency (and
to correlate the system of ratings of such substitute rating agency with
that of the rating agency for which it is substituting) and (a) until such
substitute rating agency is agreed upon, the foregoing test may be satisfied
on the basis of the rating assigned by the other such rating agency and (b)
after such substitute rating agency is agreed upon, the
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foregoing test may be satisfied on the basis of the rating assigned by the
other rating agency and such substitute rating agency.
"Level V Status": exists at any date if, at such date, none of Level I
Status, Level II Status, Level III Status or Level IV Status exists.
"Lien": any mortgage, pledge, lien, security interest, conditional sale
or other title retention agreement or other similar encumbrance.
"Loan": a Competitive Loan or a Revolving Credit Loan, as the context
shall require; collectively, the "Loans."
"Majority Lenders": at any time, Lenders whose Commitment Percentages
represent at least 51% of the aggregate Commitments or, if the Commitments
are terminated or for purposes of acceleration pursuant to Section 7,
Lenders holding Loans representing at least 51% of the aggregate principal
amount of all Loans outstanding.
"Margin": as to any Eurodollar Competitive Loan, the margin to be added
to or subtracted from the Eurodollar Rate in order to determine the interest
rate applicable to such Loan, as specified in the Competitive Bid relating
to such Loan.
"Material Adverse Effect": a material adverse effect on (a) the
financial condition of the Borrower and its Subsidiaries taken as a whole or
(b) the validity or enforceability of this Agreement or the rights or
remedies of the Administrative Agent and the Lenders hereunder.
"Material Agreements": the agreements set forth on Schedule III.
"Moody's": Xxxxx'x Investors Service, Inc. and its successors.
"Net Cash Proceeds": in connection with any issuance or sale of equity
securities or debt securities or instruments or the incurrence of loans, the
cash proceeds received from such issuance or incurrence, net of attorneys'
fees, investment banking fees, accountants' fees, underwriting discounts and
commissions and other customary fees and expenses actually incurred in
connection therewith.
"Non-Recourse Debt": all Indebtedness which, in accordance with GAAP,
is not required to be recognized on a consolidated balance sheet of the
Borrower as a liability.
"Offering": the offering by the Borrower to any Person (other than GM
or any wholly-owned Subsidiary of GM) of any equity securities of the
Borrower.
"Participant": as defined in subsection 9.6(b).
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"Permitted Receivables Financing": at any date of determination, the
aggregate amount of any Non-Recourse Debt outstanding on such date relating
to securitizations or other similar off-balance sheet financings of accounts
receivable of the Borrower or any of its Subsidiaries.
"Person": an individual, partnership, corporation, business trust,
joint stock company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature.
"Prime Rate": the rate of interest per annum equal to the prime rate
publicly announced by the majority of the Reference Lenders as its prime
rate (or similar base rate) in effect at its principal office.
"Reference Lenders": The Chase Manhattan Bank, Bank of America NT & SA,
Citibank, N.A., Xxxxxx Guaranty Trust Company and the Bank of New York.
"Register": as defined in subsection 9.6(d).
"Requirement of Law": as to any Person, any law, treaty, rule or
regulation or determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon such
Person or any of its property or to which such Person or any of its property
is subject.
"Revolving Credit Loans": as defined in subsection 2.1(a) and shall in
any event include any Loans that remain outstanding after the Termination
Date pursuant to subsection 2.8.
"Sale-Leasebacks": as defined in subsection 6.4.
"S&P": Standard & Poor's Corporation and its successors.
"Significant Subsidiary": at any time, any Subsidiary of the Borrower
which has at least 5% of the consolidated revenues of the Borrower and its
Subsidiaries at such time as reflected in the most recent annual audited
consolidated financial statements of the Borrower.
"Status": as to the Borrower, the existence of Level I Status, Level II
Status, Level III Status, Level IV Status or Level V Status, as the case may
be.
"Subsidiary": as to any Person, a corporation, partnership, limited
liability company or other entity of which shares of stock or other
ownership interests having ordinary voting power (other than stock or such
other ownership interests having such power only by reason of the happening
of a contingency) to elect a majority of the board of directors or other
managers of such corporation, partnership or other entity are at the time
owned by such Person, or by one or more Subsidiaries, or by such Person and
one or
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more Subsidiaries. Unless otherwise qualified, all references to a
"Subsidiary" or to "Subsidiaries" in this Agreement shall refer to a
Subsidiary or Subsidiaries of the Borrower.
"Termination Date": January 3, 2000.
"Transferee": as defined in subsection 9.6(f).
"Type": as to any Revolving Credit Loan, its nature as an ABR Loan or a
Eurodollar Loan, and as to any Competitive Loan, its nature as a Eurodollar
Competitive Loan or a Fixed Rate Loan.
"Utilization": as of the last day of any fiscal quarter of the
Borrower, the percentage equivalent of a fraction (i) the numerator of which
is the average daily principal amount of Loans outstanding (after giving
effect to any borrowing or payment on such date) during such quarter and
(ii) the denominator of which is the average daily amount of the aggregate
Commitments of all Lenders during such quarter, after giving effect to any
reduction of the Commitments on such day. For purposes of subsection 2.9(e),
if for any reason any Loans remain outstanding after termination of the
Commitments, the Utilization for each day on or after the date of such
termination shall be deemed to be greater than 33%.
1.2 Other Definitional Provisions. (a) Unless otherwise specified
therein, all terms defined in this Agreement shall have the defined meanings
when used in any certificate or other document made or delivered pursuant
hereto.
(b) As used herein, and any certificate or other document made or
delivered pursuant hereto, accounting terms relating to the Borrower and its
Subsidiaries not defined in subsection 1.1 and accounting terms partly defined
in subsection 1.1, to the extent not defined, shall have the respective meanings
given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and Section, subsection,
Schedule and Exhibit references are to this Agreement unless otherwise
specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF THE FACILITIES
2.1 Revolving Credit Commitments. (a) Subject to the terms and
conditions hereof, each Lender severally agrees to make revolving credit loans
("Revolving Credit Loans") to the Borrower from time to time during the
Commitment Period in an aggregate principal
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amount at any one time outstanding which does not exceed the amount of such
Lender's Commitment. During the Commitment Period, the Borrower may use the
Commitments by borrowing, prepaying the Revolving Credit Loans in whole or in
part, and reborrowing, all in accordance with the terms and conditions hereof.
Notwithstanding anything to the contrary contained in this Agreement, in no
event (after giving effect to the use of proceeds of any Borrowing) shall (i)
the amount of any Lender's Commitment Percentage of a Borrowing of Revolving
Credit Loans exceed such Lender's Available Commitment at the time of such
Borrowing or (ii) the aggregate amount of Revolving Credit Loans and Competitive
Loans at any one time outstanding exceed the aggregate Commitments then in
effect of all Lenders.
(b) The Revolving Credit Loans may from time to time be (i) Eurodollar
Loans, (ii) ABR Loans or (iii) a combination thereof, as determined by the
Borrower and notified to the Administrative Agent in accordance with subsections
2.2 and 2.6; provided that no Revolving Credit Loan shall be made as a
Eurodollar Loan after the day that is one month prior to the Termination Date.
2.2 Procedure for Revolving Credit Borrowing. The Borrower may borrow
Revolving Credit Loans under the Commitments during the Commitment Period on any
Business Day; provided that the Borrower shall give the Administrative Agent
irrevocable notice (which notice must be received by the Administrative Agent
prior to 12:00 Noon, New York City time, (a) three Business Days prior to the
requested borrowing date, if all or any part of the requested Revolving Credit
Loans are to be Eurodollar Loans, or (b) one Business Day prior to the requested
borrowing date, otherwise), specifying (i) the amount to be borrowed, (ii) the
requested borrowing date, (iii) whether the Borrowing is to be of Eurodollar
Loans, ABR Loans or a combination thereof and (iv) if the Borrowing is to be
entirely or partly of Eurodollar Loans, the respective amounts of each such Type
of Loan and the respective lengths of the initial Interest Periods therefor.
Each Borrowing under the Commitments shall be in an amount equal to $10,000,000
or a multiple of $1,000,000 in excess thereof. Upon receipt of any such notice
from the Borrower, the Administrative Agent shall promptly notify each Lender
thereof. Each Lender will make the amount of its pro rata share of each
Borrowing available to the Administrative Agent for the account of the Borrower
at the office of the Administrative Agent specified in subsection 9.2 prior to
11:00 A.M., New York City time, on the borrowing date requested by the Borrower
in funds immediately available to the Administrative Agent. Such Borrowing will
then immediately be made available to the Borrower by the Administrative Agent
crediting the account of the Borrower on the books of such office with the
aggregate of the amounts made available to the Administrative Agent by the
Lenders and in like funds as received by the Administrative Agent.
2.3 Competitive Borrowings.
(a) The Competitive Bid Option. In addition to the Revolving Credit
Loans which may be made available pursuant to subsection 2.1, the Borrower may,
as set forth in this subsection 2.3, request the Lenders to make offers to make
Competitive Loans to the Borrower during the Commitment Period. The Lenders may,
but shall have no obligation to, make such
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offers, and the Borrower may, but shall have no obligation to, accept any such
offers in the manner set forth in this subsection 2.3.
(b) Competitive Bid Request. When the Borrower wishes to request offers
to make Competitive Loans under this subsection 2.3, it shall transmit to the
Administrative Agent a Competitive Bid Request to be received no later than
12:00 Noon (New York City time) on (x) the fourth Business Day prior to the date
of Borrowing proposed therein, in the case of a Borrowing of Eurodollar
Competitive Loans or (y) the Business Day immediately preceding the date of
Borrowing proposed therein, in the case of a Fixed Rate Borrowing, specifying:
(i) the proposed date of Borrowing, which shall be a Business Day,
(ii) the aggregate principal amount of such Borrowing, which shall
be $10,000,000 or a multiple of $1,000,000 in excess thereof,
(iii) the duration of the Interest Period applicable thereto,
subject to the provisions of the definition of Interest Period
contained in subsection 1.1, and
(iv) whether the Borrowing then being requested is to be of
Eurodollar Competitive Loans or Fixed Rate Loans.
A Competitive Bid Request that does not conform substantially to the format of
Exhibit A may be rejected by the Administrative Agent in its sole discretion,
and the Administrative Agent shall promptly notify the Borrower of such
rejection. The Borrower may request offers to make Competitive Loans for more
than one Interest Period in a single Competitive Bid Request. No Competitive Bid
Request shall be given within three Business Days of any other Competitive Bid
Request pursuant to which the Borrower has made a Competitive Borrowing.
(c) Invitation for Competitive Bids. Promptly after its receipt of a
Competitive Bid Request (but, in any event, no later than 3:00 P.M., New York
City time, on the date of such receipt) conforming to the requirements of
paragraph (b) above, the Administrative Agent shall send to each of the
Competitive Bid Lenders an Invitation for Competitive Bids which shall
constitute an invitation by the Borrower to each such Lender to bid, on the
terms and conditions of this Agreement, to make Competitive Loans pursuant to
the Competitive Bid Request.
(d) Submission and Contents of Competitive Bids. Each Lender to which
an Invitation for Competitive Bids is sent may submit a Competitive Bid
containing an offer or offers to make Competitive Loans in response to such
Invitation for Competitive Bids. Each Competitive Bid must comply with the
requirements of this paragraph (d) and must be submitted to the Administrative
Agent at its offices specified in subsection 9.2 not later than (x) 9:30 A.M.
(New York City time) on the third Business Day prior to the proposed date of
Borrowing, in the case of a Borrowing of Eurodollar Competitive Loans or (y)
9:30 A.M. (New York City time) on the date of the proposed Borrowing, in the
case of a Fixed Rate Borrowing; provided that any Competitive Bids submitted by
the Administrative Agent in the capacity of a Lender may only be submitted if
the Administrative Agent notifies the Borrower of the terms of the offer or
offers
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contained therein not later than fifteen minutes prior to the deadline for the
other Lenders. A Competitive Bid submitted by a Lender pursuant to this
paragraph (d) shall be irrevocable.
(ii) Each Competitive Bid shall be in substantially the form of
Exhibit C and shall specify:
(A) the date of the proposed Borrowing,
(B) the principal amount of the Competitive Loan for which each such
offer is being made, which principal amount (w) may be greater than, equal
to or less than the Commitment of the quoting Lender, (x) must be in a
minimum principal amount of $5,000,000 or a multiple of $1,000,000 in excess
thereof, (y) may not exceed the principal amount of Competitive Loans for
which offers were requested and (z) may be subject to a limitation as to the
maximum aggregate principal amount of Competitive Loans for which offers
being made by such quoting Lender may be accepted,
(C) in the case of a Borrowing of Eurodollar Competitive Loans, the
Margin offered for each such Competitive Loan, expressed as a percentage
(specified in increments of 1/10,000th of 1%) to be added to or subtracted
from such base rate,
(D) in the case of a Fixed Rate Borrowing, the rate of interest per
annum (specified in increments of 1/10,000th of 1%) offered for each such
Competitive Loan, and
(E) the identity of the quoting Lender.
