CONFORMED AS EXECUTED
EXHIBIT 10.15
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AMENDED AND RESTATED CREDIT AGREEMENT
among
MBIA INC.,
MBIA INSURANCE CORPORATION,
VARIOUS DESIGNATED BORROWERS,
VARIOUS LENDING INSTITUTIONS,
THE BANK OF NEW YORK,
BANK ONE, NA,
BARCLAYS BANK PLC
AND
FLEET NATIONAL BANK,
AS CO-SYNDICATION AGENTS
AND
DEUTSCHE BANK AG NEW YORK BRANCH,
AS ADMINISTRATIVE AGENT,
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Dated as of August 28, 1998
and
amended and restated as of April 19, 2002
----------
$449,700,000
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TABLE OF CONTENTS
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SECTION 1. Amount and Terms of Credit.............................................................. 1
1.01 Commitment........................................................................... 1
1.02 Minimum Borrowing Amounts, etc....................................................... 2
1.03 Notice of Borrowing of Revolving Loans............................................... 2
1.04 Competitive Bid Borrowings........................................................... 3
1.05 Disbursement of Funds................................................................ 5
1.06 Notes................................................................................ 5
1.07 Conversions.......................................................................... 6
1.08 Pro Rata Borrowings, etc............................................................. 6
1.09 Interest............................................................................. 6
1.10 Interest Periods..................................................................... 8
1.11 Increased Costs, Illegality, etc..................................................... 9
1.12 Compensation......................................................................... 11
1.13 Change of Lending Office............................................................. 11
1.14 Replacement of Lenders............................................................... 12
1.15 Extension of Final Maturity Date; Replacement of Non-Continuing Lender............... 12
1.16 Additional Commitments............................................................... 13
1.17 Designated Borrowers................................................................. 14
1.18 Retroactivity........................................................................ 14
SECTION 2. Fees; Commitments....................................................................... 14
2.01 Fees................................................................................. 14
2.02 Voluntary Reduction of Commitments................................................... 15
2.03 Mandatory Reduction of Commitments................................................... 15
SECTION 3. Payments................................................................................ 15
3.01 Voluntary Prepayments................................................................ 15
3.02 Mandatory Prepayments................................................................ 16
3.03 Method and Place of Payment.......................................................... 17
3.04 Net Payments......................................................................... 17
SECTION 4. Conditions Precedent.................................................................... 20
4.01 Conditions Precedent to the Restatement Effective Date............................... 20
4.02 Conditions Precedent to Loans........................................................ 21
SECTION 5. Representations, Warranties and Agreements.............................................. 22
5.01 Corporate Existence and Power........................................................ 22
5.02 Corporate and Governmental Authorization; No Contravention........................... 22
5.03 Binding Effect....................................................................... 22
5.04 Financial Information................................................................ 23
5.05 Litigation........................................................................... 23
(i)
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5.06 Compliance with ERISA............................................................... 23
5.07 Taxes............................................................................... 23
5.08 Subsidiaries........................................................................ 23
5.09 Not an Investment Company........................................................... 24
5.10 Public Utility Holding Company Act.................................................. 24
5.11 Ownership of Property; Liens........................................................ 24
5.12 No Default.......................................................................... 24
5.13 Full Disclosure..................................................................... 24
5.14 Compliance with Laws................................................................ 24
5.15 Capital Stock....................................................................... 24
5.16 Margin Stock........................................................................ 24
5.17 Insolvency.......................................................................... 24
SECTION 6. Affirmative Covenants................................................................... 25
6.01 Information Covenants............................................................... 25
6.02 Books, Records and Inspections...................................................... 26
6.03 Maintenance of Existence............................................................ 27
6.04 Compliance with Laws; Payment of Taxes.............................................. 27
6.05 Insurance........................................................................... 27
6.06 Maintenance of Property............................................................. 27
SECTION 7. Negative Covenants...................................................................... 27
7.01 Liens............................................................................... 27
7.02 Dissolution......................................................................... 28
7.03 Consolidations, Mergers and Sales of Assets......................................... 28
7.04 Use of Proceeds..................................................................... 28
7.05 Change in Fiscal Year............................................................... 28
7.06 Transactions with Affiliates........................................................ 28
7.07 Leverage Ratio...................................................................... 28
7.08 Minimum Net Worth................................................................... 29
SECTION 8. Defaults................................................................................ 29
8.01 Events of Default................................................................... 29
8.02 Notice of Default................................................................... 31
SECTION 9. Definitions............................................................................. 31
SECTION 10. Agents, etc............................................................................. 46
10.01 Appointment......................................................................... 46
10.02 Nature of Duties.................................................................... 46
10.03 Lack of Reliance on the Agents...................................................... 47
10.04 Certain Rights of the Agents........................................................ 47
10.05 Reliance............................................................................ 47
10.06 Indemnification..................................................................... 47
10.07 The Agents in Their Individual Capacities........................................... 48
(ii)
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10.08 Holders............................................................................. 48
10.09 Resignation by an Agent............................................................. 48
10.10 Co-Syndication Agents............................................................... 49
SECTION 11. Miscellaneous........................................................................... 49
11.01 Payment of Expenses, etc............................................................ 49
11.02 Lender Enforceability Opinions...................................................... 49
11.03 Notices............................................................................. 50
11.04 Benefit of Agreement................................................................ 50
11.05 No Waiver; Remedies Cumulative...................................................... 51
11.06 Payments Pro Rata................................................................... 51
11.07 Calculations; Computations.......................................................... 52
11.08 Governing Law; Submission to Jurisdiction; Venue; Waiver of Jury Trial.............. 53
11.09 Counterparts........................................................................ 53
11.10 Headings Descriptive................................................................ 53
11.11 Amendment or Waiver................................................................. 53
11.12 Survival............................................................................ 54
11.13 Domicile of Loans................................................................... 54
11.14 Confidentiality..................................................................... 54
11.15 Lender Register..................................................................... 54
11.16 Judgment Currency................................................................... 55
11.17 Euro................................................................................ 55
ANNEX I -- Commitments
ANNEX II -- Lender Addresses
ANNEX III -- Subsidiaries
EXHIBIT A-1 -- Form of Notice of Borrowing
EXHIBIT A-2 -- Form of Notice of Competitive Bid Borrowing
EXHIBIT B-1 -- Form of Revolving Note
EXHIBIT B-2 -- Form of Competitive Bid Note
EXHIBIT C -- Form of Section 3.04 Certificate
EXHIBIT D -- Opinion of General Counsel to Borrowers
EXHIBIT E -- Form of Officers' Certificate
EXHIBIT F -- Form of Financial Guaranty Insurance Policy
EXHIBIT G -- Form of Assignment Agreement
EXHIBIT H -- Form of Commitment Assumption Agreement
EXHIBIT I -- Form of DB Assumption Agreement
EXHIBIT J -- Form of Lender's Opinions
EXHIBIT K -- Form of Opinion of Designated Borrower's Counsel
EXHIBIT L -- Form of Opinion of Counsel to Corp.
(iii)
AMENDED AND RESTATED CREDIT AGREEMENT, dated as of August 28, 1998 and
amended and restated, as of April 19, 2002 among MBIA INC. ("Parent"), a
Connecticut corporation, MBIA INSURANCE CORPORATION ("Corp."), a New York stock
insurance corporation, one or more Designated Borrowers (as hereinafter defined)
from time to time party hereto, the lenders from time to time party hereto
(each, a "Lender" and, collectively, the "Lenders"), DEUTSCHE BANK AG, NEW YORK
BRANCH, as Administrative Agent (in such capacity, together with any successor
Administrative Agent, the "Administrative Agent") THE BANK OF NEW YORK, BANK
ONE, NA, BARCLAYS BANK plc and FLEET NATIONAL BANK as Co-Syndication Agents (in
such capacity, together with any successor Co-Syndication Agent, the
"Co-Syndication Agents" and, each a "Co-Syndication Agent"). Unless otherwise
defined herein, all capitalized terms used herein and defined in Section 9 are
used herein as so defined.
W I T N E S S E T H:
WHEREAS, the Borrowers, the Existing Lenders, the Co-Syndication Agents
and the Administrative Agent have entered into a Credit Agreement, dated as of
August 28, 1998 (as the same has been amended, modified or supplemented to, but
not including, the Restatement Effective Date, the "Existing Credit Agreement");
and
WHEREAS, the parties hereto wish to amend and restate the Existing
Credit Agreement in the form of this Agreement and make available to the
Borrowers the respective credit facilities provided for herein;
NOW, THEREFORE, the parties hereto agree that the Existing Credit
Agreement shall be and is hereby amended and restated in its entirety as
follows:
SECTION 1. Amount and Terms of Credit.
1.01 Commitment. (a) Subject to and upon the terms and conditions set
forth herein, each Lender severally agrees to make, at any time and from time to
time on and after the Restatement Effective Date and prior to the Final Maturity
Date, one or more additional loans (the "Revolving Loans" and each a "Revolving
Loan") to one or more of the Borrowers (on a several basis), which Revolving
Loans: (i) may be made and maintained in such Approved Currency as is requested
by the applicable Borrower (except in the case of Base Rate Loans, which shall
only be Dollar-denominated); (ii) may be repaid and reborrowed in accordance
with the provisions hereof; (iii) except as hereinafter provided, may, at the
option of any Borrower, be incurred and maintained as, and/or converted into,
Base Rate Loans or Eurodollar Loans, provided that all Revolving Loans made as
part of the same Borrowing shall, unless otherwise specified herein, consist of
Revolving Loans of the same Type; (iv) shall not, in the case of Revolving Loans
denominated in Primary Alternate Currencies, exceed $200,000,000 in aggregate
Principal Amount at any time outstanding for all such Revolving Loans; and (v)
shall not exceed that aggregate Principal Amount which, when added to the
aggregate Principal Amount of all other Revolving Loans then outstanding and the
aggregate Principal Amount of all Competitive Bid Loans then outstanding, equals
the Total Commitment at such time.
(b) Subject to and upon the terms and conditions set forth herein,
(I) on the Restatement Effective Date, the Existing Competitive Bid Loans made
by each Existing Lender to any Borrower pursuant to the Existing Credit
Agreement and outstanding on the Restatement Effective Date (immediately prior
to giving effect thereto) shall be continued, and shall remain outstanding, as
Borrowings of Loans hereunder to such Borrower and (II) each Lender severally
agrees that one or more Borrowers may, at any time and from time to time on and
after the Restatement Effective Date and prior to the Final Maturity Date, (on a
several basis) incur a loan or loans (together with the Existing Competitive Bid
Loans continued pursuant to clause (I) above, the "Competitive Bid Loans" and
each, a "Competitive Bid Loan") from one or more Bidder Lenders pursuant to a
Competitive Bid Borrowing at any time and from time to time on and after the
Restatement Effective Date and prior to the date which is the third Business Day
preceding the date which is seven days prior to the Final Maturity Date,
provided that after giving effect to any Competitive Bid Borrowing and the use
of the proceeds thereof, the aggregate outstanding Principal Amount of
Competitive Bid Loans, when combined with the then aggregate outstanding
Principal Amount of all Revolving Loans, shall not exceed the Total Commitment
at such time.
1.02 Minimum Borrowing Amounts, etc. The aggregate Principal Amount of
each Borrowing shall not be less than the Minimum Borrowing Amount. More than
one Borrowing may be incurred on any day, provided that at no time shall there
be outstanding more than six Borrowings of Eurodollar Loans.
1.03 Notice of Borrowing of Revolving Loans. (a) Whenever a Borrower
desires to incur Revolving Loans, it shall give the Administrative Agent at its
Notice Office, (x) prior to 11:00 A.M. (New York time) at least three Business
Days' prior written notice (or telephonic notice promptly confirmed in writing)
of each Borrowing of Eurodollar Loans in Dollars, (y) prior to 1:00 P.M. (New
York time) at least four Business Days' prior written notice (or telephonic
notice promptly confirmed in writing) of each Borrowing of Eurodollar Loans
constituting Alternate Currency Loans and (z) written notice (or telephonic
notice promptly confirmed in writing) prior to 11:00 A.M. (New York time) on the
date of each Borrowing of Base Rate Loans. Each such notice (each, a "Notice of
Borrowing") shall be in the form of Exhibit A-1 and shall be irrevocable and
shall specify (i) the identity of the applicable Borrower, (ii) in the case of
Alternate Currency Loans, the Approved Currency for such Loans, (iii) the
aggregate principal amount of the Revolving Loans to be made pursuant to such
Borrowing (stated in the applicable Approved Currency), (iv) the date of
Borrowing (which shall be a Business Day), (v) whether the respective Borrowing
shall consist of Base Rate Loans or Eurodollar Loans, (vi) if Eurodollar Loans,
the Interest Period to be initially applicable thereto and (vii) if DB Loans,
the DB Loan Maturity Date to be applicable thereto. The Administrative Agent
shall promptly give each Lender written notice (or telephonic notice promptly
confirmed in writing) of each proposed Borrowing, of the portion thereof to be
funded by such Lender and of the other matters covered by the Notice of
Borrowing.
(b) Without in any way limiting the obligation of any Borrower to
confirm in writing any telephonic notice permitted to be given hereunder, the
Administrative Agent may prior to receipt of written confirmation act without
liability upon the basis of such telephonic notice, believed by it in good faith
to be from an Authorized Officer of such Borrower. In each
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such case, each Borrower hereby waives the right to dispute the Administrative
Agent's record of the terms of such telephonic notice absent manifest error.
1.04 Competitive Bid Borrowings. (a) Whenever any Borrower desires to
incur a Competitive Bid Borrowing (excluding Existing Competitive Bid Loans
continued hereunder on the Restatement Effective Date), it shall deliver to the
Administrative Agent, prior to 11:00 A.M. (New York time) (x) at least four
Business Days prior to the date of such proposed Competitive Bid Borrowing, in
the case of a Spread Borrowing, and (y) at least one Business Day prior to the
date of such proposed Competitive Bid Borrowing, in the case of an Absolute Rate
Borrowing which is Dollar-denominated, and at least three Business Days prior to
the date of such proposed Competitive Bid Borrowing, in the case of an Absolute
Rate Borrowing which is an Alternate Currency Loan, a written notice
substantially in the form of Exhibit A-2 hereto (a "Notice of Competitive Bid
Borrowing"), which notice shall specify in each case (i) the identity of the
applicable Borrower, (ii) the date (which shall be a Business Day) and the
aggregate amount of the proposed Competitive Bid Borrowing, (iii) the maturity
date for repayment of each and every Competitive Bid Loan to be made as part of
such Competitive Bid Borrowing (which maturity date may be (A) up to six months
after the date of such Competitive Bid Borrowing in the case of a Spread
Borrowing and (B) no fewer than seven days and no more than 180 days after the
date of such Competitive Bid Borrowing in the case of an Absolute Rate
Borrowing, provided that in no event shall the maturity date of any Competitive
Bid Borrowing be later than the third Business Day preceding the Final Maturity
Date), (iv) the interest payment date or dates relating thereto, (v) whether the
proposed Competitive Bid Borrowing is to be an Absolute Rate Borrowing or a
Spread Borrowing, (vi) in the case of an Alternate Currency Loan, the Alternate
Currency for such Competitive Bid Borrowing, and (vii) any other terms to be
applicable to such Competitive Bid Borrowing. The Administrative Agent shall
promptly notify each Bidder Lender by telephone or facsimile of each such
request for a Competitive Bid Borrowing received by it from a Borrower and of
the contents of the related Notice of Competitive Bid Borrowing.
(b) Each Bidder Lender shall, if, in its sole discretion, it elects
to do so, irrevocably offer to make one or more Competitive Bid Loans to the
applicable Borrower as part of such proposed Competitive Bid Borrowing at a rate
or rates of interest specified by such Bidder Lender in its sole discretion and
determined by such Bidder Lender independently of each other Bidder Lender, by
notifying the Administrative Agent (which shall give prompt notice thereof to
such Borrower by facsimile), before 9:30 A.M. (New York time) on the date (the
"Reply Date") which is (x) in the case of an Absolute Rate Borrowing which is
Dollar-denominated, the date of such proposed Competitive Bid Borrowing and in
the case of an Absolute Rate Borrowing which is an Alternate Currency Loan, two
Business Days before the date of such Competitive Bid Borrowing and (y) in the
case of a Spread Borrowing, three Business Days before the date of such proposed
Competitive Bid Borrowing, of the minimum amount and maximum amount of each
Competitive Bid Loan which such Bidder Lender would be willing to make as part
of such proposed Competitive Bid Borrowing (which amounts may, subject to the
proviso contained in Section 1.01(b), exceed such Bidder Lender's Commitment),
the rate or rates of interest therefor and such Bidder Lender's lending office
with respect to such Competitive Bid Loan; provided that if the Administrative
Agent in its capacity as a Bidder Lender shall, in its sole discretion, elect to
make any such offer, it shall notify the respective Borrower of such offer
before 9:15 A.M. (New York time) on the Reply Date. If any Bidder Lender shall
elect not to make such an
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offer, such Bidder Lender shall so notify the Administrative Agent, before 9:30
A.M. (New York time) on the Reply Date, and such Bidder Lender shall not be
obligated to, and shall not, make any Competitive Bid Loan as part of such
Competitive Bid Borrowing; provided that the failure by any Bidder Lender to
give such notice shall not cause such Bidder Lender to be obligated to make any
Competitive Bid Loan as part of such proposed Competitive Bid Borrowing.
