U.S. $1,000,000,000 CREDIT AGREEMENT Dated as of August 19, 2011 Among CA, INC. as Borrower and THE BANKS NAMED HEREIN as Banks and CITIBANK, N.A. as Paying Agent and CITIBANK, N.A. BANK OF AMERICA, N.A. and JPMORGAN CHASE BANK, N.A. as...
Exhibit 10.1
U.S. $1,000,000,000
Dated as of August 19, 2011
Among
as Borrower
and
THE BANKS NAMED HEREIN
as Banks
and
CITIBANK, N.A.
as Paying Agent
and
CITIBANK, N.A.
BANK OF AMERICA, N.A.
and
JPMORGAN CHASE BANK, N.A.
as Co-Administrative Agents
and
CITIGROUP GLOBAL MARKETS INC.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
and
X.X. XXXXXX SECURITIES LLC
as Joint Lead Arrangers and Joint Bookrunners
TABLE OF CONTENTS
Page | ||||
Article I |
||||
SECTION 1.01 Certain Defined Terms |
1 | |||
SECTION 1.02 Computation of Time Periods |
14 | |||
SECTION 1.03 Accounting Terms |
14 | |||
Article II AMOUNTS AND TERMS OF THE ADVANCES AND LETTERS OF CREDIT |
||||
SECTION 2.01 The Advances and Letters of Credit |
15 | |||
SECTION 2.02 Making the Advances |
15 | |||
SECTION 2.03 Issuance of and Drawings and Reimbursement Under Letters of Credit |
16 | |||
SECTION 2.04 Fees |
18 | |||
SECTION 2.05 Optional Termination or Reduction of the Commitments |
19 | |||
SECTION 2.06 Repayment of Advances |
19 | |||
SECTION 2.07 Interest on Advances |
20 | |||
SECTION 2.08 Interest Rate Determination |
20 | |||
SECTION 2.09 Optional Conversion of Advances |
22 | |||
SECTION 2.10 Prepayments of Advances |
22 | |||
SECTION 2.11 Increased Costs |
23 | |||
SECTION 2.12 Illegality |
24 | |||
SECTION 2.13 Payments and Computations |
24 | |||
SECTION 2.14 Taxes |
26 | |||
SECTION 2.15 Sharing of Payments, Etc. |
29 | |||
SECTION 2.16 Evidence of Debt |
29 |
i
Page | ||||
SECTION 2.17 Use of Proceeds |
30 | |||
SECTION 2.18 Extension of Termination Date |
30 | |||
SECTION 2.19 Increase in the Aggregate Commitments |
32 | |||
SECTION 2.20 Defaulting Lenders |
33 | |||
SECTION 2.21 Replacement of Lenders |
35 | |||
Article III CONDITIONS TO EFFECTIVENESS AND LENDING |
||||
SECTION 3.01 Conditions Precedent to Effectiveness of Section 2.01 |
36 | |||
SECTION 3.02 Conditions Precedent to Each Borrowing, Letter of Credit Issuance, Extension
Date and Increase Date |
38 | |||
SECTION 3.03 Determinations Under Section 3.01 |
38 | |||
Article IV REPRESENTATIONS AND WARRANTIES |
||||
SECTION 4.01 Representations and Warranties of the Borrower |
38 | |||
Article V COVENANTS OF THE BORROWER |
||||
SECTION 5.01 Affirmative Covenants |
41 | |||
SECTION 5.02 Negative Covenants |
43 | |||
SECTION 5.03 Financial Covenants |
45 | |||
Article VI EVENTS OF DEFAULT |
||||
SECTION 6.01 Events of Default |
45 | |||
SECTION 6.02 Actions in Respect of the Letters of Credit upon Default |
47 | |||
Article VII THE AGENT |
||||
SECTION 7.01 Appointment and Authority |
48 | |||
SECTION 7.02 Rights as a Lender |
48 | |||
SECTION 7.03 Exculpatory Provisions |
48 | |||
SECTION 7.04 Reliance by Agent |
49 |
ii
Page | ||||
SECTION 7.05 Indemnification |
49 | |||
SECTION 7.06 Delegation of Duties |
50 | |||
SECTION 7.07 Resignation of Agent |
50 | |||
SECTION 7.08 Non-Reliance on Agent and Other Lenders |
51 | |||
SECTION 7.09 Other Agents |
51 | |||
Article VIII MISCELLANEOUS |
||||
SECTION 8.01 Amendments, Etc. |
52 | |||
SECTION 8.02 Notices, Etc. |
52 | |||
SECTION 8.03 No Waiver; Remedies |
54 | |||
SECTION 8.04 Costs and Expenses |
54 | |||
SECTION 8.05 Right of Set-off |
55 | |||
SECTION 8.06 Binding Effect |
55 | |||
SECTION 8.07 Assignments and Participations |
55 | |||
SECTION 8.08 Confidentiality |
59 | |||
SECTION 8.09 Governing Law |
59 | |||
SECTION 8.10 Execution in Counterparts |
59 | |||
SECTION 8.11 Judgment |
59 | |||
SECTION 8.12 Jurisdiction, Etc. |
60 | |||
SECTION 8.13 Substitution of Currency |
60 | |||
SECTION 8.14 No Liability of the Issuing Banks |
61 | |||
SECTION 8.15 Patriot Act |
61 | |||
SECTION 8.16 Waiver of Jury Trial |
61 |
iii
Schedules |
||||
Schedule I — Commitments |
||||
Schedule 5.02(a) — Existing Liens |
||||
Exhibits |
||||
Exhibit A — Form of Note |
||||
Exhibit B — Form of Notice of Borrowing |
||||
Exhibit C — Form of Assignment and Assumption |
||||
Exhibit D — Form of Opinion of Counsel for the Borrower |
iv
Dated as of August 19, 2011
CA, INC., a Delaware corporation (the “Borrower”), the banks and other financial
institutions (the “Banks”) and issuers of letters of credit (“Initial Issuing
Banks”) listed on the signature pages hereof, CITIBANK, N.A. (“Citibank”) , BANK OF
AMERICA, N.A. (“BofA”) and JPMORGAN CHASE BANK, N.A. (“JPMCB”), as
co-administrative agents, CITIGROUP GLOBAL MARKETS INC., XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED and X.X. XXXXXX SECURITIES LLC, as joint lead arrangers and joint bookrunners, and
Citibank, as paying agent (the “Agent”) for the Lenders (as hereinafter defined), agree as
follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01 Certain Defined Terms. As used in this Agreement, the following terms
shall have the following meanings (such meanings to be equally applicable to both the singular and
plural forms of the terms defined):
“Administrative Questionnaire” means an Administrative Questionnaire in a form
supplied by the Agent.
“Advance” means an advance by a Lender to the Borrower as part of a Borrowing
and refers to a Base Rate Advance or a Eurocurrency Rate Advance (each of which shall be a
“Type” of Advance).
“Affiliate” means, as to any Person, any other Person that, directly or
indirectly, controls, is controlled by or is under common control with such Person or, in
each case in which “Affiliate” is used in relation to the Borrower, is a director or officer
of such Person. For purposes of this definition, the term “control” (including the terms
“controlling”, “controlled by” and “under common control with”) of a Person means the
possession, direct or indirect, of the power to vote, in each case in which “Affiliate” is
used in relation to the Borrower, 10% or more of the Voting Stock or, in each case in which
“Affiliate” is used in relation to a Lender or the Agent, a majority of the Voting Stock of
such Person or to direct or cause the direction of the management and policies of such
Person, whether through the ownership of Voting Stock, by contract or otherwise.
“Agent’s Account” means (a) in the case of Advances denominated in Dollars, the
account of the Agent maintained by the Agent at Citibank at its office at 0000 Xxxxx Xxxx,
Xxxxxxxx #0, Xxx Xxxxxx, Xxxxxxxx 00000, Account No. 00000000, Attention: Bank Loan
Syndications, (b) in the case of Advances denominated in any Committed Currency, the account
of the Agent designated in writing from time to time by the Agent to the Borrower and the
Lenders for such purpose and (c) in any such case, such other account of the Agent as is
designated in writing from time to time by the Agent to the Borrower and the Lenders for
such purpose.
“Applicable Lending Office” means, with respect to each Lender, such Lender’s
Domestic Lending Office in the case of a Base Rate Advance and such Lender’s Eurocurrency
Lending Office in the case of a Eurocurrency Rate Advance.
“Applicable Margin” means, as of any date for each of Base Rate Advances and
Eurocurrency Rate Advances, a percentage per annum determined by reference to the Public
Debt Rating in effect on such date as set forth below:
Public Debt Rating | Applicable Margin for | Applicable Margin for | ||||||
S&P/Xxxxx’x | Base Rate Advances | Eurocurrency Rate Advances | ||||||
Level 1
A/A2 or better |
0.000 | % | 0.900 | % | ||||
Xxxxx 0
X-/X0 |
0.125 | % | 1.000 | % | ||||
Xxxxx 0
XXXx/Xxx0 |
0.250 | % | 1.100 | % | ||||
Xxxxx 0
BBB/Baa2 |
0.375 | % | 1.200 | % | ||||
Xxxxx 0
Xxxxx xxxx Xxxxx 0 |
0.625 | % | 1.375 | % |
“Applicable Percentage” means, as of any date, a percentage per annum
determined by reference to the Public Debt Rating in effect on such date as set forth below:
Public Debt Rating | Applicable | |||
S&P/Xxxxx’x | Percentage | |||
Level 1
A/A2 or better |
0.100 | % | ||
Xxxxx 0
X-/X0 |
0.125 | % | ||
Xxxxx 0
XXXx/Xxx0 |
0.150 | % | ||
Level 4
BBB/Baa2 |
0.175 | % | ||
Xxxxx 0
Xxxxx xxxx Xxxxx 0 |
0.250 | % |
“Approved Fund” means any Person (other than a natural person) that is engaged
in making, purchasing, holding or investing in bank loans and similar extensions of credit
in the ordinary course of its business and that is administered or managed by (x) a Lender,
(y) an Affiliate of a Lender or (z) an entity or an Affiliate of an entity that administers
or manages a Lender.
“Assignment and Assumption” means an assignment and assumption entered into by
a Lender and an Eligible Assignee (with the consent of each party whose consent is required
by Section 8.07), and accepted by the Agent, in substantially the form of Exhibit C or any
other form approved by the Agent.
“Assuming Lender” has the meaning specified in Section 2.18(c).
“Assumption Agreement” has the meaning specified in Section 2.18(c).
2
“Available Amount” of any Letter of Credit means, at any time, the maximum
amount available to be drawn under such Letter of Credit at such time (assuming compliance
at such time with all conditions to drawing).
“Base Rate” means a fluctuating interest rate per annum in effect from time to
time, which rate per annum shall at all times be equal to the highest of:
(a) the rate of interest announced publicly by Citibank in New York, New York,
from time to time, as Citibank’s base rate;
(b) 1/2 of one percent per annum above the Federal Funds Rate; and
(c) the British Bankers Association Interest Settlement Rate applicable to
Dollars for a period of one month (“One Month LIBOR”) plus 1.00% (for the
avoidance of doubt, the One Month LIBOR for any day shall be based on the rate
appearing on Reuters LIBOR01 Page (or other commercially available source providing
such quotations as designated by the Agent from time to time) at approximately 11:00
a.m. London time on such day).
“Base Rate Advance” means an Advance denominated in Dollars that bears interest
as provided in Section 2.07(a)(i).
“Borrowing” means a borrowing consisting of simultaneous Advances of the same
Type, in the same currency and for the same tenor made by each of the Lenders pursuant to
Section 2.01.
“Borrowing Minimum” means, in respect of Advances denominated in Dollars,
$10,000,000, in respect of Advances denominated in Sterling, £10,000,000, and, in respect of
Advances denominated in Euros, €10,000,000.
“Borrowing Multiple” means, in respect of Advances denominated in Dollars,
$1,000,000 in respect of Advances denominated in Sterling, £1,000,000, and, in respect of
Advances denominated in Euros, €1,000,000.
“Business Day” means a day of the year on which banks are not required or
authorized by law to close in New York City and, if the applicable Business Day relates to
any Eurocurrency Rate Advances, on which dealings are carried on in the London interbank
market and banks are open for business in London and in the country of issue of the currency
of such Eurocurrency Rate Advance (or, in the case of an Advance denominated in Euros, on
which the Trans-European Automated Real-Time Gross Settlement Express Transfer (TARGET)
System is open).
“Cash Collateralize” means, in respect of an obligation, provide and pledge (as
a first priority perfected security interest) cash collateral in Dollars, at a location and
pursuant to documentation in form and substance reasonably satisfactory to the Agent and
each Issuing Bank (and “Cash Collateralization” has a corresponding meaning).
“Commitment” means a Revolving Credit Commitment or a Letter of Credit
Commitment.
“Commitment Date” has the meaning specified in Section 2.19(b).
3
“Commitment Increase” has the meaning specified in Section 2.19(a).
“Committed Currencies” means lawful currency of the United Kingdom of Great
Britain and Northern Ireland and Euros.
“Consenting Lender” has the meaning specified in Section 2.18(b).
“Consolidated” refers to the consolidation of accounts in accordance with
generally accepted accounting principles.
“Consolidated Cash Flow” means, for any period, the sum of (a) the amount set
forth as “Net Cash Provided by Operating Activities” (or a comparable term) in the
Consolidated statements of cash flows of the Borrower and its Subsidiaries for such period
plus (b) Consolidated Interest Expense for such period.
“Consolidated Interest Expense” means, for any period, the sum of interest
payable on, and amortization of debt discount in respect of, all Debt of the Borrower and
its Subsidiaries during such period.
“Convert”, “Conversion” and “Converted” each refers to a
conversion of Advances of one Type into Advances of the other Type pursuant to Section 2.08
or 2.09.
“Debt” of any Person means, without duplication, (a) all indebtedness of such
Person for borrowed money, (b) all obligations of such Person for the deferred purchase
price of property or services (other than trade payables not overdue incurred in the
ordinary course of such Person’s business), (c) all obligations of such Person evidenced by
notes, bonds, debentures or other similar instruments, (d) all obligations of such Person
created or arising under any conditional sale or other title retention agreement with
respect to property acquired by such Person (even though the rights and remedies of the
seller or lender under such agreement in the event of default are limited to repossession or
sale of such property), (e) all obligations of such Person as lessee under leases that have
been or should be, in accordance with GAAP, recorded as capital leases, (f) all
non-contingent obligations of such Person in respect of acceptances, letters of credit or
similar extensions of credit, (g) all obligations of such Person in respect of Hedge
Agreements, (h) all Debt of others referred to in clauses (a) through (g) above or clause
(i) below guaranteed directly or indirectly in any manner by such Person, or in effect
guaranteed directly or indirectly by such Person through an agreement (1) to pay or purchase
such Debt or to advance or supply funds for the payment or purchase of such Debt, (2) to
purchase, sell or lease (as lessee or lessor) property, or to purchase or sell services,
primarily for the purpose of enabling the debtor to make payment of such Debt or to assure
the holder of such Debt against loss, (3) to supply funds to or in any other manner invest
in the debtor (including any agreement to pay for property or services irrespective of
whether such property is received or such services are rendered) or (4) otherwise to assure
a creditor against loss, and (i) all Debt referred to in clauses (a) through (h) above
secured by (or for which the holder of such Debt has an existing, non-contingent right to be
secured by) any Lien on property (including, without limitation, accounts and contract
rights) owned by such Person, even though such Person has not assumed or become liable for
the payment of such Debt.
“Debt for Borrowed Money” means Debt of the types described in clauses (a)
though (f) of the definition of “Debt”.
4
“Default” means any Event of Default or any event that would constitute an
Event of Default but for the requirement that notice be given or time elapse or both.
“Defaulting Lender” means at any time, subject to Section 2.20(d), (i) any
Lender that has failed for three or more Business Days to comply with its obligations under
this Agreement to make an Advance, make a payment to an Issuing Bank in respect of drawing
under a Letter of Credit or make any other payment due hereunder (each, a “funding
obligation”), unless such Lender has notified the Agent and the Borrower in writing that
such failure is the result of such Lender’s determination that one or more conditions
precedent to funding has not been satisfied (which conditions precedent, together with the
applicable default, if any, will be specifically identified in such writing), (ii) any
Lender that has notified the Agent, the Borrower or an Issuing Bank in writing, or has
stated publicly, that it does not intend to comply with its funding obligations hereunder,
unless such writing or statement states that such position is based on such Lender’s
determination that one or more conditions precedent to funding cannot be satisfied (which
conditions precedent, together with the applicable default, if any, will be specifically
identified in such writing or public statement), (iii) any Lender that has notified, or
whose Parent Company has notified, the Agent or the Borrower in writing, or has stated
publicly, that it does not intend to comply with its funding obligations under loan
agreements or credit agreements generally, (iv) any Lender that has, for three or more
Business Days after written request of the Agent or the Borrower, failed to confirm in
writing to the Agent and the Borrower that it will comply with its prospective funding
obligations hereunder (provided that such Lender will cease to be a Defaulting Lender
pursuant to this clause (iv) upon the Agent’s and the Borrower’s receipt of such written
confirmation), or (v) any Lender with respect to which a Lender Insolvency Event has
occurred and is continuing with respect to such Lender or its Parent Company;
provided that a Lender Insolvency Event shall not be deemed to occur with respect to
a Lender or its Parent Company solely as a result of the acquisition or maintenance of an
ownership interest in such Lender or Parent Company by a governmental authority or
instrumentality thereof where such action does not result in or provide such Lender with
immunity from the jurisdiction of courts within the United States or from the enforcement of
judgments or writs of attachment on its assets or permit such Lender (or such Governmental
Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or
agreements made with such Lender. Any determination by the Agent (or if the Agent is
subject of any events described in clause (v) of the immediately preceding sentence, by the
Borrower or the Required Lenders) that a Lender is a Defaulting Lender under any of clauses
(i) through (v) above will be conclusive and binding absent manifest error, and such Lender
will be deemed to be a Defaulting Lender (subject to Section 2.20(d)) upon notification of
such determination by the Agent (or the Required Lenders or the Borrower, as the case may
be) to the Borrower, the Issuing Banks and the Lenders.
“Disclosed Litigation” has the meaning specified in Section 3.01(b).
“Dollars” and the “$” sign each means lawful currency of the United
States of America.
“Domestic Lending Office” means, with respect to any Lender, the office of such
Lender specified as its “Domestic Lending Office” in its Administrative Questionnaire
delivered to the Agent, or such other office of such Lender as such Lender may from time to
time specify in writing to the Borrower and the Agent.
“Effective Date” has the meaning specified in Section 3.01.
5
“Eligible Assignee” means any Person that meets the requirements to be an
assignee under Section 8.07(b)(iii), (v) and (vi) (subject to such consents, if any, as may
be required under Section 8.07(b)(iii)).
“Environmental Action” means any action, suit, demand, demand letter, claim,
notice of non-compliance or violation, notice of liability or potential liability,
investigation, proceeding, consent order or consent agreement relating in any way to any
Environmental Law, Environmental Permit or Hazardous Materials or arising from alleged
injury or threat of injury to health, safety or the environment, including, without
limitation, (a) by any governmental or regulatory authority for enforcement, cleanup,
removal, response, remedial or other actions or damages and (b) by any governmental or
regulatory authority or any third party for damages, contribution, indemnification, cost
recovery, compensation or injunctive relief.
“Environmental Law” means any federal, state, local or foreign statute, law,
ordinance, rule, regulation, code, order, judgment, decree or judicial or agency
interpretation, policy or guidance relating to pollution or protection of the environment,
health, safety or natural resources, including, without limitation, those relating to the
use, handling, transportation, treatment, storage, disposal, release or discharge of
Hazardous Materials.
“Environmental Permit” means any permit, approval, identification number,
license or other authorization required under any Environmental Law.
“Equivalent” in Dollars of any Committed Currency on any date means the
equivalent in Dollars of such Committed Currency determined by using the quoted spot rate at
which the Agent’s principal office in London offers to exchange Dollars for such Committed
Currency in London prior to 4:00 P.M. (London time) (unless otherwise indicated by the terms
of this Agreement) on such date as is required pursuant to the terms of this Agreement, and
the “Equivalent” in any Committed Currency of Dollars means the equivalent in such Committed
Currency of Dollars determined by using the quoted spot rate at which the Agent’s principal
office in London offers to exchange such Committed Currency for Dollars in London prior to
4:00 P.M. (London time) (unless otherwise indicated by the terms of this Agreement) on such
date as is required pursuant to the terms of this Agreement.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended
from time to time, and the regulations promulgated and rulings issued thereunder.
“ERISA Affiliate” means any Person that for purposes of Title IV of ERISA is a
member of the Borrower’s controlled group, or under common control with the Borrower, within
the meaning of Section 414 of the Internal Revenue Code.
“ERISA Event” means (a) (i) the occurrence of a reportable event, within the
meaning of Section 4043 of ERISA, with respect to any Plan unless the 30-day notice
requirement with respect to such event has been waived by the PBGC, or (ii) the requirements
of subsection (1) of Section 4043(b) of ERISA (without regard to subsection (2) of such
Section) are met with respect to a contributing sponsor, as defined in Section 4001(a)(13)
of ERISA, of a Plan, and an event described in paragraph (9), (10), (11), (12) or (13) of
Section 4043(c) of ERISA is reasonably expected to occur with respect to such Plan within
the following 30 days (unless the 30-day notice requirement with respect to such event has
been waived by the PBGC); (b) the application for a minimum funding waiver with respect to a
Plan; (c) the provision by the administrator of any Plan of a notice of intent to terminate
such Plan pursuant to Section 4041(a)(2) of ERISA (including any such notice with respect to
a plan amendment referred to in Section 4041(e) of
6
ERISA); (d) the cessation of operations at a facility of the Borrower or any ERISA
Affiliate in the circumstances described in Section 4062(e) of ERISA; (e) the withdrawal by
the Borrower or any ERISA Affiliate from a Multiple Employer Plan during a plan year for
which it was a substantial employer, as defined in Section 4001(a)(2) of ERISA; (f) the
conditions for the imposition of a lien under Section 303(k) of ERISA shall have been met
with respect to any Plan; or (g) a determination is made that any Plan is in “at risk”
status (within the meaning of Section 303 of ERISA); or (h) the institution by the PBGC of
proceedings to terminate a Plan pursuant to Section 4042 of ERISA, or the occurrence of any
event or condition described in Section 4042 of ERISA that constitutes grounds for the
termination of, or the appointment of a trustee to administer, a Plan; provided,
however, that no event described in (c), (d) or (e) shall be an ERISA Event if no
later than 10 days prior to such event the Borrower has provided the Agent with the
information that would be required to be furnished to the PBGC pursuant to Section
4041(b)(2)(A) of ERISA and such information demonstrates to the reasonable satisfaction of
the Agent that if the relevant Plan were terminated as of the date of such event such
termination would be eligible to be treated as a standard termination under Section 4041(b)
of ERISA.
“Euro” means the lawful currency of the European Union as constituted by the
Treaty of Rome which established the European Community, as such treaty may be amended from
time to time and as referred to in the EMU legislation.
“Eurocurrency Lending Office” means, with respect to any Lender, the office of
such Lender specified as its “Eurocurrency Lending Office” in its Administrative
Questionnaire delivered to the Agent, or such other office of such Lender as such Lender may
from time to time specify in writing to the Borrower and the Agent.
“Eurocurrency Liabilities” has the meaning assigned to that term in Regulation
D of the Board of Governors of the Federal Reserve System, as in effect from time to time.
“Eurocurrency Rate” means, for any Interest Period for each Eurocurrency Rate
Advance comprising part of the same Borrowing, an interest rate per annum equal to the rate
per annum obtained by dividing (a) the rate per annum (rounded upward to the nearest whole
multiple of 1/100 of 1% per annum) appearing on Reuters Screen LIBOR01 Page (or any
successor page) as the London interbank offered rate for deposits in Dollars or the
applicable Committed Currency at approximately 11:00 A.M. (London time) two Business Days
prior to the first day of such Interest Period for a term comparable to such Interest Period
or, if for any reason such rate is not available (but subject to the provisions of Section
2.08), the average (rounded upward to the nearest whole multiple of 1/100 of 1% per annum,
if such average is not such a multiple) of the rate per annum at which deposits in Dollars
or the applicable Committed Currency is offered by the principal office of each of the
Reference Banks in London, England to prime banks in the London interbank market at 11:00
A.M. (London time) two Business Days before the first day of such Interest Period in an
amount substantially equal to such Reference Bank’s (or such Reference Bank’s Affiliate’s)
Eurocurrency Rate Advance comprising part of such Borrowing to be outstanding during such
Interest Period and for a period equal to such Interest Period by (b) a percentage equal to
100% minus the Eurocurrency Rate Reserve Percentage for such Interest Period.
“Eurocurrency Rate Advance” means an Advance denominated in Dollars or a
Committed Currency that bears interest as provided in Section 2.07(a)(ii).
“Eurocurrency Rate Reserve Percentage” for any Interest Period for all
Eurocurrency Rate Advances comprising part of the same Borrowing means the reserve
percentage applicable
7
two Business Days before the first day of such Interest Period under regulations issued
from time to time by the Board of Governors of the Federal Reserve System (or any successor)
for determining the maximum reserve requirement (including, without limitation, any
emergency, supplemental or other marginal reserve requirement) for a member bank of the
Federal Reserve System in New York City with respect to liabilities or assets consisting of
or including Eurocurrency Liabilities (or with respect to any other category of liabilities
that includes deposits by reference to which the interest rate on Eurocurrency Rate Advances
is determined) having a term equal to such Interest Period.
“Events of Default” has the meaning specified in Section 6.01.
“Extension Date” has the meaning specified in Section 2.18(b).
“Facility” means the Revolving Credit Facility or the Letter of Credit
Facility.
“FATCA” means Sections 1471 through 1474 of the Internal Revenue Code, as in
effect on the date hereof (or any amended or successor version that is substantively
comparable and not materially more onerous to comply with) and any current or future
regulations or official interpretations thereof.
“Federal Funds Rate” means, for any period, a fluctuating interest rate per
annum equal for each day during such period to the weighted average of the rates on
overnight Federal funds transactions with members of the Federal Reserve System arranged by
Federal funds brokers, as published for such day (or, if such day is not a Business Day, for
the next preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate
is not so published for any day that is a Business Day, the average of the quotations for
such day on such transactions received by the Agent from three Federal funds brokers of
recognized standing selected by it.
“Foreign Lender” means any Lender that is organized under the laws of a
jurisdiction other than the United States. For purposes of this definition, the United
States of America, each State thereof and the District of Columbia shall be deemed to
constitute a single jurisdiction.
“Fronting Exposure” means, at any time there is a Defaulting Lender, with
respect to any Issuing Bank, such Defaulting Lender’s Pro Rata Share of the L/C Obligations
with respect to Letters of Credit issued by such Issuing Bank, other than L/C Obligations as
to which such Defaulting Lender’s participation obligation has been reallocated to other
Lenders or Cash Collateralized in accordance with the terms hereof.