A Competitive Bid may set forth up to five separate offers by the quoting Lender
with respect to each Interest Period specified in the related Invitation for
Competitive Bids. Any Competitive Bid shall be disregarded by the Administrative
Agent if the Administrative Agent determines that it: (A) is not substantially
in the form of Exhibit C or does not specify all of the information required by
subsection 2.3(d)(ii); (B) contains qualifying, conditional or similar language
(except for a limitation on the maximum principal amount which may be accepted);
(C) proposes terms other than or in addition to those set forth in the
applicable Invitation for Competitive Bids or (D) arrives after the time set
forth in subsection 2.3(d)(i).
(e) Notice to Borrower. The Administrative Agent shall promptly (and,
in any event, by 10:00 A.M., New York City time) notify the Borrower, by
telecopy, of all the Competitive Bids made (including all disregarded bids),
the Competitive Bid Rate and the principal amount of each Competitive Loan
in respect of which a Competitive Bid was made and the identity of the
Lender that made each bid. The Administrative Agent shall send a copy of all
Competitive Bids (including all disregarded bids) to the Borrower for its
records as soon as practicable after completion of the bidding process set
forth in this subsection 2.3.
(f) Acceptance and Notice by Borrower. The Borrower may in its sole
discretion, subject only to the provisions of this paragraph (f), accept or
reject any Competitive Bid (other
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than any disregarded bid) referred to in paragraph (e) above. The Borrower shall
notify the Administrative Agent by telephone, confirmed immediately thereafter
by telecopy in the form of a Competitive Bid Accept/Reject Letter, whether and
to what extent it wishes to accept any or all of the bids referred to in
paragraph (e) above not later than (x) 10:30 A.M. (New York City time) on the
third Business Day prior to the proposed date of Borrowing, in the case of a
Competitive Eurodollar Borrowing or (y) 10:30 A.M. (New York City time) on the
proposed date of Borrowing, in the case of a Fixed Rate Borrowing; provided
that:
(i) the failure by the Borrower to give such notice shall be
deemed to be a rejection of all the bids referred to in paragraph (e)
above;
(ii) the aggregate principal amount of the Competitive Bids
accepted by the Borrower may not exceed the lesser of (A) the principal
amount set forth in the related Competitive Bid Request and (B) the
excess, if any, of the aggregate Commitments of all Lenders then in
effect over the aggregate principal amount of all Loans outstanding
immediately prior to the making of such Competitive Loans (and after
giving effect to the use of proceeds thereof),
(iii) the principal amount of each Competitive Borrowing must be
$5,000,000 or a multiple of $1,000,000 in excess thereof,
(iv) unless there are any limitations contained in a quoting
Lender's Competitive Bid, the Borrower may not accept a Competitive Bid
made at a particular Competitive Bid Rate if it has decided to reject
any portion of a bid made at a lower Competitive Bid Rate for the same
Interest Period, and
(v) the Borrower may not accept any Competitive Bid that is
disregarded by the Administrative Agent pursuant to subsection
2.3(d)(ii) or that otherwise fails to comply with the requirements of
this Agreement.
A notice given by the Borrower pursuant to this paragraph (f) shall be
irrevocable.
(g) Allocation by Administrative Agent. If offers are made by two or
more Lenders with the same Competitive Bid Rates for a greater aggregate
principal amount than the amount in respect of which such offers are accepted
for the related Interest Period, the principal amount of Competitive Loans in
respect of which such offers are accepted shall be allocated by the
Administrative Agent among such Lenders as nearly as possible (in integral
multiples of $1,000,000, as the Administrative Agent may deem appropriate) in
proportion to the aggregate principal amounts of such offers.
(h) Notification of Acceptance. The Administrative Agent shall promptly
(and, in any event, by 11:00 A.M., New York City time) notify each bidding
Lender whether or not its Competitive Bid has been accepted (and if so, in what
amount and at what Competitive Bid Rate), and each successful bidder will
thereupon become bound, subject to the other applicable conditions hereof, to
make the Competitive Loan in respect of which its bid has been accepted.
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2.4 Termination or Reduction of Commitments. The Borrower shall have
the right, upon not less than three Business Days' notice to the Administrative
Agent, to terminate the Commitments when no Loans are then outstanding or, from
time to time, to reduce the unutilized portion of the Commitments. Any such
reduction shall be in an amount equal to $10,000,000 or a multiple of $1,000,000
in excess thereof and shall reduce permanently the Commitments then in effect.
2.5 Prepayments. (a) The Borrower may, at any time and from time to
time, prepay the Revolving Credit Loans, in whole or in part, without premium or
penalty (but subject to the provisions of subsection 2.17), upon at least two
Business Days' irrevocable notice to the Administrative Agent, specifying the
date and amount of prepayment and whether the prepayment is of Eurodollar
Revolving Credit Loans, ABR Loans or a combination thereof, and, if of a
combination thereof, the amount allocable to each. Upon receipt of any such
notice the Administrative Agent shall promptly notify each Lender thereof. If
any such notice is given, the amount specified in such notice shall be due and
payable on the date specified therein, together with any amounts payable
pursuant to subsection 2.17. Partial prepayments shall be in an aggregate
principal amount of $10,000,000 or a multiple of $1,000,000 in excess thereof.
Notwithstanding anything to the contrary contained herein, the Borrower shall
not prepay the Competitive Loans except pursuant to Section 7 or with the
consent of the Competitive Bid Lender which has made such Competitive Loan.
(b) The Commitments shall be permanently reduced by an amount equal to:
(i) the Net Cash Proceeds from the issuance during the period commencing on or
after December 31, 1998 and ending on or prior to the Termination Date by the
Borrower or any Subsidiary of common stock (other than common stock issued in
connection with the Borrower's regular employee, executive and director stock
option plans) to the extent that such Net Cash Proceeds exceed, in the aggregate
for all such issuances, $1,500,000,000 and (ii) the first $2,000,000,000 of Net
Cash Proceeds from the issuance during the period commencing on or after
December 31, 1998 and ending on or prior to the Termination Date of any publicly
offered or privately placed debt securities (excluding any such debt securities
that have a stated maturity of less than one year and cannot be extended at the
sole option of the borrower thereof) of the Borrower or any Subsidiary. Any such
reduction of the Commitments shall be effective on the fifth Business Day
following any such issuance or incurrence and shall be accompanied by prepayment
of the Loans to the extent, if any, that the Loans of all the Lenders exceed the
total amount of the Commitments as so reduced. The application of any prepayment
shall be made first to ABR Loans and second to Eurodollar Loans. Each prepayment
of the Loans (except in the case of Loans that are ABR Loans) shall be
accompanied by accrued interest to the date of such prepayment on the amount
prepaid.
2.6 Conversion and Continuation Options. (a) The Borrower may elect
from time to time to convert Eurodollar Revolving Credit Loans to ABR Loans by
giving the Administrative Agent at least one Business Day's prior irrevocable
notice of such election; provided that any such conversion of Eurodollar
Revolving Credit Loans may only be made on the last day of an Interest Period
with respect thereto. The Borrower may elect from time to time to convert ABR
Loans to Eurodollar Revolving Credit Loans by giving the Administrative Agent
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at least three Business Days' prior irrevocable notice of such election. Any
such notice of conversion to Eurodollar Revolving Credit Loans shall specify the
length of the initial Interest Period or Interest Periods therefor. Upon receipt
of any such notice the Administrative Agent shall promptly notify each Lender
thereof. All or any part of outstanding Eurodollar Revolving Credit Loans and
ABR Loans may be converted as provided herein; provided that (i) no Loan may be
converted into a Eurodollar Revolving Credit Loan when any Event of Default has
occurred and is continuing and (ii) no Loan may be converted into a Eurodollar
Revolving Credit Loan after the date that is one month prior to the Termination
Date.
(b) Any Eurodollar Revolving Credit Loans may be continued as such upon
the expiration of the then current Interest Period with respect thereto by the
Borrower giving notice to the Administrative Agent, in accordance with the
applicable provisions of the term "Interest Period" set forth in subsection 1.1,
of the length of the next Interest Period to be applicable to such Loans;
provided that no Eurodollar Revolving Credit Loan may be continued as such (i)
when any Event of Default has occurred and is continuing or (ii) after the date
that is one month prior to the Termination Date and provided, further, that if
the Borrower shall fail to give any required notice as described above in this
paragraph or if such continuation is not permitted pursuant to the preceding
proviso such Eurodollar Revolving Credit Loans shall be automatically converted
to ABR Loans on the last day of such then expiring Interest Period.
2.7 Minimum Amounts of Eurodollar Borrowings. All borrowings,
conversions and continuations of Revolving Credit Loans hereunder and all
selections of Interest Periods hereunder shall be in such amounts and be made
pursuant to such elections so that, after giving effect thereto, the aggregate
principal amount of the Revolving Credit Loans comprising each Eurodollar
Borrowing shall be equal to $10,000,000 or a multiple of $1,000,000 in excess
thereof and so that there shall not be more than 20 Eurodollar Borrowings
outstanding at any one time.
2.8 Repayment of Loans; Evidence of Debt. The Borrower hereby
unconditionally promises to pay to each Lender (i) on the Termination Date (or
such earlier date as the Loans become due and payable pursuant to Section 7 or
subsection 2.5), the unpaid principal amount of each Loan made by such Lender;
provided, that, at the Borrower's option up to $1,500,000,000 of any Loans
outstanding on the Termination Date shall be due and payable in full on the date
which is one year following the Termination Date (or such earlier date as the
Loans become due and payable pursuant to Section 7 or subsection 2.5) and (ii)
on the last day of the applicable Interest Period, the unpaid principal amount
of each Competitive Loan made by such Lender. The Borrower hereby further agrees
to pay interest in immediately available funds at the office of the
Administrative Agent on the unpaid principal amount of such Loans from time to
time from the date hereof until payment in full thereof at the rates per annum,
and on the dates, set forth in subsection 2.9.
(b) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Borrower to the
appropriate lending office of such Lender resulting from each Loan made by such
lending office of such Lender from time to time, including the amounts of
principal and interest payable and paid to such lending office of such Lender
from time to time under this Agreement.
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(c) The Administrative Agent shall maintain the Register pursuant to
subsection 9.6(d), and a subaccount for each Lender, in which Register and
subaccounts (taken together) shall be recorded (i) the amount of each Loan made
hereunder, the Type of each Loan made 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 from the
Borrower and each Lender's share thereof.
(d) The entries made in the Register and accounts maintained pursuant
to paragraphs (b) and (c) of this subsection 2.8 shall, to the extent permitted
by applicable law, be prima facie evidence of the existence and amounts of the
obligations of the Borrower therein recorded; provided, however, that the
failure of any Lender or the Administrative Agent to maintain such account, such
Register or such subaccount, as applicable, or any error therein, shall not in
any manner affect the obligation of the Borrower to repay (with applicable
interest) the Loans made to the Borrower by such Lender in accordance with the
terms of this Agreement.
2.9 Interest Rates and Payment Dates. (a) Each ABR Loan shall bear
interest at a rate per annum equal to the ABR.
(b) The Loans comprising each Eurodollar Borrowing shall bear interest
at a rate per annum equal to (i) in the case of each Eurodollar Revolving Credit
Loan, the Eurodollar Rate for the Interest Period in effect for such Borrowing
plus the Applicable Margin and (ii) in the case of each Eurodollar Competitive
Loan, the Eurodollar Rate for the Interest Period in effect for such Borrowing
plus (or minus, as the case may be) the Margin offered by the Lender making such
Loan and accepted by the Borrower pursuant to subsection 2.3.
(c) Each Fixed Rate Loan shall bear interest at a rate per annum equal
to the fixed rate of interest offered by the Lender making such Loan and
accepted by the Borrower pursuant to subsection 2.3.
(d) Subject to the provisions of the following sentence, interest shall
be payable in arrears on each Interest Payment Date; provided that interest
accruing pursuant to paragraph (f) of this subsection 2.9 shall be payable from
time to time on demand. The amount of interest on Revolving Credit Loans to be
paid on any Interest Payment Date shall be the amount which would be due and
payable if the Utilization for the period for which such interest is paid was
less than 33%. On the first Business Day following the last day of each fiscal
quarter of the Borrower and on the Termination Date (or, if earlier, on the date
upon which both the Commitments are terminated and the Loans are paid in full),
the Borrower shall pay to the Administrative Agent, for the ratable benefit of
the Lenders, an additional amount of interest equal to the difference (if any)
between (i) the amount of interest which would have been payable during such
fiscal quarter (or, in the case of the payment due on the Termination Date, the
portion thereof ending on such date) after giving effect to the actual
Utilization during such period and (ii) the amount of interest which actually
was paid during such period.