(c) The applicable Borrower shall, in turn, before 10:30 A.M. (New
York time) on the Reply Date, either:
(i) cancel such Competitive Bid Borrowing by giving the
Administrative Agent notice to such effect (it being understood and agreed
that if such Borrower gives no such notice of cancellation and no notice of
acceptance pursuant to clause (ii) below, then such Borrower shall be deemed
to have canceled such Competitive Bid Borrowing), or
(ii) accept one or more of the offers made by any Bidder Lender or
Bidder Lenders pursuant to clause (b) above by giving notice (in writing or
by telephone confirmed in writing) to the Administrative Agent of the amount
of each Competitive Bid Loan (which amount shall be equal to or greater than
the minimum amount, and equal to or less than the maximum amount, notified
to the applicable Borrower by the Administrative Agent on behalf of such
Bidder Lender for such Competitive Bid Borrowing pursuant to clause (b)
above) to be made by each Bidder Lender as part of such Competitive Bid
Borrowing, and reject any remaining offers made by Bidder Lenders pursuant
to clause (b) above by giving the Administrative Agent notice to that
effect; provided that the acceptance of offers may only be made on the basis
of ascending Absolute Rates (in the case of an Absolute Rate Borrowing) or
Spreads (in the case of a Spread Borrowing), in each case commencing with
the lowest rate so offered; provided further, however, that if offers are
made by two or more Bidder Lenders at the same rate and acceptance of all
such equal offers would result in a greater principal amount of Competitive
Bid Loans being accepted than the aggregate principal amount requested by
the applicable Borrower, if such Borrower elects to accept any such offers
such Borrower shall accept such offers pro rata from such Bidder Lenders (on
the basis of the maximum amounts of such offers) unless any such Bidder
Lender's pro rata share would be less than the minimum amount specified by
such Bidder Lender in its offer, in which case such Borrower shall have the
right to accept one or more such equal offers in their entirety and reject
the other equal offer or offers or to allocate acceptance among all such
equal offers (but giving effect to the minimum and maximum amounts specified
for each such offer pursuant to clause (b) above), as such Borrower may
elect in its sole discretion.
(d) If the applicable Borrower notifies the Administrative Agent
that such Competitive Bid Borrowing is deemed canceled, pursuant to clause
(c)(i) above, the Administrative Agent shall give prompt notice thereof to the
Bidder Lenders and such Competitive Bid Borrowing shall not be made.
(e) If the applicable Borrower accepts one or more of the offers
made by any Bidder Lender or Bidder Lenders pursuant to clause (c) (ii) above,
the Administrative Agent
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shall in turn promptly notify (x) each Bidder Lender that has made an offer as
described in clause (b) above, of the date and aggregate amount of such
Competitive Bid Borrowing and whether or not any offer or offers made by such
Bidder Lender pursuant to clause (b) above have been accepted by the Borrower
and (y) each Bidder Lender that is to make a Competitive Bid Loan as part of
such Competitive Bid Borrowing, of the amount of each Competitive Bid Loan to be
made by such Bidder Lender as part of such Competitive Bid Borrowing.
1.05 Disbursement of Funds. (a) No later than 12:00 Noon (New York time)
(or 3:00 P.M. (New York time) in the case of (x) a Borrowing of Base Rate Loans
for which a Notice of Borrowing was given on the date of such Borrowing and (y)
a Competitive Bid Borrowing) on the date specified in each Notice of Borrowing
or Notice of Competitive Bid Borrowing, each Lender will make available its pro
rata share, if any, of such Borrowing requested to be made on such date. All
such amounts shall be made available to the Administrative Agent in the relevant
Approved Currency or Other Alternate Currency, as the case may be, and
immediately available funds at the Payment Office and the Administrative Agent
promptly will make available to the applicable Borrower by depositing to the
account designated by such Borrower, which account shall be at an institution in
the same city as the respective Payment Office, the aggregate of the amounts so
made available in the type of funds received. Unless the Administrative Agent
shall have been notified by any Lender participating in a Borrowing prior to the
date of such Borrowing that such Lender does not intend to make available to the
Administrative Agent its portion of the Borrowing or Borrowings to be made on
such date, the Administrative Agent may assume that such Lender has made such
amount available to the Administrative Agent on such date of Borrowing, and the
Administrative Agent, in reliance upon such assumption, may (in its sole
discretion and without any obligation to do so) make available to the applicable
Borrower a corresponding amount. If such corresponding amount is not in fact
made available to the Administrative Agent by such Lender and the Administrative
Agent has made available same to the applicable Borrower, the Administrative
Agent shall be entitled to recover such corresponding amount from such Lender.
If such Lender does not pay such corresponding amount forthwith upon the
Administrative Agent's demand therefor, the Administrative Agent shall promptly
notify the applicable Borrower, and such Borrower shall pay such corresponding
amount to the Administrative Agent within three Business Days of receipt of such
notice unless previously paid by such Lender. The Administrative Agent shall
also be entitled to recover on demand from such Lender or such Borrower, as the
case may be, interest on such corresponding amount in respect of each day from
the date such corresponding amount was made available by the Administrative
Agent to such Borrower to the date such corresponding amount is recovered by the
Administrative Agent, at a rate per annum equal to (x) if paid by such Lender,
the overnight Federal Funds Effective Rate or (y) if paid by such Borrower, the
then applicable rate of interest, calculated in accordance with Section 1.09,
for the respective Loans.
(b) Nothing herein shall be deemed to relieve any Lender from its
obligation to fulfill its commitments hereunder or to prejudice any rights which
any Borrower may have against any Lender as a result of any default by such
Lender hereunder.
1.06 Notes. (a) Each Borrower's obligation to pay the principal of, and
interest on, the Loans made to it by each Lender shall be evidenced (i) if
Revolving Loans, by a promissory note substantially in the form of Exhibit B-1
with blanks appropriately completed
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(each, a "Revolving Note" and, collectively, the "Revolving Notes") and (ii) if
Competitive Bid Loans, by a promissory note substantially in the form of Exhibit
B-2 with blanks appropriately completed (each a "Competitive Bid Note" and,
collectively, the "Competitive Bid Notes").
(b) Each Lender will note on its internal records the amount of each
Loan made by it and each payment in respect thereof and will, prior to any
transfer of any of its Notes, endorse on the reverse side thereof the
outstanding Principal Amount of Loans evidenced thereby. Failure to make any
such notation shall not affect a Borrower's obligations in respect of such
Loans.
1.07 Conversions. Each Borrower shall have the option to convert on any
Business Day occurring on or after the Restatement Effective Date, all or a
portion at least equal to the applicable Minimum Borrowing Amount of its
Revolving Loans denominated in a single Approved Currency and constituting Base
Rate Loans or Eurodollar Loans into a Borrowing or Borrowings of Revolving Loans
denominated in such Approved Currency and constituting Eurodollar Loans or Base
Rate Loans, respectively, provided that (i) Eurodollar Loans denominated in a
currency other than Dollars may not be converted into Base Rate Loans, (ii) no
partial conversion shall reduce the outstanding principal amount of the
Eurodollar Loans made pursuant to a Borrowing to less than the Minimum Borrowing
Amount applicable thereto, (iii) Base Rate Loans may not be converted into
Eurodollar Loans when a Default or Event of Default is then in existence if the
Administrative Agent or the Required Lenders shall have determined in its or
their sole discretion not to permit such conversion and (iv) Borrowings of
Eurodollar Loans resulting from this Section 1.07 shall be limited in number as
provided in Section 1.02. Each such conversion shall be effected by the
respective Borrower giving the Administrative Agent at the Notice Office, prior
to 12:00 Noon (New York time), at least three Business Days' (or one Business
Day in the case of a conversion into Base Rate Loans) prior written notice (or
telephonic notice promptly confirmed in writing) (each, a "Notice of
Conversion") specifying the Revolving Loans to be so converted, the Type of
Loans (as to interest option) to be converted into and, if to be converted into
a Borrowing of Eurodollar Loans, the Interest Period to be initially applicable
thereto. The Administrative Agent shall give each Lender prompt notice of any
such proposed conversion affecting any of its Loans.
1.08 Pro Rata Borrowings, etc. All Revolving Loans incurred pursuant to
a Borrowing shall be made by the Lenders pro rata on the basis of their
respective Commitments. It is understood that no Lender shall be responsible for
any default by any other Lender in its obligation to make Revolving Loans
hereunder, and that each Lender shall be obligated to make the Revolving Loans
provided to be made by it hereunder, regardless of the failure of any other
Lender to fulfill its commitments hereunder and regardless of whether such
Lender has made any Competitive Bid Loans hereunder.
1.09 Interest. (a) The unpaid principal amount of each Base Rate Loan
shall bear interest from the date of the Borrowing thereof until the earlier of
(i) maturity (whether by acceleration or otherwise) and (ii) conversion of such
Base Rate Loan to a Eurodollar Loan pursuant to Section 1.07, at a rate per
annum which shall at all times be equal to the sum of the Base Rate plus the
Applicable Margin, each as in effect from time to time.
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(b) The unpaid principal amount of each Eurodollar Loan shall bear
interest from the date of the Borrowing thereof until the earlier of (i)
maturity (whether by acceleration or otherwise) and (ii) conversion of such
Eurodollar Loan to a Base Rate Loan pursuant to Section 1.07, 1.10 or 1.11(b),
as applicable, at a rate per annum which shall, during each Interest Period
applicable thereto, be equal to the sum of the relevant LIBOR for such Interest
Period, plus the Applicable Margin, as in effect from time to time.
(c) The unpaid principal amount of each Competitive Bid Loan shall
bear interest from the date of the Borrowing thereof until maturity (whether by
acceleration or otherwise) at a rate or rates per annum specified by a Bidder
Lender or Bidder Lenders, as the case may be, pursuant to Section 1.04(b) and
accepted by the respective Borrower pursuant to Section 1.04(c).
(d) All overdue principal and, to the extent permitted by law,
overdue interest in respect of each Loan shall bear interest at a rate per annum
equal to the greater of (x) the rate which is 2% in excess of the rate borne by
the respective Loans immediately prior to the respective payment default and (y)
the rate which is 2% in excess of the rate otherwise applicable to Base Rate
Loans, provided that principal in respect of Eurodollar Loans and Competitive
Bid Loans shall bear interest from the date same becomes due (whether by
acceleration or otherwise) until the end of the Interest Period applicable
thereto at a rate per annum equal to 2% plus the rate of interest applicable on
the due date therefor. Interest which accrues under this Section 1.08(c) shall
be payable on demand.
(e) Interest shall accrue from and including the date of any
Borrowing to but excluding the date of any repayment thereof, and in the case of
DB Loans, compounded as described below, and shall be payable (i) in respect of
each Base Rate Loan (other than a DB Loan), quarterly in arrears on the last
Business Day of each March, June, September and December, (ii) in respect of
each Eurodollar Loan (other than a DB Loan), on the last day of each Interest
Period applicable thereto and, in the case of an Interest Period in excess of
three months, on each date occurring at three month intervals after the first
day of such Interest Period, (iii) in respect of each DB Loan, on the applicable
DB Loan Maturity Date, (iv) in respect of each Competitive Bid Loan, at such
times as specified in the Notice of Competitive Bid Borrowing relating thereto,
and (v) in respect of each Loan, on any prepayment or conversion (other than the
prepayment or conversion of any Base Rate Loan) (on the amount prepaid or
converted), at maturity (whether by acceleration or otherwise) and, after such
maturity, on demand. Interest on any Existing Competitive Bid Loans which
accrued under the Existing Credit Agreement prior to the Restatement Effective
Date, but which remains unpaid on such date (and which was not required to be
paid on or prior to such date in accordance with the terms of the Existing
Credit Agreement or this Agreement) shall be payable at the times otherwise
provided above (but calculated at the respective rates provided in the Existing
Credit Agreement for periods occurring prior to the Restatement Effective Date)
for the interest involved, without any change on the Restatement Effective Date
as to the Interest Periods then in effect. Notwithstanding anything to the
contrary contained in this Agreement, although interest in respect of each DB
Loan shall be payable only on the DB Loan Maturity Date for such DB Loan as
provided in clause (iii) of the immediately preceding sentence, interest on each
DB Loan shall compound on each date on which interest thereon would have been
payable pursuant to clause (i) or (ii) of such sentence if such Loan were not a
DB Loan and such compounded interest shall thereafter bear interest
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hereunder at the same rate per annum as the principal of the DB Loan to which
such compounded interest relates.
(f) All computations of interest hereunder shall be made in
accordance with Section 11.07(b).
(g) The Administrative Agent, upon determining the interest rate for
any Borrowing for any Interest Period, shall promptly notify the applicable
Borrower and the Lenders thereof.
1.10 Interest Periods. (a) At the time a Borrower gives a Notice of
Borrowing or a Notice of Conversion in respect of the making of, or conversion
into, a Borrowing of Eurodollar Loans (in the case of the initial Interest
Period applicable thereto) or prior to 12:00 Noon (New York Time) on the third
Business Day prior to the expiration of an Interest Period applicable to a
Borrowing of Eurodollar Loans, it shall have the right to elect by giving the
Administrative Agent written notice (or telephonic notice promptly confirmed in
writing) of the Interest Period applicable to such Borrowing, which Interest
Period shall, at the option of such Borrower, be a one, two, three or six month
period or such other period available to all Lenders. Notwithstanding anything
to the contrary contained above:
(i) the initial Interest Period for any Borrowing shall commence on
the date of such Borrowing (including, where relevant, the date of any
conversion from a Borrowing of Base Rate Loans) and each Interest Period
occurring thereafter in respect of such Borrowing shall commence on the day
on which the next preceding Interest Period expires;
(ii) if any Interest Period begins on (x) the last Business Day of a
month, it shall end on the last Business Day of the month in which it is to
end and (y) a day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period, such Interest Period
shall end on the last Business Day of such calendar month;
(iii) if any Interest Period would otherwise expire on a day which is
not a Business Day, such Interest Period shall expire on the next succeeding
Business Day, provided that if any Interest Period would otherwise expire on
a day which is not a Business Day but is a day of the month after which no
further Business Day occurs in such month, such Interest Period shall expire
on the next preceding Business Day;
(iv) no Interest Period may be elected that would extend beyond the
Final Maturity Date;
(v) no Interest Period in respect of a DB Loan may be elected that
would extend beyond the DB Loan Maturity Date for such DB Loan;
(vi) no Interest Period may be elected at any time when a Default or
an Event of Default is then in existence if the Administrative Agent or the
Required Lenders shall have determined in its or their sole discretion not
to permit such election; and
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(vii) all Eurodollar Loans comprising a Borrowing shall at all times
have the same Interest Period.
(b) If upon the expiration of any Interest Period, the applicable
Borrower has failed to (or may not) elect a new Interest Period to be applicable
to the Revolving Loans subject to the expiring Interest Period as provided
above, such Borrower shall be deemed to have elected, in the case of Eurodollar
Loans, to convert such Borrowing into a Borrowing of Base Rate Loans effective
as of the expiration date of such current Interest Period, provided that if such
Eurodollar Loans are denominated in a currency other than Dollars, then such
Eurodollar Loans shall not convert to Base Rate Loans but shall instead be
prepaid by the applicable Borrower on the last day of such Interest Period.
1.11 Increased Costs, Illegality, etc. (a) In the event that (x) in the
case of clause (i) or (iv) below, the Administrative Agent or (y) in the case of
clause (ii) or (iii) below, any Lender shall have determined (which
determination shall, absent manifest error, be final and conclusive and binding
upon all parties hereto):
(i) on any date for determining any LIBOR for any Interest Period
that, by reason of any changes arising after the Original Effective Date
affecting the relevant interbank market, adequate and fair means do not
exist for ascertaining the applicable interest rate on the basis provided
for in the definition of the respective LIBOR; or
(ii) at any time, that such Lender shall actually incur increased
costs or reductions in the amounts received or receivable hereunder with
respect to any Eurodollar Loans or Competitive Bid Loans (other than any
increased cost or reduction in the amount received or receivable resulting
from the imposition of or a change in the rate of taxes or similar charges)
because of (x) any change since the Original Effective Date (or, in the case
of any Competitive Bid Loan, since the making of such Competitive Bid Loan)
in any applicable law, governmental rule, regulation, guideline or order (or
in the interpretation or administration thereof and including the
introduction of any new law or governmental rule, regulation, guideline or
order) (such as, for example, but not limited to, a change in official
reserve requirements, but, in all events, excluding amounts payable pursuant
to Section 1.11(c) and those included in determining any Associated Costs
Rate) and/or (y) other circumstances occurring since the Original Effective
Date affecting the relevant interbank market; or
(iii) at any time since the Original Effective Date, that the making
or continuance of any Eurodollar Loans or Competitive Bid Loans has become
unlawful by compliance by such Lender in good faith with any law,
governmental rule, regulation or guideline, or has become impracticable as a
result of a contingency occurring after the Original Effective Date which
materially and adversely affects the relevant interbank market; or
(iv) at any time that any Alternate Currency is not available in
sufficient amounts, as determined in good faith by the Administrative Agent,
to fund any Borrowing of Loans denominated in such Alternate Currency;
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then, and in any such event, such Lender (or the Administrative Agent in the
case of clause (i) or (iv) above) shall (x) on such date and (y) within ten
Business Days of the date on which such event no longer exists give notice (by
telephone confirmed in writing) to the respective Borrower and, except in the
case of clause (i) or (iv) above, to the Administrative Agent of such
determination (which notice the Administrative Agent shall promptly transmit to
each of the other Lenders). Thereafter and for so long as the applicable
circumstance continues to exist (w) in the case of clause (i) above, Eurodollar
Loans priced in respect of the affected LIBOR (and Competitive Bid Loans
constituting a Spread Borrowing priced by reference to such LIBOR) shall no
longer be available until such time as the Administrative Agent notifies the
respective Borrower and the Lenders that the circumstances giving rise to such
notice by the Administrative Agent no longer exist in accordance with clause (y)
of the preceding sentence, and any Notice of Borrowing, Notice of Competitive
Bid Borrowing or Notice of Conversion given by a Borrower with respect to such
Loans which have not yet been incurred shall be deemed rescinded by the relevant
Borrower, (x) in the case of clause (ii) above, the applicable Borrower shall
pay to such Lender, upon written demand therefor, such additional amounts (in
the form of an increased rate of, or a different method of calculating, interest
or otherwise as such Lender in its sole discretion shall determine) as shall be
required to compensate such Lender for such increased costs or reductions in
amounts receivable hereunder (a written notice as to the additional amounts owed
to such Lender, showing the basis for the calculation thereof in reasonable
detail, submitted to the applicable Borrower by such Lender shall, absent
manifest error, be final and conclusive and binding upon all parties hereto),
(y) in the case of clause (iii) above, the applicable Borrower shall take one of
the actions specified in Section 1.11(b) as promptly as possible and, in any
event, within the time period required by law and (z) in the case of clause (iv)
above, Loans in the affected Alternate Currency shall no longer be available
until such time as the Administrative Agent notifies the respective Borrower and
the Lenders that the circumstances giving rise to such notice by the
Administrative Agent no longer exist in accordance with clause (y) of the
preceding sentence, and any Notice of Borrowing, Notice of Competitive Bid
Borrowing or Notice of Conversion given by a Borrower with respect to such
Alternate Currency Loans which have not yet been incurred shall be deemed
rescinded by such Borrower.