“GAAP” has the meaning specified in Section 1.03.
“Hazardous Materials” means (a) petroleum and petroleum products, byproducts or
breakdown products, radioactive materials, asbestos-containing materials, polychlorinated
biphenyls and radon gas and (b) any other chemicals, materials or substances designated,
classified or regulated as hazardous or toxic or as a pollutant or contaminant under any
Environmental Law.
“Hedge Agreement” means any agreement with respect to any swap, forward, future
or derivative transaction or option or similar agreement involving, or settled by reference
to, one or more rates, currencies, commodities, equity or debt instruments or securities, or
economic, financial or pricing indices or measures of economic, financial or pricing risk or
value or any similar transaction or any combination of these transactions; provided
that no phantom stock or
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similar plan providing for payments only on account of services provided by current or
former directors, officers, employees or consultants of the Borrower or the Subsidiaries
shall be a Hedge Agreement; and provided, further, that no call-spread
transaction in connection with the issuance of any convertible securities shall be a Hedge
Agreement.
“Increase Date” has the meaning specified in Section 2.19(a).
“Increasing Lender” has the meaning specified in Section 2.19(b).
“Information” has the meaning specified in Section 8.08.
“Initial Issuing Bank” has the meaning specified in the recital of parties to
this Agreement.
“Interest Period” means, for each Eurocurrency Rate Advance comprising part of
the same Borrowing, the period commencing on the date of such Eurocurrency Rate Advance or
the date of the Conversion of any Base Rate Advance into such Eurocurrency Rate Advance and
ending on the last day of the period selected by the Borrower pursuant to the provisions
below and, thereafter, each subsequent period commencing on the last day of the immediately
preceding Interest Period and ending on the last day of the period selected by the Borrower
pursuant to the provisions below. The duration of each such Interest Period shall be one,
two, three, six, nine or twelve months, as the Borrower may, upon notice received by the
Agent not later than 11:00 A.M. (New York City time) (or, in the case of a Borrowing
consisting of Eurocurrency Rate Advances denominated in any Committed Currency, 4:00 P.M.
(London time)) on the third Business Day prior to the first day of such Interest Period,
select; provided, however, that:
(a) the Borrower may not select any Interest Period that ends after the
earliest Termination Date then in effect for any Lender;
(b) Interest Periods commencing on the same date for Eurocurrency Rate Advances
comprising part of the same Borrowing shall be of the same duration;
(c) whenever the last day of any Interest Period would otherwise occur on a day
other than a Business Day, the last day of such Interest Period shall be extended to
occur on the next succeeding Business Day, provided, however, that,
if such extension would cause the last day of such Interest Period to occur in the
next following calendar month, the last day of such Interest Period shall occur on
the next preceding Business Day; and
(d) whenever the first day of any Interest Period occurs on a day of an initial
calendar month for which there is no numerically corresponding day in the calendar
month that succeeds such initial calendar month by the number of months in such
Interest Period, such Interest Period shall end on the last Business Day of such
succeeding calendar month.
“Internal Revenue Code” means the Internal Revenue Code of 1986, as amended
from time to time, and the regulations promulgated and rulings issued thereunder.
“issuance” with respect to any Letter of Credit means the issuance, amendment,
renewal or extension of such Letter of Credit.
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9
“Issuing Bank” means an Initial Issuing Bank or any Eligible Assignee to which
a portion of the Letter of Credit Commitment hereunder has been assigned pursuant to Section
8.07 so long as such Eligible Assignee expressly agrees to perform in accordance with their
terms all of the obligations that by the terms of this Agreement are required to be
performed by it as an Issuing Bank and notifies the Agent of its Applicable Lending Office
(which information shall be recorded by the Agent in the Register), for so long as the
Initial Issuing Bank or Eligible Assignee, as the case may be, shall have a Letter of Credit
Commitment.
“L/C Cash Collateral Account” means an interest bearing cash collateral account
to be established and maintained by the Agent, over which the Agent shall have sole dominion
and control, upon terms as may be satisfactory to the Agent.
“L/C Obligations” means, as of any date, the aggregate Available Amount of
outstanding Letters of Credit and Advances made by an Issuing Bank in accordance with
Section 2.03 that have not been funded by the Lenders and, in the case of any Letters of
Credit denominated in any Committed Currency, shall be the Equivalent in Dollars of such
amount, determined as of the third Business Day prior to such date.
“L/C Related Documents” has the meaning specified in Section 2.06(b)(i).
“Lender Insolvency Event” means that (a) a Lender or its Parent Company is
insolvent, or is generally unable to pay its debts as they become due, or admits in writing
its inability to pay its debts as they become due, or makes a general assignment for the
benefit of its creditors, or (b) such Lender or its Parent Company is, other than solely via
an Undisclosed Administration, the subject of a bankruptcy, insolvency, liquidation or
similar proceeding or reorganization, or a receiver, trustee, conservator, intervenor or
sequestrator or the like has been appointed for such Lender or its Parent Company, or such
Lender or its Parent Company has taken any action in furtherance of or indicating its
consent to or acquiescence in any such proceeding or appointment.
“Lenders” means the Banks, each Issuing Bank, each Assuming Lender that shall
become a party hereto pursuant to Section 2.18 or 2.19 and each Eligible Assignee that shall
become a party hereto pursuant to Section 8.07.
“Letter of Credit Agreement” has the meaning specified in Section 2.03(a).
“Letter of Credit Commitment” means, with respect to the Initial Issuing Bank,
the amount set forth opposite the Initial Issuing Bank’s name on Schedule I hereto under the
caption “Letter of Credit Commitment” or, if the Initial Issuing Bank has entered into one
or more Assignment and Assumptions, the amount set forth for such Issuing Bank in the
Register maintained by the Agent pursuant to Section 8.07(d) as such Issuing Bank’s “Letter
of Credit Commitment”, as such amount may be reduced at or prior to such time pursuant to
Section 2.05.
“Letter of Credit Facility” means, at any time, an amount equal to the lesser
of (a) the aggregate amount of the Issuing Banks’ Letter of Credit Commitments at such time
and (b) $100,000,000, as such amount may be reduced at or prior to such time pursuant to
Section 2.05.
“Letters of Credit” has the meaning specified in Section 2.01(b).
“Lien” means any lien, security interest or other charge or encumbrance of any
kind, or any other type of preferential arrangement, including, without limitation, the lien
or retained
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10
security title of a conditional vendor and any easement, right of way or other
encumbrance on title to real property.
“Material Adverse Change” means any material adverse change in the business,
condition (financial or otherwise) or operations of the Borrower and its Subsidiaries taken
as a whole.
“Material Adverse Effect” means a material adverse effect on (a) the business,
condition (financial or otherwise) or operations of the Borrower and its Subsidiaries taken
as a whole, (b) the rights and remedies of the Agent or any Lender under this Agreement or
any Note or (c) the ability of the Borrower to perform its obligations under this Agreement
or any Note.
“Material Subsidiary” of the Borrower means, at any time, any Subsidiary of the
Borrower having (a) assets with a value of not less than 2% of the total value of the assets
of the Borrower and its Subsidiaries, taken as a whole or (b) Consolidated revenues not less
than 2% of the Consolidated revenues of the Borrower and its Subsidiaries, taken as a whole.
“Moody’s” means Xxxxx’x Investors Service, Inc.
“Multiemployer Plan” means a multiemployer plan, as defined in Section
4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate is making or accruing an
obligation to make contributions, or has within any of the preceding five plan years made or
accrued an obligation to make contributions.
“Multiple Employer Plan” means a single employer plan, as defined in Section
4001(a)(15) of ERISA, that (a) is maintained for employees of the Borrower or any ERISA
Affiliate and at least one Person other than the Borrower and the ERISA Affiliates or (b)
was so maintained and in respect of which the Borrower or any ERISA Affiliate could have
liability under Section 4064 or 4069 of ERISA in the event such plan has been or were to be
terminated.
“Non-Consenting Lender” has the meaning specified in Section 2.18(b).
“Non-Defaulting Lender” means, at any time, a Lender that is not a Defaulting
Lender.
“Note” means a promissory note of the Borrower payable to the order of any
Lender, delivered pursuant to a request made under Section 2.16 in substantially the form of
Exhibit A hereto, evidencing the aggregate indebtedness of the Borrower to such Lender
resulting from the Advances made by such Lender.
“Notice of Borrowing” has the meaning specified in Section 2.02(a).
“Notice of Issuance” has the meaning specified in Section 2.03(a).
“Parent Company” means, with respect to a Lender, the bank holding company (as
defined in Federal Reserve Board Regulation Y), if any, of such Lender, or if such Lender
does not have a bank holding company, then any corporation, association, partnership or
other business entity owning, beneficially or of record, directly or indirectly, a majority
of the shares (or equivalent evidence of beneficial and economic ownership) of such Lender.
“Participant” has the meaning specified in Section 8.07(d).
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11
“Payment Office” means, for any Committed Currency, such office of Citibank as
shall be from time to time selected by the Agent and notified by the Agent to the Borrower
and the Lenders.
“PBGC” means the Pension Benefit Guaranty Corporation (or any successor).
“Permitted Liens” means (a) such of the following as to which no enforcement,
collection, execution, levy or foreclosure proceeding shall have been commenced and which
have not been stayed within 30 days from the entry thereof: (i) Liens for taxes,
assessments and governmental charges or levies to the extent not yet due and payable or not
required to be paid under Section 5.01(b); and (ii) pledges or deposits to secure
obligations under workers’ compensation laws, unemployment insurance, social security or
other laws or similar legislation or to secure public or statutory obligations; (b) Liens
imposed by law, such as materialmen’s, mechanics’, carriers’, workmen’s and repairmen’s
Liens and other similar Liens arising in the ordinary course of business securing
obligations that are not overdue for a period of more than 30 days (and, if overdue by more
than 30 days, are being contested in good faith and by proper proceedings and as to which
appropriate reserves are being maintained) as to which no enforcement, collection,
execution, levy or foreclosure proceeding shall have been concluded in favor of the secured
party, (c) easements, rights of way and other encumbrances on title to real property that do
not render title to the property encumbered thereby unmarketable or materially adversely
affect the use of such property for its present purposes and (d) judgment liens in respect
of judgments that do not constitute an Event of Default under Section 6.01(f).
“Person” means an individual, partnership, corporation (including a business
trust), joint stock company, trust, unincorporated association, joint venture, limited
liability company or other entity, or a government or any political subdivision or agency
thereof.
“Plan” means a Single Employer Plan or a Multiple Employer Plan.
“Pro Rata Share” of any amount means, with respect to any Lender at any time,
the product of such amount times a fraction the numerator of which is the amount of
such Lender’s Revolving Credit Commitment at such time (or, if the Revolving Credit
Commitments shall have been terminated pursuant to Section 2.05 or 6.01, such Lender’s
Revolving Credit Commitment as in effect immediately prior to such termination) and the
denominator of which is the aggregate amount of all Revolving Credit Commitments at such
time (or, if the Revolving Credit Commitments shall have been terminated pursuant to Section
2.05 or 6.01, the aggregate amount of all Revolving Credit Commitments as in effect
immediately prior to such termination).
“Public Debt Rating” means, as of any date, the rating that has been most
recently announced by either S&P or Moody’s, as the case may be, for any class of non-credit
enhanced long-term senior unsecured debt issued by the Borrower. For purposes of the
foregoing, (a) if only one of S&P and Moody’s shall have in effect a Public Debt Rating, the
Applicable Margin and the Applicable Percentage shall be determined by reference to the
available rating; (b) if neither S&P nor Moody’s shall have in effect a Public Debt Rating,
the Applicable Margin and the Applicable Percentage will be set in accordance with Level 5
under the definition of “Applicable Margin” or “Applicable Percentage”, as
the case may be; (c) if the ratings established by S&P and Moody’s shall fall within
different levels, the Applicable Margin and the Applicable Percentage shall be based upon
the higher rating unless such ratings differ by two or more levels, in which case the
applicable level will be deemed to be one level below the higher of such levels; (d) if any
rating established by S&P or Moody’s shall be changed, such change shall be effective as of
the date on which such change is first announced publicly by the rating agency
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making such change; and (e) if S&P or Moody’s shall change the basis on which ratings
are established, each reference to the Public Debt Rating announced by S&P or Moody’s, as
the case may be, shall refer to the then equivalent rating by S&P or Moody’s, as the case
may be.
“Reference Banks” means BofA, Citibank and JPMCB.
“Register” has the meaning specified in Section 8.07(c).
“Related Parties” means, with respect to any Person, such Person’s Affiliates
and the partners, directors, officers, employees, agents, trustees, administrators,
managers, advisors and representatives of such Person and of such Person’s Affiliates.
“Required Lenders” means at any time Lenders owed over 50% of the then
aggregate unpaid principal amount (based on the Equivalent in Dollars at such time) of the
Advances owing to Lenders, or, if no such principal amount is then outstanding, Lenders
having at least a majority in interest of the Revolving Credit Commitments.
“Revolving Credit Commitment” means, with respect to any Lender at any time,
the amount set forth opposite such Lender’s name on Schedule I hereto under the caption
“Revolving Credit Commitment” or, if such Lender has entered into one or more Assignment and
Assumptions, set forth for such Lender in the Register maintained by the Agent pursuant to
Section 8.07(c) as such Lender’s “Revolving Credit Commitment”, as such amount may be
reduced at or prior to such time pursuant to Section 2.05 or increased pursuant to Sections
2.18(c) or 2.19.
“S&P” means Standard & Poor’s Rating Services, a Standard and Poor’s Financial
Services LLC business.
“Single Employer Plan” means a single employer plan, as defined in Section
4001(a)(15) of ERISA, that (a) is maintained for employees of the Borrower or any ERISA
Affiliate and no Person other than the Borrower and the ERISA Affiliates or (b) was so
maintained and in respect of which the Borrower or any ERISA Affiliate could have liability
under Section 4069 of ERISA in the event such plan has been or were to be terminated.
“Subordinated Debt” means Debt that is subordinated by its terms in right of
payment to amounts owing under this Agreement.
“Subsidiary” of any Person means any corporation, partnership, joint venture,
limited liability company, trust or estate of which (or in which) more than 50% of (a) the
issued and outstanding capital stock having ordinary voting power to elect a majority of the
Board of Directors of such corporation (irrespective of whether at the time capital stock of
any other class or classes of such corporation shall or might have voting power upon the
occurrence of any contingency), (b) the interest in the capital or profits of such limited
liability company, partnership or joint venture or (c) the beneficial interest in such trust
or estate is at the time directly or indirectly owned or controlled by such Person, by such
Person and one or more of its other Subsidiaries or by one or more of such Person’s other
Subsidiaries.
“Termination Date” means the earlier of (a) August 19, 2016, subject to the
extension thereof pursuant to Section 2.18 and (b) the date of termination in whole of the
Commitments pursuant to Section 2.05 or 6.01; provided, however, that the
Termination Date of any Lender that is a Non-Consenting Lender to any requested extension
pursuant to Section 2.18 shall be the
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13
Termination Date in effect immediately prior to the applicable Extension Date for all
purposes of this Agreement.
“Type” refers to the distinction between Base Rate Advances and Eurocurrency
Rate Advances.
“Undisclosed Administration” means, in relation to a Lender, the appointment of
an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other
similar official by a supervisory authority or regulator under the laws of the country where
such Lender is subject to home jurisdiction supervision if, and only for so long as,
applicable law prohibits such appointment from being publicly disclosed and provided that
such appointment shall not result in or provide such Lender with immunity from the
jurisdiction of courts within the United States or from the enforcement of judgments or
writs of attachment on its assets or permit such Lender (or such supervisory authority or
regulator) to reject, repudiate, disavow or disaffirm any contracts or agreements made with
such Lender.
“Unused Commitment” means, with respect to each Lender at any time, (a) such
Lender’s Revolving Credit Commitment at such time minus (b) the sum of (i) the
aggregate principal amount of all Advances made by such Lender (in its capacity as a Lender)
and outstanding at such time, plus (ii) such Lender’s Pro Rata Share of (A) the
aggregate Available Amount of all the Letters of Credit outstanding at such time and (B) the
aggregate principal amount of all Advances made by each Issuing Bank pursuant to Section
2.03(c) that have not been ratably funded by such Lender and outstanding at such time.
“Voting Stock” means capital stock issued by a corporation, or equivalent
interests in any other Person, the holders of which are ordinarily, in the absence of
contingencies, entitled to vote for the election of directors (or persons performing similar
functions) of such Person, even if the right so to vote has been suspended by the happening
of such a contingency.
SECTION 1.02 Computation of Time Periods. In this Agreement in the computation of
periods of time from a specified date to a later specified date, the word “from” means “from and
including” and the words “to” and “until” each mean “to but excluding”.
SECTION 1.03 Accounting Terms. All accounting terms not specifically defined herein
shall be construed in accordance with generally accepted accounting principles consistent with
those applied in the preparation of the financial statements referred to in Section 4.01(e)
(“GAAP”). If at any time any change in generally accepted accounting principles would affect the
computation of any financial ratio or requirement set forth herein, and either the Borrower or the
Required Lenders shall so request, the Agent, the Lenders and the Borrower shall negotiate in good
faith to amend such ratio or requirement to preserve the original intent thereof in light of such
change in generally accepted accounting principles (subject to the approval of the Borrower and the
Required Lenders); provided that, until so amended, (i) such ratio or requirement shall continue to
be computed in accordance with GAAP and (ii) the Borrower shall provide to the Agent and the
Lenders financial statements and other documents required under this Agreement or as reasonably
requested hereunder setting forth a reconciliation between calculations of such ratio or
requirement made before and after giving effect to such change in generally accepted accounting
principles.
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ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES AND LETTERS OF CREDIT
SECTION 2.01 The Advances and Letters of Credit. (a) Each Lender severally agrees,
on the terms and conditions hereinafter set forth, to make Advances to the Borrower from time to
time on any Business Day during the period from the Effective Date until the Termination Date in an
aggregate amount (based in respect of any Advances to be denominated in a Committed Currency by
reference to the Equivalent thereof in Dollars determined on the date of delivery of the applicable
Notice of Borrowing) not to exceed such Lender’s Unused Commitment at such time. Each Borrowing
shall be in an amount not less than the Borrowing Minimum or the Borrowing Multiple in excess
thereof and shall consist of Advances of the same Type and in the same currency made on the same
day by the Lenders ratably according to their respective Revolving Credit Commitments. Within the
limits of each Lender’s Revolving Credit Commitment, the Borrower may borrow under this Section
2.01(a), prepay pursuant to Section 2.10 and reborrow under this Section 2.01(a).
(b) Letters of Credit. Each Issuing Bank agrees, on the terms and conditions
hereinafter set forth, to issue letters of credit (each, a “Letter of Credit”)
denominated in Dollars for the account of the Borrower from time to time on any Business Day
during the period from the Effective Date until 30 days before the Termination Date in an
aggregate Available Amount (i) for all Letters of Credit issued by each Issuing Bank not to
exceed at any time the lesser of (x) the Letter of Credit Facility at such time and (y) each
Issuing Bank’s Letter of Credit Commitment at such time and (ii) for each such Letter of
Credit not to exceed an amount equal to the Unused Commitments of the Lenders at such time.
No Letter of Credit shall have an expiration date (including all rights of the Borrower or
the beneficiary to require renewal) later than 10 Business Days before the Termination Date.
Within the limits referred to above, the Borrower may request the issuance of Letters of
Credit under this Section 2.01(b), repay any Advances resulting from drawings thereunder
pursuant to Section 2.03(c) and request the issuance of additional Letters of Credit under
this Section 2.01(b).
SECTION 2.02 Making the Advances. (a) Except as otherwise provided in Section
2.03(c), each Borrowing shall be made on notice, given not later than (x) 11:00 A.M. (New York City
time) on the third Business Day prior to the date of the proposed Borrowing in the case of a
Borrowing consisting of Eurocurrency Rate Advances denominated in Dollars, (y) 4:00 P.M. (London
time) on the third Business Day prior to the date of the proposed Borrowing in the case of a
Borrowing consisting of Eurocurrency Rate Advances denominated in any Committed Currency, or (z)
11:00 A.M. (New York City time) on the date of the proposed Borrowing in the case of a Borrowing
consisting of Base Rate Advances, by the Borrower to the Agent, which shall give to each Lender
prompt notice thereof by telecopier. Each such notice of a Borrowing (a “Notice of Borrowing”)
shall be by telephone, confirmed immediately in writing, or telecopier in substantially the form of
Exhibit B hereto, specifying therein the requested (i) date of such Borrowing, (ii) Type of
Advances comprising such Borrowing, (iii) aggregate amount of such Borrowing, and (iv) in the case
of a Borrowing consisting of Eurocurrency Rate Advances, initial Interest Period and currency for
each such Advance. Each Lender shall, before 1:00 P.M. (New York City time) on the date of such
Borrowing, in the case of a Borrowing consisting of Advances denominated in Dollars, and before
11:00 A.M. (London time) on the date of such Borrowing, in the case of a Borrowing consisting of
Eurocurrency Rate Advances denominated in any Committed Currency, make available for the account of
its Applicable Lending Office to the Agent at the applicable Agent’s Account, in same day funds,
such Lender’s ratable portion of such Borrowing. After the Agent’s receipt of such funds and upon
fulfillment of the applicable conditions set forth in Section 3.02, the Agent will make such funds
available to the Borrower in same day funds on the date of such Borrowing at the Agent’s address
referred to in Section 8.02 or at the applicable Payment Office, as the case may be.
CA, Inc. Credit Agreement
15
(b) Anything in subsection (a) above to the contrary notwithstanding, (i) the Borrower
may not select Eurocurrency Rate Advances for any Borrowing if the aggregate amount of such
Borrowing is less than the Borrowing Minimum or if the obligation of the Lenders to make
Eurocurrency Rate Advances for the requested currency shall then be suspended pursuant to
Section 2.08 or 2.12 and (ii) the Eurocurrency Rate Advances may not be outstanding as part
of more than ten separate Borrowings.
(c) Each Notice of Borrowing shall be irrevocable and binding on the Borrower. In the
case of any Borrowing that the related Notice of Borrowing specifies is to be comprised of
Eurocurrency Rate Advances, the Borrower shall indemnify each Lender against any loss, cost
or expense incurred by such Lender as a result of any failure to fulfill on or before the
date specified in such Notice of Borrowing for such Borrowing the applicable conditions set
forth in Article III, including, without limitation, any loss (excluding loss of anticipated
profits), cost or expense incurred by reason of the liquidation or reemployment of deposits
or other funds acquired by such Lender to fund the Advance to be made by such Lender as part
of such Borrowing when such Advance, as a result of such failure, is not made on such date.
(d) Unless the Agent shall have received notice from a Lender prior to the time of any
Borrowing that such Lender will not make available to the Agent such Lender’s ratable
portion of such Borrowing, the Agent may assume that such Lender has made such portion
available to the Agent on the date of such Borrowing in accordance with subsection (a) of
this Section 2.02 and the Agent may, in reliance upon such assumption, make available to the
Borrower on such date a corresponding amount. If and to the extent that such Lender shall
not have so made such ratable portion available to the Agent, such Lender and the Borrower
severally agree to repay to the Agent forthwith on demand such corresponding amount together
with interest thereon, for each day from the date such amount is made available to the
Borrower until the date such amount is repaid to the Agent, at (i) in the case of the
Borrower, the higher of (A) the interest rate applicable at the time to Advances comprising
such Borrowing and (B) the cost of funds incurred by the Agent in respect of such amount and
(ii) in the case of such Lender, (A) the Federal Funds Rate in the case of Advances
denominated in Dollars or (B) the cost of funds incurred by the Agent in respect of such
amount in the case of Advances denominated in Committed Currencies. If such Lender shall
repay to the Agent such corresponding amount, such amount so repaid shall constitute such
Lender’s Advance as part of such Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the Advance to be made by it as part of any
Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make
its Advance on the date of such Borrowing, but no Lender shall be responsible for the
failure of any other Lender to make the Advance to be made by such other Lender on the date
of any Borrowing.
SECTION 2.03 Issuance of and Drawings and Reimbursement Under Letters of Credit.
(a) Request for Issuance. (i) Each Letter of Credit shall be issued upon notice,
given not later than 11:00 A.M. (New York City time) on the fifth Business Day prior to the date of
the proposed issuance of such Letter of Credit (or on such shorter notice as the applicable Issuing
Bank may agree), by the Borrower to any Issuing Bank, and such Issuing Bank shall give the Agent,
prompt notice thereof by telecopier. Each such notice of issuance of a Letter of Credit (a
“Notice of Issuance”) shall be by telephone, confirmed immediately in writing, or
telecopier, specifying therein the requested (A) date of such issuance (which shall be a Business
Day), (B) Available Amount of such Letter of Credit, (C) expiration date of such Letter of Credit
(which shall not be later than the earlier of (x) one year after the issuance thereof (provided
that any such Letter of Credit may provide for renewal thereof for
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additional periods (which shall in no event extend past the date in clause (y) hereof)) and (y) 10 Business Days prior
to the earliest Termination Date), (D) name and address of the beneficiary of such Letter of Credit
and (E) form of such Letter of Credit, and shall be accompanied by such customary application and
agreement for letter of credit as such Issuing Bank may specify to the Borrower for use in
connection with such requested Letter of Credit (a “Letter of Credit Agreement”). If the
requested form of such Letter of Credit is acceptable to such Issuing Bank in its sole discretion,
such Issuing Bank will, unless it has received written notice from any Lender, the Agent or the
Borrower, at least one Business Day prior to the requested date of issuance or amendment of the
applicable Letter of Credit, that one or more applicable conditions contained in Article III shall
not be satisfied, upon fulfillment of the applicable conditions set forth in Article III, make such
Letter of Credit available to the Borrower at its office referred to in Section 8.02 or as
otherwise agreed with the Borrower in connection with such issuance. In the event and to the
extent that the provisions of any Letter of Credit Agreement shall conflict with this Agreement,
the provisions of this Agreement shall govern.
(b) Participations. By the issuance of a Letter of Credit (or an amendment to
a Letter of Credit increasing the amount thereof) and without any further action on the part
of the applicable Issuing Bank or the Lenders, subject to Section 2.19(e), such Issuing Bank
hereby grants to each Lender, and each Lender hereby acquires from such Issuing Bank, a
participation in such Letter of Credit equal to such Lender’s Pro Rata Share of the
aggregate amount available to be drawn under such Letter of Credit. The Borrower hereby
agrees to each such participation. In consideration and in furtherance of the foregoing,
each Lender hereby absolutely and unconditionally agrees to pay to the Agent, for the
account of such Issuing Bank, such Lender’s Pro Rata Share of each drawing made under a
Letter of Credit funded by such Issuing Bank and not reimbursed by the Borrower on the date
made, or of any reimbursement payment required to be refunded to the Borrower for any
reason. To the extent of its Revolving Credit Commitment, each Lender acknowledges and
agrees that its obligation to acquire participations pursuant to this paragraph in respect
of Letters of Credit is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including any amendment, renewal or extension of any Letter of
Credit or the occurrence and continuance of a Default or reduction or termination of the
aggregate Revolving Credit Commitments, and that each such payment shall be made without any
offset, abatement, withholding or reduction whatsoever.