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(e) The "Applicable Margin" with respect to each Revolving Credit Loan
at any date shall be the applicable percentage amount set forth in the table
below based upon the Type of such Loan and the Utilization and Status on such
date:
Level I Level II Level III Level IV Level V
Status Status Status Status Status
If Utilization is less
than 33%:
Eurodollar Loans 0.2750% 0.3750% 0.5000% 0.8750% 1.1250%
ABR Loans 0% 0% 0% 0% 0%
If Utilization is equal
to or greater than 33%:
Eurodollar Loans 0.4000% 0.5000% 0.6250% 0.8750% 1.1250%
ABR Loans 0% 0% 0% 0% 0%
(f) If all or a portion of (i) the principal amount of any Loan, (ii)
any interest payable thereon or (iii) any facility fee or other amount payable
hereunder shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise), such overdue amount shall bear interest at a rate
per annum which is (x) in the case of overdue principal, the rate that would
otherwise be applicable thereto pursuant to the foregoing provisions of this
subsection 2.9 plus 2% or (y) in the case of overdue interest, facility fee or
other amount, the rate described in paragraph (a) of this subsection 2.9 plus
2%, in each case from the date of such non-payment until such amount is paid in
full (as well after as before judgment). For purposes of this Agreement,
principal shall be "overdue" only if not paid in accordance with the provisions
of subsection 2.8.
2.10 Facility Fee. The Borrower shall pay to the Administrative Agent,
for the ratable account of the Lenders, a facility fee at the rate per annum
equal to 0.1250% of the aggregate Commitments. On the first Business Day
following the last day of each fiscal quarter of the Borrower and on the
Termination Date (or, if earlier, on the date upon which both the Commitments
are terminated and the Loans are paid in full), the Borrower shall pay to the
Administrative Agent, for the ratable benefit of the Lenders, the portion of
such facility fee which accrued during the fiscal quarter most recently ended
(or, in the case of the payment due on the Termination Date, the portion thereof
ending on such date). Such facility fee shall be based upon the aggregate
Commitments of the Lenders from time to time, regardless of the Utilization from
time to time thereunder.
2.11 Computation of Interest and Fees. Interest on all Loans shall be
computed on the basis of the actual number of days elapsed over a year of 360
days or, on any date when the ABR is determined by reference to the Prime Rate,
a year of 365 or 366 days as appropriate (in each case including the first day
but excluding the last day). Each determination of an interest rate by the
Administrative Agent pursuant to any provision of this Agreement shall be
conclusive and binding on the Borrower and the Lenders in the absence of
manifest error. All fees shall be computed on the basis of a year composed of
twelve 30-day months. At any time
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and from time to time upon request of the Borrower, the Administrative Agent
shall deliver to the Borrower a statement showing the quotations used by the
Administrative Agent in determining any interest rate applicable to Revolving
Credit Loans pursuant to this Agreement. Each change in the Applicable Margin
applicable to Loans or the Facility Fee as a result of a change in the
Borrower's Status shall become effective on the date upon which such change in
Status occurs.
(b) If any Reference Lender shall for any reason no longer have a
Commitment, such Reference Lender shall thereupon cease to be a Reference
Lender, and if, as a result thereof, there shall only be one Reference Lender
remaining, the Borrower and the Administrative Agent (after consultation with
the Lenders) shall, by notice to the Lenders, designate another Lender as a
Reference Lender so that there shall at all times be at least two Reference
Lenders.
(c) Each Reference Lender shall use its best efforts to furnish
quotations of rates to the Administrative Agent as contemplated hereby. If any
of the Reference Lenders shall be unable or shall otherwise fail to supply such
rates to the Administrative Agent upon its request, the rate of interest shall,
subject to the provisions of subsection 2.12, be determined on the basis of the
quotations of the remaining Reference Lenders.
2.12 Inability to Determine Interest Rate. If the Eurodollar Rate
cannot be determined by the Administrative Agent in the manner specified in the
definition of the term "Eurodollar Rate" contained in subsection 1.1 of this
Agreement, the Administrative Agent shall give telecopy or telephonic notice
thereof to the Borrower and the Lenders as soon as practicable thereafter. Until
such time as the Eurodollar Rate can be determined by the Administrative Agent
in the manner specified in the definition of such term contained in said
subsection 1.1, no further Eurodollar Loans shall be continued as such at the
end of the then current Interest Period or (other than any Eurodollar Loans
previously requested and with respect to which the Eurodollar Rate previously
was determined) shall be made, nor shall the Borrower have the right to convert
ABR Loans to Eurodollar Loans.
2.13 Pro Rata Treatment and Payments.(a) Each borrowing of Revolving
Credit Loans from the Lenders hereunder, each payment by the Borrower on account
of any facility fee hereunder and (except as provided in subsection 2.18(c)) any
reduction of the Commitments of the Lenders shall be made pro rata according to
the respective Commitment Percentages of the Lenders. Each payment (including
each prepayment) by the Borrower on account of principal of and interest on the
Revolving Credit Loans shall be made pro rata according to the respective
outstanding principal amounts of the Revolving Credit Loans then held by the
Lenders. Each payment by the Borrower on account of principal of and interest on
any Borrowing of Competitive Loans shall be made pro rata among the Lenders
participating in such Borrowing according to the respective principal amounts of
their outstanding Competitive Loans comprising such Borrowing.
(b) All payments (including prepayments) to be made by the Borrower
hereunder, whether on account of principal, interest, fees or otherwise, shall
be made without set-off or counterclaim and shall be made prior to 12:00 Noon,
New York City time, on the due date
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thereof to the Administrative Agent, for the account of the relevant Lenders, at
the Agent's office specified in subsection 9.2, in Dollars and in immediately
available funds. Notwithstanding the foregoing, the failure by the Borrower to
make a payment (or prepayment) prior to 12:00 Noon on the due date thereof shall
not constitute a Default or Event of Default if such payment is made on such due
date; provided, however, that any payment (or prepayment) made after such time
on such due date shall be deemed made on the next Business Day for the purposes
of interest and reimbursement calculations. The Administrative Agent shall
distribute such payments to the relevant Lenders promptly upon receipt in like
funds as received. If any payment hereunder (other than payments on the
Eurodollar Loans) becomes due and payable on a day other than a Business Day,
such payment shall be extended to the next succeeding Business Day, and, with
respect to payments of principal, interest thereon shall be payable at the then
applicable rate during such extension. If any payment on a Eurodollar Loan
becomes due and payable on a day other than a Business Day, the maturity thereof
shall be extended to the next succeeding Business Day unless the result of such
extension would be to extend such payment into another calendar month, in which
event such payment shall be made on the immediately preceding Business Day.
(c) Unless the Administrative Agent shall have been notified in writing
by any Lender prior to the deadline for funding a Borrowing that such Lender
will not make the amount that would constitute its Commitment Percentage of such
Borrowing available to the Administrative Agent, the Administrative Agent may
assume that such Lender is making such amount available to the Administrative
Agent, and the Administrative Agent may, in reliance upon such assumption, make
available to the Borrower a corresponding amount. If such amount is not made
available to the Administrative Agent by the required time on the borrowing date
therefor, such Lender shall pay to the Administrative Agent, on demand, such
amount with interest thereon at a rate equal to the daily average Federal Funds
Effective Rate for the period until such Lender makes such amount immediately
available to the Administrative Agent. A certificate of the Administrative Agent
submitted to any Lender with respect to any amounts owing under this subsection
2.13 shall be conclusive in the absence of manifest error. If such Lender's
Commitment Percentage of such Borrowing is not made available to the
Administrative Agent by such Lender within three Business Days of such borrowing
date, the Administrative Agent shall be entitled to recover such amount with
interest thereon at the Federal Funds Effective Rate, on demand, from the
Borrower.
2.14 Illegality. Notwithstanding any other provision herein, if the
adoption of or any change in any Requirement of Law or in the interpretation or
application thereof shall make it unlawful for any Lender to make or maintain
Eurodollar Loans as contemplated by this Agreement, such Lender shall give
notice thereof to the Administrative Agent and the Borrower describing the
relevant provisions of such Requirement of Law (and, if the Borrower shall so
request, provide the Borrower with a memorandum or opinion of counsel of
recognized standing (as selected by such Lender) as to such illegality),
following which (a) the commitment of such Lender hereunder to make Eurodollar
Loans, continue Eurodollar Loans as such and convert ABR Loans to Eurodollar
Loans shall forthwith be canceled and (b) such Lender's Loans then outstanding
as Eurodollar Loans (including, without limitation, such Lender's Eurodollar
Competitive Loans in the case of clause (ii) below), if any, shall be converted
automatically to ABR Loans (i) on the respective last days of the then current
Interest Periods with respect to such
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Loans or (ii) within such earlier period as required by law. If any such
conversion of a Eurodollar Loan occurs on a day which is not the last day of the
then current Interest Period with respect thereto, the Borrower shall pay to
such Lender such amounts, if any, as may be required pursuant to subsection
2.17.
2.15 Increased Costs. (a) If (i) there shall be any increase in the
cost to any Lender of agreeing to make or making, funding or maintaining any
Loans or (ii) any reduction in any amount receivable in respect thereof, and
such increased cost or reduced amount receivable is due to either:
(x) the introduction of or any change in or in the interpretation of
any law or regulation after the date hereof; or
(y) the compliance with any guideline or request made after the date
hereof from any central bank or other Governmental Authority (whether or not
having the force of law),
then (subject to the provisions of subsection 2.18) the Borrower shall from time
to time, upon demand by such Lender pay such Lender additional amounts
sufficient to compensate such Lender for such increased cost or reduced amount
receivable.
(b) If any Lender shall have reasonably determined that (i) the
applicability of any law, rule, regulation or guideline adopted after the date
hereof pursuant to or arising out of the July 1988 paper of the Basle Committee
on Banking Regulations and Supervisory Practices entitled "International
Convergence of Capital Measurement and Capital Standards," or (ii) the adoption
after the date hereof of any other law, rule, regulation or guideline regarding
capital adequacy affecting such Lender, or (iii) any change arising after the
date hereof in the foregoing or in the interpretation or administration of any
of the foregoing by any Governmental Authority, central bank or comparable
agency charged with the interpretation or administration thereof, or (iv)
compliance by such Lender (or any lending office of such Lender), or any holding
company for such Lender which is subject to any of the capital requirements
described above, with any request or directive of general application issued
after the date hereof regarding capital adequacy (whether or not having the
force of law) of any such authority, central bank or comparable agency, has or
would have the effect of reducing the rate of return on such Lender's capital or
on the capital of any such holding company as a direct consequence of such
Lender's obligations hereunder to a level below that which such Lender or any
such holding company could have achieved but for such adoption, change or
compliance (taking into consideration such Lender's policies and the policies of
such holding company with respect to capital adequacy) by an amount deemed by
such Lender to be material, then (subject to the provisions of subsection 2.17)
from time to time such Lender may request the Borrower to pay to such Lender
such additional amounts as will compensate such Lender or any such holding
company for any such reduction suffered, net of the savings (if any) which may
be reasonably projected to be associated with such increased capital
requirement. Any certificate as to such amounts which is delivered pursuant to
subsection 2.18(a) shall, in addition to any items required by subsection
2.18(a), include the calculation of the savings (if any) which may be reasonably
projected to be associated with such
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increased capital requirement; provided that in no event shall any Lender be
obligated to pay or refund any amounts to the Borrower on account of such
savings.
(c) In the event that any Governmental Authority shall impose any
Eurocurrency Reserve Requirements which increase the cost to any Lender of
making or maintaining Eurodollar Loans, then (subject to the provisions of
subsection 2.18) the Borrower shall thereafter pay in respect of the Eurodollar
Loans of such Lender a rate of interest based upon the Eurodollar Reserve Rate
(rather than upon the Eurodollar Rate). From and after the delivery to the
Borrower of the certificate required by subsection 2.18(a), all references
contained in this Agreement to the Eurodollar Rate shall be deemed to be
references to the Eurodollar Reserve Rate with respect to each such affected
Lender.