(b) At any time when any Eurodollar Loan or Competitive Bid Loan is
affected by the circumstances described in Section 1.11(a)(ii) or (iii), the
applicable Borrower may (and in the case of a Eurodollar Loan or Competitive Bid
Loan affected pursuant to Section 1.11(a)(iii), the applicable Borrower shall)
either (i) if the affected Eurodollar Loan or Competitive Bid Loan is then being
made pursuant to a Borrowing, cancel said Borrowing by giving the Administrative
Agent telephonic notice (confirmed promptly in writing) thereof on the same date
that the respective Borrower was notified by a Lender pursuant to Section
1.11(a)(ii) or (iii), or (ii) if the affected Eurodollar Loan or Competitive Bid
Loan is then outstanding, upon at least three Business Days' notice to the
Administrative Agent, (A) in the case of a Eurodollar Loan denominated in
Dollars, require the affected Lender to convert each such Eurodollar Loan into a
Base Rate Loan, and (B) in the case of a Eurodollar Loan denominated in a
Primary Alternate Currency and in the case of a Competitive Bid Loan, repay all
such Eurodollar Loans or Competitive Bid Loans in full, provided that if more
than one Lender is affected at any time, then all affected Lenders must be
treated the same pursuant to this Section 1.11(b).
(c) If any Lender shall have determined that after the Original
Effective Date, the adoption or effectiveness of any applicable law, rule or
regulation regarding capital adequacy,
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or any change therein after the Original Effective Date, or any change after the
Original Effective Date in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) of any such authority,
central bank or comparable agency adopted or effective after the Original
Effective Date, has or would have the effect of reducing the rate of return on
such Lender's or such corporation's capital or assets as a consequence of its
commitments or obligations hereunder to a level below that which such Lender or
such other corporation could have achieved but for such adoption, effectiveness,
change or compliance (taking into consideration such Lender's or such other
corporation's policies with respect to capital adequacy), then from time to
time, within 15 days after written demand by such Lender (with a copy to the
Administrative Agent), the Borrowers jointly and severally agree to pay to such
Lender such additional amount or amounts as will compensate such Lender or such
other corporation for such reduction. In determining such additional amounts,
each Lender will act reasonably and in good faith and will use averaging and
attribution methods that are reasonable. Each Lender, upon so determining that
any additional amounts will be payable pursuant to this Section 1.11(c), will
give prompt written notice thereof to the Borrowers, which notice shall set
forth in reasonable detail the basis of the calculation of such additional
amounts, although the failure to give any such notice shall not release or
diminish any Borrower's obligations to pay additional amounts pursuant to this
Section 1.11(c) upon the subsequent receipt of such notice.
1.12 Compensation. Each Borrower shall compensate each Lender, upon its
written request (which request shall set forth the basis for requesting such
compensation), for all reasonable losses, expenses and liabilities (including,
without limitation, any loss, expense or liability incurred by reason of the
liquidation or reemployment of deposits or other funds required by such Lender
to fund any Eurodollar Loans or Competitive Bid Loans made, or to be made, by it
to such Borrower but excluding in any event the loss of anticipated profits)
which such Lender may actually sustain: (i) if for any reason (other than a
default by such Lender or the Administrative Agent) a Borrowing of Eurodollar
Loans or Competitive Bid Loans does not occur on a date specified therefor in a
Notice of Borrowing, a Notice of Competitive Bid Borrowing or a Notice of
Conversion, given by such Borrower (whether or not withdrawn by such Borrower or
deemed withdrawn pursuant to Section 1.11(a)); (ii) if any prepayment, repayment
or conversion of any such Eurodollar Loans or Competitive Bid Loans occurs on a
date which is not the last day of an Interest Period applicable thereto; (iii)
if any prepayment of any such Eurodollar Loans or Competitive Bid Loans is not
made on any date specified in a notice of prepayment given by such Borrower;
(iv) if such Lender is required pursuant to Section 1.14 to assign any such
Eurodollar Loans or Competitive Bid Loans as of a date which is not the last day
of an Interest Period applicable thereto; or (v) as a consequence of (x) any
other default by such Borrower to repay its Eurodollar Loans or Competitive Bid
Loans when required by the terms of this Agreement or (y) an election made
pursuant to Section 1.11(b).
1.13 Change of Lending Office. Each Lender agrees that, upon the
occurrence of any event giving rise to the operation of Section 1.11(a)(ii) or
(iii), 1.11(c) or 3.04 with respect to such Lender, it will, if requested by the
applicable Borrower, use reasonable efforts (subject to overall policy
considerations of such Lender) to designate another lending office for any Loans
or Commitments affected by such event, provided that such designation is made on
such terms
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that such Lender and its lending office suffer no economic, legal or regulatory
disadvantage, with the object of avoiding or materially mitigating the
consequence of the event giving rise to the operation of any such Section.
Nothing in this Section 1.13 shall affect or postpone any of the obligations of
any Borrower or the right of any Lender provided in Section 1.11 or 3.04.
1.14 Replacement of Lenders. (a) Upon the occurrence of any event giving
rise to the operation of Section 1.11(a)(ii) or (iii), Section 1.11(c) or
Section 3.04 with respect to any Lender which results in such Lender charging to
any Borrower increased costs in excess of those being generally charged by the
other Lenders, (b) if a Lender becomes a Defaulting Lender, (c) if a Lender
becomes a Non-Continuing Lender, (d) if a Lender fails to maintain a long-term
debt rating of at least BBB- as determined by Standard & Poor's Corporation and
at least Baa3 as determined by Xxxxx'x Investors Service, Inc., (e) if a Lender
fails to deliver the opinion or opinions as required pursuant to Section 11.02
and/or (f) in the case of a refusal by a Lender to consent to a proposed change,
waiver, discharge or termination with respect to this Agreement which has been
approved by the Required Lenders, Parent and Corp. shall have the right, if no
Default or Event of Default then exists, to replace such Lender (the "Replaced
Lender"), upon prior written notice to the Administrative Agent and such
Replaced Lender, with one or more Person or Persons, none of whom shall
constitute a Defaulting Lender at the time of such replacement (collectively,
the "Replacement Lender") reasonably acceptable to the Administrative Agent,
provided that (i) at the time of any replacement pursuant to this Section 1.14,
the Replacement Lender and the Replaced Lender shall enter into one or more
Assignment Agreements pursuant to Section 11.04(b) (and with all fees payable
pursuant to said Section 11.04(b) to be paid by the Replacement Lender) pursuant
to which the Replacement Lender shall acquire all of the Commitments and
outstanding Loans of the Replaced Lender and, in connection therewith, shall pay
to the Replaced Lender in respect thereof an amount equal to the sum of (A) an
amount equal to the principal amount of, and all accrued but unpaid interest on,
all outstanding Loans of the Replaced Lender and (B) an amount equal to all
accrued, but theretofore unpaid, Fees owing to the Replaced Lender pursuant to
Section 2.01, and (ii) all obligations of the Borrowers under the Credit
Documents owing to the Replaced Lender (other than those specifically described
in clause (i) above in respect of which the assignment purchase price has been,
or is concurrently being, paid), including without limitation all amounts owing
to the Replaced Lender under Section 1.12 as a result of the assignment of its
Loans under clause (i) above, shall be paid in full to such Replaced Lender
concurrently with such replacement. Upon the execution of the respective
Assignment Agreements, the payment of amounts referred to in clauses (i) and
(ii) above and, if so requested by the Replacement Lender, delivery to the
Replacement Lender of the appropriate Note or Notes executed by the relevant
Borrowers, the Replacement Lender shall become a Lender hereunder and the
Replaced Lender shall cease to constitute a Lender hereunder, except with
respect to indemnification provisions applicable to the Replaced Lender under
this Agreement, which shall survive as to such Replaced Lender.
1.15 Extension of Final Maturity Date; Replacement of Non-Continuing
Lender. Parent and Corp. may, prior to (but not less than 60 days nor more than
120 days prior to) each anniversary of the Restatement Effective Date (each such
anniversary, an "Extension Deadline"), by written notice to the Administrative
Agent (which notice the Administrative Agent shall promptly transmit to each
Lender), request that the Final Maturity Date then in effect be extended by a
period of one year. Such request shall be accompanied by a certificate of an
Authorized Officer of Parent stating that no Default or Event of Default has
occurred and is
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continuing. Each Lender shall respond to such request, as promptly as
practicable, by written notice to Parent, Corp. and the Administrative Agent,
with the failure of any Lender to respond prior to the Extension Deadline being
deemed to be a negative response. In the event each Lender shall consent to such
request of Parent and Corp., on such Extension Deadline, the Final Maturity Date
shall be automatically extended to the date occurring one year following the
Final Maturity Date then in effect. If any Lender shall fail to consent to such
extension (any such Lender, a "Non-Continuing Lender"), Parent and Corp. shall
be entitled at any time prior to the Extension Deadline with respect to such
request to replace such Lender in accordance with the requirements of Section
1.14, and in the event that the Replacement Lender with respect to each such
Non-Continuing Lender shall consent to such extension prior to such Extension
Deadline, such extension shall be effective as described in the immediately
preceding sentence as if each Lender had originally consented to such request.
No Lender shall be obligated to grant any extensions pursuant to this Section
1.15 and any such extension shall be in the sole discretion of each such Lender.
The Administrative Agent shall notify Parent, Corp. and each Lender as to the
effectiveness of any such extension.
1.16 Additional Commitments. At any time and from time to time on and
after the Restatement Effective Date and prior to the Final Maturity Date,
Parent and Corp. may request one or more Lenders or other lending institutions
to increase its Commitment (in the case of an existing Lender) or assume a
Commitment (in the case of any other lending institution) and, in the sole
discretion of each such Lender or other institution, any such Lender or other
institution may agree to so commit; provided that (i) no Default or Event of
Default then exists, (ii) the increase in the Total Commitment pursuant to any
such request shall be in an aggregate amount of at least $16,000,000 and (iii)
the aggregate increase in the Total Commitment pursuant to this Section 1.16
shall not exceed $175,000,000. Parent, Corp. and each such Lender or other
lending institution (each, an "Assuming Lender") which agrees to increase its
existing, or assume, a Commitment shall execute and deliver to the
Administrative Agent a Commitment Assumption Agreement substantially in the form
of Exhibit H (with the increase in, or in the case of a new Assuming Lender,
assumption of, such Lender's Commitment to be effective on the Business Day
following delivery of such Commitment Assumption Agreement to the Administrative
Agent). The Administrative Agent shall promptly notify each Lender as to the
occurrence of each Commitment Assumption Date. On each Commitment Assumption
Date, (x) Annex I shall be deemed modified to reflect the revised Commitments of
the Lenders, (y) Parent and Corp. shall pay to each such Assuming Lender such up
front fee (if any) as may have been agreed between Parent, Corp. and such
Assuming Lender and (z) the Borrowers will issue new Notes to the Assuming
Lenders in conformity with the requirements of Section 1.06. Notwithstanding
anything to the contrary contained in this Agreement, in connection with any
increase in the Total Commitment pursuant to this Section 1.16, each Borrower
shall, in coordination with the Administrative Agent and the Lenders, repay
outstanding Revolving Loans of certain Lenders and, if necessary, incur
additional Revolving Loans from other Lenders, in each case so that such Lenders
participate in each Borrowing of such Revolving Loans pro rata on the basis of
their Commitments (after giving effect to any increase thereof). It is hereby
agreed that any breakage costs of the type described in Section 1.12 incurred by
the Lenders in connection with the repayment of Revolving Loans contemplated by
this Section 1.16 shall be for the account of the respective Borrowers.
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1.17 Designated Borrowers. Parent or Corp. may from time to time
designate one or more Persons as a Designated Borrower (each, a "Designated
Borrower" and, collectively, the "Designated Borrowers"), subject to the
following terms and conditions:
(a) each such Person shall be a special purpose entity organized
under the laws of the United States of America, a state thereof or the
District of Columbia;
(b) each such Person shall enter into an appropriately completed DB
Assumption Agreement in the form of Exhibit I hereto on or prior to the date
of designation;
(c) each such Person shall furnish to each Lender its most recent
historic or pro forma financial statements (which financial statements may
be summary in nature and unaudited) on or prior to the date of designation;
(d) at the time of such designation, such Person shall not be
subject to any bankruptcy or insolvency proceeding of the type referred to
in Section 8.01(h) or (i) and shall not be subject to any material
litigation;
(e) on or prior to the date of designation, such Person shall
execute and deliver to each Lender a Revolving Note and a Competitive Bid
Note to evidence the DB Loans incurred by such Person;
(f) on or prior to the date of designation, the Administrative Agent
shall have received from such Person a certificate, signed by an Authorized
Officer of such Person in the form of Exhibit E with appropriate insertions
or deletions, together with (x) copies of its certificate of incorporation,
by-laws or other organizational documents and (y) the resolutions relating
to the Credit Documents which shall be satisfactory to the Administrative
Agent; and
(g) on or prior to the date of designation, the Administrative Agent
shall have received an opinion, addressed to each Agent and each of the
Lenders and dated the date of designation, from counsel to such Person which
opinion shall be substantially in the form of Exhibit K hereto.
1.18 Retroactivity. Notwithstanding anything in this Agreement to the
contrary, to the extent any notice required by Section 1.11 or 3.04 is given by
any Lender more than 90 days after such Lender obtained knowledge of the
occurrence of the event giving rise to the additional costs of the type
described in such Section, such Lender shall not be entitled to compensation
under Section 1.11 or 3.04 for any amounts incurred or accruing prior to the
90th day preceding the giving of such notice to the respective Borrower.
SECTION 2. Fees; Commitments.
2.01 Fees. (a) Parent and Corp. jointly and severally agree to pay to
the Administrative Agent a facility fee (the "Facility Fee") for the account of
the Lenders pro rata on the basis of their respective Commitments for the period
from and including the Restatement Effective Date to but excluding the date the
Total Commitment has been terminated computed at
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a rate per annum equal to the Applicable Margin on the Total Commitment as in
effect from time to time. Accrued Facility Fees shall be due and payable
quarterly in arrears on the last Business Day of each March, June, September and
December, on the Final Maturity Date or upon such earlier date as the Total
Commitment shall be terminated and, with respect to any Facility Fee owing to
any Lender whose Commitment is terminated pursuant to Section 1.14, on the date
on which such Lender's Commitment is terminated.
(b) Parent and Corp. jointly and severally agree to pay to the
Administrative Agent, for the account of the Administrative Agent, when and as
due, such fees as have been, or are from time to time, separately agreed upon.
(c) All computations of Fees shall be made in accordance with
Section 11.07(b).
2.02 Voluntary Reduction of Commitments. Upon at least three Business
Days' prior written notice (or telephonic notice confirmed in writing) to the
Administrative Agent at the Notice Office (which notice shall be deemed to be
given on a certain day only if given before 12:00 Noon (New York time) on such
day and shall be promptly transmitted by the Administrative Agent to each of the
Lenders), Parent and/or Corp. shall have the right, without premium or penalty,
to terminate or partially reduce the Total Unutilized Commitment, provided that
(x) any such termination shall apply to proportionately and permanently reduce
the Commitment of each Lender and (y) any partial reduction pursuant to this
Section 2.02 shall be in the amount of at least $10,000,000.
2.03 Mandatory Reduction of Commitments. (a) The Total Commitment shall
terminate in its entirety on May 31, 2002 unless the Restatement Effective Date
has occurred on or before such date and in the event of such termination this
Agreement shall cease to be of any force or effect and the Existing Credit
Agreement (and all commitments to extend credit thereunder in accordance with
the terms thereof) shall continue to be effective, as the same may have been, or
thereafter be, amended, modified or supplemented from time to time.
(b) The Total Commitment shall terminate in its entirety on the
Final Maturity Date.
SECTION 3. Payments.
3.01 Voluntary Prepayments. Each Borrower shall have the right to prepay
Revolving Loans made to it in whole or in part, without premium or penalty, from
time to time on the following terms and conditions: (i) such Borrower shall give
the Administrative Agent at the Payment Office written notice (or telephonic
notice promptly confirmed in writing) of its intent to prepay the Revolving
Loans, the amount of such prepayment, the currency in which such Revolving Loans
are denominated and the specific Borrowing(s) pursuant to which such Revolving
Loans were made, which notice shall be given by such Borrower at least three
Business Days prior to the date of such prepayment and which notice shall
promptly be transmitted by the Administrative Agent to each of the Lenders; (ii)
each partial prepayment of any Borrowing shall be in an aggregate principal
amount of at least $1,000,000 (or the Dollar Equivalent thereof), provided that
no partial prepayment of Revolving Loans made pursuant to a
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Borrowing shall reduce the aggregate principal amount of the Revolving Loans
outstanding pursuant to such Borrowing to an amount less than the Minimum
Borrowing Amount applicable thereto; (iii) each prepayment in respect of any
Revolving Loans made pursuant to a Borrowing shall be applied pro rata among
such Revolving Loans; and (iv) prepayments of Eurodollar Loans made pursuant to
this Section 3.01 may only be made on the last day of an Interest Period
applicable thereto unless concurrently with such prepayment any payments
required to be made pursuant to Section 1.12 as a result of such prepayment are
made. No Borrower shall have the right under this Section 3.01 to prepay any
principal amount of any Competitive Bid Loans.