(c) Drawing and Reimbursement. The payment by an Issuing Bank of a draft drawn
under any Letter of Credit shall constitute for all purposes of this Agreement the making by
any such Issuing Bank of an Advance, which shall be a Base Rate Advance, in the amount of
such draft. Each Issuing Bank shall give prompt notice (and such Issuing Bank will use its
commercially reasonable efforts to deliver such notice within one Business Day) of each
drawing under any Letter of Credit issued by it to the Borrower and the Agent. Upon written
demand by such Issuing Bank, with a copy of such demand to the Agent, subject to Section
2.19(e), each Lender shall pay to the Agent such Lender’s Pro Rata Share of such outstanding
Advance, by making available for the account of its Applicable Lending Office to the Agent
for the account of such Issuing Bank, by deposit to the Agent’s Account, in same day funds,
an amount equal to the portion of the outstanding principal amount of such Advance to be
funded by such Lender. Promptly after receipt thereof, the Agent shall transfer such funds
to such Issuing Bank. Each Lender agrees to fund its Pro Rata Share of an outstanding
Advance on (i) the Business Day on which demand therefor is made by such Issuing Bank,
provided that notice of such demand is given not later than 11:00 A.M. (New York
City time) on such Business Day, or (ii) the first Business Day next succeeding such demand
if notice of such demand is given after such time. If and to the extent that any Lender
shall not have so made the amount of such Advance available to the Agent, such Lender agrees
to pay to the Agent forthwith on demand such amount together with interest thereon, for each
day from the date of demand by any such Issuing Bank until the
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date such amount is paid to the Agent, at the Federal Funds Rate for its account or the
account of such Issuing Bank, as applicable. If such Lender shall pay to the Agent such
amount for the account of any such Issuing Bank on any Business Day, such amount so paid in
respect of principal shall constitute an Advance made by such Lender on such Business Day
for purposes of this Agreement, and the outstanding principal amount of the Advance made by
such Issuing Bank shall be reduced by such amount on such Business Day.
(d) Letter of Credit Reports. Each Issuing Bank shall furnish (A) to the Agent
on the first Business Day of each week a written report summarizing issuance and expiration
dates of Letters of Credit issued by such Issuing Bank during the previous week and drawings
during such week under all Letters of Credit issued by such Issuing Bank, (B) to each Lender
on the first Business Day of each month a written report summarizing issuance and expiration
dates of Letters of Credit issued by such Issuing Bank during the preceding month and
drawings during such month under all Letters of Credit issued by such Issuing Bank and (C)
to the Agent and each Lender on the first Business Day of each calendar quarter a written
report setting forth the average daily aggregate Available Amount during the preceding
calendar quarter of all Letters of Credit issued by such Issuing Bank.
(e) Failure to Make Advances. The failure of any Lender to make the Advance to
be made by it on the date specified in Section 2.03(c) shall not relieve any other Lender of
its obligation hereunder to make its Advance on such date, but no Lender shall be
responsible for the failure of any other Lender to make the Advance to be made by such other
Lender on such date.
SECTION 2.04 Fees. (a) Facility Fee. The Borrower agrees to pay to the
Agent for the account of each Lender a facility fee on the aggregate amount of such Lender’s
Revolving Credit Commitment from the date hereof in the case of each Bank and from the effective
date specified in the Assumption Agreement or in the Assignment and Assumption pursuant to which it
became a Lender in the case of each other Lender at a rate per annum equal to the Applicable
Percentage in effect from time to time, payable in arrears quarterly on the first day of each
January, April, July and October, commencing October 1, 2011, and on the Termination Date, and
after the Termination Date payable upon demand until all amounts due and payable under this
Agreement have been paid in full in cash and either all Letters of Credit have been terminated or
the Borrower shall otherwise have complied with the provisions of Section 6.02, provided that after
the Revolving Credit Commitments have been terminated, the facility fee will be calculated on the
aggregate balance of amounts outstanding under this Agreement plus the amounts of any outstanding
Letters of Credit; and provided further that no Defaulting Lender shall be entitled to receive any
facility fee except in respect of its outstanding Advances for any period during which that Lender
is a Defaulting Lender (and the Borrower shall not be required to pay such fee that otherwise would
have been required to have been paid to that Defaulting Lender).
(b) Letter of Credit Fees. (i) The Borrower shall pay to the Agent for the
account of each Lender a commission (the “Letter of Credit Fees”) on such Lender’s
Pro Rata Share of the average daily aggregate Available Amount of all Letters of Credit
outstanding from time to time at a rate per annum equal to the Applicable Margin for
Eurocurrency Rate Advances in effect from time to time, payable in arrears quarterly on the
first day of each January, April, July and October, commencing October 1, 2011, and on the
Termination Date, and after the Termination Date payable upon demand; provided that
the Applicable Margin shall increase by 2% upon the occurrence and during the continuation
of an Event of Default under Section 6.01(a) or if the Letter of Credit Fees are not paid
when due (but in any case such increase in the Applicable Margin shall not exceed 2% per
annum) if the Borrower is required to pay Default Interest pursuant to Section 2.07(b);
provided, further, that (i) to the extent that all or a portion of the
Fronting Exposure in respect of any Defaulting Lender is reallocated to the Non-Defaulting
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Lenders pursuant to Section 2.20(a), such fees that would have accrued for the benefit
of such Defaulting Lender will instead accrue for the benefit of and be payable to such
Non-Defaulting Lenders, pro rata in accordance with their respective
Revolving Credit Commitments, and (ii) to the extent that all or any portion of such
Fronting Exposure cannot be so reallocated, such fees will instead accrue for the benefit of
and be payable to the respective Issuing Banks ratably according to the outstanding Letters
of Credit issued by each Issuing Bank, provided that such payments to the Issuing Banks
shall accrue only to the extent that such Letters of Credit have not been Cash
Collateralized.
(ii) The Borrower shall pay to each Issuing Bank for its own account such fees as may from
time to time be agreed in writing between the Borrower and such Issuing Bank.
(c) Agent’s Fees. The Borrower shall pay to the Agent for its own account such
fees as may from time to time be agreed in writing between the Borrower and the Agent.
SECTION 2.05 Optional Termination or Reduction of the Commitments. The Borrower shall
have the right, upon at least three Business Days’ notice to the Agent, to terminate in whole or
permanently reduce ratably in part the respective Unused Commitments of the Lenders, provided that
each partial reduction shall be in the aggregate amount of $10,000,000 or an integral multiple of
$1,000,000 in excess thereof and provided, further, that the Borrower may terminate in whole the
Unused Commitment of any Defaulting Lender upon notice to the Agent and such Defaulting Lender.
SECTION 2.06 Repayment of Advances. (a) The Borrower shall repay to the Agent on
each Termination Date, for the ratable account of the Lenders whose Commitments terminate on such
date, the aggregate principal amount of the Advances owed to such Lenders then outstanding.
(b) The obligations of the Borrower under this Agreement, any Letter of Credit
Agreement and any other agreement or instrument, in each case, relating to any Letter of
Credit shall be unconditional and irrevocable, and shall be paid strictly in accordance with
the terms of this Agreement, such Letter of Credit Agreement and such other agreement or
instrument under all circumstances, including, without limitation, the following
circumstances (it being understood that any such payment by the Borrower is without
prejudice to, and does not constitute a waiver of, any rights the Borrower might have or
might acquire as a result of the payment by any Lender of any draft or the reimbursement by
the Borrower thereof):
(i) any lack of validity or enforceability of this Agreement, any Note, any Letter of Credit
Agreement, any Letter of Credit or any other agreement or instrument relating thereto (all of the
foregoing being, collectively, the “L/C Related Documents”);
(ii) any change in the time, manner or place of payment of, or in any other term of, all or
any of the obligations of the Borrower in respect of any L/C Related Document or any other
amendment or waiver of or any consent to departure from all or any of the L/C Related Documents;
(iii) the existence of any claim, set-off, defense or other right that the Borrower may have
at any time against any beneficiary or any transferee of a Letter of Credit (or any Persons for
which any such beneficiary or any such transferee may be acting), any Issuing Bank, any Agent, any
Lender or any other Person, whether in connection with the transactions contemplated by the L/C
Related Documents or any unrelated transaction;
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19
(iv) any statement or any other document presented under a Letter of Credit proving to be
forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(v) payment by any Issuing Bank under a Letter of Credit against presentation of a draft or
certificate that does not strictly comply with the terms of such Letter of Credit;
(vi) any exchange, release or non-perfection of any collateral, or any release or amendment or
waiver of or consent to departure from any guarantee, for all or any of the obligations of the
Borrower in respect of the L/C Related Documents; or
(vii) any other circumstance or happening whatsoever, whether or not similar to any of the
foregoing, including, without limitation, any other circumstance that might otherwise constitute a
defense available to, or a discharge of, the Borrower or a guarantor.
SECTION 2.07 Interest on Advances. (a) Scheduled Interest. The Borrower
shall pay interest on the unpaid principal amount of each Advance owing to each Lender from the
date of such Advance until such principal amount shall be paid in full, at the following rates per
annum:
(i) Base Rate Advances. During such periods as such Advance is a Base Rate Advance, a
rate per annum equal at all times to the sum of (x) the Base Rate in effect from time to time
plus (y) the Applicable Margin in effect from time to time, payable in arrears quarterly on
the first day of each January, April, July and October during such periods and on the date such
Base Rate Advance shall be Converted or paid in full.
(ii) Eurocurrency Rate Advances. During such periods as such Advance is a
Eurocurrency Rate Advance, a rate per annum equal at all times during each Interest Period for such
Advance to the sum of (x) the Eurocurrency Rate for such Interest Period for such Advance
plus (y) the Applicable Margin in effect from time to time, payable in arrears on the last
day of such Interest Period and, if such Interest Period has a duration of more than three months,
on each day that occurs during such Interest Period every three months from the first day of such
Interest Period and on the date such Eurocurrency Rate Advance shall be Converted or paid in full.
(b) Default Interest. Upon the occurrence and during the continuance of an
Event of Default under Section 6.01(a), the Agent may, and upon the request of the Required
Lenders shall, require the Borrower to pay interest (“Default Interest”) on (i) the
unpaid principal amount of each Advance owing to each Lender, payable in arrears on the
dates referred to in clause (a)(i) or (a)(ii) above, at a rate per annum equal at all times
to 2% per annum above the rate per annum required to be paid on such Advance pursuant to
clause (a)(i) or (a)(ii) above and (ii) to the fullest extent permitted by law, the amount
of any interest, fee or other amount payable hereunder that is not paid when due, from the
date such amount shall be due until such amount shall be paid in full, payable in arrears on
the date such amount shall be paid in full and on demand, at a rate per annum equal at all
times to 2% per annum above the rate per annum required to be paid on Base Rate Advances
pursuant to clause (a)(i) above; provided, however, that following
acceleration of the Advances pursuant to Section 6.01, Default Interest shall accrue and be
payable hereunder whether or not previously required by the Agent.
SECTION 2.08 Interest Rate Determination. (a) Each Reference Bank agrees to furnish
to the Agent timely information for the purpose of determining each Eurocurrency Rate. If any one
or more of the Reference Banks shall not furnish such timely information to the Agent for the
purpose of determining any such interest rate, the Agent shall determine such interest rate on the
basis of timely
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20
information furnished by the remaining Reference Banks. The Agent shall give prompt notice to
the Borrower and the Lenders of the applicable interest rate determined by the Agent for purposes
of Section 2.07(a)(i) or (ii), and the rate, if any, furnished by each Reference Bank for the
purpose of determining the interest rate under Section 2.07(a)(ii).
(b) If, with respect to any Eurocurrency Rate Advances, the Required Lenders notify the
Agent that (i) they are unable to obtain matching deposits in the London inter-bank market
at or about 11:00 A.M. (London time) on the second Business Day before the making of a
Borrowing in sufficient amounts to fund their respective Advances as a part of such
Borrowing during its Interest Period or (ii) the Eurocurrency Rate for any Interest Period
for such Advances will not adequately reflect the cost to such Required Lenders of making,
funding or maintaining their respective Eurocurrency Rate Advances for such Interest Period,
the Agent shall forthwith so notify the Borrower and the Lenders, whereupon (A) the Borrower
will, on the last day of the then existing Interest Period therefor, (1) if such
Eurocurrency Rate Advances are denominated in Dollars, either (x) prepay such Advances or
(y) Convert such Advances into Base Rate Advances and (2) if such Eurocurrency Rate Advances
are denominated in any Committed Currency, either (x) prepay such Advances or (y) exchange
such Advances into an Equivalent amount of Dollars and Convert such Advances into Base Rate
Advances and (B) the obligation of the Lenders to make, or to Convert Advances into,
Eurocurrency Rate Advances shall be suspended until the Agent shall notify the Borrower and
the Lenders that the circumstances causing such suspension no longer exist.
(c) If the Borrower shall fail to select the duration of any Interest Period for any
Eurocurrency Rate Advances in accordance with the provisions contained in the definition of
“Interest Period” in Section 1.01, the Agent will forthwith so notify the Borrower and the
Lenders and such Advances will automatically, on the last day of the then existing Interest
Period therefor, (i) if such Eurocurrency Rate Advances are denominated in Dollars, Convert
into Base Rate Advances and (ii) if such Eurocurrency Rate Advances are denominated in a
Committed Currency, be exchanged for an Equivalent amount of Dollars and Convert into Base
Rate Advances.
(d) On the date on which the aggregate unpaid principal amount of Eurocurrency Rate
Advances comprising any Borrowing shall be reduced, by payment or prepayment or otherwise,
to less than the Borrowing Minimum, such Advances shall automatically (i) if such
Eurocurrency Rate Advances are denominated in Dollars, Convert into Base Rate Advances and
(ii) if such Eurocurrency Rate Advances are denominated in a Committed Currency, be
exchanged for an Equivalent amount of Dollars and Convert into Base Rate Advances.
(e) Upon the occurrence and during the continuance of any Event of Default under
Section 6.01(a), (i) each Eurocurrency Rate Advance will automatically, on the last day of
the then existing Interest Period therefor, (A) if such Eurocurrency Rate Advances are
denominated in Dollars, be Converted into Base Rate Advances and (B) if such Eurocurrency
Rate Advances are denominated in any Committed Currency, be exchanged for an Equivalent
amount of Dollars and be Converted into Base Rate Advances and (ii) the obligation of the
Lenders to make, or to Convert Advances into, Eurocurrency Rate Advances shall be suspended.
(f) If Reuters Screen LIBOR01 Page is unavailable and fewer than two Reference Banks furnish timely
information to the Agent for determining the Eurocurrency Rate for any such Eurocurrency Rate
Advances,
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21
(i) the Agent shall forthwith notify the Borrower and the Lenders that the interest rate
cannot be determined for such Eurocurrency Rate Advances,
(ii) with respect to Eurocurrency Rate Advances, each such Advance will automatically, on the
last day of the then existing Interest Period therefor, (A) if such Eurocurrency Rate Advance is
denominated in Dollars, Convert into a Base Rate Advance and (B) if such Eurocurrency Rate Advance
is denominated in any Committed Currency, be prepaid by the Borrower or be automatically exchanged
for an Equivalent amount of Dollars and be Converted into a Base Rate Advance (or if such Advance
is then a Base Rate Advance, will continue as a Base Rate Advance), and
(iii) the obligation of the Lenders to make Eurocurrency Rate Advances or to Convert Advances
into Eurocurrency Rate Advances shall be suspended until the Agent shall notify the Borrower and
the Lenders that the circumstances causing such suspension no longer exist.
SECTION 2.09 Optional Conversion of Advances. The Borrower may on any Business Day,
upon notice given to the Agent not later than 11:00 A.M. (New York City time) on the third Business
Day prior to the date of the proposed Conversion and subject to the provisions of Sections 2.08 and
2.12, Convert all Advances denominated in Dollars of one Type comprising the same Borrowing into
Advances denominated in Dollars of the other Type; provided, however, that any
Conversion of Eurocurrency Rate Advances into Base Rate Advances shall be made only on the last day
of an Interest Period for such Eurocurrency Rate Advances, any Conversion of Base Rate Advances
into Eurocurrency Rate Advances shall be in an amount not less than the minimum amount specified in
Section 2.02(b) and no Conversion of any Advances shall result in more separate Borrowings than
permitted under Section 2.02(b). Each such notice of a Conversion shall, within the restrictions
specified above, specify (i) the date of such Conversion, (ii) the Dollar denominated Advances to
be Converted, and (iii) if such Conversion is into Eurocurrency Rate Advances, the duration of the
initial Interest Period for each such Advance. Each notice of Conversion shall be irrevocable and
binding on the Borrower.
SECTION 2.10 Prepayments of Advances. (a) Optional. The Borrower may, upon
notice at least two Business Days’ prior to the date of such prepayment, in the case of
Eurocurrency Rate Advances, and not later than 11:00 A.M. (New York City time) on the date of such
prepayment, in the case of Base Rate Advances, to the Agent stating the proposed date and aggregate
principal amount of the prepayment, and if such notice is given the Borrower shall, prepay the
outstanding principal amount of the Advances comprising part of the same Borrowing in whole or
ratably in part without premium or penalty, together with accrued interest to the date of such
prepayment on the principal amount prepaid; provided, however, that (x) each
partial prepayment shall be in an aggregate principal amount of not less than the Borrowing Minimum
or a Borrowing Multiple in excess thereof and (y) in the event of any such prepayment of a
Eurocurrency Rate Advance, the Borrower shall be obligated to reimburse the Lenders in respect
thereof pursuant to Section 8.04(c).
(b) Mandatory. (i) If, on any date, the Agent notifies the Borrower that, on
any interest payment date, the sum of (A) the aggregate principal amount of all Advances
denominated in Dollars plus the Available Amount of Letters of Credit then outstanding plus
(B) the Equivalent in Dollars (determined on the third Business Day prior to such interest
payment date) of the aggregate principal amount of all Advances denominated in Committed
Currencies then outstanding exceeds 102% of the aggregate Revolving Credit Commitments of
the Lenders on such date, the Borrower shall, as soon as practicable and in any event within
two Business Days after receipt of such notice, subject to the proviso to this sentence set
forth below, prepay the outstanding principal amount of any Advances owing by the Borrower
in an aggregate amount sufficient to reduce such sum to an amount not to exceed 100% of the
aggregate Revolving Credit Commitments of the Lenders on such date together with any
interest accrued to
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22
the date of such prepayment on the aggregate principal amount of Advances prepaid;
provided that if the aggregate principal amount of Base Rate Advances outstanding at
the time of such required prepayment is less than the amount of such required prepayment,
the portion of such required prepayment in excess of the aggregate principal amount of Base
Rate Advances then outstanding shall be deferred until the earliest to occur of the last day
of the Interest Period of the outstanding Eurocurrency Rate Advances, in an aggregate amount
equal to the excess of such required prepayment. The Agent shall give prompt notice of any
prepayment required under this Section 2.10(b) to the Borrower and the Lenders, and shall
provide prompt notice to the Borrower of any such notice of required prepayment received by
it from any Lender.
(ii) Each prepayment made pursuant to this Section 2.10(b) shall be made together with any
interest accrued to the date of such prepayment on the principal amounts prepaid and, in the case
of any prepayment of a Eurocurrency Rate Advance on a date other than the last day of an Interest
Period or at its maturity, any additional amounts which the Borrower shall be obligated to
reimburse to the Lenders in respect thereof pursuant to Section 8.04(c). The Agent shall give
prompt notice of any prepayment required under this Section 2.10(b) to the Borrower and the
Lenders.
SECTION 2.11 Increased Costs. (a) If, due to either (i) the introduction of or any
change in or in the interpretation of any law or regulation after the date hereof or (ii) the
compliance with any guideline or European Union or similar monetary or multinational authority
(whether or not having the force of law) promulgated after the date hereof, there shall be any
increase in the cost to any Lender of agreeing to make or making, funding or maintaining
Eurocurrency Rate Advances or of agreeing to issue or of issuing or maintaining or participating in
Letters of Credit (excluding for purposes of this Section 2.11 any such increased costs resulting
from (i) Taxes or Other Taxes (as to which Section 2.14 shall govern), (ii) changes in the basis of
taxation of overall net income or overall gross income by the United States or by the foreign
jurisdiction or state under the laws of which such Lender is organized or has its Applicable
Lending Office or any political subdivision thereof and (iii) FATCA), then the Borrower shall from
time to time, within five Business Days after demand by such Lender (with a copy of such demand to
the Agent), pay to the Agent for the account of such Lender additional amounts sufficient to
compensate such Lender for such increased cost; provided, however, that before making any such
demand, each Lender agrees to use reasonable efforts (consistent with its internal policy and legal
and regulatory restrictions) to designate a different Applicable Lending Office if the making of
such a designation would avoid the need for, or reduce the amount of, such increased cost and would
not, in the reasonable judgment of such Lender, be otherwise disadvantageous to such Lender. A
certificate as to the amount of such increased cost, submitted to the Borrower and the Agent by
such Lender, shall be conclusive and binding for all purposes, absent manifest error.
(b) If any Lender determines that compliance with any law or regulation or any
guideline or request from any central bank or other governmental authority (whether or not
having the force of law) promulgated after the Effective Date affects or would affect the
amount of capital required or expected to be maintained by such Lender or any corporation
controlling such Lender and that the amount of such capital is increased by or based upon
the existence of such Lender’s commitment to lend hereunder and other commitments of this
type, then, within five Business Days after demand by such Lender (with a copy of such
demand to the Agent), the Borrower shall pay to the Agent for the account of such Lender,
from time to time as specified by such Lender, additional amounts sufficient to compensate
such Lender or such corporation in the light of such circumstances, to the extent that such
Lender reasonably determines such increase in capital to be allocable to the existence of
such Lender’s commitment to lend hereunder. A certificate as to such amounts submitted to
the Borrower and the Agent by such Lender shall be conclusive and binding for all purposes,
absent manifest error.
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23
(c) Failure or delay on the part of any Lender to demand compensation pursuant to this
Section shall not constitute a waiver of such Lender’s right to demand such compensation;
provided that the Borrower shall not be required to compensate a Lender pursuant to
this Section for any increased costs or reductions incurred more than six months prior to
the date that such Lender notifies the Borrower of the circumstance giving rise to such
increased costs or reductions and of such Lender’s intention to claim compensation therefor;
provided further that, if the circumstance giving rise to such increased
costs or reductions is retroactive, then the six-month period referred to above shall be
extended to include the period of retroactive effect thereof.
(d) For the avoidance of doubt and notwithstanding anything herein to the contrary, for
the purposes of this Section 2.11, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer
Protection Act and all requests, rules, regulations, guidelines, interpretations or
directives thereunder or issued in connection therewith (whether or not having the force of
law) and (y) all requests, rules, regulations, guidelines, interpretations or directives
promulgated by the Bank for International Settlements, the Basel Committee on Banking
Supervision (or any successor or similar authority ) or the United States or foreign
regulatory authorities (whether or not having the force of law), in case for this clause (y)
pursuant to Basel III, shall in each case be deemed to be a change in law regardless of the
date enacted, adopted, issued, promulgated or implemented.
SECTION 2.12 Illegality. Notwithstanding any other provision of this Agreement, if
any Lender shall notify the Agent that the introduction of or any change in or in the
interpretation of any law or regulation makes it unlawful, or any central bank or other
governmental authority asserts that it is unlawful, for any Lender or its Eurocurrency Lending
Office to perform its obligations hereunder to make Eurocurrency Rate Advances in Dollars or any
Committed Currency or to fund or maintain Eurocurrency Rate Advances in Dollars or any Committed
Currency hereunder, (a) each Eurocurrency Rate Advance will automatically, (i) if such Eurocurrency
Rate Advance is denominated in Dollars, be Converted into a Base Rate Advance and (ii) if such
Eurocurrency Rate Advance is denominated in any Committed Currency, be exchanged into an Equivalent
amount of Dollars and be Converted into a Base Rate Advance and (b) the obligation of the Lenders
to make Eurocurrency Rate Advances or to Convert Advances into Eurocurrency Rate Advances shall be
suspended until the Agent shall notify the Borrower and the Lenders that the circumstances causing
such suspension no longer exist; provided, however, that before making any such demand, each Lender
agrees to use reasonable efforts (consistent with its internal policy and legal and regulatory
restrictions) to designate a different Eurocurrency Lending Office if the making of such a
designation would allow such Lender or its Eurocurrency Lending Office to continue to perform its
obligations to make Eurocurrency Rate Advances or to continue to fund or maintain Eurocurrency Rate
Advances and would not, in the judgment of such Lender, be otherwise disadvantageous to such
Lender.
SECTION 2.13 Payments and Computations. (a) The Borrower shall make each payment
hereunder (other than with respect to principal of, interest on, and other amounts relating to,
Advances denominated in a Committed Currency), irrespective of any right of counterclaim or set-
off, not later than 11:00 A.M. (New York City time) on the day when due in Dollars to the Agent at
the applicable Agent’s Account in same day funds. The Borrower shall make each payment hereunder
with respect to principal of, interest on, and other amounts relating to, Advances denominated in a
Committed Currency, irrespective of any right of counterclaim or set-off, not later than 11:00 A.M.
(at the Payment Office for such Committed Currency) on the day when due in such Committed Currency
to the Agent, by deposit of such funds to the applicable Agent’s Account in same day funds. The
Agent will promptly thereafter cause to be distributed like funds relating to the payment of
principal or interest or facility fees ratably (other than amounts payable pursuant to Section
2.11, 2.14 or 8.04(c)) to the Lenders for the account of their respective Applicable Lending
Offices, and like funds relating to the payment of any other amount payable to any Lender to such
Lender for the account of its Applicable Lending Office, in
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each case to be applied in accordance with the terms of this Agreement. Upon any Assuming
Lender becoming a Lender hereunder as a result of an extension of the Termination Date pursuant to
Section 2.18 or a Commitment Increase pursuant to Section 2.19, and upon the Agent’s receipt of
such Lender’s Assumption Agreement and recording of the information contained therein in the
Register, from and after the applicable Increase Date or Extension Date, as the case may be, the
Agent shall make all payments hereunder and under any Notes issued in connection therewith in
respect of the interest assumed thereby to the Assuming Lender. Upon its acceptance of an
Assignment and Assumption and recording of the information contained therein in the Register
pursuant to Section 8.07(c), from and after the effective date specified in such Assignment and
Assumption, the Agent shall make all payments hereunder and under any Notes in respect of the
interest assigned thereby to the Lender assignee thereunder, and the parties to such Assignment and
Assumption shall make all appropriate adjustments in such payments for periods prior to such
effective date directly between themselves.
(b) The Borrower hereby authorizes each Lender, if and to the extent payment owed to
such Lender is not made when due hereunder or under the Note held by such Lender, to charge
from time to time against any or all of the Borrower’s accounts with such Lender any amount
so due.