2.16 Taxes. (a) All payments made by the Borrower under this Agreement
shall be made free and clear of, and without deduction or withholding for or on
account of, any present or future income, stamp or other taxes, levies, imposts,
duties, charges, fees, deductions or withholdings, now or hereafter imposed,
levied, collected, withheld or assessed by any Governmental Authority, excluding
net income taxes and franchise taxes or any other tax based upon net income
imposed on the Administrative Agent or any Lender as a result of a present or
former connection between the Administrative Agent or such Lender and the
jurisdiction of the Governmental Authority imposing such tax or any political
subdivision or taxing authority thereof or therein (other than any such
connection arising solely from the Administrative Agent or such Lender having
executed, delivered or performed its obligations or received a payment under, or
enforced, this Agreement). If any such non-excluded taxes, levies, imposts,
duties, charges, fees deductions or withholdings ("Non-Excluded Taxes") are
required to be withheld from any amounts payable to the Administrative Agent or
any Lender hereunder, the amounts so payable to the Administrative Agent or such
Lender shall be increased to the extent necessary to yield to the Administrative
Agent or such Lender (after payment of all Non-Excluded Taxes) interest or any
such other amounts payable hereunder at the rates or in the amounts specified in
or pursuant to this Agreement; provided, however, that the Borrower shall not be
required to increase any such amounts payable to any Lender that is not
organized under the laws of the United States of America or a state thereof if
such Lender fails to comply with the requirements of paragraph (b) of this
subsection 2.16. Whenever any Non-Excluded Taxes are payable by the Borrower, as
promptly as possible thereafter the Borrower shall send to the Administrative
Agent for its own account or for the account of such Lender, as the case may be,
a certified copy of an original official receipt received by the Borrower
showing payment thereof. If the Borrower fails to pay any Non-Excluded Taxes
when due to the appropriate taxing authority or fails to remit to the
Administrative Agent the required receipts or other required documentary
evidence, the Borrower shall indemnify the Administrative Agent and the Lenders
for any incremental taxes, interest or penalties that may become payable by the
Administrative Agent or any Lender as a result of any such failure. The
agreements in this subsection 2.16 shall survive the termination of this
Agreement and the payment of all other amounts payable hereunder.
(b) Each Lender that is not incorporated under the laws of the United
States of America or a state thereof shall:
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(i) deliver to the Borrower and the Administrative Agent (A) two
duly completed copies of United States Internal Revenue Service Form
1001 or 4224, or successor applicable form, as the case may be, and (B)
an Internal Revenue Service Form W-8 or W-9, or successor applicable
form, as the case may be;
(ii) deliver to the Borrower and the Administrative Agent two
further copies of any such form or certification on or before the date
that any such form or certification expires or becomes obsolete and
after the occurrence of any event requiring a change in the most recent
form previously delivered by it to the Borrower; and
(iii) obtain such extensions of time for filing and completing
such forms or certifications as may reasonably be requested by the
Borrower or the Administrative Agent;
unless in any such case an event (including, without limitation, any change in
treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms inapplicable
or which would prevent such Lender from duly completing and delivering any such
form with respect to it and such Lender so advises the Borrower and the
Administrative Agent. Such Lender shall certify (i) in the case of a Form 1001
or 4224, that it is entitled to receive payments under this Agreement without
deduction or withholding of any United States federal income taxes and (ii) in
the case of a Form W-8 or W-9, that it is entitled to an exemption from United
States backup withholding tax. Each Person not incorporated under the laws of
the United States of America or a state thereof that is an Assignee hereunder
pursuant to subsection 9.6 shall, upon the effectiveness of the related
transfer, be required to provide all of the forms and statements required
pursuant to this subsection 2.16.
2.17 Indemnity. Subject to the provisions of subsection 2.18(a), the
Borrower agrees to indemnify each Lender and to hold each Lender harmless from
any loss or reasonable expense which such Lender may sustain or incur as a
consequence of (a) default by the Borrower in making a borrowing of, conversion
into or continuation of any Loan hereunder after the Borrower has given a notice
requesting the same in accordance with the provisions of this Agreement, (b)
default by the Borrower in making any prepayment after the Borrower has given a
notice thereof in accordance with the provisions of this Agreement or (c) the
making of a prepayment of Eurodollar Loans or Fixed Rate Loans on a day which is
not the last day of an Interest Period with respect thereto. Such
indemnification shall be in an amount equal to the excess, if any, of (i) the
amount of interest which would have accrued on the amount so prepaid, or not so
borrowed, converted or continued, for the period from the date of such
prepayment or of such failure to borrow, convert or continue to the last day of
such Interest Period (or, in the case of a failure to borrow, convert or
continue, the Interest Period that would have commenced on the date of such
failure) in each case at the applicable rate of interest for such Loans provided
for herein (excluding the Applicable Margin included therein) over (ii) the
amount of interest (as determined by such Lender) which would have accrued to
such Lender on such amount by placing such amount on deposit for a comparable
period with leading banks in the interbank eurodollar market. This covenant
shall survive the termination of this Agreement and the payment of all other
amounts payable hereunder.
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2.18 Notice of Amounts Payable; Relocation of Lending Office; Mandatory
Assignment. In the event that any Lender becomes aware that any amounts are or
will be owed to it pursuant to subsection 2.14, 2.15, 2.16(a) or 2.17, then it
shall promptly notify the Borrower thereof and, as soon as possible thereafter,
such Lender shall submit to the Borrower a certificate indicating the amount
owing to it and the calculation thereof. The amounts set forth in such
certificate shall be prima facie evidence of the obligations of the Borrower
hereunder; provided, however, that the failure of the Borrower to pay any amount
owing to any Lender pursuant to subsection 2.14, 2.15, 2.16(a) or 2.17 shall not
be deemed to constitute a Default or an Event of Default hereunder to the extent
that the Borrower is contesting in good faith its obligation to pay such amount
by ongoing discussions diligently pursued with such Lender or by appropriate
proceedings.
(b) If a Lender claims any additional amounts payable pursuant to
subsection 2.14, 2.15 or 2.16(a), it shall use its reasonable efforts
(consistent with legal and regulatory restrictions) to avoid the need for paying
such additional amounts, including changing the jurisdiction of its applicable
lending office, provided that the taking of any such action would not, in the
reasonable judgment of the Lender, be disadvantageous to such Lender.
(c) In the event that any Lender delivers to the Borrower a certificate
in accordance with subsection 2.18(a) (other than a certificate as to amounts
payable pursuant to subsection 2.17), or the Borrower is required to pay any
additional amounts or other payments in accordance with subsection 2.14, 2.15 or
2.16(a), the Borrower may, at its own expense and in its sole discretion, (i)
require such Lender to transfer or assign, in whole or in part, without recourse
(in accordance with subsection 9.6), all or part of its interests, rights and
obligations under this Agreement (other than any outstanding Competitive Loans)
to another Person (provided that the Borrower, with the full cooperation of such
Lender, can identify a Person who is ready, willing and able to be an Assignee
with respect to thereto) which shall assume such assigned obligations (which
Assignee may be another Lender, if such Assignee Lender accepts such assignment)
or (ii) during such time as no Default or Event of Default has occurred and is
continuing, terminate the Commitment of such Lender and prepay all outstanding
Loans (other than Competitive Loans) of such Lender; provided that (x) the
Borrower or the Assignee, as the case may be, shall have paid to such Lender in
immediately available funds the principal of and interest accrued to the date of
such payment on the Loans (other than Competitive Loans) made by it hereunder
and (subject to subsection 2.17) all other amounts owed to it hereunder and (y)
such assignment or termination of the Commitment of such Lender and prepayment
of Loans does not conflict with any law, rule or regulation or order of any
court or Governmental Authority.
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SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter into this
Agreement and to make the Loans, the Borrower hereby represents and warrants to
the Administrative Agent and each Lender that:
3.1 Financial Condition. (a) The Borrower has heretofore furnished to
each Lender the unaudited pro forma consolidated balance sheet of the Borrower
and its consolidated Subsidiaries as at January 1, 1999 (including the notes
thereto) (the "Pro Forma Balance Sheet"). The Pro Forma Balance Sheet has been
prepared giving effect (as if such events had occurred on such date) to (i) the
consummation of the transactions expected to occur on the Closing Date, (ii) the
Loans to be made on the Closing Date and the use of proceeds thereof and (iii)
the payment of fees and expenses in connection with the foregoing. The Pro Forma
Balance Sheet has been prepared based on the best information available to the
Borrower as of the date of delivery thereof, and presents fairly on a pro forma
basis the estimated financial position of Borrower and its consolidated
Subsidiaries as at January 1, 1999, assuming that the events specified in the
preceding sentence had actually occurred at such date. The Pro Forma Balance
Sheet reflects cash and cash equivalents of at least $750,000,000 and is
substantially in the form previously provided to the Administrative Agent.
(b) The Borrower has heretofore furnished to each Lender a copy of the
audited combined financial statements of the segments and Subsidiaries of GM
constituting the Delphi Automotive Systems business of GM for the fiscal years
of GM ended December 31, 1996 and December 31, 1997 and unaudited interim
combined financial statements of the segments and Subsidiaries of GM
constituting the Delphi Automotive Systems business of GM for each quarterly
period ended subsequent to December 31, 1997 and on or prior to September 30,
1998. Such financial statements present fairly the financial condition and
results of operations of the segments and Subsidiaries of GM constituting the
Delphi Automotive Systems business of GM as of, and for the fiscal years and
fiscal quarters ended on, such dates in accordance with GAAP (subject, in the
case of such quarterly statements, to normal year-end audit adjustments). Other
than as disclosed in the Borrower's S-1 dated November 16, 1998, between
December 31, 1997 and the Closing Date, there has been no development or event
which has had a Material Adverse Effect.
3.2 Corporate Existence; Compliance with Law. The Borrower (a) is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (b) has the corporate power and authority, and
the legal right, to own and operate its property, to lease the property it
operates as lessee and to conduct the business in which it is currently engaged,
(c) is duly qualified as a foreign corporation and in good standing under the
laws of each jurisdiction where its ownership, lease or operation of property or
the conduct of its business requires such qualification, except to the extent
that all failures to be duly qualified and in good standing could not, in the
aggregate, have a Material Adverse Effect and (d) is in compliance with all
Requirements of Law except to the extent that the failure to comply therewith
could not, in the aggregate, reasonably be expected to have a Material Adverse
Effect.
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3.3 Corporate Power; Authorization; Enforceable Obligations. The
Borrower has the corporate power and authority, and the legal right, to make,
deliver and perform this Agreement and to borrow hereunder and has taken all
necessary corporate action to authorize the borrowings on the terms and
conditions of this Agreement and to authorize the execution, delivery and
performance of this Agreement. No consent or authorization of any Governmental
Authority or any other Person is required in connection with the borrowings
hereunder or with the execution, delivery, performance, validity or
enforceability of this Agreement. This Agreement has been duly executed and
delivered on behalf of the Borrower. This Agreement constitutes a legal, valid
and binding obligation of the Borrower enforceable against the Borrower in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general equitable principles
(whether enforcement is sought by proceedings in equity or at law).
3.4 No Legal Bar; No Default. The execution, delivery and performance
of this Agreement, the Applications, the borrowings hereunder and the use of the
proceeds thereof will not violate any Requirement of Law or Contractual
Obligation of the Borrower and will not result in, or require, the creation or
imposition of any Lien on any of its properties or revenues pursuant to any such
Requirement of Law or Contractual Obligation, except to the extent that all such
violations and creation or imposition of Liens could not, in the aggregate, have
a Material Adverse Effect. No Default or Event of Default has occurred and is
continuing.
3.5 No Material Litigation. No litigation, investigation or proceeding
of or before any arbitrator or Governmental Authority is pending or, to the
knowledge of the Borrower, threatened by or against the Borrower or any of its
Subsidiaries or against any of its or their respective properties or revenues as
of the Closing Date (a) with respect to this Agreement or any of the actions
contemplated hereby, or (b) which involves a probable risk of an adverse
decision which would materially restrict the ability of the Borrower to comply
with its obligations under this Agreement.
3.6 Federal Regulations. No part of the proceeds of any Loans will be
used for "buying," "purchasing" or "carrying" any "margin stock" within the
respective meanings of each of the quoted terms under Regulation U of the Board
of Governors of the Federal Reserve System as now and from time to time
hereafter in effect or for any purpose which violates the provisions of the
Regulations of such Board of Governors.
3.7 Investment Company Act. The Borrower is not an "investment
company", or a company "controlled" by an "investment company", within the
meaning of the Investment Company Act of 1940, as amended.
3.8 ERISA. The Borrower is in compliance with all material provisions
of ERISA, except to the extent that all failures to be in compliance could not,
in the aggregate, reasonably be expected to have a Material Adverse Effect.
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3.9 No Material Misstatements. No report, financial statement or
other written information furnished by or on behalf of such Borrower to the
Administrative Agent or any Lender pursuant to subsection 3.1 or subsection
5.1(a) contains or will contain any material misstatement of fact or omits or
will omit to state any material fact necessary to make the statements therein,
in light of the circumstances under which they were, are or will be made, not
misleading, except to the extent that the facts (whether misstated or omitted)
do not result in a Material Adverse Effect. No report, financial statement or
other written information furnished by or on behalf of the Borrower for
inclusion in the Confidential Information Memorandum contained as of the Closing
Date any material misstatement of fact or omitted to state any material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. The projections and pro forma financial
information contained in the Confidential Information Memorandum are based upon
good faith estimates and assumptions believed by management of the Borrower to
be reasonable at the time made, it being recognized by the Lenders that such
financial information as it relates to future events is not to be viewed as fact
and that actual results during the period or periods covered by such financial
information may differ from the projected results set forth therein by a
material amount.