3.02 Mandatory Prepayments. (a) If on any date the sum of the aggregate
outstanding Principal Amount of Revolving Loans and Competitive Bid Loans (all
the foregoing, collectively, the "Aggregate Loan Outstandings") exceeds the
Total Commitment as then in effect, the Borrowers, jointly and severally, shall
repay no later than the next following Business Day the principal amount of
Revolving Loans (but excluding DB Loans to the extent the respective DB Loan
Maturity Date has not occurred) in an aggregate Principal Amount equal to such
excess. If, after giving effect to the prepayment of all outstanding Revolving
Loans as set forth above, the remaining Aggregate Loan Outstandings exceed the
Total Commitment, the Borrowers, jointly and severally, shall repay on such date
the principal of Competitive Bid Loans in an aggregate amount equal to such
excess.
(b) If on any date on which Dollar Equivalents are determined,
pursuant to Section 11.07(c), the sum of the aggregate outstanding Principal
Amount of Revolving Loans constituting Alternate Currency Loans exceeds
$200,000,000, the Borrowers, jointly and severally, shall repay no later than
the next following Business Day the principal amount of Revolving Loans (but
excluding DB Loans to the extent the respective DB Loan Maturity Date has not
occurred) in an aggregate Principal Amount equal to such excess.
(c) On the maturity date specified pursuant to Section 1.04(a) with
respect to each Competitive Bid Loan, the applicable Borrower shall repay such
Competitive Bid Loan to the applicable Bidder Lender or Bidder Lenders.
(d) On each DB Loan Maturity Date, the respective Designated
Borrower shall repay the respective DB Loans in full.
(e) Notwithstanding anything to the contrary contained elsewhere in
this Agreement, all outstanding Revolving Loans and Competitive Bid Loans shall
be repaid in full on the Final Maturity Date.
(f) With respect to each prepayment of Revolving Loans required by
Section 3.02(a) or (b), the applicable Borrower may designate the Types of
Revolving Loans which are to be prepaid and the specific Borrowing(s) pursuant
to which made, provided that (i) if any prepayment of Eurodollar Loans made
pursuant to a single Borrowing shall reduce the outstanding Revolving Loans made
pursuant to such Borrowing to an amount less than the Minimum Borrowing Amount
for such Borrowing, then all Revolving Loans outstanding pursuant to such
Borrowing shall be immediately converted into Base Rate Loans and (ii) each
prepayment of any Revolving Loans made pursuant to a Borrowing shall be applied
pro rata among such Revolving Loans. In the absence of a designation by a
Borrower as described in the preceding sentence, the
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Administrative Agent shall, subject to the above, make such designation in its
sole discretion with a view, but no obligation, to minimize breakage costs owing
under Section 1.12.
3.03 Method and Place of Payment. Except as otherwise specifically
provided herein, all payments under this Agreement shall be made to the
Administrative Agent for the ratable (based on its pro rata share) account of
the Lenders entitled thereto, not later than 12:00 Noon (New York Time) on the
date when due and shall be made in immediately available funds at the Payment
Office in: (x) Dollars, if such payment is made in respect of any obligation of
the Borrowers under this Agreement except as otherwise provided in the
immediately succeeding clause (y); and (y) the appropriate Alternate Currency,
if such payment is made in respect of principal of or interest on Alternate
Currency Loans, it being understood that written notice by a Borrower to the
Administrative Agent to make a payment from the funds in such Borrower's account
at the Payment Office shall constitute the making of such payment to the extent
of such funds held in such account. Any payments under this Agreement which are
made later than 12:00 Noon (New York Time) shall be deemed to have been made on
the next succeeding Business Day. Whenever any payment to be made hereunder
shall be stated to be due on a day which is not a Business Day, the due date
thereof shall be extended to the next succeeding Business Day and, with respect
to payments of principal, interest shall be payable during such extension at the
applicable rate in effect immediately prior to such extension. The
Administrative Agent will promptly make available to each Lender its pro rata
share (if any) of each payment so received by the Administrative Agent in the
funds and currency so received.
3.04 Net Payments. (a) All payments made by each Borrower hereunder or
under any Note will be made without setoff, counterclaim or other defense.
Except as provided in Section 3.04(b), all such payments will be made free and
clear of, and without deduction or withholding for, any present or future taxes,
levies, imposts, duties, fees, assessments or other charges of whatever nature
now or hereafter imposed by any jurisdiction (or by any political subdivision or
taxing authority thereof or therein) with respect to such payments (but
excluding, except as provided in the second succeeding sentence, any tax levy,
impost, duty, fee, assessment or other governmental charge imposed on or
measured by the net income or net profits of a Lender (including, without
limitation, any franchise tax imposed on or measured by net income or net
profits and any branch profits taxes) pursuant to the laws of the jurisdiction
in which it is organized or the jurisdiction in which the principal office or
applicable lending office of such Lender is located (or any subdivision or
taxing authority thereof or therein)) and all interest, penalties or similar
liabilities with respect to such non-excluded taxes, levies, imposts, duties,
fees, assessments or other governmental charges (all such non-excluded taxes,
levies, imposts, duties, fees, assessments or other governmental charges being
referred to collectively as "Taxes"). If any Taxes are so levied or imposed, the
relevant Borrower shall pay the full amount of such Taxes to the relevant taxing
authority in accordance with applicable law and shall pay to the relevant Lender
such additional amounts as may be necessary so that every payment of all amounts
due under this Agreement or under any Note, after withholding or deduction for
or on account of any Taxes, will not be less than the amount provided for herein
or in such Note. If any amounts are payable in respect of Taxes pursuant to the
preceding sentence, the relevant Borrower agrees to reimburse each Lender
lending to such Borrower, upon the written request of such Lender, for taxes
imposed on or measured by the net income or net profits of such Lender
(including, without limitation, any franchise tax imposed on or measured by net
income or net profits and any branch profits taxes imposed by the United States
of America or similar taxes
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imposed by any political subdivision thereof) pursuant to the laws of the
jurisdiction in which such Lender is organized or in which the principal office
or applicable lending office of such Lender is located (or of any subdivision or
taxing authority therein or thereof) and for any withholding of taxes as such
Lender shall determine are payable by, or withheld from, such Lender in respect
of such amounts so paid to or on behalf of such Lender pursuant to the preceding
sentence and in respect of any amounts paid to or on behalf of such Lender
pursuant to this sentence. Each Borrower will furnish to the Administrative
Agent within 45 days after the date the payment of any Taxes is due pursuant to
applicable law certified copies of tax receipts, if any, issued by such taxing
authority or other evidence reasonably acceptable to the Administrative Agent
evidencing such payment by such Borrower (or, if such Borrower has not received
such certified copies of tax receipts within such time period, then such
Borrower shall furnish such certified copies of tax receipts to the
Administrative Agent within 15 days after such Borrower has received such
certified copies of tax receipts). Each Borrower agrees to indemnify and hold
harmless each Lender, and reimburse such Lender upon its written request, for
the amount of any Taxes so levied or imposed and paid by such Lender. Such
indemnification shall be made within 30 days after the date upon which such
Lender makes written demand therefor, which demand shall identify the nature and
the amount of Taxes for which indemnification is sought and shall include a copy
of any written assessment thereof.
(b) Each Lender that is not a United States person (as such term is
defined in Section 7701(a)(30) of the Code) for Federal income tax purposes
agrees to deliver to the Borrowers and the Administrative Agent on or prior to
the Restatement Effective Date, or in the case of a Lender that assumes an
interest or is an assignee or transferee of an interest under this Agreement
pursuant to Section 1.14, 1.16 or 11.04 (unless the respective Lender was
already a Lender hereunder immediately prior to such assumption, assignment or
transfer), on the date of such assumption, assignment or transfer to such
Lender, (i) two accurate and complete original signed copies of Internal Revenue
Service Form 4224 or 1001 (or successor forms) certifying to such Lender's
entitlement to a complete exemption from United States withholding tax with
respect to payments to be made by the Borrowers under this Agreement and under
any Note or (ii) if the Lender is not a "bank" within the meaning of Section
881(c)(3)(A) of the Code and cannot deliver either Internal Revenue Service Form
1001 or 4224 pursuant to clause (i) above, (x) a certificate substantially in
the form of Exhibit C (any such certificate, a "Section 3.04 Certificate") and
(y) two accurate and complete original signed copies of Internal Revenue Service
Form W-8 (or successor form) certifying to such Lender's entitlement to a
complete exemption from United States withholding tax with respect to payments
of interest to be made by the Borrowers under this Agreement and under any Note.
In addition, each such Lender agrees that, from time to time after the
Restatement Effective Date, when a lapse in time or change in circumstances
renders the previous certification obsolete or inaccurate in any material
respect, it will deliver to the Borrowers and the Administrative Agent two new
accurate and complete original signed copies of Internal Revenue Service Form
4224 or 1001, or Form W-8 and a Section 3.04 Certificate, as the case may be,
and such other forms as may be required in order to confirm or establish the
entitlement of such Lender to a continued exemption from or reduction in United
States withholding tax with respect to payments made by the Borrowers under this
Agreement and any Note, or, if legally unable to deliver such forms, it shall
immediately notify the Borrowers and the Administrative Agent of its inability
to deliver any such Form or Certificate in which case such Lender shall not be
required to deliver any such Form or Certificate pursuant to this Section
3.04(b). Notwithstanding anything to the contrary contained
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in Section 3.04(a), but subject to Section 11.04(b) and the immediately
succeeding sentence, (x) each Borrower shall be entitled, to the extent it is
required to do so by law, to deduct or withhold income or similar taxes imposed
by the United States (or any political subdivision or taxing authority hereof or
therein) from interest, fees or other amounts payable hereunder by such Borrower
for the account of any Lender which is not a United States person (as such term
is defined in Section 7701(a)(30) of the Code) for Federal income tax purposes
to the extent that such Lender has not provided to the Borrowers Internal
Revenue Service Forms that establish a complete exemption from such deduction or
withholding and (y) the Borrowers shall not be obligated pursuant to Section
3.04(a) hereof to gross-up payments to be made to any such Lender in respect of
income or similar taxes imposed by the United States if (I) such Lender has not
provided to the Borrowers the Internal Revenue Service Forms required to be
provided to the Borrowers pursuant to this Section 3.04(b) or (II) in the case
of a payment, other than interest, to a Lender described in clause (ii) of the
first sentence of this Section 3.04(b) above, to the extent that such Forms do
not establish a complete exemption from withholding of such taxes.
Notwithstanding anything to the contrary contained in the preceding sentence or
elsewhere in this Section 3.04 and except as set forth in Section 11.04(b), the
Borrowers agree to pay additional amounts and to indemnify each Lender in the
manner set forth in Section 3.04(a) (without regard to the identity of the
jurisdiction requiring the deduction or withholding) in respect of any Taxes
deducted or withheld by it as described in the immediately preceding sentence as
a result of any changes after the Original Effective Date in any applicable law,
treaty, governmental rule, regulation, guideline or order, or in the
interpretation thereof, relating to the deducting or withholding of such Taxes.
(c) If a Borrower pays any additional amount under this Section 3.04
to a Lender and such Lender determines in its sole discretion that it has
actually received or realized in connection therewith any refund or any
reduction of, or credit against, its Tax liabilities in or with respect to the
taxable year in which the additional amount is paid, such Lender shall pay to
the Borrower an amount that such Lender shall, in its sole discretion, determine
is equal to the net benefit, after tax, which was obtained by the Lender in such
year as a consequence of such refund, reduction or credit. Such amount shall be
paid as soon as practicable after receipt or realization by such Lender of such
refund, reduction or credit. Nothing in this Section 3.04(c) shall require any
Lender to disclose or detail the basis of its calculation of the amount of any
refund or reduction of, or credit against, its tax liabilities or any other
information to any Borrower or any other Person.
(d) Each Lender shall use reasonable efforts (consistent with legal
and regulatory restrictions and subject to overall policy considerations of such
Lender) to file any certificate or document or to furnish any information as
reasonably requested by a Borrower pursuant to any applicable treaty, law or
regulation, if the making of such filing or the furnishing of such information
would avoid the need for or reduce the amount of any amounts payable by a
Borrower under Section 3.04(a) and would not, in the reasonable judgment of such
Lender, be disadvantageous to such Lender.
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SECTION 4. Conditions Precedent.
4.01 Conditions Precedent to the Restatement Effective Date. This
Agreement shall become effective on the date (the "Restatement Effective Date")
on which each of the following conditions shall be satisfied:
(a) Execution of Agreement; Notes. (i) Each of Parent, Corp., each
Agent and each of the Lenders shall have signed a copy hereof (whether the same
or different copies) and shall have delivered the same to the Administrative
Agent at its Notice Office or, in the case of the Lenders and the Agents, shall
have given to the Administrative Agent telephonic (confirmed in writing),
written or facsimile transmission notice (actually received) at such office that
the same has been signed and mailed to it; and (ii) there shall have been
delivered to the Administrative Agent for the account of each Lender the
appropriate Notes executed by Parent and Corp., as applicable, in each case in
the amount, maturity and as otherwise provided herein.
(b) Opinion of Counsel. The Administrative Agent shall have received
an opinion, addressed to each Agent and each of the Lenders and dated the
Restatement Effective Date, from Ram X. Xxxxxxxx, General Counsel of Parent and
Corp., which opinion shall be substantially in the form of Exhibit D hereto.
(c) Corporate Proceedings. (i) The Administrative Agent shall have
received from each of Parent and Corp. a certificate, dated the Restatement
Effective Date, signed by an Authorized Officer thereof in the form of Exhibit E
with appropriate insertions and deletions, together with (x) copies of its
certificate of incorporation, by-laws or other organizational documents and (y)
the resolutions relating to the Credit Documents which shall be satisfactory to
the Administrative Agent.
(ii) All corporate and legal proceedings and all instruments and
agreements in connection with the transactions contemplated by this Agreement
and the other Credit Documents shall be satisfactory in form and substance to
the Administrative Agent, and the Administrative Agent shall have received all
information and copies of all certificates, documents and papers, including good
standing certificates and any other records of corporate proceedings and
governmental approvals, if any, which the Administrative Agent may have
requested in connection therewith, such documents and papers, where appropriate,
to be certified by proper corporate or governmental authorities.
(d) Fees. The Borrowers shall have paid to the Administrative Agent
and the Lenders all fees and expenses (including, without limitation, legal fees
and expenses) agreed upon by such parties to be paid on or prior to such date.
(e) Existing Credit Agreement. On the Restatement Effective Date and
concurrently with the initial incurrence of Loans hereunder, (i) all Existing
Revolving Loans shall have been repaid in full in cash, together with accrued
but unpaid interest thereon, it being understood and agreed, however, that any
Existing Lender may net fund any Revolving Loans required to be made by it on
the Restatement Effective Date by permitting the principal amount of the
Existing Revolving Loans made by such Existing Lender to remain outstanding on
the Restatement Effective Date to satisfy such Existing Lender's obligation to
fund a like principal
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amount of Revolving Loans to be incurred hereunder by the Borrowers on the
Restatement Effective Date, and for purposes of this Section 4.01(e) only such
outstanding principal amount shall be deemed outstanding as Revolving Loans
under this Agreement and such corresponding Existing Revolving Loans shall be
deemed to have been so repaid in full, and (ii) there shall have been paid in
cash in full all accrued but unpaid Fees under, and as defined in, the Existing
Credit Agreement (including, without limitation any Facility Fees) accrued but
unpaid prior to but excluding the Restatement Effective Date and all other
amounts, costs and expenses (including, without limitation, breakage costs, if
any, with respect to Eurodollar Loans thereunder) then owing to any of the
Existing Lenders and/or the Administrative Agent, as agent under the Existing
Credit Agreement, in each case to the satisfaction of the Administrative Agent
or the Existing Lenders, as the case may be, regardless of whether or not such
amounts would otherwise be due and payable at such time pursuant to the terms of
the Existing Credit Agreement and (iii) all outstanding Notes (as defined in the
Existing Credit Agreement) issued by Parent or Corp. to the Existing Lenders
under the Existing Credit Agreement shall be deemed canceled.
The occurrence of the Restatement Effective Date shall constitute a
representation and warranty by each Borrower to the Agents and each of the
Lenders that all the conditions specified in Section 4.01 exist as of that time.
All the Notes, certificates, legal opinions and other documents and papers
referred to in this Section 4.01, unless otherwise specified, shall be delivered
to the Administrative Agent at the Administrative Agent's Notice Office for the
account of each of the Lenders and, except for the Notes, in sufficient
counterparts for each of the Lenders and shall be satisfactory in form and
substance to the Lenders. The Administrative Agent shall give Parent, Corp. and
each Lender written notice that the Restatement Effective Date has occurred.
4.02 Conditions Precedent to Loans. The obligation of each Lender to
make any Loans is subject, at the time of each such Loan, to the satisfaction of
the following conditions:
(a) Restatement Effective Date. The Restatement Effective Date shall
have occurred.
(b) Notice of Borrowing. The Administrative Agent shall have
received a Notice of Borrowing meeting the requirements of Section 1.03(a) with
respect to each incurrence of Revolving Loans and a Notice of Competitive Bid
Borrowing meeting the requirements of Section 1.04(a) with respect to each
incurrence of Competitive Bid Loans.
(c) No Default; Representations and Warranties. At the time of the
incurrence of each Loan and also after giving effect thereto, (i) there shall
exist no Default or Event of Default and (ii) all representations and warranties
made by any Borrower contained herein or in the other Credit Documents shall be
true and correct in all material respects with the same effect as though such
representations and warranties had been made on and as of the date of such Loan.
(d) Financial Guaranty Insurance Policy. In the case of each DB
Loan, Corp. shall have issued a financial guaranty insurance policy in the form
of Exhibit F attached hereto (as appropriately completed, a "Financial Guaranty
Insurance Policy"), in support of the principal of and interest on such DB Loan,
and such Financial Guaranty Insurance Policy shall
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be in full force and effect. In addition, in the case of a DB Loan which is an
Alternate Currency Loan, Corp. shall be permitted to Guarantee such DB Loan
under the respective Alternate Currency under applicable law.
(e) Opinion of Counsel. In the case of each DB Loan, the
Administrative Agent shall have received an opinion, addressed to each Agent and
each of the Lenders and dated the date of the incurrence of such DB Loan, from
counsel to Corp., which opinion shall be substantially in the form of Exhibit L
hereto.