(c) All computations of interest based on the Base Rate determined by reference to
Citibank’s base rate shall be made by the Agent on the basis of a year of 365 or 366 days,
as the case may be, all computations of interest based on the Eurocurrency Rate or the
Federal Funds Rate and of fees and Letter of Credit commissions shall be made by the Agent
on the basis of a year of 360 days (or, in each case of Advances denominated in Sterling, on
the basis of 365 days), in each case for the actual number of days (including the first day
but excluding the last day) occurring in the period for which such interest, fees or
commissions are payable. Each determination by the Agent of an interest rate hereunder
shall be conclusive and binding for all purposes, absent manifest error.
(d) Whenever any payment hereunder or under the Notes shall be stated to be due on a
day other than a Business Day, such payment shall be made on the next succeeding Business
Day, and such extension of time shall in such case be included in the computation of payment
of interest, fee or commission, as the case may be; provided, however, that,
if such extension would cause payment of interest on or principal of Eurocurrency Rate
Advances to be made in the next following calendar month, such payment shall be made on the
next preceding Business Day.
(e) Unless the Agent shall have received notice from the Borrower prior to the date on
which any payment is due to the Lenders hereunder that the Borrower will not make such
payment in full, the Agent may assume that the Borrower has made such payment in full to the
Agent on such date and the Agent may, in reliance upon such assumption, cause to be
distributed to each Lender on such due date an amount equal to the amount then due such
Lender. If and to the extent the Borrower shall not have so made such payment in full to
the Agent, each Lender shall repay to the Agent forthwith on demand such amount distributed
to such Lender together with interest thereon, for each day from the date such amount is
distributed to such Lender until the date such Lender repays such amount to the Agent, at
(i) the Federal Funds Rate in the case of Advances denominated in Dollars or (ii) the cost
of funds incurred by the Agent in respect of such amount in the case of Advances denominated
in Committed Currencies.
(f) To the extent that the Agent receives funds for application to the amounts owing by
the Borrower under or in respect of this Agreement or any Note in currencies other than the
currency or currencies required to enable the Agent to distribute funds to the Lenders in
accordance with the terms of this Section 2.13, the Agent shall be entitled to convert or
exchange
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such funds into Dollars or into a Committed Currency to the extent necessary to enable
the Agent to distribute such funds in accordance with the terms of this Section 2.13;
provided that the Borrower and each of the Lenders hereby agree that the Agent shall not be
liable or responsible for any loss, cost or expense suffered by the Borrower or such Lender
as a result of any conversion or exchange of currencies affected pursuant to this Section
2.13(f) or as a result of the failure of the Agent to effect any such conversion or
exchange; and provided further that the Borrower agrees to indemnify the Agent and each
Lender, and hold the Agent and each Lender harmless, for any and all losses, costs and
expenses incurred by the Agent or any Lender for any conversion or exchange of currencies
(or the failure to convert or exchange any currencies) in accordance with this Section
2.13(f).
SECTION 2.14 Taxes. (a) Any and all payments by the Borrower to or for the account
of any Lender or the Agent hereunder or under the Notes or any other documents to be delivered
hereunder shall be made, in accordance with Section 2.13 or the applicable provisions of such other
documents, free and clear of and without deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities with respect thereto, excluding
(i) in the case of each Lender and the Agent, taxes imposed on its overall net income (including
backup withholding taxes), and franchise taxes and branch profits taxes imposed on it, (x) by the
jurisdiction under the laws of which such Lender or the Agent (as the case may be) is organized or
any political subdivision thereof and, in the case of each Lender, taxes imposed on its overall net
income (including backup withholding taxes), and franchise taxes imposed on it, by the jurisdiction
of such Lender’s Applicable Lending Office or any political subdivision thereof or (y) as the
result of any other present or former connection between the Lender or Agent and the jurisdiction
imposing such Tax (other than a connection arising from such Lender or Agent having executed,
delivered, become a party to, performed its obligations under, received payments under, received or
perfected a security interest under, engaged in any other transaction pursuant to or enforced this
Agreement, the Notes or any other document, or sold or assigned an interest in this Agreement, the
Notes or any other document and (ii) any United States withholding tax imposed under FATCA (all
such non-excluded taxes, levies, imposts, deductions, charges, withholdings and liabilities in
respect of payments hereunder or under the Notes being hereinafter referred to as “Taxes”).
If the Borrower shall be required by law to deduct any Taxes from or in respect of any sum payable
hereunder or under any Note or any other documents to be delivered hereunder to any Lender or the
Agent, (i) the sum payable shall be increased as may be necessary so that after making all required
deductions (including deductions applicable to additional sums payable under this Section 2.14)
such Lender or the Agent (as the case may be) receives an amount equal to the sum it would have
received had no such deductions been made, (ii) the Borrower shall make such deductions and (iii)
the Borrower shall pay the full amount deducted to the relevant taxation authority or other
authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies that arise from any
payment made hereunder or under the Notes any other documents to be delivered hereunder or
from the execution, delivery or registration of, performing under, or otherwise with respect
to, this Agreement or the Notes or any other documents to be delivered hereunder
(hereinafter referred to as “Other Taxes”).
(c) The Borrower shall indemnify each Lender and the Agent for and hold it harmless
against the full amount of Taxes or Other Taxes (including, without limitation, taxes of any
kind imposed or asserted by any jurisdiction on amounts payable under this Section 2.14)
imposed on or paid by such Lender or the Agent (as the case may be) and any liability
(including penalties, interest and expenses) arising therefrom or with respect thereto.
This indemnification
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shall be made within 30 days from the date such Lender or the Agent (as the case may
be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the Borrower shall furnish
to the Agent, at its address referred to in Section 8.02, the original or a certified copy
of a receipt evidencing such payment to the extent such a receipt is issued therefor, or
other written proof of payment thereof that is reasonably satisfactory to the Agent. In the
case of any payment hereunder or under the Notes or any other documents to be delivered
hereunder by or on behalf of the Borrower through an account or branch outside the United
States or by or on behalf of the Borrower by a payor that is not a United States person, if
the Borrower determines that no Taxes are payable in respect thereof, the Borrower shall
furnish, or shall cause such payor to furnish, to the Agent, at such address, an opinion of
counsel acceptable to the Agent stating that such payment is exempt from Taxes. For
purposes of this subsection (d) and subsection (e), the terms “United States” and
“United States person” shall have the meanings specified in Section 7701 of the
Internal Revenue Code.
(e) (i) Any Lender that is a United States person shall deliver to the Borrower and
the Agent on or prior to the date on which such Lender becomes a Lender under this Agreement
(and from time to time thereafter upon the reasonable request of the Borrower or the Agent),
executed originals of Internal Revenue Service (“IRS”) Form W-9 certifying that such
Lender is exempt from United States federal backup withholding tax;
(ii) Each Foreign Lender, on or prior to the date of its execution and delivery of this
Agreement in the case of each Bank and on the date of the Assumption Agreement or the Assignment
and Assumption pursuant to which it becomes a Lender in the case of each other Lender, and from
time to time thereafter (but only so long as such Lender remains lawfully able to do so) as
reasonably requested in writing by the Borrower, shall provide each of the Agent and the Borrower
with two originals of whichever of the following is applicable, certifying that such Lender is
exempt from or entitled to a reduced rate of United States withholding tax on payments pursuant to
this Agreement or the Notes:
(A) IRS Form W-8BEN claiming eligibility for benefits of an income tax
treaty;
(B) IRS Form W-8ECI:
(C) to the extent a Foreign Lender is not the beneficial owner of
payments received pursuant to this Agreement or the Notes, IRS Form W-8IMY,
accompanied by IRS Form W-8ECI, IRS Form W-8BEN or IRS Form W-9, and/or other
certification documents from each beneficial owner, as applicable;
(D) in the case of a Foreign Lender claiming the benefits of the
exemption for portfolio interest under section 881(c) of the Internal Revenue Code
(1) a certificate to the effect that the Lender is not (a) a “bank” within the
meaning of section 881(c)(3)(A) of the Internal Revenue Code, (b) a “10 percent
shareholder” of the Borrower within the meaning of section 881(c)(3)(B) of the
Internal Revenue Code, or (c) a “controlled foreign corporation” described in
section 881(c)(3)(C) of the Internal Revenue Code and (ii) IRS Form W-8BEN; or
(E) any other form prescribed by applicable law as a basis for
claiming exemption from or a reduction in United States federal withholding Tax,
together
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27
with such supplementary documentation as may be prescribe by applicable law to
permit the Borrower or Agent to determine the withholding or deduction required to
be made.
If the form provided by a Lender at the time such Lender first becomes a party to
this Agreement indicates a United States interest withholding tax rate in excess of zero,
withholding tax at such rate shall be considered excluded from Taxes unless and until such
Lender provides the appropriate forms certifying that a lesser rate applies, whereupon
withholding tax at such lesser rate only shall be considered excluded from Taxes for periods
governed by such form; provided, however, that, if at the date of the
Assignment and Assumption pursuant to which a Lender assignee becomes a party to this
Agreement, the Lender assignor was entitled to payments under subsection (a) in respect of
United States withholding tax with respect to interest paid at such date, then, to such
extent, the term Taxes shall include (in addition to withholding taxes that may be imposed
in the future or other amounts otherwise includable in Taxes) United States withholding tax,
if any, applicable with respect to the Lender assignee on such date but only to the extent
that the United States withholding tax rate applicable with respect to the Lender assignee
does not exceed the rate applicable to the Lender assignor with respect to interest paid at
the date of such Assignment and Assumption. If any form or document referred to in this
subsection (e) requires the disclosure of information, other than information necessary to
compute the tax payable and information required on the date hereof by Internal Revenue
Service form X-0, X-0XXX, X-0XXX or W-8IMY (or in the case of a Lender assignee, other than
the information required on such Internal Revenue Service forms or successor forms on the
date of the Assignment and Assumption pursuant to which such Lender assignee became a party
to this Agreement), that the Lender reasonably considers to be confidential, the Lender
shall give notice thereof to the Borrower and shall not be obligated to include in such form
or document such confidential information.
(iii) If a payment made to a Lender would be subject to United States federal withholding tax
imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements
of FATCA (including those contained in Section 1471(b) or 1472(b) of the Internal Revenue Code, as
applicable), such Lender shall deliver to the Borrower, at the time or times prescribed by law and
at such time or times reasonably requested in writing by the Borrower, such documentation
prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Internal
Revenue Code) and such additional documentation reasonably requested in writing by the Borrower as
may be necessary for the Borrower to comply with its obligations under FATCA, to determine that
such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to
deduct and withhold from such payment. For purposes of this Section 2.14(e)(ii) FATCA shall
include amendments made to FATCA after the date of this Agreement.
(f) For any period with respect to which a Lender has failed to provide the Borrower
with the appropriate form, certificate or other document described in Section 2.14(e)
(other than if such failure is due to a change in law, or in the
interpretation or application thereof, occurring subsequent to the date on which a form,
certificate or other document originally was required to be provided), such Lender shall not
be entitled to indemnification under Section 2.14(a) or (c) with respect to Taxes imposed by
the United States by reason of such failure; provided, however, that should
a Lender become subject to Taxes because of its failure to deliver a form, certificate or
other document required hereunder, the Borrower shall take such steps as the Lender shall
reasonably request to assist the Lender to recover such Taxes.
(g) Any Lender claiming any additional amounts payable pursuant to this Section 2.14
agrees to use reasonable efforts (consistent with its internal policy and legal and
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regulatory restrictions) to change the jurisdiction of its Eurocurrency Lending Office if the
making of such a change would avoid the need for, or reduce the amount of, any such
additional amounts that may thereafter accrue and would not, in the reasonable judgment of
such Lender, be otherwise disadvantageous to such Lender.
(h) Each Lender (and the Agent with respect to payments to the Agent for its own
account) agrees that (i) it will take all reasonable actions by all usual means to maintain
all exemptions, if any, available to it from the United States withholding taxes (whether
available by treaty, existing administrative waiver, by virtue of the location of any
Lender’s applicable Lending Office or otherwise) and (ii) it will otherwise reasonably
cooperate with the Borrower to minimize amounts payable by the Borrower under this Section
2.14; provided, however, that each Lender and the Agent shall not be
obligated by reason of this subsection (h) to disclose any information regarding its tax
affairs or tax computations or to reorder its tax or other affairs or tax or other planning.
(i) If any Lender determines, in its sole discretion, that it has actually and finally
realized, by reason of a refund, deduction or credit of any Taxes paid or reimbursed by the
Borrower pursuant to subsection (a) or (c) above in respect of payments under the Credit
Agreement or the Notes, a current monetary benefit that it would otherwise not have
obtained, and that would result in the total payments under this Section 2.14 exceeding the
amount needed to make such Lender whole, such Lender shall pay to the Borrower, with
reasonable promptness following the date on which it actually realizes such benefit, an
amount equal to the lesser of the amount of such benefit or the amount of such excess, in
each case net of all out-of-pocket expenses in securing such refund, deduction or credit;
provided that nothing in this clause (i) shall require any Lender to make available
its tax returns or any other information relating to its taxes that it deems confidential.
SECTION 2.15 Sharing of Payments, Etc. If any Lender shall obtain any payment
(whether voluntary, involuntary, through the exercise of any right of set-off, or otherwise) on
account of the Advances owing to it (other than pursuant to Section 2.11, 2.14 or 8.04(c)) in
excess of its ratable share of payments on account of the Advances obtained by all the Lenders,
such Lender shall forthwith purchase from the other Lenders such participations in the Advances
owing to them as shall be necessary to cause such purchasing Lender to share the excess payment
ratably with each of them; provided, however, that if all or any portion of such excess payment is
thereafter recovered from such purchasing Lender, such purchase from each Lender shall be rescinded
and each Lender shall repay to the purchasing Lender the purchase price to the extent of such
recovery together with an amount equal to such Lender’s ratable share (according to the proportion
of (i) the amount of such Lender’s required repayment to (ii) the total amount so recovered from
the purchasing Lender) of any interest or other amount paid or payable by the purchasing Lender in
respect of the total amount so recovered. The Borrower agrees that any Lender so purchasing a
participation from another Lender pursuant to this Section 2.15 may, to the fullest extent
permitted by law, exercise all its rights of payment (including the right of set-off) with respect
to such participation as fully as if such Lender were the direct creditor of the Borrower in the
amount of such participation.
SECTION 2.16 Evidence of Debt. (a) Each Lender shall maintain in accordance with its
usual practice an account or accounts evidencing the indebtedness of the Borrower to such Lender
resulting from each Advance owing to such Lender from time to time, including the amounts of
principal and interest payable and paid to such Lender from time to time hereunder in respect of
Advances. The Borrower agrees that upon notice by any Lender to the Borrower (with a copy of such
notice to the Agent) to the effect that a Note is required or appropriate in order for such Lender
to evidence (whether for purposes of pledge, enforcement or otherwise) the Advances owing to, or to
be made by, such Lender,
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29
the Borrower shall promptly execute and deliver to such Lender a Note payable to the order of
such Lender in a principal amount up to the Revolving Credit Commitment of such Lender.
(b) The Register maintained by the Agent pursuant to Section 8.07(c) shall include a
control account, and a subsidiary account for each Lender, in which accounts (taken
together) shall be recorded (i) the date and amount of each Borrowing made hereunder, the
Type of Advances comprising such Borrowing and, if appropriate, the Interest Period
applicable thereto, (ii) the terms of each Assumption Agreement and each Assignment and
Assumption delivered to and accepted by it, (iii) the amount of any principal or interest
due and payable or to become due and payable from the Borrower to each Lender hereunder and
(iv) the amount of any sum received by the Agent from the Borrower hereunder and each
Lender’s share thereof.
(c) Entries made in good faith by the Agent in the Register pursuant to subsection (b)
above, and by each Lender in its account or accounts pursuant to subsection (a) above, shall
be prima facie evidence of the amount of principal and interest due and
payable or to become due and payable from the Borrower to, in the case of the Register, each
Lender and, in the case of such account or accounts, such Lender, under this Agreement,
absent manifest error; provided, however, that the failure of the Agent or
such Lender to make an entry, or any finding that an entry is incorrect, in the Register or
such account or accounts shall not limit or otherwise affect the obligations of the Borrower
under this Agreement.
SECTION 2.17 Use of Proceeds. The proceeds of the Advances and issuances of Letters
of Credit shall be available (and the Borrower agrees that it shall use such proceeds) solely for
general corporate purposes of the Borrower and its Subsidiaries.
SECTION 2.18 Extension of Termination Date. (a) At least 30 days but not more than
90 days prior to each anniversary of the Effective Date, the Borrower, by written notice to the
Agent, may request an extension of the Termination Date in effect at such time by one year from its
then scheduled expiration. The Agent shall promptly notify each Lender of such request, and each
Lender shall in turn, in its sole discretion, not later than 25 days prior to such anniversary
date, notify the Borrower and the Agent in writing as to whether such Lender will consent to such
extension. If any Lender shall fail to notify the Agent and the Borrower in writing of its consent
to any such request for extension of the Termination Date at least 25 days prior to such
anniversary date, such Lender shall be deemed to be a Non-Consenting Lender with respect to such
request. The Agent shall promptly (but in any event not later than 20 days prior to such
anniversary date) notify the Borrower of the decision of the Lenders pursuant to this Section 2.18
regarding the Borrower’s request for an extension of the Termination Date.
(b) If all the Lenders consent in writing to any such request in accordance with
subsection (a) of this Section 2.18, the Termination Date in effect at such time shall,
effective as at the applicable anniversary date (each, an “Extension Date”), be
extended for one year; provided that on each Extension Date the applicable
conditions set forth in Section 3.02 shall be satisfied. If less than all of the Lenders
consent in writing to any such request in accordance with subsection (a) of this Section
2.18, the Termination Date in effect at such time shall, effective as at such Extension Date
and subject to subsection (d) of this Section 2.18, be extended as to those Lenders that so
consented (each a “Consenting Lender”) but shall not be extended as to any other
Lender (each a “Non-Consenting Lender”). To the extent that the Termination Date is
not extended as to any Lender pursuant to this Section 2.18 and the Revolving Credit
Commitment of such Lender is not assumed in accordance with subsection (c) of this Section
2.18 on or prior to the applicable Extension Date, the Revolving Credit Commitment of such
Non-Consenting Lender shall automatically terminate in whole on such unextended Termination
Date without any further notice or other action by the Borrower, such Lender or any other
Person; provided that
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such Non-Consenting Lender’s rights under Sections 2.11, 2.14 and 8.04, and its
obligations under Section 7.05, shall survive the Termination Date for such Lender as to
matters occurring prior to such date. It is understood and agreed that no Lender shall have
any obligation whatsoever to agree to any request made by the Borrower for any requested
extension of the Termination Date.
(c) If less than all of the Lenders consent to any such request pursuant to subsection
(a) of this Section 2.18, the Agent shall promptly so notify the Consenting Lenders, and
each Consenting Lender may, in its sole discretion, give written notice to the Agent not
later than 15 days prior to the applicable Extension Date of the amount of the
Non-Consenting Lenders’ Revolving Credit Commitments for which it is willing to accept an
assignment. If the Consenting Lenders notify the Agent that they are willing to accept
assignments of Revolving Credit Commitments in an aggregate amount that exceeds the amount
of the Revolving Credit Commitments of the Non-Consenting Lenders, such Revolving Credit
Commitments shall be allocated among the Consenting Lenders willing to accept such
assignments in such amounts as are agreed between the Borrower and the Agent. If after
giving effect to the assignments of Revolving Credit Commitments described above there
remains any Revolving Credit Commitments of Non-Consenting Lenders, the Borrower may arrange
for one or more Consenting Lenders or other Eligible Assignees (an “Assuming
Lender”) to assume, effective as of the applicable Extension Date, any Non-Consenting
Lender’s Revolving Credit Commitment and all of the obligations of such Non-Consenting
Lender under this Agreement thereafter arising, without recourse to or warranty by, or
expense to, such Non-Consenting Lender; provided, however, that the amount
of the Revolving Credit Commitment of any such Assuming Lender as a result of such
substitution shall in no event be less than $5,000,000 unless the amount of the Revolving
Credit Commitment of such Non-Consenting Lender is less than $5,000,000, in which case such
Assuming Lender shall assume all of such lesser amount; and provided further
that:
(i) any such Consenting Lender or Assuming Lender shall have paid to such Non-Consenting
Lender (A) the aggregate principal amount of, and any interest accrued and unpaid to the effective
date of the assignment on, the outstanding Advances, if any, of such Non-Consenting Lender
plus (B) any accrued but unpaid facility fees owing to such Non-Consenting Lender as of the
effective date of such assignment;
(ii) all additional costs reimbursements, expense reimbursements and indemnities payable to
such Non-Consenting Lender, and all other accrued and unpaid amounts owing to such Non-Consenting
Lender hereunder, as of the effective date of such assignment shall have been paid to such
Non-Consenting Lender; and
(iii) with respect to any such Assuming Lender, the applicable processing and recordation fee
required under Section 8.07(a) for such assignment shall have been paid;
provided further that such Non-Consenting Lender’s rights under Sections 2.11, 2.14
and 8.04, and its obligations under Section 7.05, shall survive such substitution as to matters
occurring prior to the date of substitution. At least three Business Days prior to any Extension
Date, (A) each such Assuming Lender, if any, shall have delivered to the Borrower and the Agent an
agreement (an “Assumption Agreement”) in form and substance satisfactory to the Borrower
and the Agent, duly executed by such Assuming Lender, such Non-Consenting Lender, the Borrower and
the Agent, (B) any such Consenting Lender shall have delivered confirmation in writing satisfactory
to the Borrower and the Agent as to the increase in the amount of its Revolving Credit Commitment
and (C) each Non-Consenting Lender being replaced pursuant to this Section 2.18 shall have
delivered to the Agent any Note or Notes held by such Non-Consenting Lender. Upon the payment or
prepayment of all amounts referred to in clauses (i), (ii) and
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(iii) of the immediately preceding sentence, each such Consenting Lender or Assuming Lender, as of
the applicable Extension Date, will be substituted for such Non-Consenting Lender under this
Agreement and shall be a Lender for all purposes of this Agreement, without any further
acknowledgment by or the consent of the other Lenders, and the obligations of each such
Non-Consenting Lender hereunder shall, by the provisions hereof, be released and discharged.
(d) If (after giving effect to any assignments or assumptions pursuant to subsection
(c) of this Section 2.18) Lenders having Revolving Credit Commitments equal to at least 50%
of the Revolving Credit Commitments in effect immediately prior to the applicable Extension
Date consent in writing to a requested extension (whether by execution or delivery of an
Assumption Agreement or otherwise) not later than one Business Day prior to such Extension
Date, the Agent shall so notify the Borrower, and, subject to the satisfaction of the
applicable conditions in Section 3.02, the Termination Date then in effect shall be extended
for the additional one-year period as described in subsection (a) of this Section 2.18, and
all references in this Agreement, and in the Notes, if any, to the “Termination
Date” shall, with respect to each Consenting Lender and each Assuming Lender for such
Extension Date, refer to the Termination Date as so extended. Promptly following an
Extension Date, the Agent shall notify the Lenders (including, without limitation, each
Assuming Lender) of the extension of the scheduled Termination Date in effect immediately
prior thereto and shall thereupon record in the Register the relevant information with
respect to each such Consenting Lender and each such Assuming Lender.
SECTION 2.19 Increase in the Aggregate Commitments. (a) The Borrower may, at any
time but in any event not more than (x) three times in the first year after the Effective Date and
(y) once in any following 12 month period prior to the Termination Date, by notice to the Agent,
request that the aggregate amount of the Commitment be increased by an amount of $25,000,000 or an
integral multiple thereof, or such lesser amount as the Agent may agree, or in the case of an
increase within the first six months after the Effective Date, by an amount of $5,000,000 or an
integral multiple of $500,000 in excess thereof (each a “Commitment Increase”), to be effective as
of a date that is at least 90 days prior to the scheduled Termination Date then in effect (the
“Increase Date”) as specified in the related notice to the Agent; provided, however that (i) in no
event shall the aggregate amount of the Commitments at any time exceed $1,500,000,000 and (ii) on
the date of any request by the Borrower for a Commitment Increase and on the related Increase Date
the applicable conditions set forth in Section 3.02 shall be satisfied.
(b) The Agent shall promptly notify the Lenders of a request by the Borrower for a Commitment
Increase, which notice shall include (i) the proposed amount of such requested Commitment Increase,
(ii) the proposed Increase Date and (iii) the date by which Lenders wishing to participate in the
Commitment Increase must commit to an increase in the amount of their respective Commitments (the
“Commitment Date”). Each Lender that is willing to participate in such requested
Commitment Increase (each an “Increasing Lender”) shall, in its sole discretion, give
written notice to the Agent on or prior to the Commitment Date of the amount by which it is willing
to increase its Commitment. If the Lenders notify the Agent that they are willing to increase the
amount of their respective Commitments by an aggregate amount that exceeds the amount of the
requested Commitment Increase, the requested Commitment Increase shall be allocated among the
Lenders willing to participate therein in such amounts as are agreed between the Borrower and the
Agent. Notwithstanding the foregoing, for each Commitment Increase occurring after the Effective
Date pursuant to clause (x) of Section 2.19(a), the Borrower may identify those Persons to which
such Commitment Increase will be available and (x) notwithstanding anything to the contrary in the
definition of Eligible Assignee, the Agent shall have no right to approve whether such Persons
become Assuming Lenders in accordance with clause (c) below and (y) notwithstanding anything to the
contrary in this clause (b), the Lenders shall not be able to participate in any such Commitment
Increase available to Persons proposed by the Borrower.
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(c) Promptly following each Commitment Date, the Agent shall notify the Borrower as to the
amount, if any, by which the Lenders are willing to participate in the requested Commitment
Increase. If the aggregate amount by which the Lenders are willing to participate in any requested
Commitment Increase on any such Commitment Date is less than the requested Commitment Increase,
then the Borrower may extend offers to one or more Eligible Assignees as Assuming Lenders to
participate in any portion of the requested Commitment Increase that has not been committed to by
the Lenders as of the applicable Commitment Date; provided, however, that the
Commitment of each such Eligible Assignee shall be in an amount of $5,000,000 or an integral
multiple of $500,000 in excess thereof.
(d) On each Increase Date, each Assuming Lender shall become a Lender party to this Agreement
as of such Increase Date and the Commitment of each Increasing Lender for such requested Commitment
Increase shall be so increased by such amount (or by the amount allocated to such Lender pursuant
to the last sentence of Section 2.19(b)) as of such Increase Date; provided,
however, that the Agent shall have received on or before such Increase Date the following,
each dated such date:
(i) (A) certified copies of resolutions of the Board of Directors of the Borrower or the
Executive Committee of such Board approving the Commitment Increase and (B) an opinion of counsel
for the Borrower (which may be in-house counsel), in substantially the form of Exhibit D hereto;
(ii) an Assumption Agreement from each Assuming Lender, if any, duly executed by such Assuming
Lender, the Agent and the Borrower; and
(iii) confirmation from each Increasing Lender of the increase in the amount of its Commitment
in a writing satisfactory to the Borrower and the Agent.