3.10 Environmental Matters. Except with respect to any matters that,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect, neither the Borrower nor any of its Subsidiaries (i)
has failed to comply with any Environmental Law or to obtain, maintain or comply
with any permit, license or other approval required under any Environmental Law,
(ii) has become subject to any Environmental Liability, (iii) has received
notice of any claim with respect to any Environmental Liability or (iv) knows of
any basis for any Environmental Liability.
3.11 Subsidiaries. The Subsidiaries listed on Schedule 3.11 constitute
all the Subsidiaries of the Borrower on the date hereof which are "significant
subsidiaries" within the meaning of Regulation S-X of the U.S. Securities and
Exchange Commission (other than as set forth in such schedule).
3.12 Year 2000 Matters. The Borrower uses software and related
computer technologies essential to its operations that use two digits rather
than four to specify the year, which could result in a date recognition problem
with the transition to the year 2000. The Borrower has established a plan to
identify and remediate potential Year 2000 problems in its material business
information systems, infrastructure and production and manufacturing facilities.
The Borrower has substantially completed an inventory of potentially
date-sensitive material systems to determine which systems require remediation
and developed remediation plans where necessary. The Borrower has also begun
surveying its suppliers and service providers for Year 2000 compliance. The
Borrower is currently in the remediation and testing phase of its Year 2000
plan. The implementation of new enterprise software as part of its Year 2000
remediation program is not scheduled to be completed until July 1999 at one of
its principal product group sites. The Borrower does not anticipate that a
Material Adverse Effect will occur as a result of the Year 2000 issue.
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3.13 Purpose of Loans. The proceeds of the Loans shall be used by the
Borrower for its general corporate purposes including transactions with its
Subsidiaries.
SECTION 4. CONDITIONS PRECEDENT
4.1 Conditions to Initial Loans. The agreement of each Lender to make
the initial Loan to be made by it is subject to the satisfaction, prior to or
concurrently with the making of such Loan, of the following conditions
precedent:
(a) Credit Agreement. The Administrative Agent shall have received this
Agreement, executed and delivered (including, without limitation, by way of
a telecopied signature page) by a duly authorized officer of the Borrower
and each Lender.
(b) Secretary's Certificate. The Administrative Agent shall have
received a certificate of the Secretary or Assistant Secretary of the
Borrower, in form and substance satisfactory to the Administrative Agent,
which certificate shall (i) certify as to the incumbency and signature of
the officers of the Borrower executing this Agreement (with the President or
a Vice President of the Borrower attesting to the incumbency and signature
of the Secretary or Assistant Secretary providing such certificate), (ii)
have attached to it a true, complete and correct copy of each of the
certificate of incorporation and by-laws of the Borrower, (iii) have
attached to it a true and correct copy of the resolutions of the Board of
Directors of the Borrower or a duly authorized committee thereof, which
resolutions shall authorize the execution, delivery and performance of this
Agreement and the borrowings by the Borrower hereunder and (iv) certify
that, as of the date of such certificate (which shall not be earlier than
the date hereof), none of such certificate of incorporation, by-laws or
board resolutions shall have been amended, supplemented, modified, revoked
or rescinded.
(c) Fees. The Administrative Agent shall have received, for the benefit
of the Lenders, the fees payable to the Lenders on the Closing Date pursuant
to their respective commitment letters to the Borrower in respect of this
Agreement.
(d) Legal Opinions. The Administrative Agent shall have received, (i)
the executed legal opinion of Drinker Xxxxxx & Xxxxx LLP, counsel to the
Borrower, substantially in the form of Exhibit F-1 and (ii) the executed
legal opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel to the Administrative
Agent, substantially in the form of Exhibit F-2. The Borrower hereby
instructs the counsel referenced in clause (i) to deliver its opinion for
the benefit of the Administrative Agent and each of the Lenders.
(e) Agreements. The Administrative Agent shall have received copies of
(i) the agreements between the Borrower and GM identified on Schedule
4.1(e), and all amendments thereto, providing for the separation of the
Borrower's business from GM, and (ii) all transition services agreements and
other agreements between the Borrower and GM identified on Schedule 4.1(e),
and all amendments thereto.
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(f) No Material Adverse Effect. Other than as disclosed in the
Borrower's S-1 dated November 16, 1998, since December 31, 1997, no
development or event shall have occurred that has had or could reasonably
be expected to have a Material Adverse Effect.
The Administrative Agent shall notify the Borrower and each Lender promptly
after the satisfaction of the foregoing conditions.
4.2 Conditions to Each Loan. The agreement of each Lender to make any
Loan requested to be made by it on any date (including, without limitation, its
initial Loan and any Competitive Loan to be made by it) is subject to the
satisfaction of the following conditions:
(a) Notice of Borrowing. The Administrative Agent shall have received
a notice of borrowing, as required by subsection 2.2 or 2.3, as the case may
be.
(b) Representations and Warranties. Each of the representations and
warranties made by the Borrower in or pursuant to this Agreement shall be
true and correct in all material respects on and as of such date as if made
on and as of such date, except to the extent any such representation and
warranty specifically relates to an earlier date, in which case such
representation and warranty shall have been true and correct as of such
earlier date.
(c) No Default. No Default or Event of Default shall have occurred and
be continuing on such date or after giving effect to the Loans requested to
be made on such date.
Each borrowing by the Borrower hereunder shall constitute a representation and
warranty by the Borrower as of the date of such Loan that the conditions
contained in this subsection 4.2 have been satisfied.
SECTION 5. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments remain in
effect, or any amount is owing to any Lender or the Administrative Agent
hereunder, the Borrower shall:
5.1 Financial Statements. Furnish to each Lender:
(a) as soon as available, but in any event within 110 days after the
end of each fiscal year of the Borrower, a copy of the consolidated balance
sheet of the Borrower and its consolidated Subsidiaries as at the end of
such year and the related consolidated statements of income and retained
earnings and of cash flows for such year, setting forth in each case in
comparative form the figures for the previous year; and
(b) as soon as available, but in any event not later than 60 days after
the end of each of the first three quarterly periods of each fiscal year of
the Borrower, the unaudited
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consolidated balance sheet of the Borrower and its consolidated Subsidiaries
as at the end of such quarter and the related unaudited consolidated
statements of income and retained earnings and of cash flows of the Borrower
and its consolidated Subsidiaries for such quarter and the portion of the
fiscal year through the end of such quarter, setting forth in each case in
comparative form the figures for the previous year;
all such financial statements shall be complete and correct in all material
respects and shall be prepared in accordance with GAAP applied consistently
throughout the periods reflected therein and with prior periods (except as
approved by such accountants or officer, as the case may be, and disclosed
therein).
5.2 Certificates; Other Information. Furnish to:
(a) each Lender, concurrently with the delivery of the financial
statements referred to in subsection 5.1(a), a certificate of Deloitte &
Touche or other independent certified public accountants of nationally
recognized standing stating that, in making the examination necessary
therefor, nothing came to their attention that caused them to believe that
the Borrower was, as at the date at which such financial statements were
made, in breach of subsection 6.1;
(b) each Lender, concurrently with the delivery of the financial
statements referred to in subsections 5.1(a) and 5.1(b), a certificate of a
Financial Officer (i) stating that, to the best of such Officer's knowledge,
(A) such financial statements present fairly the financial condition and
results of operations of the Borrower and its Subsidiaries for the period
referred to therein (subject, in the case of interim statements, to normal
year-end audit adjustments) and (B) during such period the Borrower has
performed all of its covenants and other agreements contained in this
Agreement to be performed by it, and that no Default or Event of Default has
occurred, except as specified in such certificate, and (ii) setting forth in
reasonable detail the calculations required to establish whether the
Borrower was in compliance with the provisions of subsection 6.1 on the date
of such financial statements;
(c) each Lender, within 15 days after the same become public, copies of
all financial statements and reports which the Borrower may make to, or file
with, the Securities and Exchange Commission or any successor or analogous
Governmental Authority;
(d) the Administrative Agent, within ten Business Days after the
occurrence thereof, written notice of any change in Status; provided that
the failure to provide such notice shall not delay or otherwise affect any
change in the Applicable Margin or other amount payable hereunder which is
to occur upon a change in Status pursuant to the terms of this Agreement;
and
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(e) the Administrative Agent, promptly, such additional financial and
other information as the Administrative Agent, on behalf of any Lender, may
from time to time reasonably request and that is reasonably related to such
Lender's credit analysis of the Borrower and which request does not impose
an unreasonable burden on the Borrower to satisfy.
5.3 Notices. Promptly give notice to the Administrative Agent and each
Lender of (a) the occurrence of any Default or Event of Default, accompanied by
a statement of a Financial Officer setting forth details of the occurrence
referred to therein and stating what action the Borrower proposes to take with
respect thereto and (b) so long as the Borrower is not subject to the periodic
reporting requirements of the Securities Exchange Act of 1934, as amended, (i)
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
affiliate thereof that could reasonably be expected to result in a Material
Adverse Effect and (ii) any other development that results in, or could
reasonably be expected to result in, a Material Adverse Effect.
5.4 Conduct of Business and Maintenance of Existence. (a) Continue to
engage in its principal line of business as now conducted by it, (b) preserve,
renew and keep in full force and effect its corporate existence and (c) take all
reasonable action to maintain all rights, privileges and franchises necessary or
desirable in the normal conduct of its principal line of business, except, in
any such case, as otherwise permitted pursuant to subsection 6.5 or to the
extent that failure to do so would not have a Material Adverse Effect.
5.5 Books and Records. The Borrower will, and will cause each of its
Subsidiaries to, keep proper books of record and account in which full, true and
correct entries are made of all dealings and transactions in relation to its
business and activities.
5.6 Environmental Laws. Except as could not in the aggregate reasonably
be expected to result in a Material Adverse Effect:
(a) comply with all applicable Environmental Laws, and obtain and
comply with and maintain any and all permits, licenses or other approvals
required by applicable Environmental Laws; and
(b) conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply with all lawful orders and directives
of all Governmental Authorities regarding Environmental Laws.
SECTION 6. NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments remain in
effect or any amount is owing to any Lender or the Administrative Agent
hereunder:
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6.1 Consolidated Leverage Ratio. The Borrower shall not, directly or
indirectly, permit the Consolidated Leverage Ratio to exceed 3.25 to 1.0 at the
end of any fiscal quarter.
6.2 Indebtedness. The Borrower shall not, directly or indirectly,
permit any Subsidiary to, create, incur, assume or permit to exist any
Indebtedness or any guarantee of Indebtedness (other than Indebtedness of any
Subsidiary to the Borrower or to any other Subsidiary and other than Permitted
Receivables Financings), except Indebtedness and guarantees in an aggregate
principal amount at any one time outstanding, which when combined with (but
without duplication) (i) the aggregate outstanding principal amount of
obligations secured by a Lien upon any of the property or revenues of the
Borrower or any of its Subsidiaries at such time and (ii) the aggregate amount
of Sale-Leasebacks consummated since the Closing Date and which are outstanding
on the relevant date of determination (other than Sale-Leasebacks to the extent
the proceeds thereof are used to refinance any Sale-Leaseback which was in
existence on the date hereof), shall not exceed 15% of Consolidated Total Assets
as reflected in the most recent annual audited consolidated financial statements
of the Borrower delivered pursuant to subsection 5.1(a).
6.3 Liens. The Borrower shall not nor shall it permit any Subsidiary
to, directly or indirectly, create, incur, assume or suffer to exist any Lien
upon any of its property or revenues, whether now owned or hereafter acquired,
except Liens at any one time outstanding with respect to which the aggregate
outstanding principal amount of the obligations secured thereby, which when
combined with (but without duplication) (i) the aggregate principal amount of
Indebtedness and guarantees of Indebtedness of any Subsidiary outstanding at
such time (other than Indebtedness of any Subsidiary to the Borrower or to any
other Subsidiary and other than Permitted Receivables Financings) and (ii) the
aggregate amount of Sale-Leasebacks consummated since the Closing Date and which
are outstanding on the relevant date of determination (other than
Sale-Leasebacks to the extent the proceeds thereof are used to refinance any
Sale-Leaseback which was in existence on the date hereof), shall not exceed 15%
of Consolidated Total Assets as reflected in the most recent annual audited
consolidated financial statements of the Borrower delivered pursuant to
subsection 5.1(a).