The acceptance of the benefits of each Loan shall constitute a
representation and warranty by the respective Borrower to the Agents and each of
the Lenders that all of the applicable conditions specified in Section 4.02
exist as of that time.
SECTION 5. Representations, Warranties and Agreements. In order to
induce the Lenders to enter into this Agreement and to make the Loans provided
for herein, each of Parent and Corp. makes the following representations and
warranties to, and agreements with, the Lenders, all of which shall survive the
execution and delivery of this Agreement and the making of the Loans:
5.01 Corporate Existence and Power. Parent and Corp. are corporations
duly organized, validly existing and in good standing under the laws of the
jurisdiction of their incorporation, are duly qualified to transact business in
every jurisdiction where, by the nature of their businesses, such qualification
is necessary and where the failure to be so qualified, either individually or in
the aggregate could reasonably be expected to have a Material Adverse Effect,
and have all corporate powers and all governmental licenses, authorizations,
consents and approvals required to carry on their businesses as now conducted
and where the failure to have such governmental licenses, authorizations,
consents and approvals could reasonably be expected to have a Material Adverse
Effect.
5.02 Corporate and Governmental Authorization; No Contravention. The
execution, delivery and performance by the Borrowers of this Agreement and the
other Credit Documents (i) are within each of the Borrower's corporate powers,
(ii) have been duly authorized by all necessary corporate action, (iii) require
no action by or in respect of, or filing with, any governmental body, agency or
official, (iv) do not contravene, or constitute a default under, any provision
of applicable law or regulation or of the certificate of incorporation or
by-laws of each of the Borrowers or of any agreement, judgment, injunction,
order, decree or other instrument binding upon the Borrowers or any of their
Subsidiaries, and (v) do not result in the creation or imposition of any Lien on
any asset of the Borrowers or any of their Subsidiaries.
5.03 Binding Effect. This Agreement constitutes a valid and binding
agreement of each of the Borrowers enforceable in accordance with its terms, and
the other Credit Documents, when executed and delivered in accordance with this
Agreement, will constitute valid and binding obligations of each of the
Borrowers enforceable in accordance with their respective terms, provided that
the enforceability hereof and thereof is subject in each case to general
principles of equity and to bankruptcy, insolvency and similar laws affecting
the enforcement of creditors' rights generally.
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5.04 Financial Information. (a) The consolidated balance sheet of Parent
and its Consolidated Subsidiaries as of December 31, 2001 and the related
consolidated statements of income, shareholders' equity and cash flows for the
Fiscal Year then ended, reported on by PricewaterhouseCoopers LLP, copies of
which have been delivered to each of the Lenders fairly present, in conformity
with GAAP or Statutory Accounting Principles, as applicable consistently
applied, the consolidated financial position of Parent and its Consolidated
Subsidiaries as of such dates and their consolidated results of operations and
cash flows for such periods stated.
(b) Since December 31, 2001 there has been no event, act, condition
or occurrence having a Material Adverse Effect.
5.05 Litigation. There is no action, suit or proceeding pending, or to
the knowledge of the Borrowers threatened, against or affecting the Borrowers or
any of their Subsidiaries before any court or arbitrator or any governmental
body, agency or official which could have a Material Adverse Effect or which in
any manner draws into question the validity or enforceability of, or could
impair the ability of the Borrowers to perform their obligations under, this
Agreement or any of the other Credit Documents.
5.06 Compliance with ERISA. (a) Parent, Corp. and each member of the
Controlled Group have fulfilled their obligations under the minimum funding
standards of ERISA and the Code with respect to each Plan and are in compliance
in all material respects with the presently applicable provisions of ERISA and
the Code, and have not incurred any liability to the PBGC or a Plan under Title
IV of ERISA.
(b) Neither Parent nor Corp. nor any member of the Controlled Group
is or ever has been obligated to contribute to any Multiemployer Plan.
5.07 Taxes. There have been filed on behalf of Parent and its
Subsidiaries all Federal, state and local income, excise, property and other tax
returns which are required to be filed by them and all taxes due pursuant to
such returns or pursuant to any assessment received by or on behalf of Parent or
any Subsidiary have been paid. The charges, accruals and reserves on the books
of each of Parent and its Subsidiaries in respect of taxes or other governmental
charges are, in the opinion of each of Parent and Corp., adequate. United States
income tax returns of Parent and its Subsidiaries have been examined and closed
through the Fiscal Year ended December 31, 1991.
5.08 Subsidiaries. Each of Parent's Subsidiaries is a corporation duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation, is duly qualified to transact business in every
jurisdiction where, by the nature of its business, such qualification is
necessary and where the failure to be so qualified, either individually or in
the aggregate could reasonably be expected to have a Material Adverse Effect,
and has all corporate powers and all governmental licenses, authorizations,
consents and approvals required to carry on its business as now conducted and
where the failure to have such governmental licenses, authorizations, consents
and approvals could reasonably be expected to have a Material Adverse Effect.
Parent has no Subsidiaries except those Subsidiaries listed on Annex III, which
accurately sets forth each such Subsidiary's complete name and jurisdiction of
incorporation.
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5.09 Not an Investment Company. No Borrower is an "investment company"
within the meaning of the Investment Company Act of 1940, as amended.
5.10 Public Utility Holding Company Act. No Borrower nor any of their
Subsidiaries is a "holding company", or a "subsidiary company" of a "holding
company", or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company", as such terms are defined in the Public Utility Holding
Company Act of 1935, as amended.
5.11 Ownership of Property; Liens. Parent and its Consolidated
Subsidiaries have title of their properties sufficient for the conduct of their
respective businesses and none of such property is subject to any Lien except as
permitted in Section 7.01.
5.12 No Default. No Default or Event of Default has occurred and is
continuing.
5.13 Full Disclosure. All information heretofore furnished by the
Borrowers to the Administrative Agent or any Lender for purposes of or in
connection with this Agreement or any transaction contemplated hereby is, and
all such information hereafter furnished by the Borrowers to the Administrative
Agent or any Lender will be, true, accurate and complete in every material
respect or based on reasonable estimates on the date as of which such
information is stated or certified. The Borrowers have disclosed to the Lenders
in writing any and all facts which could have or cause a Material Adverse
Effect.
5.14 Compliance with Laws. Parent and each of its Subsidiaries is in
compliance with all applicable laws, except where any failure to comply with any
such laws would not, alone or in the aggregate, have a Material Adverse Effect.
5.15 Capital Stock. All Capital Stock, debentures, bonds, notes and all
other securities of each of Parent and its Subsidiaries presently issued and
outstanding are validly and properly issued in accordance with all applicable
laws, including, but not limited to, the "Blue Sky" laws of all applicable
states and the federal securities laws. The issued shares of Capital Stock of
each of Parent's and Corp.'s Wholly-Owned Subsidiaries are owned by Parent or
Corp. free and clear of any Lien or adverse claim. At least a majority of the
issued shares of Capital Stock of each of Parent's and Corp.'s other
Subsidiaries (other than Wholly-Owned Subsidiaries) is owned by Parent or Corp.
free and clear of any Lien or adverse claim.
5.16 Margin Stock. No Borrower nor any of their Subsidiaries are engaged
principally, or as one of their important activities, in the business of
purchasing or carrying any Margin Stock, and no part of the proceeds of any Loan
will be used to purchase or carry any Margin Stock, or be used for any purpose
which violates, or which is inconsistent with, the provisions of Regulation U or
X.
5.17 Insolvency. After giving effect to the execution and delivery of
the Credit Documents and the making of the Loans under this Agreement, no
Borrower will be "insolvent," within the meaning of such term as defined in
Section 101 of Title 11 of the United States Code or Section 2 of the Uniform
Fraudulent Transfer Act, or any other applicable state law pertaining to
fraudulent transfers, as each may be amended from time to time, or be unable to
pay its debts generally as such debts become due or have an unreasonably small
capital to engage in any business or transaction, whether current or
contemplated.
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SECTION 6. Affirmative Covenants. The Borrowers hereby covenant and
agree that on and as of the Restatement Effective Date and thereafter until the
Commitments have terminated, no Notes are outstanding and the Loans, together
with interest, Fees and all other obligations (other than any indemnities
described in Section 11.12 which are not then owing) incurred hereunder, are
paid in full:
6.01 Information Covenants. Parent and Corp. will furnish to each
Lender:
(a) as soon as available and in any event within 60 days after the
end of each of the first three quarterly fiscal periods in each Fiscal Year
of Parent and Corp., consolidated balance sheets of each of Parent and its
Subsidiaries and Corp. and its Subsidiaries as at the end of such period and
the related consolidated statements of income, changes in stockholders'
equity and cash flows of each of Parent and its Subsidiaries and Corp. and
its Subsidiaries for such period and (in the case of the second and third
quarterly periods) for the period from the beginning of the current Fiscal
Year to the end of such quarterly period, setting forth in each case in
comparative form the consolidated figures for the corresponding periods of
the previous Fiscal Year, all in reasonable detail and certified by an
Authorized Officer of each of Parent and Corp. as presenting fairly, in
accordance with GAAP (except as specifically set forth therein; provided any
exceptions or qualifications thereto must be acceptable to the Required
Lenders) on a basis consistent with such prior fiscal periods, the
information contained therein, subject to changes resulting from normal
year-end audit adjustments;
(b) as soon as available and in any event within 120 days after the
end of each Fiscal Year of Parent and Corp., consolidated balance sheets of
each of Parent and its Subsidiaries and Corp. and its Subsidiaries as at the
end of such year and the related consolidated statements of income,
operations, changes in stockholders' equity and cash flows of each of Parent
and its Subsidiaries and Corp. and its Subsidiaries for such Fiscal Year,
setting forth in each case in comparative form the consolidated figures for
the previous fiscal year, all in reasonable detail and accompanied by a
report thereon of PricewaterhouseCoopers LLP or other independent public
accountants of recognized national standing selected by Parent, which report
shall state that such consolidated financial statements present fairly the
consolidated financial position of each of Parent and its Subsidiaries and
Corp. and its Subsidiaries as at the dates indicated and the consolidated
results of their operations and cash flows for the periods indicated in
conformity with GAAP applied on a basis consistent with prior years (except
as otherwise specified in such report; provided any exceptions or
qualifications thereto must be acceptable to the Required Lenders) and that
the audit by such accountants in connection with such consolidated financial
statements has been made in accordance with generally accepted auditing
standards;
(c) within five Business Days after any Borrower becomes aware of
the occurrence of any Default, a certificate of an Authorized Officer of
each of the Borrowers setting forth the details thereof and the action which
the Borrowers are taking or propose to take with respect thereto;
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(d) promptly upon the mailing thereof to the security holders of the
Borrowers generally, copies of all financial statements, reports and proxy
statements so mailed;
(e) promptly upon the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration statements
on Form S-8 or its equivalent) and annual, quarterly or monthly reports
which the Borrowers shall have filed with the Securities and Exchange
Commission or any national securities exchange;
(f) if and when Parent, Corp. or any member of the Controlled Group
(i) gives or is required to give notice to the PBGC of any "reportable
event" (as defined in Section 4043 of ERISA) with respect to any Plan which
might constitute grounds for a termination of such Plan under Title IV of
ERISA, or knows that the plan administrator of any Plan has given or is
required to give notice of any such reportable event, a copy of the notice
of such reportable event given or required to be given to the PBGC; (ii)
receives notice of complete or partial withdrawal liability under Title IV
of ERISA, a copy of such notice; or (iii) receives notice from the PBGC
under Title IV of ERISA of an intent to terminate or appoint a trustee to
administer any Plan, a copy of such notice;
(g) promptly after any Borrower knows of the commencement thereof,
notice, of any litigation, dispute or proceeding involving a claim against
any of the Borrowers and/or any Subsidiary for $10,000,000 or more in excess
of amounts covered in full by applicable insurance;
(h) from time to time such additional information regarding the
financial position or business of the Borrowers and their Subsidiaries as
the Administrative Agent, at the request of any Lender, may reasonably
request;
(i) at the request of any Lender, promptly after the filing thereof,
a copy of the annual statements for each calendar year and quarterly
statements for each calendar quarter as filed with the New York Insurance
Department or other then comparable agency of other jurisdictions and the
financial statements of Corp. for each calendar year or quarter prepared in
accordance with Statutory Accounting Principles accompanied by a report
thereon of the independent public accountants of Parent referred to in
paragraph (b) above; and
(j) at the request of any Lender, at any time when a DB Loan is
outstanding, quarterly and annual summary financial statements of the
applicable Designated Borrower as promptly as possible after the end of each
fiscal quarter and fiscal year of such Designated Borrower.
6.02 Books, Records and Inspections. The Borrowers will (i) keep, and
will cause each Subsidiary to keep, proper books of record and account in which
full, true and correct entries in conformity with GAAP or Statutory Accounting
Principles, as applicable, shall be made of all dealings and transactions in
relation to its business and activities; and (ii) permit, and will cause each
Subsidiary to permit, representatives of any Lender at such Lender's expense
prior to the occurrence of an Event of Default and at the Borrowers' expense
after the occurrence of an Event of Default to visit and inspect any of their
respective properties, to examine their
-26-
respective books and records and to discuss their respective affairs, finances
and accounts with their respective officers, employees and independent public
accountants. The Borrowers agree to cooperate and assist in such visits and
inspections, in each case at such reasonable times and as often as may
reasonably be desired.
6.03 Maintenance of Existence. Each of the Borrowers shall maintain its
existence and carry on its business in substantially the same manner and in
substantially the same fields as such business is now carried on and maintained.
6.04 Compliance with Laws; Payment of Taxes. The Borrowers will, and
will cause each of their Subsidiaries and each member of the Controlled Group
to, comply with applicable laws (including but not limited to ERISA),
regulations and similar requirements of governmental authorities (including but
not limited to the PBGC), except where (i) the necessity of such compliance is
being contested in good faith through appropriate proceedings diligently
pursued; and (ii) any failure to comply with any such laws would not, alone or
in the aggregate, have a Material Adverse Effect. The Borrowers will, and will
cause each of their Subsidiaries to, pay promptly when due all taxes,
assessments, governmental charges, claims for labor, supplies, rent and other
obligations which, if unpaid, might become a lien against the property of the
Borrowers or any Subsidiary, except liabilities being contested in good faith by
appropriate proceedings diligently pursued.
6.05 Insurance. The Borrowers will maintain, and will cause each of
their Material Subsidiaries to maintain (either in the name of the Borrowers or
in such Material Subsidiary's own name), with financially sound and reputable
insurance companies, insurance on all their property in at least such amounts
and against at least such risks as are usually insured against in the same
general area by companies of established repute engaged in the same or similar
businesses.
6.06 Maintenance of Property. The Borrowers shall, and shall cause each
Material Subsidiary to, maintain all of their properties and assets in good
condition, repair and working order, ordinary wear and tear excepted.
SECTION 7. Negative Covenants. The Borrowers hereby covenant and agree
that on and as of the Restatement Effective Date and thereafter until the
Commitments have terminated, no Notes are outstanding and the Loans, together
with interest, Fees and all other obligations (other than any indemnities
described in Section 11.12 which are not then owing) incurred hereunder, are
paid in full:
7.01 Liens. Neither Parent nor any of its Consolidated Subsidiaries will
create, assume or suffer to exist any Lien on any asset now owned or hereafter
acquired by it, except:
(i) Liens securing any loan to be made under the Credit Agreement
among Corp., the banks signatory thereto and Credit Suisse First Boston, New
York Branch, originally dated as of December 29, 1989, as amended and
restated on October 1, 1997 and as may be amended thereafter from time to
time;
(ii) Liens created on certain insurance premiums by a Trust Agreement
effective December 31, 1989 between Municipal Bond Investors Assurance
Corporation,
-27-
MBIA Insurance Corp. of Illinois and the trustee thereunder, as amended on
February 28, 1995 and as may be amended from time to time thereafter;
(iii) as to Corp., Liens (in addition to Liens permitted under
Section 7.01(i), (iv) and (v)) in an aggregate principal amount of up to
$10,000,000;
(iv) Liens not securing Debt which are incurred in the ordinary
course of business;
(v) Liens securing repurchase agreements constituting a borrowing of
funds by Parent or any Subsidiary of Parent in the ordinary course of
business for liquidity purposes; and
(vi) Liens securing any Conduit Debt or Insured Debt (or any guaranty
made by Corp. of such Conduit Debt or Insured Debt, as the case may be),
provided that any such Liens attach only to the underlying assets that are
the subject of such Conduit Debt or Insured Debt, as applicable.
7.02 Dissolution. No Borrower shall suffer or permit dissolution or
liquidation either in whole or in part or redeem or retire any shares of their
own stock, except through corporate reorganization to the extent permitted by
Section 7.03.
7.03 Consolidations, Mergers and Sales of Assets. The Borrowers will not
consolidate or merge with or into, or sell, lease or otherwise transfer all or
any substantial part of their assets to, any other Person, provided that (a) any
Borrower (other than any Designated Borrower) may merge with another Person if
(i) such Person was organized under the laws of the United States of America or
one of its states, (ii) one of the Borrowers is the corporation surviving such
merger and (iii) immediately after giving effect to such merger, no Default
shall have occurred and be continuing, and (b) Subsidiaries of the Borrowers may
merge with one another.
7.04 Use of Proceeds. No portion of the proceeds of the Loans will be
used by the Borrowers or any Subsidiary (i) directly or indirectly, for the
purpose, whether immediate, incidental or ultimate, of purchasing or carrying
any Margin Stock, or (ii) for any purpose in violation of any applicable law or
regulation.
7.05 Change in Fiscal Year. Neither Parent nor Corp. shall change its
Fiscal Year without the consent of the Required Lenders.
7.06 Transactions with Affiliates. Neither Parent nor any of its
Subsidiaries shall enter into, or be a party to, any transaction with any
Affiliate of Parent or such Subsidiary (which Affiliate is not one of the
Borrowers or a Subsidiary), except as permitted by law and in the ordinary
course of business and pursuant to reasonable terms.
7.07 Leverage Ratio. Parent and Corp. will not permit the ratio of
Consolidated Total Debt to Consolidated Total Capitalization at any time to
exceed 0.30:1.00.