On each Increase Date, upon fulfillment of the conditions set forth in the immediately preceding
sentence of this Section 2.19(d), the Agent shall notify the Lenders (including, without
limitation, each Assuming Lender) and the Borrower, on or before 1:00 P.M. (New York City time), by
telecopier, of the occurrence of the Commitment Increase to be effected on such Increase Date and
shall record in the Register the relevant information with respect to each Increasing Lender and
each Assuming Lender on such date.
(e) On the Increase Date, if any Advances are then outstanding, the Borrower shall borrow from
all or certain of the Lenders and/or (subject to compliance by the Borrower with Section 8.04(c))
prepay Advances of all or certain of the Lenders such that, after giving effect thereto, the
Advances (including, without limitation, the Types, currencies and Interest Periods thereof) shall
be held by the Lenders (including for such purposes the Increasing Lenders and the Assuming
Lenders) ratably in accordance with their respective Commitments. On and after each Increase Date,
the Pro Rata Share of each Lender’s participation in Letters of Credit and Advances from draws
under Letters of Credit shall be calculated after giving effect to each such Commitment Increase.
SECTION 2.20 Defaulting Lenders. (a) If a Lender becomes, and during the period it
remains, a Defaulting Lender, the following provisions shall apply:
(i) unless a Default has occurred and is continuing, such Defaulting Lenders’ Pro Rata
Share of the L/C Obligations will, subject to the limitation in the first proviso below,
automatically be reallocated (effective on the day such Lender becomes a Defaulting Lender)
among the Non-Defaulting Lenders pro rata in accordance with their
respective Revolving Credit Commitments; provided that (A) the sum of each
Non-Defaulting Lender’s aggregate principal amount of Advances and allocated share of the
L/C Obligations may not in any event exceed the Revolving Credit Commitment of such
Non-Defaulting Lender as in effect at the time of such
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reallocation and (B) neither such reallocation nor any payment by a Non-Defaulting
Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the
Agent, any Issuing Bank or any other Lender may have against such Defaulting Lender or cause
such Defaulting Lender to be a Non-Defaulting Lender;
(ii) to the extent that any portion (the “unreallocated portion”) of the
Defaulting Lender’s share of the L/C Obligations cannot be so reallocated, whether by reason
of the first proviso in clause (i) above or otherwise, the Borrower will, not later than
three Business Days after demand by the Agent (at the direction of an Issuing Bank), (A)
Cash Collateralize the obligations of the Borrower in respect of such L/C Obligations in an
amount at least equal to the aggregate amount of the unreallocated portion of such L/C
Obligations, or (B) make other arrangements satisfactory to the Agent and each Issuing Bank,
as the case may be, in their sole discretion to protect them against the risk of non-payment
by such Defaulting Lender and (iii) any amount paid by the Borrower or otherwise received by
the Agent for the account of a Defaulting Lender under this Agreement (whether on account of
principal, interest, fees, indemnity payments or other amounts) will not be paid or
distributed to such Defaulting Lender, but will instead be retained by the Agent in a
segregated non-interest bearing account until (subject to Section 2.20(d)) the termination
of the Revolving Credit Commitments and payment in full of all obligations of the Borrower
hereunder and will be applied by the Agent, to the fullest extent permitted by law, to the
making of payments from time to time in the following order of priority: first to
the payment of any amounts owing by such Defaulting Lender to the Agent under this
Agreement, second to the payment of any amounts owing by such Defaulting Lender to
an Issuing Bank (pro rata as to the respective amounts owing to each of
them) under this Agreement, third to the payment of post-default interest and then
current interest due and payable to the Lenders hereunder other than Defaulting Lenders,
ratably among them in accordance with the amounts of such interest then due and payable to
them, fourth as the Borrower may request (so long as no Event of Default exists),
to the funding of any Advance in respect of which such Defaulting Lender has failed to fund
its portion thereof as required by this Agreement, as determined by the Agent; fifth
to the payment of fees then due and payable to the Non-Defaulting Lenders hereunder, ratably
among them in accordance with the amounts of such fees then due and payable to them,
sixth to pay principal then due and payable to the Non-Defaulting Lenders hereunder
ratably in accordance with the amounts thereof then due and payable to them, seventh
to the ratable payment of other amounts then due and payable to the Non-Defaulting Lenders,
eighth to fund the Cash Collateralization requirements specified in clause (ii)
above, ninth, so long as no Event of Default exists, to the payment of any amounts
owing to the Borrower as a result of any judgment of a court of competent jurisdiction
obtained by the Borrower against such Defaulting Lender as a result of such Defaulting
Lender’s breach of its obligations under this Agreement, and tenth after the
termination of the Revolving Credit Commitments and payment in full of all obligations of
the Borrower hereunder, to pay amounts owing under this Agreement to such Defaulting Lender
or as a court of competent jurisdiction may otherwise direct. Any payments, prepayments or
other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay
amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.20
shall be deemed paid to and redirected by such Defaulting Lender, and each Lender
irrevocably consents hereto.
In furtherance of the foregoing, if any Lender becomes, and during the period it
remains, a Defaulting Lender, each Issuing Bank is hereby authorized by the Borrower (which
authorization is irrevocable and coupled with an interest) to give, in its discretion,
through the Agent, Notices of Borrowing pursuant to Section 3.02 in such amounts and in such
times as may be required to (i) reimburse an outstanding drawing under a Letter of Credit or
(ii) Cash Collateralize the obligations of the Borrower in respect of outstanding Letters of
Credit in an
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amount at least equal to the aggregate amount of the obligations (contingent or
otherwise) of such Defaulting Lender in respect of such Letter of Credit.
(b) No Revolving Credit Commitment of any Lender shall be increased or otherwise
affected, and, except as otherwise expressly provided in this Section 2.20, performance by
the Borrower of its obligations shall not be excused or otherwise modified as a result of
the operation of this Section 2.20. The rights and remedies against a Defaulting Lender
under this Section 2.20 are in addition to any other rights and remedies which the Borrower,
the Agent, any Issuing Bank or any Lender may have against such Defaulting Lender.
(c) No Defaulting Lender’s Advances or Revolving Credit Commitment shall be included in
determining whether the Required Lenders have taken or may take action hereunder (including
any consent to any amendment or waiver pursuant to Section 8.01), and no waiver, amendment
or modification requiring the consent of each affected Lender pursuant to Section 8.01(e),
(f) or (g) shall require the consent of such Defaulting Lender unless such Defaulting Lender
is affected differently from other affected Lenders.
(d) If the Borrower and the Agent agree in writing in their reasonable determination
that a Defaulting Lender should no longer be deemed to be a Defaulting Lender, the Agent
will so notify the parties hereto, whereupon as of the effective date specified in such
notice and subject to any conditions set forth therein (which may include arrangements with
respect to any cash collateral), that Lender will, to the extent applicable, purchase that
portion of outstanding Advances of the other Lenders or take such other actions as the Agent
may determine to be necessary to cause the Advances and the L/C Obligations to be held on a
pro rata basis by the Lenders in accordance with their Pro Rata Shares, whereupon such
Lender will cease to be a Defaulting Lender; provided that no adjustments will be
made retroactively with respect to fees accrued or payments made by or on behalf of the
Borrower while that Lender was a Defaulting Lender; and provided, further,
that except to the extent otherwise expressly agreed by the affected parties, no change
hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim
of any party hereunder arising from such Lender’s having been a Defaulting Lender.
SECTION 2.21 Replacement of Lenders. If (a) any Lender requests compensation under
Section 2.11, (b) the Borrower is required to pay additional amounts to any Lender or any
governmental authority for the account of any Lender pursuant to Section 2.14, (c) any Lender is a
Defaulting Lender, or (d) any Lender does not approve any consent, waiver or amendment that (i)
requires the approval of all affected Lenders in accordance with the terms of Section 8.01 and (ii)
has been approved by the Required Lenders (a “Non-Approving Lender”), then the Borrower
may, at its sole expense and effort, upon notice to such Lender and the Agent, require such Lender
to assign and delegate, without recourse (in accordance with and subject to the restrictions
contained in, and consents required by, Section 8.07), all of its interests, rights and obligations
under this Agreement to an Eligible Assignee that shall assume such obligations (which assignee may
be another Lender, if a Lender accepts such assignment); provided that:
(1) the Borrower shall have paid to the Agent the assignment fee (if any) specified in
Section 8.07;
(2) such Lender shall have received payment of an amount equal to the outstanding
principal of its Advances and funded participations in Letters of Credit, accrued interest
thereon, accrued fees and all other amounts payable to it hereunder (including any amounts
under Section 8.04(c)) from the assignee (to the extent of such outstanding principal and
accrued interest and fees) or the Borrower (in the case of all other amounts);
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(3) in the case of any such assignment resulting from a claim for compensation under
Section 2.11 or payments required to be made pursuant to Section 2.14, such assignment will
result in a reduction in such compensation or payments thereafter;
(4) such assignment does not conflict with applicable law; and
(5) in the case of any assignment resulting from a Lender becoming a Non-Approving
Lender, the applicable assignee shall have consented to the applicable amendment, waiver or
consent.
A Lender shall not be required to make any such assignment or delegation if, prior thereto, as
a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to
require such assignment and delegation cease to apply.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01 Conditions Precedent to Effectiveness of Section 2.01. Section 2.01 of
this Agreement shall become effective on and as of the first date (the “Effective Date”) on
which the following conditions precedent have been satisfied:
(a) There shall have occurred no Material Adverse Change since March 31, 2011, except
as disclosed in public filings made with the Securities and Exchange Commission prior to
July 27, 2011 or delivered to the Lenders prior to the date hereof.
(b) There shall exist no action, suit, investigation, litigation or proceeding
affecting the Borrower or any of its Subsidiaries pending or threatened before any court,
governmental agency or arbitrator that (i) is reasonably likely to have a Material Adverse
Effect other than the matters described in public filings made with the Securities and
Exchange Commission prior to July 27, 2011 or delivered to the Lenders prior to the date
hereof (the “Disclosed Litigation”) or (ii) purports to affect the legality,
validity or enforceability of this Agreement or any Note or the consummation of the
transactions contemplated hereby, and there shall have been no material adverse change in
the status, or financial effect on the Borrower or any of its Subsidiaries, of the Disclosed
Litigation from that described in public filings with the Securities and Exchange Commission
prior to July 27, 2011 or delivered to the Lenders prior to the date hereof.
(c) Nothing shall have come to the attention of the Lenders during the course of their
due diligence investigation to lead them to believe that the information provided to the
Lenders prior to the Effective Date was or has become misleading, incorrect or incomplete in
any material respect; without limiting the generality of the foregoing, the Lenders shall
have been given such access to the management, records, books of account, contracts and
properties of the Borrower and its Subsidiaries as they shall have reasonably requested.
(d) All governmental and third party consents and approvals necessary in connection
with the transactions contemplated hereby shall have been obtained (without the imposition
of any conditions that are not acceptable to the Lenders) and be in effect, and no law or
regulation shall be applicable in the reasonable judgment of the Lenders that restrains,
prevents or imposes materially adverse conditions upon the transactions contemplated hereby.
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(e) The Borrower shall have notified each Lender and the Agent in writing as to the
proposed Effective Date.
(f) The Borrower shall have paid all accrued fees and reasonable expenses of the Agent
and the Lenders (including the accrued reasonable fees and expenses of counsel to the Agent)
to the extent, in the case of up-front and arrangement fees, invoiced on or before the
Effective Date and, in the case of all other fees and expenses, invoiced at least two
Business Days before the Effective Date.
(g) On the Effective Date, the following statements shall be true and the Agent shall
have received for the account of each Lender a certificate signed by a duly authorized
officer of the Borrower, dated the Effective Date, stating that:
(i) The representations and warranties contained in Section 4.01 are correct on and as of the
Effective Date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(h) The Agent shall have received on or before the Effective Date the following, each
dated such day, in form and substance satisfactory to the Agent and (except for the Notes)
in sufficient copies for each Lender:
(i) From each party hereto either (A) a counterpart of this Agreement signed on behalf of such
party or (B) written evidence satisfactory to the Agent (which may include facsimile or other
electronic transmission of a signed signature page of this Agreement) that such party has signed a
counterpart of this Agreement.
(ii) The Notes to the order of the Lenders to the extent requested by any Lender pursuant to
Section 2.16.
(iii) Certified copies of the resolutions of the Board of Directors of the Borrower approving
this Agreement and the Notes, and of all documents evidencing other necessary corporate action and
governmental approvals, if any, with respect to this Agreement and the Notes.
(iv) A certificate of the Secretary or an Assistant Secretary of the Borrower certifying the
names and true signatures of the officers of the Borrower authorized to sign this Agreement and the
Notes and the other documents to be delivered hereunder.
(v) A favorable opinion of Xxx X. Xxxxxxx, Esq., Vice President and Associate General Counsel
of the Borrower, substantially in the form of Exhibit D hereto and such other opinions or as to
such other matters as the Agent or any Lender through the Agent may reasonably request.
(vi) A favorable opinion of Shearman & Sterling LLP, counsel for the Agent, in form and
substance satisfactory to the Agent.
(i) The Borrower shall have terminated the commitments of the lenders and repaid or
prepaid all of the obligations under, the Credit Agreement dated as of August 29, 2007 among
the Borrower, the lenders parties thereto and Citibank, N.A., as paying agent, and each of
the Lenders that is a party to such credit facility hereby waives, upon execution of this
Agreement, any notice required by said Credit Agreement relating to the termination of
commitments thereunder.
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SECTION 3.02 Conditions Precedent to Each Borrowing, Letter of Credit Issuance, Extension
Date and Increase Date. The obligation of each Lender to make an Advance on the occasion of
each Borrowing, the obligation of each Issuing Bank to issue, amend or extend a Letter of Credit,
each extension of Revolving Credit Commitments pursuant to Section 2.18 and each increase of the
Commitments pursuant to Section 2.19 shall be subject to the conditions precedent that the
Effective Date shall have occurred and on the date of such Borrowing, issuance, amendment or
extension of a Letter of Credit, the applicable Extension Date or the applicable Increase Date the
following statements shall be true (and each of the giving of the applicable Notice of Borrowing,
Notice of Issuance, request for amendment or extension of a Letter of Credit, request for
Commitment Extension, request for Commitment Increase and the acceptance by the Borrower of the
proceeds of such Borrowing or Letter of Credit shall constitute a representation and warranty by
the Borrower that on the date of such Borrowing, such issuance, such amendment or extension, such
Extension Date or such Increase Date such statements are true):
(a) the representations and warranties contained in Section 4.01 (except the
representation set forth in the last sentence of Section 4.01(e) and in Section 4.01(f)
(other than clause (ii) thereof) are correct on and as of such date, before and after giving
effect to such Borrowing, such issuance, amendment or extension of a Letter of Credit, such
Extension Date or such Increase Date and to the application of the proceeds therefrom, as
though made on and as of such date, and
(b) no event has occurred and is continuing, or would result from such Borrowing, such
issuance, amendment or extension of a Letter of Credit, such Extension Date or such Increase
Date or from the application of the proceeds therefrom, that constitutes a Default.
In addition to the other conditions precedent herein set forth, if any Lender becomes, and
during the period it remains, a Defaulting Lender, no Issuing Bank will be required to issue any
Letter of Credit or to amend any outstanding Letter of Credit to increase the face amount thereof,
alter the drawing terms thereunder or extend the expiry date thereof unless such Issuing Bank is
reasonably satisfied that any exposure that would result therefrom is eliminated or fully covered
by the Revolving Credit Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a
combination thereof reasonably satisfactory to such Issuing Bank.
SECTION 3.03 Determinations Under Section 3.01. For purposes of determining
compliance with the conditions specified in Section 3.01, each Lender shall be deemed to have
consented to, approved or accepted or to be satisfied with each document or other matter required
thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless an
officer of the Agent responsible for the transactions contemplated by this Agreement shall have
received notice from such Lender prior to the date that the Borrower, by notice to the Lenders,
designates as the proposed Effective Date, specifying its objection thereto. The Agent shall
promptly notify the Lenders of the occurrence of the Effective Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01 Representations and Warranties of the Borrower. The Borrower represents
and warrants as follows:
(a) The Borrower is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware, and is properly qualified to do business and in
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good standing in, and where necessary to maintain its rights and privileges has
complied with the fictitious name statute of, every jurisdiction where the failure to
maintain such qualification, good standing or compliance could reasonably be expected to
have a Material Adverse Effect.
(b) The execution, delivery and performance by the Borrower of this Agreement and the
Notes to be delivered by it, and the consummation of the transactions contemplated hereby,
are within the Borrower’s corporate powers, have been duly authorized by all necessary
corporate action, and do not contravene (i) the Borrower’s charter or by-laws or (ii) law or
any material agreement binding on the Borrower or (iii) to the best of the Borrower’s
knowledge, any other agreement binding on the Borrower which, as to any agreement referred
to in this clause (iii), could be reasonably expected to have a Material Adverse Effect.
(c) No authorization or approval or other action by, and no notice to or filing with,
(i) any governmental authority or regulatory body or (ii) any other third party under any
material agreement binding on the Borrower or (iii) to the best of the Borrower’s knowledge,
under any other agreement binding on the Borrower, is required for the due execution,
delivery and performance by the Borrower of this Agreement or the Notes to be delivered by
it, other than those authorizations or approvals or actions that have been obtained or
notices or filings that have been made or, in the case of any third party under an agreement
described in clause (iii), except to the extent that failure to obtain such authorization or
approval or action, or make such notice or filing could not reasonably be expected to have a
Material Adverse Effect.
(d) This Agreement has been, and each of the Notes to be delivered by it when delivered
hereunder will have been, duly executed and delivered by the Borrower. This Agreement is,
and each of the Notes when delivered hereunder will be, the legal, valid and binding
obligation of the Borrower enforceable against the Borrower in accordance with their
respective terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium
or other laws affecting creditors’ rights generally and subject to general principles of
equity, regardless of whether considered in a proceeding in equity or at law.
(e) The Consolidated balance sheet of the Borrower and its Subsidiaries as at March 31,
2011, and the related Consolidated statements of income and cash flows of the Borrower and
its Subsidiaries for the fiscal year then ended, accompanied by an opinion of KPMG LLP,
independent public accountants, and the Consolidated balance sheet of the Borrower and its
Subsidiaries as at June 30, 2011, and the related Consolidated statements of income and cash
flows of the Borrower and its Subsidiaries for the three months then ended, duly certified
by the chief financial officer or treasurer of the Borrower, copies of which have been
furnished to each Lender, fairly present in all material respects, subject, in the case of
said balance sheet as at June 30, 2011, and said statements of income and cash flows for the
three months then ended, to year-end audit adjustments and the absence of footnotes, the
Consolidated financial condition of the Borrower and its Subsidiaries as at such dates and
the Consolidated results of the operations of the Borrower and its Subsidiaries for the
periods ended on such dates, all in accordance with generally accepted accounting principles
consistently applied. Since March 31, 2011, there has been no Material Adverse Change,
except as disclosed in public filings made with the Securities and Exchange Commission prior
to July 27, 2011 or delivered to the Lenders prior to the date hereof.
(f) There is no pending or, to the knowledge of the Borrower, threatened action, suit,
investigation, litigation or proceeding, including, without limitation, any Environmental
Action, against the Borrower or any of its Subsidiaries before any court, governmental
agency or arbitrator that (i) is reasonably likely to have a Material Adverse Effect (other
than the Disclosed
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Litigation) or (ii) purports to affect the legality, validity or enforceability of this
Agreement or any Note or of the consummation of the transactions contemplated hereby, and
there has been no material adverse change in the status, or financial effect on the Borrower
or any of its Subsidiaries, of the Disclosed Litigation from that described in public
filings with the Securities and Exchange Commission prior to July 27, 2011 or delivered to
the Lenders prior to the date hereof.
(g) The Borrower is not engaged in the business of extending credit for the purpose of
purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board
of Governors of the Federal Reserve System), and no proceeds of any Advance will be used in
a manner that would violate, or result in a violation of, such Regulation U.
(h) 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.
(i) No ERISA Event has occurred or is reasonably expected to occur with respect to any
Plan.
(j) (i) As of the date of this Agreement, the funding target attainment percentage, as
defined in Section 303(d)(2) of ERISA, of each Plan exceeds 90% and there has been no
material adverse change in the funding status of any such Plan since such date; and (ii) as
of the last annual actuarial valuation date, the funding target attainment percentage, as
defined in Section 303(d)(2) of ERISA, of each Plan with a funding shortfall, as defined in
Section 303(c)(4) of ERISA, in excess of $25,000,000 exceeds 90% and there has been no
material adverse change in the funding status of any such Plan since such date.
(k) Neither the Borrower nor any ERISA Affiliate has incurred or is reasonably expected
to incur any Withdrawal Liability to any Multiemployer Plan.
(l) Neither the Borrower nor any ERISA Affiliate has been notified by the sponsor of a
Multiemployer Plan that such Multiemployer Plan is in reorganization or has been terminated,
within the meaning of Title IV of ERISA, and no such Multiemployer Plan is reasonably
expected to be in reorganization or to be terminated, within the meaning of Title IV of
ERISA.
(m) The Borrower and each of its Subsidiaries has good and marketable title to its
properties and assets (other than those properties and assets the loss of which would not
reasonably be expected to have a Material Adverse Effect) free and clear of all Liens or
rights of others, except for Liens permitted by Section 5.02(a).
(n) No information, schedule, exhibit or report furnished by the Borrower to the Agent
or to any Lender in connection with this Agreement, or in connection with any Advance,
contained any untrue statement of a material fact or omitted a material fact necessary to
make the statement made not misleading in light of all the circumstances existing at the
date the statement was made; provided that, with respect to projected financial
information, the Borrower represents only that such information was prepared in good faith
based upon assumptions believed to be reasonable at the time.
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ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01 Affirmative Covenants. So long as any Advance shall remain unpaid or any
Lender shall have any Commitment hereunder or any Letter of Credit shall be outstanding, the
Borrower will:
(a) Compliance with Laws, Etc. Comply, and cause each of its Subsidiaries to
comply, in all material respects, with all applicable laws, rules, regulations and orders,
such compliance to include, without limitation, compliance with ERISA and Environmental
Laws, except in such instances in which such law, rule, regulation or order is being
contested in good faith by appropriate proceedings diligently conducted.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each of its Material
Subsidiaries to pay and discharge, before the same shall become delinquent, all material
taxes, assessments and governmental charges or levies imposed upon it or upon its property;
provided, however, that neither the Borrower nor any of its Material
Subsidiaries shall be required to pay or discharge any such tax, assessment, charge or claim
that is being contested in good faith and by proper proceedings and as to which appropriate
reserves are being maintained.
(c) Maintenance of Insurance. Maintain, and cause each of its Material
Subsidiaries to maintain, insurance with responsible and reputable insurance companies or
associations in such amounts and covering such risks as is usually carried by companies
engaged in similar businesses and owning similar properties in the same general areas in
which the Borrower or such Material Subsidiary operates; provided, however,
that the Borrower and its Material Subsidiaries may self-insure to the same extent as other
companies engaged in similar businesses and owning similar properties in the same general
areas in which the Borrower or such Material Subsidiary operates and to the extent
consistent with prudent business practice.
(d) Preservation of Corporate Existence, Etc. Preserve and maintain, and cause
each of its Material Subsidiaries to preserve and maintain, its corporate existence, rights
(charter and statutory) and franchises; provided, however, that the Borrower
and its Material Subsidiaries may consummate any merger or consolidation permitted under
Section 5.02(b) and provided further that neither the Borrower nor any of
its Material Subsidiaries shall be required to preserve any right or franchise or, in the
case of any Material Subsidiary, corporate existence, if the Board of Directors of the
Borrower or such Material Subsidiary shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Borrower or such Material Subsidiary,
as the case may be, and that the loss thereof is not disadvantageous in any material respect
to the Borrower, such Material Subsidiary or the Lenders.
(e) Visitation Rights. At any reasonable time, from time to time during normal
business hours, and, in the absence of an Event of Default, no more than once a year at the
Borrower’s expense, upon reasonable advance notice, permit the Agent or any of the Lenders
or any agents or representatives thereof, to examine and make copies of and abstracts from
the records and books of account of, and visit the properties of, the Borrower and any of
its Subsidiaries, and to discuss the affairs, finances and accounts of the Borrower and any
of its Material Subsidiaries with any of their officers or directors and with their
independent certified public accountants; provided, however, that when an
Event of Default exists the Agent or any Lender (or any of their respective agents or
representatives) may do any of the foregoing at any time during normal business hours and as
often as may be desired.
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(f) Keeping of Books. Keep, and cause each of its Subsidiaries to keep, proper
books of record and account, in which full and correct entries shall be made of all
financial transactions and the assets and business of the Borrower and each such Subsidiary
in accordance with generally accepted accounting principles in effect from time to time.
(g) Maintenance of Properties, Etc. Maintain and preserve, and cause each of
its Material Subsidiaries to maintain and preserve, all of its material properties that are
used or useful in the conduct of its business in good working order and condition, ordinary
wear and tear excepted.
(h) Transactions with Affiliates. Conduct, and cause each of its Subsidiaries
to conduct, all transactions otherwise permitted under this Agreement with any of their
Affiliates on terms that are fair and reasonable and substantially no less favorable to the
Borrower or such Subsidiary than it would obtain in a comparable arm’s-length transaction
with a Person not an Affiliate; provided that this covenant shall not limit (i)
transactions with officers or directors of the Borrower to the extent that such transactions
are consistent with past practice, (ii) transactions among Subsidiaries of the Borrower or
(iii) transactions between the Borrower and any special purpose entity established in
connection with a securitization permitted under Section 5.02(a)(viii).