6.4 Sale-Leasebacks. The Borrower shall not nor shall it permit any
Subsidiary to, directly or indirectly, enter into any arrangement with any
Person providing for the leasing by the Borrower or any Subsidiary of any
property owned by the Borrower or any Subsidiary (except for leases between the
Borrower and a Subsidiary or between Subsidiaries), which property has been or
is to be sold or transferred by the Borrower or such Subsidiary to such Person
("Sale-Leasebacks"), except for Sale-Leasebacks consummated since the Closing
Date and which are outstanding on the relevant date of determination (other than
Sale-Leasebacks to the extent the proceeds thereof are used to refinance any
Sale-Leaseback which was in existence on the date hereof) in an aggregate
amount, which when combined with (but without duplication) (i) the aggregate
outstanding principal amount of obligations secured by a Lien upon any of the
property or revenues of the Borrower or any of its Subsidiaries at the time of
entering into any such Sale-Leaseback and (ii) the aggregate principal amount of
Indebtedness and guarantees of Indebtedness of any Subsidiary outstanding at
such time (other than Indebtedness of any Subsidiary to the Borrower or to any
other Subsidiary and other than Permitted Receivables
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Financings), shall not exceed 15% of Consolidated Total Assets as reflected in
the most recent annual audited consolidated financial statements of the Borrower
delivered pursuant to subsection 5.1(a).
6.5 Merger, Consolidation, etc. The Borrower shall not, directly or
indirectly, merge or consolidate with any other Person, or liquidate, wind up or
dissolve itself (or suffer any liquidation or dissolution) or sell or convey all
or substantially all of its assets to any Person unless, in the case of mergers
and consolidations, (a) the Borrower shall be the continuing corporation and (b)
immediately before and immediately after giving effect to such merger or
consolidation, no Default or Event of Default shall have occurred and be
continuing.
SECTION 7. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Loan when due
in accordance with the terms hereof or fail to pay any interest on any Loan
or any other amount which is payable hereunder and (in the case of this
clause (ii) only) such failure shall continue unremedied for more than five
Business Days after written notice thereof has been given to the Borrower by
the Administrative Agent or the Majority Lenders; or
(b) Any representation or warranty made or deemed made by the
Borrower in Section 3 or any certified statement furnished pursuant to
subsection 5.2(b) shall prove to have been incorrect on or as of the date
made or deemed made or certified if the facts or circumstances incorrectly
represented or certified result in a Material Adverse Effect; or
(c) The Borrower shall default in the observance of the agreement
contained in subsection 5.3(a) or subsection 5.4(a) or (b) or Section 6; or
(d) The Borrower shall default in the observance or performance of any
other agreement contained in this Agreement (other than as provided in
paragraphs (a), (b) and (c) of this Section 7), and such default shall
continue unremedied for a period of 30 days after written notice thereof
shall have been given to the Borrower by the Administrative Agent or the
Majority Lenders; or
(e) The Borrower or any Significant Subsidiary shall default in any
payment of $10,000,000 or more of principal of or interest on any
Indebtedness or in the payment of $10,000,000 or more on account of any
guarantee in respect of Indebtedness, beyond the period of grace, if any,
provided in the instrument or agreement under which such Indebtedness or
guarantee was created; or
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(f) Any event or condition occurs that results in any
Indebtedness or any guarantee of Indebtedness of the Borrower or any of its
Significant Subsidiaries of an aggregate principal amount of $20,000,000 or more
becoming due in full or payable in full prior to the scheduled maturity of such
Indebtedness or guarantee or that requires the prepayment, repurchase,
redemption or defeasance thereof in full, prior to the scheduled maturity of
such Indebtedness or guarantee (other than pursuant to any voluntary
prepayments, customary due-on-sale clause or any provision requiring prepayment
of such Indebtedness based on excess cash flow, permitted asset sales or
permitted debt or equity issuances, in each case contained in the terms of such
Indebtedness); provided that this clause (f) shall not apply to secured
Indebtedness that becomes due as a result of the voluntary sale or transfer of
the property or assets securing such Indebtedness;
(g) (i) The Borrower or any of its Significant Subsidiaries shall
commence any case, proceeding or other action (A) under any existing or future
law of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to have an order for
relief entered with respect to it, or seeking to adjudicate it a bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with respect to it or its
debts, or (B) seeking appointment of a receiver, trustee, custodian, conservator
or other similar official for it or for all or any substantial part of its
assets, or the Borrower or any of its Significant Subsidiaries shall make a
general assignment for the benefit of its creditors; or (ii) there shall be
commenced against the Borrower or any of its Significant Subsidiaries any case,
proceeding or other action of a nature referred to in clause (i) above which (A)
results in the entry of an order for relief or any such adjudication or
appointment or (B) remains undismissed, undischarged or unbonded for a period of
90 days; or (iii) there shall be commenced against the Borrower or any of its
Significant Subsidiaries any case, proceeding or other action seeking issuance
of a warrant of attachment, execution, distraint or similar process against all
or any substantial part of its assets which results in the entry of an order for
any such relief which shall not have been vacated, discharged, or stayed or
bonded pending appeal within 90 days from the entry thereof; or
(h) One or more judgments or decrees shall (i) be entered against
the Borrower, (ii) not have been vacated, discharged, satisfied, stayed or
bonded pending appeal within 60 days from the entry thereof and (iii) involve a
liability (not paid or fully covered by insurance) of either (A) $20,000,000 or
more, in the case of any single judgment or decree or (B) $50,000,000 or more in
the aggregate, in the case of all such judgments and decrees; or
(i) The Borrower or any of its Significant Subsidiaries shall
default in the performance of any of its obligations under, or otherwise fail to
observe or perform any covenant, condition or agreement contained in, any of the
Material Agreements, to the extent the consequences of any such default or
failure could reasonably be expected to result in a Material Adverse Effect; or
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(j) A Change of Control shall occur;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (g) above with respect to the Borrower,
automatically the Commitments shall immediately terminate and the Loans
hereunder (with accrued interest thereon) and all other amounts owing under this
Agreement shall immediately become due and payable, and (B) if such event is any
other Event of Default, either or both of the following actions may be taken:
(i) with the consent of the Majority Lenders, the Administrative Agent may, or
upon the request of the Majority Lenders, the Administrative Agent shall, by
notice to the Borrower declare the Commitments to be terminated forthwith,
whereupon the Commitments shall immediately terminate; and (ii) with the consent
of the Majority Lenders, the Administrative Agent may, or upon the request of
the Majority Lenders, the Administrative Agent shall, by notice to the Borrower,
declare the Loans hereunder (with accrued interest thereon) and all other
amounts owing under this Agreement to be due and payable forthwith, whereupon
the same shall immediately become due and payable. Except as expressly provided
above in this Section 7, presentment, demand, protest and all other notices of
any kind are hereby expressly waived.
SECTION 8 THE ADMINISTRATIVE AGENT
8.1 Appointment. Each Lender hereby irrevocably designates and
appoints Chase as the Administrative Agent of such Lender under this Agreement,
and each such Lender irrevocably authorizes Chase, as the Administrative Agent
for such Lender, to take such action on its behalf under the provisions of this
Agreement and to exercise such powers and perform such duties as are expressly
delegated to the Administrative Agent by the terms of this Agreement, together
with such other powers as are reasonably incidental thereto. Notwithstanding any
provision to the contrary elsewhere in this Agreement, the Administrative Agent
shall not have any duties or responsibilities, except those expressly set forth
herein, or any fiduciary relationship with any Lender, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or otherwise exist against the Administrative Agent.
8.2 Delegation of Duties. The Administrative Agent may execute any of
its duties under this Agreement by or through agents or attorneys-in-fact and
shall be entitled to advice of counsel concerning all matters pertaining to such
duties. The Administrative Agent shall not be responsible for the negligence or
misconduct of any agents or attorneys in-fact selected by it with reasonable
care.
8.3 Exculpatory Provisions. Neither the Administrative Agent nor any
of its officers, directors, employees or affiliates shall be (i) liable for any
action lawfully taken or omitted to be taken by it or such Person under or in
connection with this Agreement (except for its or such Person's own gross
negligence or willful misconduct) or (ii) responsible in any manner to any of
the Lenders for any recitals, statements, representations or warranties made by
the Borrower or any officer thereof contained in this Agreement or in any
certificate, report, statement or other document referred to or provided for in,
or received by the Administrative
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Agent under or in connection with, this Agreement or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
for any failure of the Borrower to perform its obligations hereunder. The
Administrative Agent shall not be under any obligation to any Lender to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement, or to inspect the
properties, books or records of the Borrower.
8.4 Reliance by Administrative Agent. The Administrative Agent shall be
entitled to rely, and shall be fully protected in relying, upon any writing,
resolution, notice, consent, certificate, affidavit, letter, telecopy, telex or
teletype message, statement, order or other document or conversation believed by
it in good faith to be genuine and correct and to have been signed, sent or made
by the proper Person or Persons and upon advice and statements of legal counsel
(including, without limitation, counsel to the Borrower), independent
accountants and other experts selected by the Administrative Agent. The
Administrative Agent may deem and treat the Lender specified in the Register
with respect to any amount owing hereunder as the owner thereof for all purposes
unless a written notice of assignment, negotiation or transfer thereof shall
have been filed with the Administrative Agent. The Administrative Agent shall be
fully justified in failing or refusing to take any action under this Agreement
unless it shall first receive such advice or concurrence of the Majority Lenders
as it deems appropriate or it shall first be indemnified to its satisfaction by
the Lenders against any and all liability and expense which may be incurred by
it by reason of taking or continuing to take any such action. The Administrative
Agent shall in all cases be fully protected in acting, or in refraining from
acting, under this Agreement in accordance with a request of the Majority
Lenders (or, to the extent that this Agreement expressly requires a higher
percentage of Lenders, such higher percentage), and such request and any action
taken or failure to act pursuant thereto shall be binding upon all the Lenders
and all future holders of the obligations owing by the Borrower hereunder.
8.5 Notice of Default. The Administrative Agent shall not be deemed to
have knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Administrative Agent has received written notice from a
Lender or the Borrower referring to this Agreement, describing such Default or
Event of Default and stating that such notice is a "notice of default". In the
event that the Administrative Agent receives such a notice, the Administrative
Agent shall promptly notify the Borrower (unless the Borrower shall have
delivered such notice to the Administrative Agent) and then give notice thereof
to the Lenders (provided that the failure to notify the Borrower shall not
impair any of the rights of the Administrative Agent and the Lenders with
respect to the events and circumstances specified in such notice). The
Administrative Agent shall take such action with respect to such Default or
Event of Default as shall be reasonably directed by the Majority Lenders;
provided that unless and until the Administrative Agent shall have received such
directions, the Administrative Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to such Default or
Event of Default as it shall deem advisable in the best interests of the
Lenders.
8.6 Non-Reliance on Administrative Agent and Other Lenders. Each Lender
expressly acknowledges that neither the Administrative Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or affiliates has made
any representations or warranties to it
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and that no act by the Administrative Agent hereinafter taken, including any
review of the affairs of the Borrower, shall be deemed to constitute any
representation or warranty by the Administrative Agent to any Lender. Each
Lender represents to the Administrative Agent that it has, independently and
without reliance upon the Administrative Agent or any other Lender, and based on
such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of the Borrower and made its
own decision to make its Loans hereunder and enter into this Agreement. Each
Lender also represents that it will, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement, and to make such investigation as it deems necessary to inform
itself as to the business, operations, property, financial and other condition
and creditworthiness of the Borrower. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, the Administrative Agent shall not have any duty
or responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of the Borrower which may come into
the possession of the Administrative Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates.
8.7 Indemnification. The Lenders agree to indemnify the Administrative
Agent in its capacity as such (to the extent not reimbursed by the Borrower and
without limiting the obligation of the Borrower to do so), ratably according to
their respective Commitment Percentages in effect on the date on which
indemnification is sought under this subsection 8.7 (or, if indemnification is
sought after the date upon which the Commitments shall have terminated and the
Loans shall have been paid in full, ratably in accordance with their Commitment
Percentages immediately prior to such date of payment in full), from and against
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind whatsoever which
may at any time (including, without limitation, at any time following the
payment of the amounts owing hereunder) be imposed on, incurred by or asserted
against the Administrative Agent in any way relating to or arising out of this
Agreement or any documents contemplated by or referred to herein or therein or
the transactions contemplated hereby or thereby or any action taken or omitted
by the Administrative Agent under or in connection with any of the foregoing;
provided that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the Agent's gross negligence or
willful misconduct. The Administrative Agent shall have the right to deduct any
amount owed to it by any Lender under this subsection 8.7 from any payment made
by it to such Lender hereunder. The agreements in this subsection 8.7 shall
survive the payment of the Loans and all other amounts payable hereunder.