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7.08 Minimum Net Worth. Parent and Corp. will not permit Consolidated
Net Worth to be less than $2,500,000,000 at any time.
SECTION 8. Defaults.
8.01 Events of Default. Upon the occurrence of any of the following
specified events (each, an "Event of Default"):
(a) any Borrower shall fail to pay when due any principal of any
Loan, or shall fail to pay any interest on any Loan within three Business
Days after such interest shall become due, or shall fail to pay any fee or
other amount payable hereunder within five Business Days after such fee or
other amount becomes due; or
(b) any Borrower shall fail to observe or perform any covenant
contained in Sections 6.01(c), 6.02(ii), 6.03, 6.06, 7.02, 7.03, 7.04 or
7.08; or
(c) any Borrower shall fail to observe or perform any covenant
contained in Section 7.01 for five days after the earlier of (i) the first
day on which any Borrower has knowledge of such failure or (ii) written
notice thereof has been given to any Borrower by the Administrative Agent at
the request of any Lender; or
(d) any Borrower shall fail to observe or perform any covenant or
agreement contained herein (other than those covered by clause (a), (b) or
(c) above, but including, without limitation, any covenant contained in
Section 7.07) for 30 days after the earlier of (i) the first day on which
any Borrower has knowledge of such failure or (ii) written notice thereof
has been given to any Borrower by the Administrative Agent at the request of
any Lender; or
(e) any representation, warranty, certification or statement made or
deemed made by any Borrower in Section 5 of this Agreement or in any
certificate, financial statement or other document delivered pursuant to
this Agreement shall prove to have been incorrect or misleading in any
material respect when made (or deemed made); or
(f) Parent or any Subsidiary shall fail to make any payment in
respect of Debt outstanding in an aggregate principal amount equal to or in
excess of $10,000,000 (other than the Notes) when due at final stated
maturity (after giving effect to any applicable grace period); or
(g) any event or condition shall occur which results in the
acceleration of the maturity of Debt outstanding in an aggregate amount
equal to or in excess of $10,000,000 of Parent or any Subsidiary or the
mandatory prepayment or purchase of such Debt by Parent (or its designee) or
such Subsidiary (or its designee) prior to the scheduled maturity thereof;
or
(h) Parent or any Material Subsidiary shall commence a voluntary
case or other proceeding seeking liquidation, reorganization or other relief
with respect to themselves or their debts under any bankruptcy, insolvency
or other similar law now or hereafter in effect or seeking the appointment
of a trustee, receiver, liquidator, custodian
-29-
or other similar official of them or any substantial part of their property,
or shall consent to any such relief or to the appointment of or taking
possession by any such official in an involuntary case or other proceeding
commenced against them, or shall make a general assignment for the benefit
of creditors, or shall fail generally, or shall admit in writing their
inability, to pay their debts as they become due, or shall take any
corporate action to authorize any of the foregoing, or shall become or be
declared by a court of competent jurisdiction to be insolvent; or
(i) an involuntary case or other proceeding shall be commenced
against Parent or any Material Subsidiary seeking liquidation,
reorganization or other relief with respect to them or their debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect or
seeking the appointment of a trustee, receiver, liquidator, custodian or
other similar official of them or any substantial part of their property,
and such involuntary case or other proceeding shall remain undismissed and
unstayed for a period of 60 days; or an order for relief shall be entered
against Parent or any Material Subsidiary under the federal bankruptcy laws
as now or hereafter in effect; or
(j) Parent, Corp. or any member of the Controlled Group shall fail
to pay when due any material amount which they shall have become liable to
pay to the PBGC or to a Plan under Title IV of ERISA; or the PBGC shall
institute proceedings under Title IV of ERISA to terminate or to cause a
trustee to be appointed to administer any such Plan or Plans or a proceeding
shall be instituted by a fiduciary of any such Plan or Plans to enforce
Section 515 or 4219(c)(5) of ERISA and such proceeding shall not have been
dismissed within 30 days thereafter; or a condition shall exist by reason of
which the PBGC would be entitled to obtain a decree adjudicating that any
such Plan or Plans must be terminated; or
(k) one or more judgments or orders for the payment of money in an
aggregate amount in excess of $25,000,000 shall be rendered against Parent
or any Subsidiary and such judgment or order shall continue unsatisfied and
unstayed for a period of 30 days; or
(l) a federal tax lien in excess of $10,000,000 shall be filed
against Parent or any Subsidiary under Section 6323 of the Code or a lien in
excess of $10,000,000 of the PBGC shall be filed against any Parent or any
Subsidiary under Section 4068 of ERISA and in either case such lien shall
remain undischarged for a period of 25 days after the date of filing; or
(m) (i) any Person or two or more Persons acting in concert shall
have acquired beneficial ownership (within the meaning of Rule 13d-3 of the
Securities and Exchange Commission under the Exchange Act) of 40% or more of
the outstanding shares of the voting stock of Parent; or (ii) as of any date
a majority of the Board of Directors of Parent consists of individuals who
were not either (A) directors of Parent as of the corresponding date of the
previous year, (B) selected or nominated to become directors by the Board of
Directors of Parent of which a majority consisted of individuals described
in clause (A), or (C) selected or nominated to become directors by the Board
of
-30-
Directors of Parent of which a majority consisted of individuals described
in clause (A) and individuals described in clause (B); or
(n) Parent shall at any time or times and for any reason cease to
own (either directly or indirectly through a wholly-owned intermediate
Subsidiary) all of the Capital Stock or other ownership interests (except
for director's qualifying shares) of Corp.; or
(o) at any time when any DB Loan is outstanding, the respective
Financial Guaranty Insurance Policy or any material provision thereof shall
cease to be in full force or effect or Corp. shall deny or disaffirm its
obligations under such Financial Guaranty Insurance Policy;
then, and in every such event, the Administrative Agent shall (i) if requested
by the Required Lenders, by notice to Parent and Corp. terminate the Commitments
and they shall thereupon terminate, and (ii) if requested by the Required
Lenders, by notice to Parent and Corp. declare the Notes (together with accrued
interest thereon) and all other amounts payable hereunder and under the other
Credit Documents to be, and the Notes (together with all accrued interest
thereon) and all other amounts payable hereunder and under the other Credit
Documents shall thereupon become, immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrowers; provided that if any Event of Default specified
in clause (h) or (i) above occurs with respect to Parent or Corp., without any
notice to Parent or Corp. or any other act by the Administrative Agent or the
Lenders, the Total Commitment shall thereupon automatically terminate and the
Notes (together with accrued interest thereon) and all other amounts payable
hereunder and under the other Credit Documents shall automatically become
immediately due and payable without presentment, demand, protest or other notice
of any kind, all of which are hereby waived by the Borrowers; provided, further,
that, except in the case of an Event of Default under Section 8.01(o), the
principal of and interest on DB Loans shall not become due and payable pursuant
to this Section 8.01 prior to their respective DB Loan Maturity Date.
Notwithstanding the foregoing, the Administrative Agent shall have available to
it all other remedies at law or equity, and shall exercise any one or all of
them at the request of the Required Lenders.
8.02 Notice of Default. The Administrative Agent shall give notice to
the Borrowers of any Default under Sections 8.01(c) or 8.01(d) promptly upon
being requested to do so by any Lender and shall thereupon notify all the
Lenders thereof.
SECTION 9. Definitions. As used herein, the following terms shall have
the meanings herein specified unless the context otherwise requires. Defined
terms in this Agreement shall include in the singular number the plural and in
the plural the singular:
"Absolute Rate" shall mean an interest rate (rounded to the nearest
..0001) expressed as a decimal.
"Absolute Rate Borrowing" shall mean a Competitive Bid Borrowing with
respect to which a Borrower has requested that the Bidder Lenders offer to make
Competitive Bid Loans at Absolute Rates.
-31-
"Administrative Agent" shall have the meaning provided in the first
paragraph of this Agreement.
"Affiliate" shall mean, with respect to any Person, any other Person
directly or indirectly controlling (including but not limited to all directors
and officers of such Person), controlled by, or under direct or indirect common
control with such Person. A Person shall be deemed to control a corporation if
such Person possesses, directly or indirectly, the power (i) to vote 10% or more
of the securities having ordinary voting power for the election of directors of
such corporation or (ii) to direct or cause the direction of the management and
policies of such corporation, whether through the ownership of voting
securities, by contract or otherwise.
"Agents" shall mean the Administrative Agent and the Co-Syndication
Agents.
"Aggregate Loan Outstandings" shall have the meaning provided in Section
3.02(a).
"Agreement" shall mean this Amended and Restated Credit Agreement, as
the same may be from time to time modified, amended and/or supplemented.
"Alternate Currency" shall mean each Primary Alternate Currency and each
Other Alternate Currency.
"Alternate Currency Loan" shall mean any Loan denominated in an
Alternate Currency.
"Applicable Margin" shall mean, as of any date, with respect to (i) any
Eurodollar Loan or Base Rate Loan, a percentage per annum set forth below under
the caption "Eurodollar Rate" or "Base Rate" as applicable, determined, in each
case, by reference to (x) for Revolving Loans incurred by Parent, the Applicable
Public Rating in effect on such date as set forth below under the caption
"Parent's Public Rating S&P/Xxxxx'x" and (y) for Revolving Loans incurred by
Corp or a Designated Borrower, the Applicable Public Rating in effect on such
date as set forth below under the caption "Corp's Public Rating S&P/Xxxxx'x" and
(ii) any Facility Fee, the Applicable Margin per annum set forth below under the
caption "Facility Fee" determined, in each case, by reference to the lower of
Parent's and Corp's Applicable Public Rating in effect on such date as set forth
below under the captions "Parent's Public Rating S&P/Xxxxx'x" and "Corp's Public
Rating S&P/Xxxxx'x" respectively:
Parent's Public Corp's Public
Rating Rating
S&P/Xxxxx'x S&P/Xxxxx'x Eurodollar Rate Base Rate Facility Fee
------------------------------------------------------------------------------------
Xxxxx 0 Xxxxx 0
XX/Xx0 or above AAA/Aaa 0.13% 0% 0.12%
------------------------------------------------------------------------------------
Xxxxx 0 Xxxxx 0
XX-/Xx0 XXx/Xx0 0.23% 0% 0.13%
------------------------------------------------------------------------------------
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Parent's Public Corp's Public
Rating Rating
S&P/Xxxxx'x S&P/Xxxxx'x Eurodollar Rate Base Rate Facility Fee
------------------------------------------------------------------------------------
Xxxxx 0 Xxxxx 0
Xx/ X0 XX / Aa2 0.33% 0% 0.14%
------------------------------------------------------------------------------------
Xxxxx 0 Xxxxx 0
X / X0 XX- / Xx0 0.43% 0% 0.15%
------------------------------------------------------------------------------------
Xxxxx 0 Xxxxx 0
X-/X0 A+ /A1 0.83% 0% 0.20%
------------------------------------------------------------------------------------
Xxxxx 0 Xxxxx 0
BBB+/Baa1 A / A2 0.93% 0% 0.21%
------------------------------------------------------------------------------------
Xxxxx 0 Xxxxx 0
XXX/Xxx0 xx xxxxx X-/X0 or lower 1.03% 0% 0.22%
------------------------------------------------------------------------------------
provided that, (A) notwithstanding anything to the contrary set forth in the
grid above (and notwithstanding the Applicable Public Rating at the time), upon
the occurrence and during the continuance of any Event of Default, the
Applicable Margin shall be the rate described above in Level 7; (B) for purposes
of the foregoing, in the event of a split in the Applicable Public Rating from
Xxxxx'x and S&P, the applicable level shall be (1) the lower of such ratings in
the event such ratings are one level apart, (2) midpoint (if any) of such levels
in the event such ratings are two or more levels apart and (3) the lower of the
two intermediate ratings in the event there is no midpoint rating; (C) if at any
time Parent or Corp., as the case may be, does not have an Applicable Public
Rating with either Xxxxx'x or S&P (other than by reason of the circumstances
referred to in the last sentence of this definition), the Applicable Margin as
set forth in Level 7 will apply; (D) if at any time either Xxxxx'x or S&P shall
not have in effect an Applicable Public Rating, the Applicable Margin shall be
determined solely by the Applicable Public Rating established by the rating
agency that does have an Applicable Public Rating then in effect; and (E) if at
any time the Applicable Public Ratings established or deemed to have been
established by Xxxxx'x and S&P shall be changed (other than as a result of a
change in the rating system of Xxxxx'x or S&P), such change shall be effective
as of the date on which it is first announced by the applicable rating agency.
Each change in the Applicable Margin shall apply during the period commencing on
the effective date of such change and ending on the date immediately preceding
the effective date of the next such change. If the rating system of Xxxxx'x or
S&P shall change, or if either such rating agency shall cease to be in the
business of providing the Applicable Public Rating, Parent (on its own behalf
and/or on behalf of Corp.) and the Lenders shall negotiate in good faith to
amend this definition to reflect such changed rating system or the
unavailability of ratings from such rating agency and, pending the effectiveness
of any such amendment, the Applicable Margin shall be determined by reference to
the rating most recently in effect prior to such change or cessation.
-33-
"Applicable Public Rating" shall mean, as of any date, the highest
rating that has been most recently announced by S&P and Xxxxx'x (i) in respect
of Parent, for its long-term senior unsecured debt and (ii) in respect of Corp.,
for its insurer claims paying ability.
"Approved Currency" shall mean each of Dollars and each Primary
Alternate Currency.
"Assignment Agreement" shall mean the Assignment Agreement in the form
of Exhibit G (appropriately completed).
"Associated Cost Rate" shall mean, with respect to each Interest Period
for Pounds Sterling-denominated Loans, the costs (expressed as a percentage
rounded up to the nearest four decimal places and as determined on the first day
of such Interest Period and any three month anniversary thereof by the
Administrative Agent) of compliance with then existing requirements of the Bank
of England in respect of Loans denominated in Pounds Sterling.
"Assuming Lender" shall have the meaning provided in Section 1.16.
"Authorized Officer" shall mean any senior officer of any Borrower
designated as such in writing to the Administrative Agent by such Borrower.
"Base Rate" shall mean, at any time, the higher of (i) the rate which is
1/2 of 1% in excess of the Federal Funds Effective Rate and (ii) the Prime
Lending Rate.
"Base Rate Loan" shall mean each Revolving Loan that is not a Eurodollar
Loan.
"Bidder Lender" shall mean each Lender that has notified in writing (and
has not withdrawn such notice) the Administrative Agent that it desires to
participate generally in the bidding arrangements relating to Competitive Bid
Borrowings.
"Borrowers" shall mean Parent, Corp. and each Designated Borrower, if
any.
"Borrowing" shall mean (i) the incurrence by a single Borrower of
Revolving Loans denominated in Dollars that are Base Rate Loans on a pro rata
basis from all Lenders; (ii) the incurrence by a single Borrower of Revolving
Loans of a single Approved Currency that are Eurodollar Loans on a pro rata
basis from all Lenders, on a given date (or resulting from conversions on a
given date), having the same Interest Period; and (iii) a Competitive Bid
Borrowing, provided that (x) Base Rate Loans incurred pursuant to Section
1.11(b) shall be considered part of any related Borrowing of Eurodollar Loans
and (y) each Borrowing applicable to each of the Existing Competitive Bid Loans
outstanding on the Restatement Effective Date shall continue to be applicable
thereto as if the Existing Credit Agreement had not been amended and restated as
herein provided (although such Existing Competitive Bid Loans, shall constitute
Competitive Bid Loans, as provided for in this Agreement).
"Business Day" shall mean (i) for all purposes other than as covered by
clause (ii) below, any day excluding Saturday, Sunday and any day which shall be
in the City of New York a legal holiday or a day on which banking institutions
are authorized by law or other governmental actions to close, (ii) with respect
to all notices and determinations in connection
-34-
with, and payments of principal and interest on, Eurodollar Loans and
Competitive Bid Loans made pursuant to a Spread Borrowing, any day which is a
Business Day described in clause (i) and which is also a day for trading by and
between banks in the London interbank Eurodollar market and, with respect to any
notices or determinations in respect of Euros, which is customarily a "Business
Day" for such notices or determinations.
"Capital Stock" means any nonredeemable capital stock of Parent or any
Consolidated Subsidiary (to the extent issued to a Person other than the
Borrowers), whether common or preferred.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time and the regulations promulgated and the rulings issued thereunder.
Section references to the Code are to the Code, as in effect on the Restatement
Effective Date and any subsequent provisions of the Code, amendatory thereof,
supplemental thereto or substituted therefor.
"Commitment" shall mean, with respect to each Lender, at any time, the
amount set forth opposite such Lender's name on Annex I, as the same may be
increased pursuant to Section 1.16 and/or reduced pursuant to Sections 2.02,
2.03 or 8.01.
"Commitment Assumption Agreement" shall mean each Commitment Assumption
Agreement in the form of Exhibit H attached hereto executed in accordance with
Section 1.16.
"Commitment Assumption Date" shall mean the Business Day following the
date on which each Commitment Assumption Agreement is delivered to the
Administrative Agent pursuant to Section 1.16.
"Competitive Bid Borrowing" shall mean a Borrowing by a single Borrower
of Competitive Bid Loans pursuant to Section 1.04.
"Competitive Bid Loan" shall have the meaning specified in
Section 1.01(b).
"Competitive Bid Note" shall have the meaning provided in
Section 1.06(a).
"Conduit Debt" shall mean any debt of a special purpose entity that is
consolidated on Parent's financial statements in accordance with GAAP, provided
that (i) the proceeds of such debt are used by such special purpose entity to
make loans to, or to purchase assets from, any Person that is not an Affiliate
of Parent, in the ordinary course of business and (ii) such debt and/or payment
with respect to accounts receivable and other assets underlying such debt are
guaranteed by Corp., in the ordinary course of business.
"Consolidated Net Worth" shall mean the Net Worth of Parent and its
Subsidiaries determined on a consolidated basis.
"Consolidated Subsidiary" shall mean at any date any Subsidiary or other
entity the accounts of which, in accordance with GAAP, would be consolidated
with those of Parent in its consolidated financial statements as of such date.