(i) Reporting Requirements. Furnish to the Lenders:
(i) as soon as available and in any event within 45 days after the end of each of the first
three quarters of each fiscal year of the Borrower, the Consolidated balance sheet of the Borrower
and its Subsidiaries as of the end of such quarter and Consolidated statements of income and cash
flows of the Borrower and its Subsidiaries for the period commencing at the end of the previous
fiscal year and ending with the end of such quarter, duly certified (subject to year-end audit
adjustments) by the chief financial officer or treasurer of the Borrower as having been prepared in
accordance with generally accepted accounting principles and accompanied by a certificate of the
chief financial officer or treasurer of the Borrower as to compliance with the terms of this
Agreement and setting forth in reasonable detail the calculations necessary to demonstrate
compliance with Section 5.03, provided that in the event of any change in generally
accepted accounting principles used in the preparation of such financial statements, the Borrower
shall also provide, if necessary for the determination of compliance with Section 5.03, a statement
of reconciliation conforming such financial statements to GAAP;
(ii) as soon as available and in any event within 90 days after the end of each fiscal year of
the Borrower, a copy of the annual audit report for such year for the Borrower and its
Subsidiaries, containing the Consolidated balance sheet of the Borrower and its Subsidiaries as of
the end of such fiscal year and Consolidated statements of income and cash flows of the Borrower
and its Subsidiaries for such fiscal year, in each case accompanied by an opinion reasonably
acceptable to the Required Lenders by KPMG LLP or other independent public accountants reasonably
acceptable to the Required Lenders and a certificate of the chief financial officer or treasurer of
the Borrower as to compliance with the terms of this Agreement and setting forth in reasonable
detail the calculations necessary to demonstrate compliance with Section 5.03, provided
that in the event of any change in generally accepted accounting principles used in the preparation
of such financial statements, the Borrower shall also provide, if necessary for the determination
of compliance with Section 5.03, a statement of reconciliation conforming such financial statements
to GAAP;
(iii) as soon as possible and in any event within five Business Days after the occurrence of
each Default continuing on the date of such statement, a statement of the chief financial
CA, Inc. Credit Agreement
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officer or treasurer of the Borrower setting forth details of such Default and the action that
the Borrower has taken and proposes to take with respect thereto;
(iv) promptly after the sending or filing thereof, copies of all quarterly and annual reports
that the Borrower sends to its public securityholders generally, and copies of all reports on Form
8-K and registration statements for the public offering (other than pursuant to employee plans) of
securities that the Borrower or any Subsidiary files with the Securities and Exchange Commission or
any national securities exchange;
(v) promptly after the commencement thereof, notice of all actions and proceedings before any
court, governmental agency or arbitrator of the type described in Section 4.01(f); and
(vi) such other information respecting the Borrower or any of its Subsidiaries or any Plan or
Multiemployer Plan as any Lender through the Agent may from time to time reasonably request.
Documents required to be delivered pursuant to Section 5.01(i)(iv) may be delivered
electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which
the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the
Internet at the following website: xxxx://xxxxxxxx.xx.xxx/ or such other website designated
by the Borrower to the Agent and the Lenders in a written notice; or (ii) on which such documents
are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each
Lender and the Agent have access (whether a commercial, third-party website or whether sponsored by
the Agent).
SECTION 5.02 Negative Covenants. So long as any Advance shall remain unpaid or any
Lender shall have any Commitment hereunder or any Letter of Credit shall be outstanding, the
Borrower will not:
(a) Liens, Etc. Create or suffer to exist, or permit any of its Subsidiaries
to create or suffer to exist, any Lien on or with respect to any of its properties, whether
now owned or hereafter acquired, or assign, or permit any of its Subsidiaries to assign, any
right to receive income, other than:
(i) Permitted Liens,
(ii) purchase money Liens upon or in any real property (including, without
limitation, buildings and buildouts thereon) or equipment constructed, acquired or
held by the Borrower or any Subsidiary in the ordinary course of business to secure
the purchase price or cost of construction of such property or equipment or to
secure Debt incurred solely for the purpose of financing the acquisition or
construction of such property or equipment, or Liens existing on such property or
equipment at the time of its acquisition (other than any such Liens created in
contemplation of such acquisition that were not incurred to finance the acquisition
of such property) or extensions, renewals or replacements of any of the foregoing
for the same or a lesser amount, provided, however, that no such
Lien shall extend to or cover any properties of any character other than the real
property or equipment being acquired or constructed, and no such extension, renewal
or replacement shall extend to or cover any properties not theretofore subject to
the Lien being extended, renewed or replaced,
(iii) the Liens existing on the Effective Date and described on Schedule
5.02(a) hereto,
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(iv) Liens on property of a Person existing at the time such Person is merged
into or consolidated with the Borrower or any Subsidiary of the Borrower or becomes
a Subsidiary of the Borrower; provided that such Liens were not created in
contemplation of such merger, consolidation or acquisition and do not extend to any
assets other than those of the Person so merged into or consolidated with the
Borrower or such Subsidiary or acquired by the Borrower or such Subsidiary,
(v) deposits to secure the performance of bids, trade contracts (other than for
borrowed money), leases, statutory obligations, surety and appeal bonds, performance
bonds and other obligations of a like nature incurred in the ordinary course of
business,
(vi) Liens in favor of the United States of America or any other governmental
agencies or entities for amounts paid to the Borrower or any of its Subsidiaries as
progress payments under government contracts entered into by it,
(vii) Liens on real property,
(viii) Liens on accounts receivable (including, without limitation, license
receivables), or sales, conveyances, transfers or other dispositions of accounts
receivables (including, without limitation, license receivables) to secure Debt for
Borrowed Money in connection with or to the extent otherwise related to
securitization programs not in excess of $750,000,000 in the aggregate for all such
securitization programs of the Borrower and its Subsidiaries,
(ix) other Liens securing Debt or other obligations or claims in an aggregate
principal amount not to exceed at any time outstanding an amount equal to 5% of net
tangible assets of the Borrower and it Subsidiaries taken as a whole,
(x) Liens on cash collateral provided under the terms of this Agreement
(xi) Liens in favor of banks and other financial institutions, brokers and
dealers arising in the normal course of business in connection with the acquisition
and disposition of investments, cash management arrangements and other customary
treasury activities of the Borrower and its Subsidiaries, and
(xii) the replacement, extension or renewal of any Lien permitted by clause
(iii), (iv) or (vii) above upon or in the same property or assets theretofore
subject thereto or the replacement, extension or renewal (without increase in the
amount or change in any direct or contingent obligor other than changes among
Subsidiaries of the Borrower and changes from the Borrower to any of its
Subsidiaries) of the Debt secured thereby.
(b) Mergers, Etc. Merge or consolidate with or into, or convey, transfer,
lease or otherwise dispose of (whether in one transaction or in a series of transactions)
all or substantially all of its assets (whether now owned or hereafter acquired) to, any
Person, or permit any of its Subsidiaries to do so, except that (i) any Subsidiary of the
Borrower may merge or consolidate with or into, or dispose of assets to, any other
Subsidiary of the Borrower, (ii) any Subsidiary of the Borrower may merge or consolidate
with or into or dispose of assets to the Borrower, (iii) any Subsidiary of the Borrower
formed for the purpose of acquiring any other Person may merge or consolidate with or into
such other Person and (iv) any Subsidiary of the Borrower may merge or consolidate with or
into, or dispose of assets to, any other Person, provided, in each case, that no
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Default shall have occurred and be continuing at the time of such proposed transaction
or would result therefrom.
(c) Accounting Changes. Make, or permit any of its Subsidiaries to make, any
change in accounting policies or reporting practices, except as required or permitted by
generally accepted accounting principles.
(d) Change in Nature of Business. Make or cause to be made any material change
in the nature of the business carried on by the Borrower and its Subsidiaries taken as a
whole at the date hereof.
SECTION 5.03 Financial Covenants. So long as any Advance shall remain unpaid or any
Lender shall have any Commitment hereunder or any Letter of Credit shall be outstanding, the
Borrower will:
(a) Leverage Ratio. Maintain, as of any date, a ratio of Consolidated Debt for
Borrowed Money of the Borrower and its Subsidiaries as of such date to Consolidated Cash
Flow of the Borrower and its Subsidiaries for the period of four fiscal quarters ended on or
immediately prior to such date of not greater than 4.00 to 1.00.
(b) Interest Coverage Ratio. Maintain, as of any date, a ratio of Consolidated
Cash Flow of the Borrower and its Subsidiaries for the period of four fiscal quarters ended
on or immediately prior to such date to the sum of interest payable on, and amortization of
debt discount in respect of, all Consolidated Debt for Borrowed Money of the Borrower and
its Subsidiaries during such period by the Borrower and its Subsidiaries of not less than
3.50 to 1.00.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01 Events of Default. If any of the following events (“Events of
Default”) shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Advance when the same becomes
due and payable; or the Borrower shall fail to pay any interest on any Advance or make any
other payment of fees or other amounts payable under this Agreement or any Note within three
Business Days after the same becomes due and payable; or
(b) Any representation or warranty made by the Borrower herein or by the Borrower (or
any of its officers) in connection with this Agreement shall prove to have been incorrect in
any material respect when made or deemed made; or
(c) (i) The Borrower shall fail to perform or observe any term, covenant or agreement
contained in Section 5.01(d) (as to the corporate existence of the Borrower), (e), (h) or
(i)(iii), 5.02 or 5.03, or (ii) the Borrower shall fail to perform or observe any other
term, covenant or agreement contained in this Agreement on its part to be performed or
observed if such failure shall remain unremedied for 30 days after written notice thereof
shall have been given to the Borrower by the Agent or any Lender; or
(d) The Borrower or any of its Subsidiaries shall fail to pay any principal of or
premium or interest on any Debt that is outstanding in a principal or notional amount of at
least
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$100,000,000 in the aggregate (but excluding Debt outstanding hereunder) of the
Borrower or such Subsidiary (as the case may be), when the same becomes due and payable
(whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and
such failure shall continue after the applicable grace period, if any, specified in the
agreement or instrument relating to such Debt; or any other event shall occur or condition
shall exist under any agreement or instrument relating to any such Debt and shall continue
after the applicable grace period, if any, specified in such agreement or instrument, if the
effect of such event or condition is to accelerate, or to permit the acceleration of, the
maturity of such Debt; or any such Debt shall be declared to be due and payable, or required
to be prepaid or redeemed (other than by a regularly scheduled required prepayment or
redemption), purchased or defeased, or an offer to prepay, redeem, purchase or defease such
Debt shall be required to be made, in each case prior to the stated maturity thereof; or
(e) The Borrower or any of its Material Subsidiaries shall generally not pay its debts
as such debts become due, or shall admit in writing its inability to pay its debts
generally, or shall make a general assignment for the benefit of creditors; or any
proceeding shall be instituted by or against the Borrower or any of its Material
Subsidiaries seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation,
winding up, reorganization, arrangement, adjustment, protection, relief, or composition of
it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief
of debtors, or seeking the entry of an order for relief or the appointment of a receiver,
trustee, custodian or other similar official for it or for any substantial part of its
property and, in the case of any such proceeding instituted against it (but not instituted
by it), either such proceeding shall remain undismissed or unstayed for a period of 60 days,
or any of the actions sought in such proceeding (including, without limitation, the entry of
an order for relief against, or the appointment of a receiver, trustee, custodian or other
similar official for, it or for any substantial part of its property) shall occur; or the
Borrower or any of its Material Subsidiaries shall take any corporate action to authorize
any of the actions set forth above in this subsection (e); or
(f) Judgments or orders for the payment of money in excess of $100,000,000 in the
aggregate shall be rendered against the Borrower or any of its Subsidiaries and such
judgment or order shall not have been vacated, discharged, stayed or bonded pending appeal
within 30 days from the entry thereof; or
(g) (i) Any Person or “group” (within the meaning of Section 13(d) or 14(d) of the
Securities Exchange Act of 1934, as amended) shall have acquired beneficial ownership of 40%
or more of any outstanding class of capital stock of the Borrower having ordinary voting
power in the election of directors of the Borrower (other than any Person or “group” which
owns such amount of capital stock on the date hereof); or (ii) during any period of up to 12
consecutive months, commencing before or after the date of this Agreement, individuals who
at the beginning of such 12-month period were directors of the Borrower shall cease for any
reason to constitute a majority of the board of directors of the Borrower (except to the
extent that individuals who at the beginning of such 12-month period were replaced by
individuals (x) elected by a majority of the remaining members of the board of directors of
the Borrower or (y) nominated for election by a majority of the remaining members of the
board of directors of the Borrower and thereafter elected as directors by the shareholders
of the Borrower); or
(h) The Borrower or any of its ERISA Affiliates shall incur liability in excess of
$100,000,000 in the aggregate as a result of one or more of the following: (i) the
occurrence of any ERISA Event; (ii) the partial or complete withdrawal of the Borrower or
any of its ERISA
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Affiliates from a Multiemployer Plan; or (iii) the reorganization or termination of a
Multiemployer Plan;
then, and in any such event, the Agent (i) shall at the request, or may with the consent, of the
Required Lenders, by notice to the Borrower, declare the obligation of each Lender to make Advances
(other than Advances by an Issuing Bank or a Lender pursuant to Section 2.03(c)) and of the Issuing
Banks to issue Letters of Credit to be terminated, whereupon the same shall forthwith terminate,
and (ii) shall at the request, or may with the consent, of the Required Lenders, by notice to the
Borrower, declare the Advances, all interest thereon and all other amounts payable under this
Agreement to be forthwith due and payable, whereupon the Advances, all such interest and all such
amounts shall become and be forthwith due and payable, without presentment, demand, protest or
further notice of any kind, all of which are hereby expressly waived by the Borrower;
provided, however, that in the event of an actual or deemed (pursuant to Section
301 of the Federal Bankruptcy Code or any successor thereto) entry of an order for relief with
respect to the Borrower under the Federal Bankruptcy Code, (A) the obligation of each Lender to
make Advances (other than Advances by an Issuing Bank or a Lender pursuant to Section 2.03(c)) and
of the Issuing Banks to issue Letters of Credit shall automatically be terminated and (B) the
Advances, all such interest and all such amounts shall automatically become and be due and payable,
without presentment, demand, protest or any notice of any kind, all of which are hereby expressly
waived by the Borrower.
SECTION 6.02 Actions in Respect of the Letters of Credit upon Default. If any Event
of Default shall have occurred and be continuing, the Agent may with the consent, or shall at the
request, of the Required Lenders, irrespective of whether it is taking any of the actions described
in Section 6.01 or otherwise, make demand upon the Borrower to, and forthwith upon such demand the
Borrower will, (a) pay to the Agent on behalf of the Lenders in same day funds at the Agent’s
office designated in such demand, for deposit in the L/C Cash Collateral Account, an amount equal
to the aggregate Available Amount of all Letters of Credit then outstanding (but only to the extent
such Available Amount has not already been Cash Collateralized) or (b) make such other arrangements
in respect of the outstanding Letters of Credit as shall be acceptable to the Required Lenders;
provided, however, that in the event of an actual or deemed (pursuant to Section
301 of the Federal Bankruptcy Code or any successor thereto) entry of an order for relief with
respect to the Borrower under the Federal Bankruptcy Code, an amount equal to the aggregate
Available Amount of all outstanding Letters of Credit shall be immediately due and payable to the
Agent for the account of the Lenders without notice to or demand upon the Borrower, which are
expressly waived by the Borrower, to be held in the L/C Cash Collateral Account. If at any time
the Agent determines that any funds held in the L/C Cash Collateral Account are subject to any
right or claim of any Person other than the Agent and the Lenders or that the total amount of such
funds is less than the aggregate Available Amount of all Letters of Credit, the Borrower will,
forthwith upon demand by the Agent, pay to the Agent, as additional funds to be deposited and held
in the L/C Cash Collateral Account, an amount equal to the excess of (a) such aggregate Available
Amount over (b) the total amount of funds, if any, then held in the L/C Cash Collateral Account
that the Agent determines to be free and clear of any such right and claim. Upon the drawing of
any Letter of Credit, to the extent funds are on deposit in the L/C Cash Collateral Account, such
funds shall be applied to reimburse the Issuing Banks to the extent permitted by applicable law.
After all such Letters of Credit shall have expired or been fully drawn upon and all other
obligations of the Borrower hereunder and under the Notes shall have been paid in full, the
balance, if any, in such XX Xxxx Collateral Account shall be returned to the Borrower.
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ARTICLE VII
THE AGENT
SECTION 7.01 Appointment and Authority. Each of the Lenders and the Issuing Banks
hereby irrevocably appoints Citibank to act on its behalf as the Agent hereunder and authorizes the
Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agent
by the terms hereof, together with such actions and powers as are reasonably incidental thereto.
The provisions of this Article are solely for the benefit of the Agent and the Lenders and the
Issuing Banks, and the Borrower shall not have rights as a third-party beneficiary of any of such
provisions. It is understood and agreed that the use of the term “agent” herein (or any other
similar term) with reference to the Agent is not intended to connote any fiduciary or other implied
(or express) obligations arising under agency doctrine of any applicable law. Instead such term is
used as a matter of market custom, and is intended to create or reflect only an administrative
relationship between contracting parties.
SECTION 7.02 Rights as a Lender. The Person serving as the Agent hereunder shall have
the same rights and powers and obligations in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Agent, and the term “Lender” or “Lenders” shall, unless
otherwise expressly indicated or unless the context otherwise requires, include the Person serving
as the Agent hereunder in its individual capacity. Such Person and its Affiliates may accept
deposits from, lend money to, own securities of, act as the financial advisor or in any other
advisory capacity for, and generally engage in any kind of business with, the Borrower or any
Subsidiary or other Affiliate thereof as if such Person were not the Agent hereunder and without
any duty to account therefor to the Lenders.
SECTION 7.03 Exculpatory Provisions. (a) The Agent shall not have any duties or
obligations except those expressly set forth herein, and its duties hereunder shall be
administrative in nature. Without limiting the generality of the foregoing, the Agent:
(i) shall not be subject to any fiduciary or other implied duties, regardless of
whether a Default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly contemplated hereby
that the Agent is required to exercise as directed in writing by the Required Lenders (or
such other number or percentage of the Lenders as shall be expressly provided for herein);
provided that the Agent shall not be required to take any action that, in its
opinion or the opinion of its counsel, may expose the Agent to liability or that is contrary
to this Agreement or applicable law, including for the avoidance of doubt any action that
may be in violation of the automatic stay under any debtor relief law or that may effect a
forfeiture, modification or termination of property of a Defaulting Lender in violation of
any debtor relief law; and
(iii) shall not, except as expressly set forth herein, have any duty to disclose, and
shall not be liable for the failure to disclose, any information relating to the Borrower or
any of its Affiliates that is communicated to or obtained by the Person serving as the Agent
or any of its Affiliates in any capacity.
(b) The Agent shall not be liable to any Lender or Issuing Bank for any action taken or not
taken by it (i) with the consent or at the request of the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary, or as the Agent shall believe in good faith shall
be necessary, under the circumstances as provided in Sections 8.01 and Article VI), or (ii) in the
absence of its own gross negligence or willful misconduct as determined by a court of competent
jurisdiction by final
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and nonappealable judgment. The Agent shall be deemed not to have knowledge of any Default
unless and until notice describing such Default is given to the Agent in writing by the Borrower or
a Lender.
(c) The Agent shall not be responsible for or have any duty to ascertain or inquire into (i)
any statement, warranty or representation made in or in connection with this Agreement, (ii) the
contents of any certificate, report or other document delivered hereunder or in connection
herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or
conditions set forth herein or therein or the occurrence of any Default, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument
or document or (v) the satisfaction of any condition set forth in Article III or elsewhere herein,
other than to confirm receipt of items expressly required to be delivered to the Agent.
SECTION 7.04 Reliance by Agent. The Agent shall be entitled to rely upon, and shall
not incur any liability for relying upon, any notice, request, certificate, consent, statement,
instrument, document or other writing (including any electronic message, Internet or intranet
website posting or other distribution) believed by it to be genuine and to have been signed, sent
or otherwise authenticated by the proper Person. The Agent also may rely upon any statement made
to it orally or by telephone and believed by it to have been made by the proper Person, and shall
not incur any liability for relying thereon. In determining compliance with any condition
hereunder to the making of an Advance, or the issuance, extension, renewal or increase of a Letter
of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or an Issuing Bank,
the Agent may presume that such condition is satisfactory to such Lender or Issuing Bank unless the
Agent shall have received notice to the contrary from such Lender or Issuing Bank prior to the
making of such Advance or the issuance of such Letter of Credit. The Agent may consult with legal
counsel (who may be counsel for the Borrower), independent accountants and other experts selected
by it, and shall not be liable for any action taken or not taken by it in accordance with the
advice of any such counsel, accountants or experts.
SECTION 7.05 Indemnification. (a) The Lenders agree to indemnify the Agent (to the
extent not reimbursed by the Borrower), ratably according to the respective principal amounts of
the Advances then owed to each of them (or if no Advances are at the time outstanding, ratably
according to the respective amounts of their Revolving Credit Commitments), from and against any
and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever that may be imposed on, incurred by, or
asserted against the Agent in any way relating to or arising out of this Agreement or any action
taken or omitted by the Agent under this Agreement (collectively, the “Indemnified Costs”),
provided that no Lender shall be liable for any portion of the Indemnified Costs resulting from the
Agent’s gross negligence or willful misconduct. Without limitation of the foregoing, each Lender
agrees to reimburse the Agent promptly upon demand for its ratable share of any out-of-pocket
expenses (including reasonable counsel fees) incurred by the Agent in connection with the
preparation, execution, delivery, administration, modification, amendment or enforcement (whether
through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, to the extent that the Agent is not reimbursed for such
expenses by the Borrower. In the case of any investigation, litigation or proceeding giving rise
to any Indemnified Costs, this Section 7.05 applies whether any such investigation, litigation or
proceeding is brought by the Agent, any Lender or a third party.
(b) Each Lender severally agrees to indemnify the Issuing Banks (to the extent not promptly
reimbursed by the Borrower) from and against such Lender’s ratable share (determined as provided
below) of any and all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever that may be imposed on,
incurred by, or asserted against any such Issuing Bank in any way relating to or arising out of
this Agreement or any action taken or omitted by such Issuing Bank hereunder or in connection
herewith;
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provided, however, that no Lender shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from such Issuing Bank’s gross negligence or willful misconduct. Without
limitation of the foregoing, each Lender agrees to reimburse any such Issuing Bank promptly upon
demand for its ratable share of any costs and expenses (including, without limitation, fees and
expenses of counsel) payable by the Borrower under Section 8.04, to the extent that such Issuing
Bank is not promptly reimbursed for such costs and expenses by the Borrower.
(c) For purposes of this Section 7.05, the Lenders’ respective ratable shares of any amount
shall be determined, at any time, according to the sum of (i) the aggregate principal amount of the
Advances outstanding at such time and owing to the respective Lenders, (ii) their respective Pro
Rata Shares of the aggregate Available Amount of all Letters of Credit outstanding at such time and
(iii) their respective Unused Commitments at such time; provided that the aggregate
principal amount of Advances owing to the Issuing Banks as a result of drawings under Letters of
Credit shall be considered to be owed to the Lenders ratably in accordance with their respective
Revolving Credit Commitments. The failure of any Lender to reimburse the Agent or any such Issuing
Bank, as the case may be, promptly upon demand for its ratable share of any amount required to be
paid by the Lenders to such Agent or such Issuing Bank, as the case may be, as provided herein
shall not relieve any other Lender of its obligation hereunder to reimburse such Agent or Issuing
Bank, as the case may be, for its ratable share of such amount, but no Lender shall be responsible
for the failure of any other Lender to reimburse the Agent or any such Issuing Bank, as the case
may be, for such other Lender’s ratable share of such amount. Without prejudice to the survival of
any other agreement of any Lender hereunder, the agreement and obligations of each Lender contained
in this Section 7.05 shall survive the payment in full of principal, interest and all other amounts
payable hereunder and under the Notes.
SECTION 7.06 Delegation of Duties. The Agent may perform any and all of its duties
and exercise its rights and powers hereunder by or through any one or more sub-agents appointed by
the Agent. The Agent and any such sub-agent may perform any and all of its duties and exercise its
rights and powers by or through their respective Related Parties. The exculpatory provisions of
this Article shall apply to any such sub-agent and to the Related Parties of the Agent and any such
sub-agent, and shall apply to their respective activities in connection with the syndication of the
Facilities as well as activities as Agent. The Agent shall not be responsible for the negligence
or misconduct of any sub-agents except to the extent that a court of competent jurisdiction
determines in a final and non appealable judgment that the Agent acted with gross negligence or
willful misconduct in the selection of such sub-agents.
SECTION 7.07 Resignation of Agent. (a) The Agent may at any time give notice of its
resignation to the Lenders, the Issuing Banks and the Borrower. Upon receipt of any such notice of
resignation, the Required Lenders shall have the right, with the consent of the Borrower (so long
as no Event of Default shall have occurred and be continuing), to appoint a successor, which shall
be a bank with an office in the United States, or an Affiliate of any such bank with an office in
the United States. If no such successor shall have been so appointed by the Required Lenders and
shall have accepted such appointment within 30 days after the retiring Agent gives notice of its
resignation (or such earlier day as shall be agreed by the Required Lenders) (the “Resignation
Effective Date”), then the retiring Agent may (but shall not be obligated to), on behalf of the
Lenders and the Issuing Banks, with the consent of the Borrower (so long as no Event of Default
shall have occurred and be continuing), appoint a successor Agent meeting the qualifications set
forth above. Whether or not a successor has been appointed, such resignation shall become
effective in accordance with such notice on the Resignation Effective Date.
(b) If the Person serving as Agent is a Defaulting Lender pursuant to clause (v) of the
definition thereof, the Required Lenders may, and will, if requested in writing by the Borrower, to
the
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extent permitted by applicable law, by notice in writing to the Borrower and such Person
remove such Person as Agent and, with the consent of the Borrower (so long as no Event of Default
shall have occurred and be continuing), appoint a successor. If no such successor shall have been
so appointed by the Required Lenders and shall have accepted such appointment within 30 days (or
such earlier day as shall be agreed by the Required Lenders) (the “Removal Effective
Date”), then such removal shall nonetheless become effective in accordance with such notice on
the Removal Effective Date.
(c) With effect from the Resignation Effective Date or the Removal Effective Date (as
applicable) (1) the retiring or removed Agent shall be discharged from its duties and obligations
hereunder (except that in the case of any Cash Collateral held by the Agent on behalf of the
Lenders or the Issuing Banks hereunder, the retiring or removed Agent shall continue to hold such
Cash Collateral until such time as a successor Agent is appointed) and (2) all payments,
communications and determinations provided to be made by, to or through the Agent shall instead be
made by or to each Lender and Issuing Bank directly, until such time, if any, as the Required
Lenders appoint a successor Agent as provided for above. Upon the acceptance of a successor’s
appointment as Agent hereunder, such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring or removed Agent, and the retiring or removed
Agent shall be discharged from all of its duties and obligations hereunder. The fees payable by
the Borrower to a successor Agent shall be the same as those payable to its predecessor unless
otherwise agreed between the Borrower and such successor. After the retiring or removed Agent’s
resignation or removal hereunder, the provisions of this Article and Section 10.04 shall continue
in effect for the benefit of such retiring or removed Agent, its sub-agents and their respective
Related Parties in respect of any actions taken or omitted to be taken by any of them while the
retiring or removed Agent was acting as Agent.
(d) Any resignation pursuant to this Section by a Person acting as Agent shall, unless such
Person shall notify the Borrower and the Lenders otherwise, also act to relieve such Person and its
Affiliates of any obligation to advance or issue new, or extend existing, Letters of Credit where
such advance, issuance or extension is to occur on or after the effective date of such resignation.
Upon the acceptance of a successor’s appointment as Agent hereunder, (i) such successor shall
succeed to and become vested with all of the rights, powers, privileges and duties of the retiring
Issuing Bank, (ii) the retiring Issuing Bank shall be discharged from all of its duties and
obligations hereunder and (iii) the successor Issuing Bank shall issue letters of credit in
substitution for the Letters of Credit, if any, outstanding at the time of such succession or make
other arrangement satisfactory to the retiring Issuing Bank to effectively assume the obligations
of the retiring Issuing Bank with respect to such Letters of Credit.