8.8 Administrative Agent in Its Individual Capacity. The
Administrative Agent and its affiliates may make loans to, accept deposits from
and generally engage in any kind of business with the Borrower as though the
Administrative Agent were not the Administrative Agent hereunder. With respect
to its Loans made or renewed by it, the Administrative Agent
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shall have the same rights and powers under this Agreement as any Lender and
may exercise the same as though it were not the Administrative Agent, and the
terms "Lender" and "Lenders" shall include the Administrative Agent in its
individual capacity.
8.9 Successor Administrative Agent. The Administrative Agent may
resign as Administrative Agent upon 90 days' notice to the Lenders and the
Borrower and following the appointment of a successor Administrative Agent in
accordance with the provisions of this subsection 8.9. If the Administrative
Agent shall resign as Administrative Agent under this Agreement, then the
Majority Lenders shall appoint from among the Lenders willing to serve as
Administrative Agent a successor Administrative Agent for the Lenders, which
successor Administrative Agent shall be approved by the Borrower (which approval
shall not be unreasonably withheld), whereupon such successor Administrative
Agent shall succeed to the rights, powers and duties of the Administrative
Agent, and the term "Administrative Agent" shall mean such successor
Administrative Agent effective upon such appointment and approval, and the
former Administrative Agent's rights, powers and duties as Administrative Agent
shall be terminated, without any other or further act or deed on the part of
such former Administrative Agent or any of the parties to this Agreement or any
holders of the obligations owing hereunder. If no successor agent has accepted
appointment as Administrative Agent by the date that is 90 days following a
retiring Administrative Agent's notice of resignation, the retiring
Administrative Agent's resignation shall nevertheless thereupon become effective
and the Lenders shall assume and perform all of the duties of the Administrative
Agent hereunder until such time, if any, as the Majority Lenders appoint a
successor agent as provided for above. After any retiring Administrative Agent's
resignation as Administrative Agent, the provisions of this Section 8 shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Administrative Agent under this Agreement.
8.10 Syndication Agents and Documentation Agent. Neither of the
Syndication Agents nor the Documentation Agent shall have any duties or
responsibilities hereunder in their capacities as such.
SECTION 9. MISCELLANEOUS
9.1 Amendments and Waivers. Neither this Agreement, nor any terms
hereof may be amended, supplemented or modified except in accordance with the
provisions of this subsection 9.1. The Majority Lenders may, or, with the
written consent of the Majority Lenders, the Administrative Agent may, from time
to time, (a) enter into with the Borrower written amendments, supplements or
modifications hereto for the purpose of adding any provisions to this Agreement
or changing in any manner the rights of the Lenders or of the Borrower hereunder
or (b) waive, on such terms and conditions as the Majority Lenders or the
Administrative Agent, as the case may be, may specify in such instrument, any of
the requirements of this Agreement or any Default or Event of Default and its
consequences; provided, however, that no such waiver and no such amendment,
supplement or modification shall (i) reduce the principal amount of any Loan, or
reduce the stated rate of any interest or fee payable hereunder, or extend the
scheduled date of any payment thereof, or increase the amount or extend the
expiration date of any Lender's
46
42
Commitment, in each case without the consent of each Lender directly affected
thereby, or (ii) amend, modify or waive any provision of this subsection 9.1 or
reduce the percentage specified in the definition of Majority Lenders, or
consent to the assignment or transfer by the Borrower of any of its rights and
obligations under this Agreement, in each case without the written consent of
all the Lenders, or (iii) amend, modify or waive any provision of Section 8 or
any other provision of this Agreement governing the rights or obligations of the
Administrative Agent without the written consent of the then Administrative
Agent. Any such waiver and any such amendment, supplement or modification shall
apply equally to each of the Lenders and shall be binding upon the Borrower, the
Lenders, the Administrative Agent and all future holders of the obligations
owing hereunder. In the case of any waiver, the Borrower, the Lenders and the
Administrative Agent shall be restored to their former position and rights
hereunder, and any Default or Event of Default waived shall be deemed to be
cured and not continuing; but no such waiver shall extend to any subsequent or
other Default or Event of Default, or impair any right consequent thereon.
9.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered by hand, or four days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice, when
received, addressed as follows in the case of the Borrower and the
Administrative Agent, and as set forth in Schedule II in the case of the other
parties hereto, or to such other address as may be hereafter notified by the
respective parties hereto and any future holders of the obligations owing
hereunder:
The Borrower: Delphi Automotive Systems Corporation
0000 Xxxxxx Xxxxx
Xxxx, Xxxxxxxx 00000
Attention: Treasurer
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
The Administrative
Agent: The Chase Manhattan Bank
The Loan and Agency Services Group
One Chase Xxxxxxxxx Xxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
with a copy to: The Chase Manhattan Bank
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
47
43
Attention: Xxxxxxxx Xxxxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
provided that any notice, request or demand to or upon the Administrative Agent
or the Lenders pursuant to subsection 2.2, 2.3, 2.4, 2.5 and 2.6 shall not be
effective until received.
9.3 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of the Administrative Agent or any Lender, any
right, remedy, power or privilege hereunder shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights, remedies,
powers and privileges herein provided are cumulative and not exclusive of any
rights, remedies, powers and privileges provided by law.
9.4 Survival of Representations and Warranties. All representations and
warranties made hereunder and in any document, certificate or statement
delivered pursuant hereto or in connection herewith shall survive the execution
and delivery of this Agreement and the making of the Loans hereunder.
9.5 Payment of Expenses and Taxes. The Borrower agrees (a) to pay or
reimburse the Administrative Agent for all its reasonable out-of-pocket costs
and expenses reasonably incurred in connection with the development, preparation
and execution of, and any amendment, supplement or modification to, this
Agreement and any other documents prepared in connection herewith or therewith,
and the consummation and administration of the transactions contemplated hereby
and thereby, including, without limitation, the reasonable fees and
disbursements of counsel to the Administrative Agent, (b) to pay or reimburse
each Lender and the Administrative Agent for all its reasonable costs and
expenses reasonably incurred in connection with the enforcement of any rights
under this Agreement, including, without limitation, the reasonable fees and
disbursements of counsel to the Administrative Agent and to the several Lenders
(other than those incurred in connection with the compliance by the relevant
Lender with the provisions of subsection 2.18(a)), and (c) to pay, indemnify,
and hold each Lender and the Administrative Agent harmless from, any and all
recording and filing fees and any and all liabilities with respect to, or
resulting from any delay by the Borrower in paying, stamp, excise and other
taxes, if any, which may be payable or determined to be payable in connection
with the execution and delivery of, or consummation or administration of any of
the transactions contemplated by, or any amendment, supplement or modification
of, or any waiver or consent under or in respect of, this Agreement, and (d) to
pay, indemnify, and hold each Lender and the Administrative Agent harmless from
and against any and all other liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, reasonable expenses or
disbursements of any kind or nature whatsoever (it being understood that this
shall not include the fees and disbursements of counsel to any of the Lenders
(other than Chase) in connection with (i) their review of this Agreement prior
to the Closing Date or (ii) prior to the occurrence of a Default or an Event of
Default, any amendment or waiver to this Agreement or any assignment to another
Lender pursuant to the terms hereof) with respect to the execution, delivery,
48
44
enforcement, performance and administration of this Agreement (all the foregoing
in this clause (d), collectively, the "indemnified liabilities"); provided that
the Borrower shall have no obligation hereunder to the Administrative Agent or
any Lender with respect to indemnified liabilities arising from the gross
negligence or willful misconduct of the Administrative Agent or any such Lender.
The agreements in this subsection 9.5 shall survive repayment of the Loans and
all other amounts payable hereunder.
9.6 Successors and Assigns; Participations and Assignments. (a) This
Agreement shall be binding upon and inure to the benefit of the Borrower, the
Lenders, the Administrative Agent, all future holders of the obligations owing
hereunder and their respective successors and assigns, except that the Borrower
may not assign or transfer any of its rights or obligations under this Agreement
without the prior written consent of each Lender.
(b) Any Lender may, in the ordinary course of its business and in
accordance with applicable law, at any time sell to one or more banks, financial
institutions or other entities ("Participants") participating interests in any
Loan owing to such Lender, any Commitment of such Lender or any other interest
of such Lender hereunder; provided that such Lender shall have given prior
written notice to the Borrower of the identity of such Participant. In the event
of any such sale by a Lender of a participating interest to a Participant, such
Lender's obligations under this Agreement to the other parties to this Agreement
shall remain unchanged, such Lender shall remain solely responsible for the
performance thereof, such Lender shall remain the holder of any obligation owing
to it hereunder for all purposes under this Agreement, and the Borrower and the
Administrative Agent shall continue to deal solely and directly with such Lender
in connection with such Lender's rights and obligations under this Agreement. In
no event shall any Participant under any such participation have any right to
approve any amendment or waiver of any provision of this Agreement, or any
consent to any departure by the Borrower therefrom, except to the extent that
such amendment, waiver or consent would reduce the principal of, or interest on,
the Loans or any fees payable hereunder, or postpone the date of the final
maturity of the Loans, in each case to the extent subject to such participation.
The Borrower hereby agrees that each Participant shall be entitled to the
benefits of subsections 2.15, 2.16 and 2.17 with respect to its participation in
the Commitments and the Loans outstanding from time to time as if it was a
Lender; provided that no Participant shall be entitled to receive any greater
amount pursuant to any such subsection than the transferor Lender would have
been entitled to receive in respect of the amount of the participation
transferred by such transferor Lender to such Participant had no such transfer
occurred.
(c) Any Lender may, in the ordinary course of its business and in
accordance with applicable law, at any time and from time to time assign to any
Lender or any affiliate thereof or, with the consent of the Borrower (which
shall not be unreasonably withheld) and the Administrative Agent, to an
additional bank or financial institution (an "Assignee") all or any part of its
rights and obligations under this Agreement pursuant to an Assignment and
Acceptance, substantially in the form of Exhibit E, executed by such Assignee,
such assigning Lender (and, in the case of an Assignee that is not then a Lender
or an affiliate thereof, by the Borrower and the Administrative Agent) and
delivered to the Administrative Agent for its acceptance and recording in the
Register; provided that, unless the Borrower and the
49
45
Administrative Agent otherwise consent, any such assignment to an Assignee which
is not a Lender (before giving effect to such assignment) or an affiliate
thereof shall be in a minimum amount of $10,000,000. Upon such execution,
delivery, acceptance and recording, from and after the effective date determined
pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be
a party hereto and, to the extent provided in such Assignment and Acceptance,
have the rights and obligations of (and be) a Lender hereunder with a Commitment
as set forth therein, and (y) the assigning Lender thereunder shall, to the
extent provided in such Assignment and Acceptance, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's rights
and obligations under this Agreement, such assigning Lender shall cease to be a
party hereto). Notwithstanding anything to the contrary contained herein, any
Lender may sell, transfer, assign or grant participations in all or any part of
the Competitive Loans made by it.
(d) The Administrative Agent shall maintain at its address referred to in
subsection 9.2 a copy of each Assignment and Acceptance delivered to it and a
register (the "Register") for the recordation of the names and addresses of the
Lenders and the Commitment of, and principal amount of the Loans owing to, each
Lender from time to time. The entries in the Register shall be prima facie
evidence of the existence and amounts of the obligations of the Borrower therein
recorded, and the Borrower, the Administrative Agent and the Lenders may treat
each Person whose name is recorded in the Register as the owner of the Loan
recorded therein for all purposes of this Agreement. The Register shall be
available for inspection and copying by the Borrower or any Lender at any
reasonable time and from time to time upon reasonable prior notice. The
Administrative Agent shall provide a copy of the Register to the Borrower on a
monthly basis.
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an Assignee (and, in the case of an Assignee that is not
then a Lender or an affiliate thereof, by the Borrower and the Administrative
Agent) together with payment by the Lender to the Administrative Agent of a
registration and processing fee of $3,500, the Administrative Agent shall (i)
promptly accept such Assignment and Acceptance and (ii) on the effective date
determined pursuant thereto record the information contained therein in the
Register and give notice of such acceptance and recordation to the assigning
Lender, its Assignee and the Borrower.
(f) The Borrower authorizes each Lender to disclose to any prospective
Participant, any Participant or any prospective Assignee (each, a "Transferee")
any and all financial information in such Lender's possession concerning the
Borrower and its affiliates which has been delivered to such Lender by or on
behalf of the Borrower pursuant to this Agreement or which has been delivered to
all Lenders by or on behalf of the Borrower in connection with their respective
credit evaluations of the Borrower and its affiliates prior to becoming a party
to this Agreement; provided that (i) such Transferee has executed and delivered
to the Borrower a written confidentiality agreement substantially in the form of
that which has been executed and delivered by each Lender prior to the date
hereof and (ii) in the case of any information other than that contained in the
Confidential Information Memorandum, the Borrower has been informed of the
identity of such Transferee and has consented to the
50
46
disclosure of such information thereto. Nothing contained in this subsection
9.6(f) shall be deemed to prohibit the delivery to any Transferee of any
financial information which is otherwise publicly available.