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"Consolidated Total Capitalization" shall mean, as of any date of
determination, the sum of (i) Consolidated Total Debt and (ii) Consolidated Net
Worth.
"Consolidated Total Debt" shall mean, as of any date of determination,
all Debt of Parent and its Subsidiaries on such date determined on a
consolidated basis.
"Co-Syndication Agent" shall have the meaning provided in the first
paragraph of this Agreement.
"Controlled Group" shall mean all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with either Parent or Corp., are treated as a
single employer under Section 414 of the Code.
"Credit Documents" shall mean this Agreement, the Notes and each
Financial Guaranty Insurance Policy delivered pursuant to Section 4.02(d).
"DB Assumption Agreement" shall mean an Assumption Agreement in the form
of Exhibit I attached hereto executed in accordance with Section 1.17.
"DB Loan Maturity Date" shall mean (a) with respect to each DB Loan
constituting a Revolving Loan, the maturity date selected by the respective
Designated Borrower in accordance with Section 1.03(a) as being applicable to
such DB Loan, which maturity date shall not be more than 180 days after the date
of incurrence of such DB Loan (and in no event later than the Final Maturity
Date) and (b) with respect to each DB Loan constituting a Competitive Bid Loan,
the maturity of such Competitive Bid Loan selected in accordance with Section
1.04(a).
"DB Loans" shall mean any Loans incurred by a Designated Borrower.
"Debt" of any Person shall mean at any date, without duplication, (i)
all obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person to pay the deferred purchase price of property or
services, except trade accounts payable arising in the ordinary course of
business, (iv) all obligations of such Person as lessee under capital leases,
(v) all obligations of such Person to reimburse any bank or other Person in
respect of amounts payable under a banker's acceptance, (vi) all Redeemable
Preferred Stock of such Person (in the event such Person is a corporation),
(vii) all obligations (absolute or contingent) of such Person to reimburse any
bank or other Person in respect of amounts paid under a letter of credit or
similar instrument, (viii) all Debt of others secured by a Lien on any asset of
such Person, whether or not such Debt is assumed by such Person, (ix) all Debt
of others Guaranteed by such Person and (x) solely for the purpose of
determining the ratio of Consolidated Total Debt to Consolidated Total
Capitalization pursuant to Section 7.07, obligations under any repurchase
agreements secured by Liens constituting a borrowing of funds for a period
exceeding 90 days (other than obligations under such repurchase agreements
entered into by Parent or any of its Subsidiaries in the ordinary course of
business in connection with the asset management business of MBIA Asset
Management and its Subsidiaries); provided, that notwithstanding the foregoing,
the following shall not constitute "Debt" of any Person: (I) the obligations
referred to in the parenthetical in clause (x) above, (II) investment agreements
entered into by Parent or any of its
-36-
Subsidiaries in the ordinary course of business in connection with the asset
management business of MBIA Asset Management and its Subsidiaries, (III) in the
case of Corp., the Debt of others guaranteed by Corp. in the ordinary course of
its business and (IV) any Conduit Debt and any Insured Debt or any guaranty
thereof by Corp. in the ordinary course of business.
"Default" shall mean any event, act or condition which with notice or
lapse of time, or both, would constitute an Event of Default.
"Defaulting Lender" shall mean any Lender with respect to which a Lender
Default is in effect.
"Designated Borrower" shall mean each Person designated as a Designated
Borrower in accordance with Section 1.17.
"Deutsche Bank" shall mean Deutsche Bank AG, New York Branch.
"Deutsche Xxxx Equivalent" shall mean, at any time for the determination
thereof, the amount of Deutsche Marks which could be purchased with the amount
of Dollars involved in such computation at the spot exchange rate therefor as
quoted by Deutsche Bank as of 11:00 A.M. (London time) on the date two Business
Days prior to the date of any determination thereof for purchase on such date.
"Deutsche Xxxx LIBOR" shall mean, for each Interest Period applicable to
any Loan denominated in Deutsche Marks, the rate per annum that appears on page
3750 (or other appropriate page if such currency does not appear on such page)
of the Dow Xxxxx Telerate Screen (or any successor page) for Deutsche Xxxx
deposits with maturities comparable to such Interest Period as of 11:00 A.M.
(London time) on the date which is two Business Days prior to the commencement
of such Interest Period or, if such a rate does not appear on page 3750 (or such
other appropriate page) of the Dow Xxxxx Telerate Screen (or any successor
page), the offered quotations to first-class banks in the London interbank
market by Deutsche Bank for Deutsche Xxxx deposits of amounts in same day funds
comparable to the outstanding principal amount of such Loan with maturities
comparable to such Interest Period determined as of 11:00 A.M. (London time) on
the date which is two Business Days prior to the commencement of such Interest
Period.
"Deutsche Marks" shall mean freely transferable lawful money of Germany.
"Dollar Equivalent" shall mean, at any time for the determination
thereof, the amount of Dollars which could be purchased with the amount of the
relevant Alternate Currency involved in such computation at the spot exchange
rate therefor as quoted by the Administrative Agent as of 11:00 A.M. (London
time) on the date two Business Days prior to the date of any determination
thereof for purchase on such date.
"Dollars" and the sign "$" shall each mean freely transferable lawful
money of the United States.
"EMU Legislation" shall mean the legislative measures of the European
Council for the introduction of, changeover to or operation of a single or
unified European currency.
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"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the regulations promulgated and rulings issued
thereunder. Section references to ERISA are to ERISA, as in effect as of the
Restatement Effective Date and any subsequent provisions of ERISA, amendatory
thereof, supplemental thereto or substituted therefor.
"Euro" shall mean the single currency of participating member states of
the European Union.
"Euro Equivalent" shall mean, at any time for the determination thereof,
the amount of Euros which could be purchased with the amount of Dollars involved
in such computation at the spot exchange rate therefor as quoted by Deutsche
Bank as of 11:00 A.M. (London time) on the date two Business Days prior to the
date of any determination thereof for purchase on such date.
"Euro LIBOR" shall mean, for each Interest Period applicable to any Loan
denominated in Euros, the rate per annum that appears on page 3750 (or other
appropriate page if such currency does not appear on such page) of the Dow Xxxxx
Telerate Screen (or any successor page) for Euro deposits with maturities
comparable to such Interest Period as of 11:00 A.M. (London time) on the date
which is two Business Days prior to the commencement of such Interest Period or,
if such a rate does not appear on the Dow Xxxxx Telerate Screen (or any
successor page), the offered quotations to first-class banks in the London
interbank market by Deutsche Bank for Euro deposits of amounts in same day funds
comparable to the outstanding principal amount of such Loan with maturities
comparable to such Interest Period determined as of 11:00 A.M. (London time) on
the date which is two Business Days prior to the commencement of such Interest
Period.
"Eurodollar Loan" shall mean each Revolving Loan that at the election of
any Borrower is bearing interest by reference to LIBOR.
"Event of Default" shall have the meaning specified in Section 8.01.
"Exchange Act" shall mean the U.S. Securities Exchange Act of 1934, as
amended.
"Existing Competitive Bid Loans" shall mean each "Competitive Bid Loan"
under, and as defined in, the Existing Credit Agreement.
"Existing Credit Agreement" shall have the meaning provided in the first
WHEREAS clause of this Agreement.
"Existing Lenders" shall mean each of the lenders party to the Existing
Credit Agreement on the Restatement Effective Date.
"Existing Revolving Loan" shall mean each "Revolving Loan" under, and as
defined in, the Existing Credit Agreement.
"Extension Deadline" shall have the meaning specified in Section 1.15.
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"Facility Fees" shall have the meaning specified in Section 2.01(a).
"Federal Funds Effective Rate" shall mean, for any period, a fluctuating
interest rate 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 which is a Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three Federal Funds
brokers of recognized standing selected by the Administrative Agent.
"Fees" shall mean all amounts payable pursuant to, or referred to in,
Section 2.01.
"Final Maturity Date" shall mean the fourth anniversary of the
Restatement Effective Date, or such later date to which the Final Maturity Date
shall have been extended pursuant to Section 1.15.
"Financial Guaranty Insurance Policy" shall have the meaning specified
in Section 4.02(d).
"Fiscal Year" means any fiscal year of the Borrowers.
"French Franc Equivalent" shall mean, at any time for the determination
thereof, the amount of French Francs which could be purchased with the amount of
Dollars involved in such computation at the spot exchange rate therefor as
quoted by Deutsche Bank as of 11:00 A.M. (London time) on the date two Business
Days prior to the date of any determination thereof for purchase on such date.
"French Franc LIBOR" shall mean, for each Interest Period applicable to
any Loan denominated in French Francs, the rate per annum that appears on page
3750 (or other appropriate page if such currency does not appear on such page)
of the Dow Xxxxx Telerate Screen (or any successor page) for French Franc
deposits with maturities comparable to such Interest Period as of 11:00 A.M.
(London time) on the date which is two Business Days prior to the commencement
of such Interest Period or, if such a rate does not appear on page 3750 (or such
other appropriate page) of the Dow Xxxxx Telerate Screen (or any successor
page), the offered quotations to first-class banks in the London interbank
market by Deutsche Bank for French Franc deposits of amounts in same day funds
comparable to the outstanding principal amount of such Loan with maturities
comparable to such Interest Period as of 11:00 A.M. (London time) on the date
which is two Business Days prior to the commencement of such Interest Period.
"French Francs" shall mean freely transferable lawful money of France.
"GAAP" shall mean generally accepted accounting principles in the United
States of America as in effect on the date of this Agreement.
"Guarantee" by any Person means any obligation, contingent or otherwise,
of such Person directly or indirectly guaranteeing any Debt or other obligation
of any other Person
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and, without limiting the generality of the foregoing, any obligation, direct or
indirect, contingent or otherwise, of such Person (i) to secure, purchase or pay
(or advance or supply funds for the purchase or payment of) such Debt or other
obligation (whether arising by virtue of partnership arrangements, by agreement
to keep-well, to purchase assets, goods, securities or services, to provide
collateral security, to take-or-pay, or to maintain financial statement
conditions or otherwise) or (ii) entered into for the purpose of assuring in any
other manner the obligee of such Debt or other obligation of the payment thereof
or to protect such obligee against loss in respect thereof (in whole or in
part), provided that the term Guarantee shall not include: (i) endorsements for
collection or deposit in the ordinary course of business; and (ii) in the case
of Corp., Debt of others guaranteed by Corp. in the ordinary course of its
business. The term "Guarantee" used as a verb has a corresponding meaning.
"Insured Debt" shall mean any debt of Parent or its Subsidiaries that is
guaranteed by Corp., provided that the proceeds of such debt are used to
purchase securities, instruments, notes or other obligations issued or owed by
any Person that is not an Affiliate of Parent, in the ordinary course of
business.
"Interest Period" shall mean (a) with respect to any Eurodollar Loan,
the interest period applicable thereto, as determined pursuant to Section 1.10
and (b) with respect to any Competitive Bid Loan, the period beginning on the
date of incurrence thereof and ending on the stated maturity date thereof.
"Interest Rate Basis" shall mean LIBOR and/or such other basis for
determining an interest rate as the Borrowers and the Administrative Agent may
agree upon from time to time.
"Japanese Yen" shall mean freely transferable lawful money of Japan.
"Japanese Yen Equivalent" shall mean, at any time for the determination
thereof, the amount of Japanese Yen which could be purchased with the amount of
Dollars involved in such computation at the spot exchange rate therefor as
quoted by Deutsche Bank as of 11:00 A.M. (London time) on the date two Business
Days prior to the date of any determination thereof for purchase on such date.
"Japanese Yen LIBOR" shall mean, for each Interest Period applicable to
any Loan denominated in Japanese Yen, the rate per annum that appears on page
3750 (or other appropriate page if such currency does not appear on such page)
of the Dow Xxxxx Telerate Screen (or any successor page) for Japanese Yen
deposits with maturities comparable to such Interest Period as of 11:00 A.M.
(London time) on the date which is two Business Days prior to the commencement
of such Interest Period or, if such a rate does not appear on page 3750 (or such
other appropriate page) of the Dow Xxxxx Telerate Screen (or any successor
page), the offered quotations to first-class banks in the London interbank
market by Deutsche Bank for Japanese Yen deposits of amounts in same day funds
comparable to the outstanding principal amount of such Loan with maturities
comparable to such Interest Period determined as of 11:00 A.M. (London time) on
the date which is two Business Days prior to the commencement of such Interest
Period.
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"Judgment Currency" shall have the meaning provided in Section 11.16(a).
"Judgment Currency Conversion Date" shall have the meaning provided in
Section 11.16(a).
"Lender" or "Lenders" shall have the meaning provided in the first
paragraph of this Agreement.
"Lender Default" shall mean (i) the refusal (which has not been
retracted) of a Lender to make available its portion of any incurrence of
Revolving Loans or (ii) a Lender having notified the Administrative Agent and/or
any Borrower that it does not intend to comply with its obligations under
Section 1.01, in the case of either clause (i) or (ii) as a result of the
appointment of a receiver or conservator with respect to such Lender at the
direction or request of any regulatory agency or authority.
"Lender Register" shall have the meaning provided in Section 11.15.
"LIBOR" shall mean (i) with respect to any Borrowing of Loans of an
Approved Currency, the relevant interest rate, i.e., U.S. LIBOR, Deutsche Xxxx
LIBOR, Euro LIBOR, Sterling LIBOR, French Franc LIBOR, Japanese Yen LIBOR or
Swiss Franc LIBOR, and (ii) with respect to any Borrowing of Competitive Bid
Loans of an Other Alternate Currency, such rate per annum as may be agreed upon
by the respective Borrower and the respective Bidder Lender.
"Lien" shall mean, with respect to any asset, any mortgage, deed to
secure debt, deed of trust, lien, pledge, charge, security interest, security
title, preferential arrangement which has the practical effect of constituting a
security interest or encumbrance, servitude or encumbrance of any kind in
respect of such asset to secure or assure payment of a Debt or a Guarantee,
whether by consensual agreement or by operation of statute or other law, or by
any agreement, contingent or otherwise, to provide any of the foregoing. For the
purposes of this Agreement, Parent or any Subsidiary shall be deemed to own
subject to a Lien any asset which they have acquired or hold subject to the
interest of a vendor or lessor under any conditional sale agreement, capital
lease or other title retention agreement relating to such asset.
"Loan" shall mean each Revolving Loan and each Competitive Bid Loan.
"Margin Stock" shall have the meaning provided in Regulation U.
"Material Adverse Effect" shall mean, with respect to any event, act,
condition or occurrence of whatever nature (including any adverse determination
in any litigation, arbitration, or governmental investigation or proceeding),
whether singly or in conjunction with any other event or events, act or acts,
condition or conditions, occurrence or occurrences, whether or not related, a
material adverse change in, or a material adverse effect upon, any of (a) the
rights and remedies of the Administrative Agent or the Lenders under the Credit
Documents, or the ability of each Borrower to perform its obligations under the
Credit Documents to which it is a party, as applicable, or (b) the legality,
validity or enforceability of any Credit Document.
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"Material Subsidiary" shall mean any Subsidiary with a Net Worth greater
than $5,000,000.
"MBIA Asset Management" shall mean MBIA Asset Management, LLC, a limited
liability company organized under the laws of Delaware.
"Minimum Borrowing Amount" shall mean (i) for any Revolving Loans that
are Dollar denominated, $2,500,000, (ii) for any Revolving Loans that are
Alternate Currency Loans, an amount in the respective Approved Currency having a
Dollar Equivalent (determined at the time a Notice of Borrowing is received or a
prepayment made) of $2,500,000, (iii) for any Competitive Bid Loans that are
Dollar denominated, $1,000,000 and (iv) for any Competitive Bid Loans that are
Alternate Currency Loans, an amount in the respective Alternate Currency having
a Dollar Equivalent (determined at the time a Notice of Competitive Bid
Borrowing is received or a prepayment made) of $1,000,000.
"Multiemployer Plan" shall mean a plan within the meaning of Section
4001(a)(3) of ERISA.
"Net Worth" shall mean, as to any Person, the sum of its capital stock,
capital in excess of par or stated value of shares of its capital stock,
retained earnings and any other account which, in accordance with GAAP,
constitutes stockholders equity, excluding any treasury stock.
"Non-Continuing Lender" shall have the meaning specified in Section
1.15.
"Non-Defaulting Lender" shall mean each Lender other than a Defaulting
Lender.
"Note" shall mean each Revolving Note and each Competitive Bid Note.
"Notice of Borrowing" shall have the meaning provided in Section
1.03(a).
"Notice of Competitive Bid Borrowing" shall have the meaning provided in
Section 1.04(a).
"Notice of Conversion" shall have the meaning provided in Section 1.07.
"Notice Office" shall mean the office of the Administrative Agent at 00
Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000 or such other office as the Administrative
Agent may designate to the Borrowers from time to time.
"Obligation Currency" shall have the meaning provided in Section
11.16(a).
"Obligations" shall mean all amounts, direct or indirect, contingent or
absolute, of every type or description, and at any time existing, owing to any
Agent or any Lender pursuant to the terms of this Agreement or any other Credit
Document.
"Other Alternate Currency" shall mean any freely transferable currency
other than any Approved Currency.
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"Original Effective Date" shall mean August 28, 1998.
"Payment Office" shall mean the office of the Administrative Agent at 00
Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000 or such other office or offices as the
Administrative Agent may designate to the Borrowers from time to time.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
pursuant to Section 4002 of ERISA, or any successor thereto.
"Person" shall mean any individual, partnership, limited liability
company, joint venture, firm, corporation, association, trust or other
enterprise or business entity or any government or political subdivision or any
agency, department or instrumentality thereof.
"Plan" shall mean at any time an employee pension benefit plan
which is covered by Title IV of ERISA or subject to the minimum funding
standards under Section 412 of the Code and is either (i) maintained by a member
of the Controlled Group for employees of any member of the Controlled Group or
(ii) maintained pursuant to a collective bargaining agreement or any other
arrangement under which more than one employer makes contributions and to which
a member of the Controlled Group is then making or accruing an obligation to
make contributions or has within the preceding 5 plan years made contributions.