SECTION 7.08 Non-Reliance on Agent and Other Lenders. Each Lender and Issuing Bank
acknowledges that it has, independently and without reliance upon the Agent or any other Lender or
any of their Related Parties and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender
and Issuing Bank also acknowledges that it will, independently and without reliance upon the Agent
or any other Lender or any of their Related Parties and based on such documents and information as
it shall from time to time deem appropriate, continue to make its own decisions in taking or not
taking action under or based upon this Agreement or any related agreement or any document furnished
hereunder.
SECTION 7.09 Other Agents. Each Lender hereby acknowledges that no syndication agent
and no documentation agent nor any other Lender designated as any “Agent” (other than the Agent) on
the signature pages or the cover hereof has any liability hereunder other than in its capacity as a
Lender.
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ARTICLE VIII
MISCELLANEOUS
SECTION 8.01 Amendments, Etc. No amendment or waiver of any provision of this
Agreement or the Notes, nor consent to any departure by the Borrower therefrom, shall in any event
be effective unless the same shall be in writing and signed by the Borrower and the Required
Lenders, and then such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given; provided, however, that no amendment, waiver or consent
shall, unless in writing and signed by the Borrower and each Lender affected thereby, do any of the
following: (a) waive any of the conditions specified in Section 3.01, (b) increase the Commitments
of the Lenders (other than as provided in Sections 2.18 or 2.19, provided that, any increase in the
aggregate Revolving Credit Commitments in excess of $1,500,000,000 will require the consent of all
of the Lenders), (c) reduce the principal of, or interest on, the Advances or any fees or, to the
extent then accrued, other amounts payable hereunder, (d) postpone any date fixed for any payment
of principal of, or interest on, the Advances or any fees or, to the extent then accrued, other
amounts payable hereunder (other than as provided in Section 2.18), (e) change the percentage of
the Revolving Credit Commitments, the aggregate Available Amount of outstanding Letters of Credit
or of the aggregate unpaid principal amount of the Advances, or the number of Lenders, that shall
be required for the Lenders or any of them to take any action hereunder, (f) alter the manner in
which payment or prepayments of principal, interest or other amounts hereunder shall be applied as
among the Lenders or (g) amend this Section 8.01; and provided further that no amendment, waiver or
consent shall, unless in writing and signed by the Agent in addition to the Lenders required above
to take such action, affect the rights or duties of the Agent under this Agreement or any Note; and
provided further that no amendment, waiver or consent shall, unless in writing and signed by the
Issuing Banks in addition to the Lenders required above to take such action, adversely affect the
rights or obligations of the Issuing Banks under this Agreement.
SECTION 8.02 Notices, Etc. (a) Notices Generally. Except in the case of notices and
other communications expressly permitted to be given by telephone (and except as provided in
paragraph (b) below), all notices and other communications provided for herein shall be in writing
and shall be delivered by hand or overnight courier service, mailed by certified or registered mail
or sent by facsimile as follows:
(i) if to the Borrower, to it at Xxx XX Xxxxx, Xxxxxxxx, Xxx Xxxx 00000-0000,
Attention of Treasurer (Facsimile No. (000) 000-0000; Telephone No. (000) 000-0000),
with a copy (other than in the case of administrative notices) to Attention:
General Counsel (Facsimile No. (000) 000-0000; Telephone No. (000) 000-0000);
(ii) if to the Agent, to Citibank, N.A. at 0000 Xxxxx Xxxx, Xxxxxxxx #0, Xxx
Xxxxxx, Xxxxxxxx 00000, Attention of Bank Loan Syndications; (Facsimile No. (000)
000-0000; Telephone No. (000) 000-0000);
(iii) if any Issuing Bank, to it at the address provided in writing to the
Agent and the Borrower at the time of its appointment as an Issuing Bank hereunder;
(iv) if to a Lender, to it at its address (or facsimile number) set forth in
its Administrative Questionnaire.
Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall
be deemed to have been given when received; notices sent by facsimile shall be deemed to have been
given when sent (except that, if not given during normal business hours for the recipient, shall be
deemed to
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have been given at the opening of business on the next business day for the recipient). Notices
delivered through electronic communications, to the extent provided in paragraph (b) below, shall
be effective as provided in said paragraph (b).
(b) Electronic Communications. Notices and other communications to the Lenders and
the Issuing Banks hereunder may be delivered or furnished by electronic communication (including
e-mail and Internet or intranet websites) pursuant to procedures approved by the Agent,
provided that the foregoing shall not apply to notices to any Lender or Issuing Bank
pursuant to Article II if such Lender or Issuing Bank, as applicable, has notified the Agent that
it is incapable of receiving notices under such Article by electronic communication. The Agent or
the Borrower may, in its discretion, agree to accept notices and other communications to it
hereunder by electronic communications pursuant to procedures approved by it; provided that
approval of such procedures may be limited to particular notices or communications.
Unless the Agent otherwise prescribes, (i) notices and other communications sent to an e-mail
address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended
recipient (such as by the “return receipt requested” function, as available, return e-mail or other
written acknowledgement), and (ii) notices or communications posted to an Internet or intranet
website shall be deemed received upon the deemed receipt by the intended recipient, at its e-mail
address as described in the foregoing clause (i), of notification that such notice or communication
is available and identifying the website address therefor; provided that, for both clauses
(i) and (ii) above, if such notice, email or other communication is not sent during the normal
business hours of the recipient, such notice or communication shall be deemed to have been sent at
the opening of business on the next business day for the recipient.
(c) Change of Address, etc. Any party hereto may change its address or facsimile
number for notices and other communications hereunder by notice to the other parties hereto.
(d) Platform.
(i) The Borrower agrees that the Agent may, but shall not be obligated to, make
the Communications (as defined below) available to the Issuing Banks and the other
Lenders by posting the Communications on Debt Domain, Intralinks, Syndtrak or a
substantially similar electronic transmission system (the “Platform”).
(ii) The Platform is provided “as is” and “as available.” The Agent Parties
(as defined below) do not warrant the adequacy of the Platform and expressly
disclaim liability for errors or omissions in the Communications. No warranty of
any kind, express, implied or statutory, including, without limitation, any warranty
of merchantability, fitness for a particular purpose, non-infringement of
third-party rights or freedom from viruses or other code defects, is made by any
Agent Party in connection with the Communications or the Platform. In no event
shall the Agent or any of its Related Parties (collectively, the “Agent
Parties”) have any liability to the Borrower, any Lender or any other Person or
entity for damages of any kind, including, without limitation, direct or indirect,
special, incidental or consequential damages, losses or expenses (whether in tort,
contract or otherwise) arising out of the Borrower’s or the Agent’s transmission of
communications through the Platform. “Communications” means, collectively,
any notice, demand, communication, information, document or other material that the
Borrower provides to the Agent pursuant to this Agreement or the transactions
contemplated herein which is distributed to the Agent, any Lender or any
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Issuing Bank by means of electronic communications pursuant to this Section,
including through the Platform.
SECTION 8.03 No Waiver; Remedies. No failure on the part of any Lender or the Agent
to exercise, and no delay in exercising, any right hereunder or under any Note shall operate as a
waiver thereof; nor shall any single or partial exercise of any such right preclude any other or
further exercise thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
SECTION 8.04 Costs and Expenses. (a) The Borrower agrees to pay reasonably promptly
after demand all reasonable costs and expenses of the Agent in connection with the preparation,
execution, delivery, modification and amendment of this Agreement, the Notes and the other
documents to be delivered hereunder, including, without limitation, the reasonable fees and
expenses of counsel for the Agent with respect thereto and with respect to advising the Agent as to
its rights and responsibilities under this Agreement. The Borrower further agrees to pay on demand
all costs and expenses of the Agent and the Lenders, if any (including, without limitation,
reasonable counsel fees and expenses), in connection with the enforcement (whether through
negotiations, legal proceedings or otherwise) of this Agreement, the Notes and the other documents
to be delivered hereunder, including, without limitation, reasonable fees and expenses of counsel
for the Agent and each Lender in connection with the enforcement of rights under this Section
8.04(a).
(b) The Borrower agrees to indemnify and hold harmless the Agent and each Lender and each of
their Affiliates and their officers, directors, employees, agents and advisors (each, an
“Indemnified Party”) from and against any and all claims, damages, losses, liabilities and
expenses (including, without limitation, reasonable fees and expenses of counsel) incurred by or
asserted or awarded against any Indemnified Party, in each case arising out of or in connection
with or by reason of any investigation, litigation or proceeding (or preparation of a defense in
connection therewith) relating to the Notes, this Agreement, the commitment letters delivered in
connection with this Agreement, any of the transactions contemplated herein or the actual or
proposed use of the proceeds of the Advances, except to the extent such claim, damage, loss,
liability or expense is found in a final, non-appealable judgment by a court of competent
jurisdiction to have resulted from such Indemnified Party’s gross negligence or willful misconduct.
In the case of an investigation, litigation or other proceeding to which the indemnity in this
Section 8.04(b) applies, such indemnity shall be effective whether or not such investigation,
litigation or proceeding is brought by the Borrower, its directors, equityholders or creditors or
an Indemnified Party or any other Person, whether or not any Indemnified Party is otherwise a party
thereto and whether or not the transactions contemplated hereby are consummated. The Borrower, to
the extent permitted by applicable law, also agrees not to assert any claim for special, indirect,
consequential or punitive damages against the Agent, any Lender, any of their Affiliates, or any of
their respective directors, officers, employees, attorneys and agents, on any theory of liability,
arising out of or otherwise relating to the Notes, this Agreement, any of the transactions
contemplated herein or the actual or proposed use of the proceeds of the Advances.
(c) If any payment of principal of, or Conversion of, any Eurocurrency Rate Advance is made by
the Borrower to or for the account of a Lender other than on the last day of the Interest Period
for such Advance, as a result of a payment or Conversion pursuant to Section 2.08, 2.10 or 2.12,
acceleration of the maturity of the Advances pursuant to Section 6.01 or for any other reason, or
by an Eligible Assignee to a Lender other than on the last day of the Interest Period for such
Advance upon an assignment of rights and obligations under this Agreement pursuant to Section 8.07
as a result of a demand by the Borrower pursuant to Section 8.07(a) or if the Borrower shall fail
to prepay any Eurocurrency Advance in accordance with any notice given under Section 2.10, the
Borrower shall, upon demand by such Lender (with a copy of such demand to the Agent), pay to the
Agent for the account of
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such Lender any amounts required to compensate such Lender for any additional losses, costs or
expenses that it may reasonably incur as a result of such payment or Conversion, including, without
limitation, any loss (excluding loss of anticipated profits), cost or expense incurred by reason of
the liquidation or reemployment of deposits or other funds acquired by any Lender to fund or
maintain such Advance. If the amount of the Committed Currency purchased by any Lender in the case
of a Conversion or exchange of Advances in the case of Section 2.08 or 2.12 exceeds the sum
required to satisfy such Lender’s liability in respect of such Advances, such Lender agrees to
remit to the Borrower such excess.
(d) Without prejudice to the survival of any other agreement of the Borrower hereunder, the
agreements and obligations of the Borrower contained in Sections 2.11, 2.14 and 8.04 shall survive
the payment in full of principal, interest and all other amounts payable hereunder and under the
Notes and the termination of this Agreement.
SECTION 8.05 Right of Set-off. Upon (i) the occurrence and during the continuance of
any Event of Default and (ii) the making of the request or the granting of the consent specified by
Section 6.01 to authorize the Agent to declare the Notes due and payable pursuant to the provisions
of Section 6.01, each Lender and each of its Affiliates is hereby authorized at any time and from
time to time, to the fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and other indebtedness
at any time owing by such Lender or such Affiliate to or for the credit or the account of the
Borrower against any and all of the obligations of the Borrower now or hereafter existing under
this Agreement and the Note held by such Lender, whether or not such Lender shall have made any
demand under this Agreement or such Note and although such obligations may be unmatured. Each
Lender agrees promptly to notify the Borrower after any such set-off and application, provided that
the failure to give such notice shall not affect the validity of such set-off and application. The
rights of each Lender and its Affiliates under this Section are in addition to other rights and
remedies (including, without limitation, other rights of set-off) that such Lender and its
Affiliates may have.
SECTION 8.06 Binding Effect. This Agreement shall become effective (other than
Section 2.01, which shall only become effective upon satisfaction of the conditions precedent set
forth in Section 3.01) when it shall have been executed by the Borrower and the Agent and when the
Agent shall have been notified by each Bank that such Bank has executed it and thereafter shall be
binding upon and inure to the benefit of the Borrower, the Agent and each Lender and their
respective successors and assigns, except that the Borrower shall not have the right to assign its
rights hereunder or any interest herein without the prior written consent of all of the Lenders
(and any other attempted assignment or transfer by the Borrower shall be null and void).
SECTION 8.07 Assignments and Participations. (a) Successors and Assigns Generally.
No Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to
an assignee in accordance with the provisions of paragraph (b) of this Section, (ii) by way of
participation in accordance with the provisions of paragraph (d) of this Section, or (iii) by way
of pledge or assignment of a security interest subject to the restrictions of paragraph (f) of this
Section (and any other attempted assignment or transfer by any Lender shall be null and void).
Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person
(other than the parties hereto, their respective successors and assigns permitted hereby,
Participants to the extent provided in paragraph (d) of this Section and, to the extent expressly
contemplated hereby, the Related Parties of each of the Agent and the Lenders) any legal or
equitable right, remedy or claim under or by reason of this Agreement.
(b) Assignments by Lenders. Any Lender may at any time assign to one or more
assignees all or a portion of its rights and obligations under this Agreement (including all or a
portion of
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its Commitment and the Advances at the time owing to it); provided that (in each case
with respect to any Facility) any such assignment shall be subject to the following conditions:
(i) Minimum Amounts.
(A) in the case of an assignment of the entire remaining amount of the
assigning Lender’s Commitment and/or the Advances at the time owing to it (in each
case with respect to any Facility) or in the case of an assignment to a Lender, an
Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned; and
(B) in any case not described in paragraph (b)(i)(A) of this Section, the
aggregate amount of the Commitment (which for this purpose includes Advances
outstanding thereunder) or, if the applicable Commitment is not then in effect, the
principal outstanding balance of the Advances of the assigning Lender subject to
each such assignment (determined as of the date the Assignment and Assumption with
respect to such assignment is delivered to the Agent or, if “Trade Date” is
specified in the Assignment and Assumption, as of the Trade Date) shall not be less
than $5,000,000 unless each of the Agent and, so long as no Event of Default has
occurred and is continuing, the Borrower otherwise consents (each such consent not
to be unreasonably withheld or delayed).
(ii) Proportionate Amounts. Each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender’s rights and obligations
under this Agreement with respect to the Advance or the Commitment assigned, except that
this clause (ii) shall not prohibit any Lender from assigning all or a portion of its rights
and obligations among separate Facilities on a non-pro rata basis.
(iii) Required Consents. No consent shall be required for any assignment
except to the extent required by paragraph (b)(i)(B) of this Section and, in addition:
(A) the consent of the Borrower (such consent not to be unreasonably withheld
or delayed) shall be required unless (x) an Event of Default has occurred and is
continuing at the time of such assignment, or (y) such assignment is to a Lender, an
Affiliate of such Lender or an Approved Fund with respect of such Lender (in each
case, so long as such Lender is not a Defaulting Lender); provided that the
Borrower shall be deemed to have consented to any such assignment unless it shall
object thereto by written notice to the Agent within ten Business Days after having
received notice thereof;
(B) the consent of the Agent (such consent not to be unreasonably withheld or
delayed) shall be required for assignments in respect of the Revolving Credit
Facility if such assignment is to a Person that is not a Lender, an Affiliate of
such Lender or an Approved Fund with respect to such Lender (in each case, so long
as such Lender is not a Defaulting Lender); and
(C) the consent of each Issuing Bank shall be required for any assignment in
respect of the Revolving Credit Facility.
(iv) Assignment and Assumption. The parties to each assignment shall execute
and deliver to the Agent an Assignment and Assumption, together with a processing and
recordation fee of $3,500; provided that the Agent may, in its sole discretion,
elect to waive such processing
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56
and recordation fee in the case of any assignment. The assignee, if it is not a
Lender, shall deliver to the Agent an Administrative Questionnaire.
(v) No Assignment to Certain Persons. No such assignment shall be made to (A)
the Borrower or any of the Borrower’s Affiliates or Subsidiaries or (B) to any Defaulting
Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder,
would constitute any of the foregoing Persons described in this clause (B).
(vi) No Assignment to Natural Persons. No such assignment shall be made to a
natural Person.
(vii) Certain Additional Payments. In connection with any assignment of rights
and obligations of any Defaulting Lender hereunder, no such assignment shall be effective
unless and until, in addition to the other conditions thereto set forth herein, the parties
to the assignment shall make such additional payments to the Agent in an aggregate amount
sufficient, upon distribution thereof as appropriate (which may be outright payment,
purchases by the assignee of participations or subparticipations, or other compensating
actions, including funding, with the consent of the Borrower and the Agent, the applicable
pro rata share of Advances previously requested but not funded by the Defaulting Lender, to
each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay
and satisfy in full all payment liabilities then owed by such Defaulting Lender to the
Agent, each Issuing Bank and each other Lender hereunder (and interest accrued thereon), and
(y) acquire (and fund as appropriate) its full pro rata share of all Advances and
participations in Letters of Credit in accordance with its Pro Rata Share. Notwithstanding
the foregoing, in the event that any assignment of rights and obligations of any Defaulting
Lender hereunder shall become effective under applicable law without compliance with the
provisions of this paragraph, then the assignee of such interest shall be deemed to be a
Defaulting Lender for all purposes of this Agreement until such compliance occurs.
Subject to acceptance and recording thereof by the Agent pursuant to paragraph (c) of this Section,
from and after the effective date specified in each Assignment and Assumption, the assignee
thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and
the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment
and Assumption, be released from its obligations under this Agreement (and, in the case of an
Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this
Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the
benefits of Sections 2.12 and 7.05 with respect to facts and circumstances occurring prior to the
effective date of such assignment; provided, that except to the extent otherwise expressly
agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or
release of any claim of any party hereunder arising from that Lender’s having been a Defaulting
Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that
does not comply with this paragraph shall be treated for purposes of this Agreement as a sale by
such Lender of a participation in such rights and obligations in accordance with paragraph (d) of
this Section.
(c) Register. The Agent, acting solely for this purpose as an agent of the Borrower,
shall maintain at one of its offices in the United States a copy of each Assignment and Assumption
delivered to it and a register for the recordation of the names and addresses of the Lenders, and
the Commitment of, and principal amount of the Advances owing to, each Lender pursuant to the terms
hereof from time to time (the “Register”). The entries in the Register shall be conclusive
absent manifest error, and the Borrower, the Agent and the Lenders shall treat each Person whose
name is recorded in the
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Register pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Borrower and any Lender, at any
reasonable time and from time to time upon reasonable prior notice.
(d) Participations. Any Lender may at any time, without the consent of, or notice to,
the Borrower or the Agent, sell participations to any Person (each, a “Participant”) in all
or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a
portion of its Commitment and/or the Advances owing to it); provided that (i) such Lender’s
obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations, and (iii) the
Borrower, the Agent, the Issuing Banks and the Lenders shall continue to deal solely and directly
with such Lender in connection with such Lender’s rights and obligations under this Agreement. For
the avoidance of doubt, each Lender shall be responsible for the indemnity under Section 7.05 with
respect to any payments made by such Lender to its Participant(s).
Any agreement or instrument pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver that would reduce the principal of, or
interest on, the Advances or any fees or other amounts due and payable hereunder, or postpone any
date fixed for any payment of principal of, or interest on, the Advances or any fees or other
amounts due and payable hereunder that affects such Participant. The Borrower agrees that each
Participant shall be entitled to the benefits of Section 2.11 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section;
provided that such Participant agrees to be subject to the provisions of Section 2.21 as if
it were an assignee under paragraph (b) of this Section. To the extent permitted by law, each
Participant also shall be entitled to the benefits of Section 8.05 as though it were a Lender;
provided that such Participant agrees to be subject to Section 2.15 as though it were a
Lender.
(e) Limitations upon Participant Rights. A Participant shall not be entitled to
receive any greater payment under Sections 2.11 or 2.14 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant, unless the sale of
the participation to such Participant is made with the Borrower’s prior written consent. A
Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the
benefits of Section 2.14 unless the Borrower is notified of the participation sold to such
Participant and such Participant agrees, for the benefit of the Borrower, to comply with Section
2.14(e) as though it were a Lender.
(f) Certain Pledges. Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement to secure obligations of such Lender,
including any pledge or assignment to secure obligations to a Federal Reserve Bank or other central
banking authority; provided that no such pledge or assignment shall release such Lender
from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as
a party hereto.
(h) Each Issuing Bank may assign to an Eligible Assignee its rights and obligations or any
portion of the undrawn Letter of Credit Commitment at any time; provided, however,
that (i) the amount of the Letter of Credit Commitment of the assigning Issuing Bank being
assigned pursuant to each such assignment (determined as of the date of the Assignment and
Assumption with respect to such assignment) shall in no event be less than $1,000,000 or an
integral multiple of $1,000,000 in excess thereof, and (ii) the parties to each such assignment
shall execute and deliver to the Agent, for its acceptance and recording in the Register, an
Assignment and Assumption, together with a processing and recordation fee of $3,500.
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SECTION 8.08 Confidentiality. Each of the Agent, the Lenders and the Issuing Banks
agrees to maintain the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its Affiliates and to its and its Affiliates’ respective
managers, administrators, trustees, partners, directors, officers, employees, agents, advisors and
other representatives (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 requested by any regulatory authority purporting to have
jurisdiction over it (including any self-regulatory authority, such as the National Association of
Insurance Commissioners), (c) to the extent required by applicable laws or regulations or by any
subpoena or similar legal process, (d) to any other party hereto, (e) in connection with the
exercise of any remedies hereunder or under any Note or any action or proceeding relating to this
Agreement or any Note or the enforcement of rights hereunder or thereunder, (f) subject to an
agreement containing provisions substantially the same as those of this Section, to (i) any
assignee of or participant in, or any prospective assignee of or participant in, any of its rights
or obligations under this Agreement or (ii) any actual or prospective party (or its managers,
administrators, trustees, partners, directors, officers, employees, agents, advisors and other
representatives) to any swap or derivative or similar transaction under which payments are to be
made by reference to the Borrower and its obligations, this Agreement or payments hereunder, (iii)
any rating agency, or (iv) the CUSIP Service Bureau or any similar organization, (g) with the
consent of the Borrower or (h) to the extent such Information (x) is or becomes publicly available
other than as a result of a breach of this Section or (y) becomes available to the Agent, any
Lender, the Issuing Bank or any of their respective Affiliates on a nonconfidential basis from a
source other than the Borrower (unless the Person receiving such Information is receiving such
Information from a source in violation of a confidentiality agreement and such violation is known
to such Person).
“Information” means all information received from the Borrower or any of its
Subsidiaries relating to the Borrower or any of its Subsidiaries or any of their respective
businesses, other than any such information that is available to the Agent, any Lender or any
Issuing Bank on a nonconfidential basis prior to disclosure by the Borrower or any of its
Subsidiaries, provided that, in the case of information received from the Borrower or any
of its Subsidiaries after the date hereof, such information is clearly identified at the time of
delivery as confidential. Any Person required to maintain the confidentiality of Information as
provided in this Section shall be considered to have complied with its obligation to do so if such
Person has exercised the same degree of care to maintain the confidentiality of such Information as
such Person would accord to its own confidential information.
SECTION 8.09 Governing Law. This Agreement and the Notes shall be governed by, and
construed in accordance with, the laws of the State of New York.
SECTION 8.10 Execution in Counterparts. This Agreement may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall constitute one and
the same agreement. Delivery of an executed counterpart of a signature page to this Agreement by
telecopier or other electronic transmission shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 8.11 Judgment. (a) If for the purposes of obtaining judgment in any court it
is necessary to convert a sum due hereunder in Dollars into another currency, the parties hereto
agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall
be that at which in accordance with normal banking procedures the Agent could purchase Dollars with
such other currency at Citibank’s principal office in London at 11:00 A.M. (London time) on the
Business Day preceding that on which final judgment is given.
CA, Inc. Credit Agreement
59
(b) If for the purposes of obtaining judgment in any court it is necessary to convert a sum
due hereunder in a Committed Currency into Dollars, the parties agree to the fullest extent that
they may effectively do so, that the rate of exchange used shall be that at which in accordance
with normal banking procedures the Agent could purchase such Committed Currency with Dollars at
Citibank’s principal office in London at 11:00 A.M. (London time) on the Business Day preceding
that on which final judgment is given.
(c) The obligation of the Borrower in respect of any sum due from it in any currency (the
“Primary Currency”) to any Lender or the Agent hereunder shall, notwithstanding any
judgment in any other currency, be discharged only to the extent that on the Business Day following
receipt by such Lender or the Agent (as the case may be), of any sum adjudged to be so due in such
other currency, such Lender or the Agent (as the case may be) may in accordance with normal banking
procedures purchase the applicable Primary Currency with such other currency; if the amount of the
applicable Primary Currency so purchased is less than such sum due to such Lender or the Agent (as
the case may be) in the applicable Primary Currency, the Borrower agrees, as a separate obligation
and notwithstanding any such judgment, to indemnify such Lender or the Agent (as the case may be)
against such loss, and if the amount of the applicable Primary Currency so purchased exceeds such
sum due to any Lender or the Agent (as the case may be) in the applicable Primary Currency, such
Lender or the Agent (as the case may be) agrees to remit to the Borrower such excess.
SECTION 8.12 Jurisdiction, Etc. (a) Each of the parties hereto irrevocably and
unconditionally agrees that it will not commence any action, litigation or proceeding of any kind
or description, whether in law or equity, whether in contract or in tort or otherwise, against the
Agent, any Lender or any Related Party of the foregoing in any way relating to this Agreement or
any Note or the transactions relating hereto or thereto, in any forum other than the courts of the
State of New York sitting in New York County, and of the United States District Court for the
Southern District of New York, and any appellate court from any thereof, and each of the parties
hereto irrevocably and unconditionally submits to the jurisdiction of such courts and agrees that
all claims in respect of any such action, litigation or proceeding may be heard and determined in
such New York State court or, to the fullest extent permitted by applicable law, in such federal
court. Each of the parties hereto consents to the service of process in any action or proceeding
in such courts by the mailing thereof by any parties hereto by registered or certified mail,
postage prepaid, to such party at its address specified pursuant to Section 8.02. Each of the
parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive
and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided
by law.
(b) Each of the parties hereto irrevocably and unconditionally waives, to the fullest extent
it may legally and effectively do so, any objection that it may now or hereafter have to the laying
of venue of any suit, action or proceeding arising out of or relating to this Agreement or the
Notes in any New York State or federal court. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
SECTION 8.13 Substitution of Currency. If a change in any Committed Currency occurs
pursuant to any applicable law, rule or regulation of any governmental, monetary or multi-national
authority, this Agreement (including, without limitation, the definitions of Eurocurrency Rate)
will be amended to the extent determined by the Agent (acting reasonably and in consultation with
the Borrower) to be necessary to reflect the change in currency and to put the Lenders and the
Borrower in the same position, so far as possible, that they would have been in if no change in
such Committed Currency had occurred.