(g) Nothing herein shall prohibit any Lender from pledging or assigning all
or any portion of its Loans to any Federal Reserve Bank in accordance with
applicable law. In order to facilitate such pledge or assignment, the Borrower
hereby agrees that, upon request of any Lender at any time and from time to time
after the Borrower has made its initial borrowing hereunder, the Borrower shall
provide to such Lender, at the Borrower's own expense, a promissory note,
substantially in the form of Exhibit G, evidencing the Revolving Credit Loans
owing to such Lender.
9.7 Adjustments. If any Lender (a "benefitted Lender") shall at any time
receive any payment of all or part of its Loans, or interest thereon, or receive
any collateral in respect thereof (whether voluntarily or involuntarily, by
set-off, pursuant to events or proceedings of the nature referred to in Section
7(g), or otherwise), such that it has received aggregate payments or collateral
on account of its Loans in a greater proportion than any such payment to or
collateral received by any other Lender, if any, in respect of such other
Lender's Loans which are then due and payable, or interest thereon, such
benefitted Lender shall purchase for cash from the other Lenders a participating
interest in such portion of each such other Lender's Loans, or shall provide
such other Lenders with the benefits of any such collateral, or the proceeds
thereof, as shall be necessary to cause such benefitted Lender to share the
excess payment or benefits of such collateral or proceeds ratably with each of
the Lenders; provided, however, that if all or any portion of such excess
payment or benefits is thereafter recovered from such benefitted Lender, such
purchase shall be rescinded, and the purchase price and benefits returned, to
the extent of such recovery, but without interest.
9.8 Counterparts. (a) This Agreement may be executed by one or more of the
parties to this Agreement on any number of separate counterparts (including by
telecopy), and all of said counterparts taken together shall be deemed to
constitute one and the same instrument. A set of the copies of this Agreement
signed by all the parties shall be lodged with the Borrower and the
Administrative Agent.
(b) By its signature hereto, each Lender hereby agrees that this Agreement
shall become effective immediately upon the execution and delivery on January 4,
1999 by the Borrower and the Administrative Agent of this Agreement. In the
event that this Agreement has not been duly executed and delivered by each
Person listed on the signature pages hereto (other than the Borrower and the
Administrative Agent, with respect to which the execution and delivery of this
Agreement shall be a condition precedent to its effectiveness) on or before the
date upon which this Agreement becomes effective in accordance with the
immediately preceding sentence, this Agreement shall nevertheless become
effective with respect to those Persons who have executed and delivered it on or
before such effective date and those Persons who have not executed and delivered
it (such Persons, the "Non-Executing Banks") shall be deemed not to be Lenders
hereunder.
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47
(c) On the date of effectiveness of this Agreement, the Borrower may (after
consultation with the Administrative Agent) designate one or more Lenders (the
"Designated Lenders") to assume the Commitments which would have been held by
the Non-Executing Banks and, if the Designated Lenders agree to assume such
Commitments, (i) Schedules I and II shall be deemed to be amended to reflect
such increase in the respective Commitment of each Designated Lender and the
omission of each Non-Executing Bank as a Lender hereunder and (ii) the
respective Commitment of each Designated Lender shall be deemed to be such
increased amount for all purposes hereunder.
(d) Notwithstanding anything to the contrary contained herein, (i) the
Commitment of a Lender shall not be increased (without the prior written
consent of such Lender) as a result of the failure of any other Person to
execute and deliver this Agreement or otherwise and (ii) in no event shall the
aggregate Commitments of all Lenders exceed $3,500,000,000.
9.9 Severability. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
9.10 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
9.11 Confidentiality. Each of the Administrative Agent, the Issuing Lender
and the Lenders agrees to maintain the confidentiality of the Information (as
defined below), except that Information may be disclosed (a) to its and its
affiliates' directors, officers, employees and agents, including 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), (b) to the
extent required by any regulatory authority, (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process, (d)
to any other party to this Agreement, (e) in connection with the exercise of any
remedies hereunder or any suit, action or proceeding relating to this Agreement
or the enforcement of rights hereunder, (f) subject to an agreement containing
provisions substantially the same as those of this subsection, to any Assignee
of or Participant in, or any prospective Assignee of or Participant in, any of
its rights or obligations under this Agreement, (g) with the consent of the
Borrower or (h) to the extent such Information (i) becomes publicly available
other than as a result of a breach of this subsection or (ii) becomes available
to the Administrative Agent, the Issuing Lender or any Lender on a
nonconfidential basis from a source other than the Borrower. 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, the Issuing Lender or any Lender on a
nonconfidential basis prior to disclosure by the Borrower; provided that, in the
case
52
48
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 subsection 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.
53
49
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
DELPHI AUTOMOTIVE SYSTEMS CORPORATION
By: /s/ Xxxx Xxxxxxx
------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
THE CHASE MANHATTAN BANK, as
Administrative Agent and as a Lender
By: /s/ Xxxxxxxx Xxxxxxx
------------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Vice President
[OTHER LENDERS]
54
BANK OF AMERICA NT & SA, as Syndication
Agent and Lender
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
55
CITIBANK, N.A., as Syndication Agent and
Lender
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Citibank, N.A. Attorney-in-Fact
56
DEUTSCHE BANK AG
NEW YORK BRANCH AND/OR
CAYMAN ISLANDS BRANCH, as Syndication
Agent and Lender
By: /s/ Xxxx-Xxxxx Xxxxxx
----------------------------------
Name: Xxxx-Xxxxx Xxxxxx
Title: Director
By: /s/ Xxxxxxx X. Xxxxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Director
57
BARCLAYS BANK PLC, as Syndication Agent
and Lender
By: /s/ X.X. Xxxxxxx
-----------------------------------
Name: X.X. Xxxxxxx
Title: Director
58
BANQUE NATIONALE DE PARIS, as
Syndication Agent and Lender
By: /s/ Xxxxxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: Vice President and Manager,
Credit Department
59
AUSTRALIA AND NEW ZEALAND BANKING
GROUP LIMITED
By: /s/ Xxxxxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxxxxx X. Xxxxxxxx
Title: Vice President
60
BANCA COMMERCIALE ITALIANA-NEW
YORK BRANCH
By: /s/ Xxxxxxx Xxxxxxxxx
-----------------------------------
Name: X. Xxxxxxxxx
Title: VP
By: /s/ Xxxxx Xxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxx
Title: VP
61
BANCA DI ROMA
By: /s/ Xxxx Xxxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxxx
Title: VP
By: /s/ X. Xxxxx
-----------------------------------
Name: X. Xxxxx
Title: SVP
62
BANKBOSTON, N.A.
By: /s/ Xxxxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Vice President
63
BANK OF MONTREAL
By: /s/ Xxxxxxx X. Xxxx
-----------------------------------
Name: Xxxxxxx X. Xxxx
Title: Managing Director
00
XXX XXXX XX XXX XXXX
By: /s/ Xxxxxxx Xxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
00
XXX XXXX XX XXXX XXXXXX
By: /s/ F.C.H. Xxxxx
-------------------------------------
Name: F.C.H. Xxxx
Title: Senior Manager Loan Operations
66
BANK OF TOKYO-MITSUIBISHI TRUST
COMPANY
By: /s/ Xxxxxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxxxxx X. Xxxxx
Title: Vice President
00
XXXXXXXXXX XXXXXXXXXX
XXXXXXXXXXXX
XXXXXX XXXXXXX BRANCH
By: /s/ Xxxxx Xxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Senior Vice President
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
Title: Second Vice President
68
CIBC INC.
By: /s/ Xxx Xxxxx
-------------------------------
Name: Xxx Xxxxx
Title: Executive Director
CIBC Xxxxxxxxxxx Corp., As Agent
69
COMPAGNIE FINANCIERE DE CIC ET DE
L'UNION EUROPEENNE
(NEW YORK BRANCH)
By: /s/ Xxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President
By: /s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
70
COMPAGNIE FINANCIERE DE CIC ET DE
L'UNION EUROPEENNE
(XXXXX XXXX OFFICE)
By: /s/ X. Xxxxxx-Xxxxxxxx
-----------------------------------------
Name: X. Xxxxxx-Xxxxxxxx
Title: V.P.
By: /s/ Yann de Saint Pol
-----------------------------------------
Name: Yann de Saint Pol
Title: V.P.
71
COMERICA BANK
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Account Officer
72
COMMERZBANK AKTIENGESELLSCHAFT,
CHICAGO BRANCH
By: /s/ Xxxxxxx Xxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
By: /s/ Rie Ando
--------------------------------
Name: Rie Ando
Title: Assistant Treasurer
73
CREDIT AGRICOLE INDOSUEZ
By: /s/ Xxxxx Xxxxx
------------------------------------
Name: Xxxxx Xxxxx
Title: F.V.P.
Head of Corporate Banking
Chicago
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
Title: Senior Vice President
Branch Manager
74
CREDIT LYONNAIS, CHICAGO BRANCH
By: /s/ Xxx X. Xxxxx
----------------------------------
Name: Xxx X. Xxxxx
Title: First Vice President
75
DAI ICHI KANGYO BANK LTD.
By: /s/ Xxxxx XxXxxx
-----------------------------------
Name: Xxxxx XxXxxx
Title: Assistant Vice President
00
XX XXXX XXXXXXXX
XXXXXXXXXXXXXXXXXXX XX,
XXXXXX ISLAND BRANCH
By: /s/ Xxxxxxxx Xxxxxxxxx
-----------------------------------
Name: Xxxxxxxx Xxxxxxxxx
Title: Asst. Vice President
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Assistant Vice President
77
DRESDNER BANK AG NEW YORK AND
GRAND CAYMAN BRANCHES
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Assistant Vice President
By: /s/ Brigitte Sacin
-----------------------------------
Name: Brigitte Sacin
Title: Assistant Treasurer
78
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ R.H. Huttenhocher
-----------------------------------
Name: X.X. Xxxxxxxxxxxx
Title: FVP
79
FIRST UNION NATIONAL BANK
By: /s/ Xxxx X. Xxxx
-----------------------------------
Name: Xxxx X. Xxxx
Title: Vice President
80
GENERALE BANK
By: /s/ X. Xxxxxxxx
-----------------------------------
Name: X. Xxxxxxxx
Title: SVP
By: /s/ Xxxxx Xxxxxx
-----------------------------------
Name: Xxxxx Xxxxxx
Title: SVP
00
XXXXXXXXXX XXXX- XXX XXXXXXXXXXX AG
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Director
By: /s/ Xxxxxx X. X'Xxxxxx
-----------------------------------
Name: Xxxxxx X. X'Xxxxxx
Title: Director
82
KBC BANK N.V.
By: /s/ Xxxx X. Xxxxxxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxxxxxx
Title: Vice President
By: /s/ Xxxxxx Xxxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxxx
Title: First Vice President
83
KEYBANK NATIONAL ASSOCIATION
By: /s/ X.X. Xxxxxx
-----------------------------------
Name: X.X. Xxxxxx
Title: Vice President
84
MARINE MIDLAND BANK
By: /s/ Xxxx X. Xxxxx
-----------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
85
MIDLAND BANK PLC
By: /s/ Xxxxx Xxxxxx
-----------------------------------
Name: Xxxxx Xxxxxx
Title: Corporate Banking Manager
00
XXXXXXXX XXXXXXXXXXX XXXX XXX
XXX XXXX BRANCH
By: /s/ X.X. Xxxxxxxx
---------------------------------
Name: X.X. Xxxxxxxx
Title: Director
North America
NATIONAL WESTMINSTER BANK PLC
NASSAU BRANCH
By: /s/ X.X. Xxxxxxxx
---------------------------------
Name: X.X. Xxxxxxxx
Title: Director
North America
87
THE NORTHERN TRUST COMPANY
By: /s/ Xxxxx X. Toulouse
----------------------------
Name: Xxxxx X. Toulouse
Title: Vice President
88
THE SANWA BANK, LTD
NEW YORK BRANCH
By: /s/ Xxxxxx X. Xxx
---------------------------------------------
Name: Xxxxxx X. Xxx
Title: Vice President and Area Manager
89
SOCIETE GENERALE
By: /s/ Xxxx X.X. Xxxxxxx Xx.
---------------------------------
Name: Xxxx X.X. Xxxxxxx Xx.
Title: Director
90
TORONTO DOMINION (TEXAS), INC.
By: /s/ Xxxx Xxxxxx
---------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
91
WESTPAC BANKING CORPORATION
By: /s/ Xxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxx
Title: Head of Corporate and Financial
Institution Relationships