CA, Inc. Credit Agreement
60
SECTION 8.14 No Liability of the Issuing Banks. The Borrower assumes all risks of the
acts or omissions of any beneficiary or transferee of any Letter of Credit with respect to its use
of such Letter of Credit. Neither an Issuing Bank nor any of its officers or directors shall be
liable or responsible for: (a) the use that may be made of any Letter of Credit or any acts or
omissions of any beneficiary or transferee in connection therewith; (b) the validity, sufficiency
or genuineness of documents, or of any endorsement thereon, even if such documents should prove to
be in any or all respects invalid, insufficient, fraudulent or forged; (c) payment by such Issuing
Bank against presentation of documents that do not strictly comply with the terms of a Letter of
Credit, including failure of any documents to bear any reference or adequate reference to the
Letter of Credit; or (d) any other circumstances whatsoever in making or failing to make payment
under any Letter of Credit, except that the Borrower shall have a claim against such Issuing Bank,
and such Issuing Bank shall be liable to the Borrower, to the extent of any direct, but not
consequential, damages suffered by the Borrower that the Borrower proves were caused by such
Issuing Bank’s willful misconduct or gross negligence as determined in a final, non-appealable
judgment by a court of competent jurisdiction. In furtherance and not in limitation of the
foregoing, such Issuing Bank may accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or information to the contrary.
SECTION 8.15 Patriot Act. Each Lender and the Agent (for itself and not on behalf of
any Lender) hereby notifies the Borrower that pursuant to the requirements of the USA Patriot Act
(Title III of Pub.L. 107-56 (signed into law October 26, 2001)) (the “Patriot Act”), it is required
to obtain, verify and record information that identifies the Borrower, which information includes
the name and address of the Borrower and other information that will allow such Lender or the
Agent, as applicable, to identify the Borrower in accordance with the Patriot Act. The Borrower,
to the extent commercially reasonable, shall provide such information and take such actions as are
reasonably requested by the Agent or any Lenders in order to assist the Agent and the Lenders in
maintaining compliance with the Patriot Act.
SECTION 8.16 Waiver of Jury Trial. Each of the Borrower, the Agent and the Lenders
hereby irrevocably waives all right to trial by jury in any action, proceeding or counterclaim
(whether based on contract, tort or otherwise) arising out of or relating to this Agreement or the
Notes or the actions of the Agent or any Lender in the negotiation, administration, performance or
enforcement thereof.
SECTION 8.17 No Fiduciary Duties. The Borrower agrees that in connection with all
aspects of the transactions contemplated hereby and any communications in connection therewith, the
Borrower and its Affiliates, on the one hand, and the Agent, the Issuing Banks, the Lenders and
their respective Affiliates, on the other hand, will have a business relationship that does not
create, by implication or otherwise, any fiduciary duty on the part of the Agent, the Issuing
Banks, the Lenders or their respective Affiliates and no such duty will be deemed to have arisen in
connection with any such transactions or communications.
SECTION 8.18 Waiver of Advance Notice Under Existing Credit Agreement. Each Lender
party hereto that is a lender under the U.S. $1,000,000,000 Credit Agreement, dated as of August
29, 2007 (as amended or modified from time to time prior to the date hereof, the “Existing
Credit Agreement”), among the Borrower, Citibank, N.A., as paying agent, and the lenders and
other financial institutions party thereto hereby agrees that, notwithstanding anything to the
contrary contained in Section 2.05 of the Existing Credit Agreement, no advance notice need be
delivered in connection with the termination of the commitments thereunder.
[Signature pages follow.]
CA, Inc. Credit Agreement
61
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their
respective officers thereunto duly authorized, as of the date first above written.
CA, INC. |
||||
By | /s/ Xxxxx X. Xxxxx | |||
Name: | Xxxxx X. Xxxxx | |||
Title: | SVP, Treasurer | |||
CA, Inc. Credit Agreement
CITIBANK, N.A., as Agent |
||||
By | /s/ Xxxxxx Xxxxxxx | |||
Name: | Xxxxxx Xxxxxxx | |||
Title: | Vice President | |||
CA, Inc. Credit Agreement
CITIBANK, N.A. |
||||
By | /s/ Xxxxxx Xxxxxxx | |||
Name: | Xxxxxx Xxxxxxx | |||
Title: | Vice President | |||
CA, Inc. Credit Agreement
U.S BANK N.A. |
||||
By | /s/ Xxxxxxx X. Xxxxxx | |||
Name: | Xxxxxxx X. Xxxxxx | |||
Title: | Vice President | |||
CA, Inc. Credit Agreement
LLOYDS TSB BANK PLC |
||||
By | /s/ Xxxxxxxx Eng | |||
Name: | Xxxxxxxx Eng | |||
Title: | Vice President Corporate Banking USA E017 |
|||
By | /s/ Xxxxxxx Xxxxx | |||
Name: | Xxxxxxx Xxxxx | |||
Title: | Managing Director Corporate Banking Xxxxx Xxxxxxx X000 |
|||
XX, Inc. Credit Agreement
HSBC BANK USA, NATIONAL ASSOCIATION |
||||
By | /s/ Xxxx Xxxxxxxx | |||
Name: | Xxxx Xxxxxxxx | |||
Title: | Vice President | |||
CA, Inc. Credit Agreement
BANK OF AMERICA, N.A. |
||||
By | /s/ Xxxxxxx Xxxxx | |||
Name: | Xxxxxxx Xxxxx | |||
Title: | AVP | |||
CA, Inc. Credit Agreement
BARCLAYS BANK PLC |
||||
By | /s/ Xxxxx Xxxxx | |||
Name: | Xxxxx Xxxxx | |||
Title: | Director | |||
CA, Inc. Credit Agreement
JPMORGAN CHASE BANK, N.A. |
||||
By | /s/ Xxxx X. Xxxxxxxxx | |||
Name: | Xxxx X. Xxxxxxxxx | |||
Title: | Executive Director | |||
CA, Inc. Credit Agreement
XXXXX FARGO BANK, N.A. |
||||
By | /s/ Xxxxxxx Xxxxxxxx | |||
Name: | Xxxxxxx Xxxxxxxx | |||
Title: | Vice President | |||
CA, Inc. Credit Agreement
ROYAL BANK OF CANADA |
||||
By | /s/ Xxxx X. Xxxxxxx | |||
Name: | Xxxx X. Xxxxxxx | |||
Title: | Authorized Signatory | |||
CA, Inc. Credit Agreement
SUMITOMO MITSUI BANKING
CORPORATION |
||||
By | /s/ Xxxxxxxx Xxxxxx | |||
Name: | Xxxxxxxx Xxxxxx | |||
Title: | Joint General Manager | |||
CA, Inc. Credit Agreement
MIZUHO CORPORATE BANK, LTD. |
||||
By | /s/ Xxxxxxx Xxxxxxx | |||
Name: | Xxxxxxx Xxxxxxx | |||
Title: | Deputy General Manager | |||
CA, Inc. Credit Agreement
BNP PARIBAS |
||||
By | /s/ Xxxxxxx Xxxxxx | |||
Name: | Xxxxxxx Xxxxxx | |||
Title: | Managing Director | |||
By | /s/ Xxxx Xxxxxxx | |||
Name: | Xxxx Xxxxxxx | |||
Title: | Director | |||
CA, Inc. Credit Agreement
DNB NOR BANK ASA |
||||
By | /s/ Xxxxxx Xxxxxx | |||
Name: | Xxxxxx Xxxxxx | |||
Title: | Senior Vice President | |||
By | /s/ Xxxxxx X. Xxxxxxxxxx | |||
Name: | Xxxxxx X. Xxxxxxxxxx | |||
Title: | Senior Vice President | |||
CA, Inc. Credit Agreement
PNC BANK, NATIONAL ASSOCIATION |
||||
By | /s/ Xxxxxx Xxxxx | |||
Name: | Xxxxxx Xxxxx | |||
Title: | AVP | |||
CA, Inc. Credit Agreement
XXXXXXX SACHS BANK USA |
||||
By | /s/ Xxxx Xxxxxx | |||
Name: | Xxxx Xxxxxx | |||
Title: | Authorized Signatory | |||
CA, Inc. Credit Agreement
THE BANK OF NOVA SCOTIA |
||||
By | /s/ Xxxxxx Xxxxxxx | |||
Name: | Xxxxxx Xxxxxxx | |||
Title: | Director | |||
CA, Inc. Credit Agreement
ING BANK N.V., DUBLIN BRANCH |
||||
By | /s/ Xxxxx Xxxxx | |||
Name: | Xxxxx Xxxxx | |||
Title: | Director | |||
By | /s/ Xxxxxxx Xxxxxxxx | |||
Name: | Xxxxxxx Xxxxxxxx | |||
Title: | Vice President | |||
CA, Inc. Credit Agreement
XXXXXX XXXXXXX BANK, N.A. |
||||
By | /s/ Xxxxxxxx Xxxxxx | |||
Name: | Xxxxxxxx Xxxxxx | |||
Title: | Authorized Signatory |
CA, Inc. Credit Agreement
THE BANK OF TOKYO-MITSUBISHI UFJ, LTD. |
||||
By | /s/ Xxxx Xxxxxx | |||
Name: | Xxxx Xxxxxx | |||
Title: | Vice President |
CA, Inc. Credit Agreement
THE ROYAL BANK OF SCOTLAND PLC |
||||
By | /s/ Xxxxxxx Xxxxxxxxx | |||
Name: | Xxxxxxx Xxxxxxxxx | |||
Title: | Vice President | |||
CA, Inc. Credit Agreement
KEY BANK NATIONAL ASSOCIATION |
||||
By | /s/ R.E. Xxxxx Xxxxxx | |||
Name: | R.E. Xxxxx Xxxxxx | |||
Title: | Director | |||
CA, Inc. Credit Agreement
SCHEDULE I
CA, INC.
CREDIT AGREEMENT
COMMITMENTS
CA, INC.
CREDIT AGREEMENT
COMMITMENTS
Revolving Credit | Letter of Credit | |||||||
Name of Bank | Commitment | Commitment | ||||||
Citibank, N.A. |
$ | 90,000,000 | $ | 33,333,334 | ||||
Bank of America, N.A. |
$ | 90,000,000 | $ | 33,333,333 | ||||
JPMorgan Chase Bank, N.A. |
$ | 90,000,000 | $ | 33,333,333 | ||||
BNP Paribas |
$ | 65,000,000 | — | |||||
The Royal Bank of Scotland plc |
$ | 65,000,000 | — | |||||
U.S. Bank, National Association |
$ | 65,000,000 | — | |||||
Xxxxx Fargo Bank, N.A. |
$ | 65,000,000 | — | |||||
Barclays Bank PLC |
$ | 35,000,000 | — | |||||
DnB NOR Bank ASA |
$ | 35,000,000 | — | |||||
Xxxxxxx Sachs Bank USA |
$ | 35,000,000 | — | |||||
ING Bank N.V., Dublin Branch |
$ | 35,000,000 | — | |||||
Key Bank National Association |
$ | 35,000,000 | — | |||||
Lloyds TSB Bank, plc |
$ | 35,000,000 | — | |||||
Mizuho Corporate Bank, Ltd. |
$ | 35,000,000 | — | |||||
PNC Bank, National Association |
$ | 35,000,000 | — | |||||
Royal Bank of Canada |
$ | 35,000,000 | — | |||||
Sumitomo Mitsui Banking Corporation |
$ | 35,000,000 | — | |||||
The Bank of Nova Scotia |
$ | 35,000,000 | — | |||||
Xxxxxx Xxxxxxx Bank, N.A. |
$ | 32,500,000 | — | |||||
The Bank of Tokyo-Mitsubishi UFJ, Ltd. |
$ | 32,500,000 | — | |||||
HSBC Bank USA, National Association |
$ | 20,000,000 | — | |||||
Total |
$ | 1,000,000,000 | $ | 100,000,000 | ||||
CA, Inc. Credit Agreement
EXHIBIT A — FORM OF
REVOLVING CREDIT
PROMISSORY NOTE
REVOLVING CREDIT
PROMISSORY NOTE
U.S.$_______________
Dated: _______________, 201__
FOR VALUE RECEIVED, the undersigned, CA, INC., a Delaware corporation (the
“Borrower”), HEREBY PROMISES TO PAY to the order of _________________________ (the
“Lender”) for the account of its Applicable Lending Office on the Termination Date (each as
defined in the Credit Agreement referred to below) the principal sum of U.S.$[amount of the
Lender’s Revolving Credit Commitment in figures] or, if less, the aggregate principal amount of the
Advances made by the Lender to the Borrower pursuant to the Credit Agreement dated as of August 19,
2011 among the Borrower, the Lender and certain other lenders parties thereto, and Citibank, N.A.,
as Agent for the Lender and such other lenders (as amended or modified from time to time, the
“Credit Agreement”; the terms defined therein being used herein as therein defined)
outstanding on the Termination Date.
The Borrower promises to pay interest on the unpaid principal amount of each Advance from the
date of such Advance until such principal amount is paid in full, at such interest rates, and
payable at such times, as are specified in the Credit Agreement.
Both principal and interest in respect of each Advance (i) in Dollars are payable in lawful
money of the United States of America to the Agent at its account maintained at 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, in same day funds and (ii) in any Committed Currency are payable
in such currency at the applicable Payment Office in same day funds. Each Advance owing to the
Lender by the Borrower pursuant to the Credit Agreement, and all payments made on account of
principal thereof, shall be recorded by the Lender and, prior to any transfer hereof, endorsed on
the grid attached hereto which is part of this Promissory Note.
This Promissory Note is one of the Notes referred to in, and is entitled to the benefits of,
the Credit Agreement. The Credit Agreement, among other things, (i) provides for the making of
Advances by the Lender to the Borrower from time to time in an aggregate amount not to exceed at
any time outstanding the U.S. dollar amount first above mentioned, the indebtedness of the Borrower
resulting from each such Advance being evidenced by this Promissory Note, (ii) contains provisions
for determining the Dollar Equivalent of Advances denominated in Committed Currencies and (iii)
contains provisions for acceleration of the maturity hereof upon the happening of certain stated
events and also for prepayments on account of principal hereof prior to the maturity hereof upon
the terms and conditions therein specified.
CA, INC. |
||||
By | ||||
Title: | ||||
CA, Inc. Credit Agreement
ADVANCES AND PAYMENTS OF PRINCIPAL
Amount of | ||||||||
Amount of | Principal Paid | Unpaid Principal | Notation | |||||
Date | Advance | or Prepaid | Balance | Made By | ||||
CA, Inc. Credit Agreement
2
EXHIBIT B — FORM OF NOTICE OF
BORROWING
BORROWING
Citibank, N.A., as Agent
for the Lenders parties
to the Credit Agreement
referred to below
0000 Xxxxx Xxxx, Xxxxxxxx #0
Xxx Xxxxxx, Xxxxxxxx 00000
for the Lenders parties
to the Credit Agreement
referred to below
0000 Xxxxx Xxxx, Xxxxxxxx #0
Xxx Xxxxxx, Xxxxxxxx 00000
[Date]
Attention: Bank Loan Syndications
Ladies and Gentlemen:
The undersigned, CA, Inc., refers to the Credit Agreement, dated as of August 19, 2011 (as
amended or modified from time to time, the “Credit Agreement”, the terms defined therein
being used herein as therein defined), among the undersigned, certain Lenders parties thereto and
Citibank, N.A., as Agent for said Lenders, and hereby gives you notice, irrevocably, pursuant to
Section 2.02 of the Credit Agreement that the undersigned hereby requests a Borrowing under the
Credit Agreement, and in that connection sets forth below the information relating to such
Borrowing (the “Proposed Borrowing”) as required by Section 2.02(a) of the Credit
Agreement:
(i) The Business Day of the Proposed Borrowing is _______________, 201__.
(ii) The Type of Advances comprising the Proposed Borrowing is [Base Rate Advances]
[Eurocurrency Rate Advances].
(iii) The aggregate amount of the Proposed Borrowing is $_______________][for a
Borrowing in a Committed Currency, list currency and amount of Borrowing].
[(iv) The initial Interest Period for each Eurocurrency Rate Advance made as part of
the Proposed Borrowing is _____ month[s].]
The undersigned hereby certifies that the following statements are true on the date hereof,
and will be true on the date of the Proposed Borrowing:
(A) the representations and warranties contained in Section 4.01 of the Credit
Agreement (except the representation set forth in the last sentence of Section 4.01(e) and
in Section 4.01(f) (other than clause (ii) thereof) of the Credit Agreement) are correct,
before and after giving effect to the Proposed Borrowing and to the application of the
proceeds therefrom, as though made on and as of such date; and
CA, Inc. Credit Agreement
(B) no event has occurred and is continuing, or would result from such Proposed
Borrowing or from the application of the proceeds therefrom, that constitutes a Default.
Very truly yours, CA, INC. |
||||
By | ||||
Title: | ||||
CA, Inc. Credit Agreement
2
CUSIP Number:___________________
EXHIBIT C — FORM OF
ASSIGNMENT AND ASSUMPTION
EXHIBIT C — FORM OF
ASSIGNMENT AND ASSUMPTION
Assignment and Assumption
This Assignment and Assumption (the “Assignment and Assumption”) is dated as of
the Effective Date set forth below and is entered into by and between [the][each]11
Assignor identified in item 1 below ([the][each, an] “Assignor”) and
[the][each]12 Assignee identified in item 2 below ([the][each, an] “Assignee”).
[It is understood and agreed that the rights and obligations of [the Assignors][the
Assignees]13 hereunder are several and not joint.]14 Capitalized terms used
but not defined herein shall have the meanings given to them in the Credit Agreement identified
below (as amended, the “Credit Agreement”), receipt of a copy of which is hereby
acknowledged by [the][each] Assignee. The Standard Terms and Conditions set forth in Annex 1
attached hereto are hereby agreed to and incorporated herein by reference and made a part of this
Assignment and Assumption as if set forth herein in full.
For an agreed consideration, [the][each] Assignor hereby irrevocably sells and assigns to [the
Assignee][the respective Assignees], and [the][each] Assignee hereby irrevocably purchases and
assumes from [the Assignor][the respective Assignors], subject to and in accordance with the
Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the
Agent as contemplated below (i) all of [the Assignor’s][the respective Assignors’] rights and
obligations in [its capacity as a Lender][their respective capacities as Lenders] under the Credit
Agreement and any other documents or instruments delivered pursuant thereto to the extent related
to the amount and percentage interest identified below of all of such outstanding rights and
obligations of [the Assignor][the respective Assignors] under the respective facilities identified
below (including without limitation any letters of credit included in such facilities), and (ii) to
the extent permitted to be assigned under applicable law, all claims, suits, causes of action and
any other right of [the Assignor (in its capacity as a Lender)][the respective Assignors (in their
respective capacities as Lenders)] against any Person, whether known or unknown, arising under or
in connection with the Credit Agreement, any other documents or instruments delivered pursuant
thereto or the loan transactions governed thereby or in any way based on or related to any of the
foregoing, including, but not limited to, contract claims, tort claims, malpractice claims,
statutory claims and all other claims at law or in equity related to the rights and obligations
sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned by
[the][any] Assignor to [the][any] Assignee pursuant to clauses (i) and (ii) above being referred to
herein collectively as [the][an] “Assigned Interest”). Each such sale and assignment is
without recourse to [the][any] Assignor and, except as expressly provided in this Assignment and
Assumption, without representation or warranty by [the][any] Assignor.
1. Assignor[s]: ______________________
11 | For bracketed language here and elsewhere in this form relating to the Assignor(s), if the assignment is from a single Assignor, choose the first bracketed language. If the assignment is from multiple Assignors, choose the second bracketed language. | |
12 | For bracketed language here and elsewhere in this form relating to the Assignee(s), if the assignment is to a single Assignee, choose the first bracketed language. If the assignment is to multiple Assignees, choose the second bracketed language. | |
13 | Select as appropriate. | |
14 | Include bracketed language if there are either multiple Assignors or multiple Assignees. |
________________________ | ||||
[Assignor [is] [is not] a Defaulting Lender] | ||||
2.
|
Assignee[s]: | ________________________ | ||
________________________ | ||||
[for each Assignee, indicate [Affiliate][Approved Fund] of [identify Lender] | ||||
3.
|
Borrower(s): | CA, Inc. | ||
4. | Agent: Citibank, N.A., as the agent under the Credit Agreement | |||
5.
|
Credit Agreement: | The $1,000,000,000 Credit Agreement dated as of August 19, 2011 among CA, Inc., the Lenders parties thereto, Citibank, N.A., as Agent, and the other agents parties thereto | ||
6.
|
Assigned Interest[s]: |
Percentage | ||||||||||||||||||||||||
Aggregate Amount of | Amount of | Assigned of | ||||||||||||||||||||||
Facility | Commitment/Advances | Commitment/Advances | Commitment/ | CUSIP | ||||||||||||||||||||
Assignor[s]15 | Assignee[s]16 | Assigned17 | for all Lenders18 | Assigned8 | Advances19 | Number | ||||||||||||||||||
$ | $ | % | ||||||||||||||||||||||
$ | $ | % | ||||||||||||||||||||||
$ | $ | % |
[7. Trade Date: ______________]20
[Page break]
15 | List each Assignor, as appropriate. | |
16 | List each Assignee, as appropriate. | |
17 | Fill in the appropriate terminology for the types of facilities under the Credit Agreement that are being assigned under this Assignment (e.g., “Revolving Credit Commitment,” “Letter of Credit Commitment,” etc.) | |
18 | Amount to be adjusted by the counterparties to take into account any payments or prepayments made between the Trade Date and the Effective Date. | |
19 | Set forth, to at least 9 decimals, as a percentage of the Commitment/Advances of all Lenders thereunder. | |
20 | To be completed if the Assignor(s) and the Assignee(s) intend that the minimum assignment amount is to be determined as of the Trade Date. |
-2-
Effective Date: _____________ ___, 20___ [TO BE INSERTED BY AGENT AND WHICH SHALL BE THE
EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]
The terms set forth in this Assignment and Assumption are hereby agreed to:
ASSIGNOR[S]21 [NAME OF ASSIGNOR] |
||||
By: | ||||
Title: | ||||
[NAME
OF ASSIGNOR] |
||||
By: | ||||
Title: | ||||
ASSIGNEE[S]22 [NAME OF ASSIGNEE] |
||||
By: | ||||
Title: | ||||
[NAME OF ASSIGNEE] |
||||
By: | ||||
Title: | ||||
[Consented to and]23 Accepted:
CITIBANK, N.A., as
Agent
Agent
By: | ||||
Title: | ||||
[Consented to:]24
21 | Add additional signature blocks as needed. | |
22 | Add additional signature blocks as needed. | |
23 | To be added only if the consent of the Agent is required by the terms of the Credit Agreement. | |
24 | To be added only if the consent of the Borrower and/or other parties (e.g. Issuing Bank) is required by the terms of the Credit Agreement. |
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[NAME OF RELEVANT PARTY]
By: | ||||
Title: |
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ANNEX 1
CA, Inc. Credit Agreement dated as of August 19, 2011
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
1.1 Assignor[s]. [The][Each] Assignor (a) represents and warrants that (i) it is
the legal and beneficial owner of [the][the relevant] Assigned Interest, (ii) [the][such] Assigned
Interest is free and clear of any lien, encumbrance or other adverse claim, (iii) it has full power
and authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby and (iv) it is [not] a Defaulting
Lender; and (b) assumes no responsibility with respect to (i) any statements, warranties or
representations made in or in connection with the Credit Agreement, (ii) the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Credit Agreement or any
collateral thereunder, (iii) the financial condition of the Borrower, any of its Subsidiaries or
Affiliates or any other Person obligated in respect of the Credit Agreement, or (iv) the
performance or observance by the Borrower, any of its Subsidiaries or Affiliates or any other
Person of any of their respective obligations under the Credit Agreement.
1.2. Assignee[s]. [The][Each] Assignee (a) represents and warrants that (i) it has
full power and authority, and has taken all action necessary, to execute and deliver this
Assignment and Assumption and to consummate the transactions contemplated hereby and to become a
Lender under the Credit Agreement, (ii) it meets all the requirements to be an assignee under
Section 8.07(b)(iii), (v) and (vi) of the Credit Agreement (subject to such consents, if any, as
may be required under Section 8.07(b)(iii) of the Credit Agreement), (iii) from and after the
Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder
and, to the extent of [the][the relevant] Assigned Interest, shall have the obligations of a Lender
thereunder, (iv) it is sophisticated with respect to decisions to acquire assets of the type
represented by the Assigned Interest and either it, or the Person exercising discretion in making
its decision to acquire the Assigned Interest, is experienced in acquiring assets of such type, (v)
it has received a copy of the Credit Agreement, and has received or has been accorded the
opportunity to receive copies of the most recent financial statements delivered pursuant to Section
5.01(k) thereof, as applicable, and such other documents and information as it deems appropriate to
make its own credit analysis and decision to enter into this Assignment and Assumption and to
purchase [the][such] Assigned Interest, (vi) it has, independently and without reliance upon the
Agent or any other Lender and based on such documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Assignment and Assumption and to
purchase [the][such] Assigned Interest, and (vii) if it is a Foreign Lender, attached to the
Assignment and Assumption is any documentation required to be delivered by it pursuant to the terms
of the Credit Agreement, duly completed and executed by [the][such] Assignee; and (b) agrees that
(i) it will, independently and without reliance on the Agent, [the][any] Assignor or any other
Lender, and based on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under the Credit
Agreement, and (ii) it will perform in accordance with their terms all of the obligations which by
the terms of the Credit Agreement are required to be performed by it as a Lender.
2. Payments. From and after the Effective Date, the Agent shall make all payments in
respect of [the][each] Assigned Interest (including payments of principal, interest, fees and other
amounts) to [the][the relevant] Assignee whether such amounts have accrued prior to, on or after
the
Effective Date. The Assignor[s] and the Assignee[s] shall make all appropriate adjustments in
payments by the Agent for periods prior to the Effective Date or with respect to the making of this
assignment directly between themselves.
3. General Provisions. This Assignment and Assumption shall be binding upon, and
inure to the benefit of, the parties hereto and their respective successors and assigns. This
Assignment and Assumption may be executed in any number of counterparts, which together shall
constitute one instrument. Delivery of an executed counterpart of a signature page of this
Assignment and Assumption by telecopy or other electronic transmission shall be effective as
delivery of a manually executed counterpart of this Assignment and Assumption. This Assignment and
Assumption shall be governed by, and construed in accordance with, the law of the State of New
York.
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EXHIBIT D — FORM OF
OPINION OF COUNSEL
FOR THE BORROWER
OPINION OF COUNSEL
FOR THE BORROWER
[INTENTIONALLY LEFT BLANK]