"Pounds Sterling" shall mean freely transferable lawful money
of the United Kingdom.
"Primary Alternate Currency" shall mean each of Deutsche Marks, French
Francs, Japanese Yen, Pounds Sterling, Swiss Francs and Euros.
"Prime Lending Rate" shall mean the rate which Deutsche Bank announces
from time to time as its prime lending rate, the Prime Lending Rate to change
when and as such prime lending rate changes. The Prime Lending Rate is a
reference rate and does not necessarily represent the lowest or best rate
actually charged to any customer. Deutsche Bank may make commercial loans or
other loans at rates of interest at, above or below the Prime Lending Rate.
"Principal Amount" shall mean (i) the stated principal amount of each
Loan denominated in Dollars, and/or (ii) the Dollar Equivalent of the stated
principal amount of each Alternate Currency Loan, as the context may require.
"Redeemable Preferred Stock" of any Person shall mean any preferred
stock issued by such Person which is at any time prior to the Final Maturity
Date either (i) mandatorily redeemable (by sinking fund or similar payments or
otherwise) or (ii) redeemable at the option of the holder thereof.
"Regulation U" shall mean Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor to all
or a portion thereof establishing margin requirements.
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"Regulation X" shall mean Regulation X of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor to all
or a portion thereof establishing margin requirements.
"Relevant Currency Equivalent" shall mean the Dollar Equivalent, the
Deutsche Xxxx Equivalent, the Euro Equivalent, the Pounds Equivalent, the French
Franc Equivalent, the Japanese Yen Equivalent or the Swiss Franc Equivalent or
the comparable equivalent of any Other Alternate Currency, as the case may be.
"Replaced Lender" shall have the meaning provided in Section 1.14.
"Replacement Lender" shall have the meaning provided in Section 1.14.
"Required Lenders" shall mean at any time Non-Defaulting Lenders having
at least a majority of the aggregate Commitments of all Non-Defaulting Lenders;
provided that if the Total Commitment has been terminated, then the Required
Lenders shall mean Lenders whose outstanding Loans equal or exceed a majority of
the aggregate outstanding Loans at such time.
"Restatement Effective Date" shall have the meaning provided in Section
4.01.
"Revolving Loan" shall have the meaning specified in Section 1.01(a).
"Revolving Note" shall have the meaning provided in Section 1.06(a).
"Section 3.04 Certificate" shall have the meaning provided in Section
3.04(b)(ii).
"Spread" shall mean a percentage per annum in excess of, or less than,
an Interest Rate Basis.
"Spread Borrowing" shall mean a Competitive Bid Borrowing with respect
to which a Borrower has requested the Bidder Lenders to make Competitive Bid
Loans at a Spread over or under a specified Interest Rate Basis.
"Statutory Accounting Principles" shall mean statutory accounting
principles prescribed by the National Association of Insurance Commissioners
that are to be used in making the calculations for purposes of determining
compliance with the terms of this Agreement.
"Sterling Equivalent" shall mean, at any time for the determination
thereof, the amount of Pounds Sterling which could be purchased with the amount
of Dollars involved in such computation at the spot exchange rate therefor as
quoted by Deutsche Bank as of 11:00 A.M. (London time) on the date two Business
Days prior to the date of any determination thereof for purchase on such date.
"Sterling LIBOR" shall mean, with respect to each Interest Period for
any Loan denominated in Pounds Sterling, (I) the rate per annum that appears on
page 3750 (or other appropriate page if such currency does not appear on such
page) of the Dow Xxxxx Telerate
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Screen (or any successive page) with maturities comparable to such Interest
Period as of 11:00 A.M. (London time) on the date which is the commencement date
of such Interest Period or, if such a rate does not appear on page 3750 (or such
other appropriate page) of the Dow Xxxxx Telerate Screen (or any successor page)
the offered quotations to first-class banks in the London interbank Eurodollar
market by Deutsche Bank for Pounds Sterling deposits of amounts in same day
funds comparable to the outstanding principal amount of such Loans with
maturities comparable to such Interest Period determined as of 11:00 A.M.
(London time) on the date which is the commencement of such Interest Period plus
(II) the Associated Cost Rate for such Loans for such Interest Period.
"Subsidiary" of any Person shall mean and include (i) any corporation
more than 50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such Person directly or
indirectly through Subsidiaries and (ii) any partnership, association, joint
venture or other entity in which such Person directly or indirectly through
Subsidiaries, has more than a 50% equity interest at the time. Unless otherwise
expressly provided, all references herein to "Subsidiary" shall mean a
Subsidiary of Parent.
"Swiss Franc Equivalent" shall mean, at any time for the determination
thereof, the amount of Swiss Francs which could be purchased with the amount of
Dollars involved in such computation at the spot exchange rate therefor as
quoted by Deutsche Bank as of 11:00 A.M. (London time) on the date two Business
Days prior to the date of any determination thereof for purchase on such date.
"Swiss Franc LIBOR" shall mean, for each Interest Period applicable to
any Loan denominated in Swiss Francs, the rate per annum that appears on page
3750 (or other appropriate page if such currency does not appear on such page)
of the Dow Xxxxx Telerate Screen (or any successor page) for Swiss Franc
deposits with maturities comparable to such Interest Period as of 11:00 A.M.
(London time) on the date which is two Business Days prior to the commencement
of such Interest Period or, if such a rate does not appear on page 3750 (or such
other appropriate page) of the Dow Xxxxx Telerate Screen (or any successor
page), the offered quotations to first-class banks in the London interbank
market by Deutsche Bank for Swiss Franc deposits of amounts in same day funds
comparable to the outstanding principal amount of such Loan with maturities
comparable to such Interest Period determined as of 11:00 A.M. (London time) on
the date which is two Business Days prior to the commencement of such Interest
Period.
"Swiss Francs" shall mean freely transferable lawful money of
Switzerland.
"Taxes" shall have the meaning provided in Section 3.04(a).
"Total Commitment" shall mean, at any time, the sum of the Commitments
of each of the Lenders at such time.
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"Total Unutilized Commitment" shall mean, at any time, (i) the Total
Commitment at such time less (ii) the sum of the aggregate Principal Amount of
all outstanding Loans at such time.
"Type" shall mean any type of Loan determined with respect to currency
and the interest option applicable thereto.
"UCC" shall mean the Uniform Commercial Code.
"US LIBOR" shall mean for each Interest Period applicable to a Loan
denominated in Dollars (other than a Base Rate Loan), the rate per annum that
appears on page 3750 of the Dow Xxxxx Telerate Screen (or any successor page)
for Dollar deposits with maturities comparable to such Interest Period as of
11:00 A.M. (London time) on the date which is two Business Days prior to the
commencement of such Interest Period or, if such a rate does not appear on page
3750 of the Dow Xxxxx Telerate Screen (or any successor page), the offered
quotations to first-class banks in the London interbank market by Deutsche Bank
for Dollar deposits of amounts in same day funds comparable to the outstanding
principal amount of such Dollar denominated Loan with maturities comparable to
such Interest Period determined as of 11:00 A.M. (London time) on the date which
is two Business Days prior to the commencement of such Interest Period.
"Wholly-Owned Subsidiary" of any Person shall mean any other Person to
the extent all of the capital stock or other ownership interests in such other
Person, other than directors' qualifying shares, is owned directly or indirectly
by such first Person.
"Written" or "in writing" shall mean any form of written communication
or a communication by means of facsimile transmission, telegraph or cable.
SECTION 10. Agents, etc.
10.01 Appointment. The Lenders hereby designate Deutsche Bank as
Administrative Agent and each of The Bank of New York, Bank One, NA, Barclays
Bank plc and Fleet National Bank as Co-Syndication Agents to act as specified
herein and in the other Credit Documents. Each Lender hereby irrevocably
authorizes, and each holder of any Note by the acceptance of such Note shall be
deemed irrevocably to authorize, each Agent to take such action on its behalf
under the provisions of this Agreement, the other Credit Documents and any other
instruments and agreements referred to herein or therein and to exercise such
powers and to perform such duties hereunder and thereunder as are specifically
delegated to or required of such Agent by the terms hereof and thereof and such
other powers as are reasonably incidental thereto. The Agents may perform any of
their duties hereunder by or through their respective officers, directors,
agents, employees or affiliates.
10.02 Nature of Duties. No Agent shall have any duties or
responsibilities except those expressly set forth in this Agreement and the
other Credit Documents. No Agent or any of its respective officers, directors,
agents, employees or affiliates shall be liable for any action taken or omitted
by them hereunder or under any other Credit Document or in connection herewith
or therewith, unless caused by their gross negligence or willful misconduct. The
duties of each Agent shall be mechanical and administrative in nature; no Agent
shall have by reason of
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this Agreement or any other Credit Document a fiduciary relationship in respect
of any Lender or the holder of any Note; and nothing in this Agreement or any
other Credit Document, expressed or implied, is intended to or shall be so
construed as to impose upon either Agent any obligations in respect of this
Agreement or any other Credit Document except as expressly set forth herein or
therein with respect to such Agent.
10.03 Lack of Reliance on the Agents. Independently and without reliance
upon any Agent, each Lender and the holder of each Note, to the extent it deems
appropriate, has made and shall continue to make (i) its own independent
investigation of the financial condition and affairs of the Borrowers and their
Subsidiaries in connection with the making and the continuance of the Loans and
the taking or not taking of any action in connection herewith and (ii) its own
appraisal of the creditworthiness of the Borrowers and their Subsidiaries and,
except as expressly provided in this Agreement, no Agent shall have any duty or
responsibility, either initially or on a continuing basis, to provide any Lender
or the holder of any Note with any credit or other information with respect
thereto, whether coming into its possession before the making of the Loans or at
any time or times thereafter. No Agent shall be responsible to any Lender or the
holder of any Note for any recitals, statements, information, representations or
warranties herein or in any document, certificate or other writing delivered in
connection herewith or for the execution, effectiveness, genuineness, validity,
enforceability, perfection, collectibility, priority or sufficiency of this
Agreement or any other Credit Document or the financial condition of the
Borrowers and their Subsidiaries or be required to make any inquiry concerning
either the performance or observance of any of the terms, provisions or
conditions of this Agreement or any other Credit Document, or the financial
condition of the Borrowers and their Subsidiaries or the existence or possible
existence of any Default or Event of Default.
10.04 Certain Rights of the Agents. If any Agent shall request
instructions from the Required Lenders with respect to any act or action
(including failure to act) in connection with this Agreement or any other Credit
Document, such Agent shall be entitled to refrain from such act or taking such
action unless and until such Agent shall have received instructions from the
Required Lenders; and no Agent shall incur liability to any Person by reason of
so refraining. Without limiting the foregoing, neither any Lender nor the holder
of any Note shall have any right of action whatsoever against an Agent as a
result of such Agent acting or refraining from acting hereunder or under any
other Credit Document in accordance with the instructions of the Required
Lenders.
10.05 Reliance. Each Agent shall be entitled to rely, and shall be fully
protected in relying, upon any note, writing, resolution, notice, statement,
certificate, telex, teletype, facsimile or telecopier message, cablegram,
radiogram, order or other document or telephone message signed, sent or made by
any Person that such Agent believed to be the proper Person, and, with respect
to all legal matters pertaining to this Agreement and any other Credit Document
and its duties hereunder and thereunder, upon advice of counsel selected by such
Agent.
10.06 Indemnification. To the extent an Agent is not reimbursed and
indemnified by the Borrowers, the Lenders will reimburse and indemnify such
Agent, in proportion to their respective "percentages" as used in determining
the Required Lenders, for and against any and all liabilities, obligations,
losses, damages, penalties, claims, actions, judgments,
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costs, expenses or disbursements of whatsoever kind or nature which may be
imposed on, asserted against or incurred by such Agent in performing its
respective duties hereunder or under any other Credit Document, in any way
relating to or arising out of this Agreement or any other Credit Document
provided 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 the gross negligence or willful
misconduct of such Agent.
10.07 The Agents in Their Individual Capacities. With respect to its
obligation to make Loans under this Agreement, each Agent shall have the rights
and powers specified herein for a "Lender" and may exercise the same rights and
powers as though it were not performing the duties specified herein; and the
term "Lenders," "Required Lenders," "holders of Notes" or any similar terms
shall, unless the context clearly otherwise indicates, include the Agents in
their individual capacities. Each Agent may accept deposits from, lend money to,
and generally engage in any kind of banking, trust or other business with any
Borrower or any Affiliate of any Borrower as if they were not performing the
duties specified herein, and may accept fees and other consideration from any
Borrower for services in connection with this Agreement and otherwise without
having to account for the same to the Lenders.
10.08 Holders. The Administrative Agent may deem and treat the payee of
any Note as the owner thereof for all purposes hereof unless and until a written
notice of the assignment, transfer or endorsement thereof, as the case may be,
shall have been filed with the Administrative Agent. Any request, authority or
consent of any Person who, at the time of making such request or giving such
authority or consent, is the holder of any Note shall be conclusive and binding
on any subsequent holder, transferee, assignee or indorsee, as the case may be,
of such Note or of any Note or Notes issued in exchange therefor.
10.09 Resignation by an Agent. (a) The Administrative Agent may resign
from the performance of all its functions and duties hereunder and/or under the
other Credit Documents at any time by giving 15 Business Days' prior written
notice to the Borrowers and the Lenders. Such resignation shall take effect upon
the appointment of a successor Administrative Agent pursuant to clauses (b) and
(c) below or as otherwise provided below. Upon the effectiveness of such
resignation, the resigning Administrative Agent shall return to Parent and/or
Corp. a pro-rated portion of any administrative fee that has been paid in
advance for the period following the effectiveness of its resignation.
(b) Upon any such notice of resignation, the Required Lenders shall
appoint a successor Administrative Agent hereunder who shall be a Lender,
commercial bank or trust company reasonably acceptable to Parent and Corp.
(c) If a successor Administrative Agent shall not have been so appointed
within such 15 Business Day period, the Administrative Agent, with the consent
of Parent and Corp., shall then appoint a successor Administrative Agent who
shall serve as Administrative Agent hereunder until such time, if any, as the
Required Lenders appoint a successor Administrative Agent as provided above.
(d) Each of the Co-Syndication Agents may resign from the performance of
all of its functions and duties hereunder and/or under the other Credit
Documents in such
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capacity at any time by giving five Business Days' prior written notice to the
Lenders. Such resignation shall take effect at the end of such five Business
Days.
10.10 Co-Syndication Agents. Nothing this Agreement shall impose on any
of the Co-Syndication Agents, in their capacity as such, any duties or
obligations.
SECTION 11. Miscellaneous.
11.01 Payment of Expenses, etc. The Borrowers jointly and severally
agree to: (i) pay all reasonable out-of-pocket costs and expenses (1) of the
Administrative Agent in connection with the negotiation, syndication,
preparation, execution and delivery of the Credit Documents and the documents
and instruments referred to therein and any amendment, waiver or consent
relating thereto (including, without limitation, the reasonable fees and
disbursements of White & Case LLP) and (2) of the Agents and each of the Lenders
in connection with the enforcement of the Credit Documents and the documents and
instruments referred to therein (including, without limitation, the reasonable
fees and disbursements of counsel for each Agent and for each of the Lenders);
(ii) pay and hold each of the Agents and Lenders harmless from and against any
and all present and future stamp, VAT and other similar taxes with respect to
the foregoing matters and/or fees and save each of the Lenders harmless from and
against any and all liabilities with respect to or resulting from any delay or
omission (other than to the extent attributable to such Lender) to pay such
taxes; and (iii) indemnify each Lender (including in its capacity as an Agent),
its officers, directors, employees, representatives and agents from and hold
each of them harmless against any and all losses, liabilities, claims, damages
or expenses incurred by any of them as a result of, or arising out of, or in any
way related to, or by reason of, an investigation, litigation or other
proceeding (whether or not an Agent or any Lender is a party thereto and whether
or not any such investigation, litigation or other proceeding is between or
among an Agent, any Lender, or any third Person or otherwise) related to the
entering into and/or performance of any Credit Document or the use of the
proceeds of any Loans hereunder or the consummation of any transactions
contemplated in any Credit Document, and in each case, including, without
limitation, the reasonable fees and disbursements of counsel incurred in
connection with any such investigation, litigation or other proceeding (but
excluding any such losses, liabilities, claims, damages or expenses to the
extent incurred by reason of the gross negligence or willful misconduct of the
Person to be indemnified).
11.02 Lender Enforceability Opinions. Within 45 days following the
Restatement Effective Date, each Lender (other then Existing Lenders) agrees to
deliver to Parent and Corp. an opinion or opinions (as applicable) of counsel to
such Lender (which opinion or opinions may be from internal counsel to such
Lender) substantially in the form of Exhibit J or in such other form as is
reasonably acceptable to Parent and Corp. relating to the enforceability of such
Lender's obligations under the Credit Documents. Upon a Lender first becoming a
party hereunder after the Restatement Effective Date pursuant to Section 1.14,
1.16 or 11.04, such Lender agrees to deliver to Parent and Corp. unless such
opinion has been waived by Parent and Corp. an opinion or opinions (as
applicable) of counsel to such Lender (which opinion or opinions may be from
internal counsel to such Lender) substantially in the form of Exhibit J or in
such other form as is reasonably acceptable to Parent and Corp. relating to the
enforceability of such Lender's obligations under the Credit Documents.
Notwithstanding the foregoing, the failure by a Lender to provide the opinion or
opinions referred to in this Section
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11.02 shall not affect any of the obligations of the Borrowers hereunder or
under the other Credit Documents.
11.03 Notices. Except as otherwise expressly provided herein, all
notices and other communications provided for hereunder shall be in writing
(including telecopier or facsimile) and mailed, telecopied, faxed or delivered,
if to a Borrower, at the address specified opposite its signature below or in
the other relevant Credit Documents, as the case may be; if to any Lender or the
Administrative Agent, at its address specified for such Lender or the
Administrative Agent on Annex II hereto; or, at such other address as shall be
designated by any party in a written notice to the other parties hereto. All
such notices and communications shall be mailed, telecopied or sent by overnight
courier, and shall be effective when received.
11.04 Benefit of Agreement. (a) This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the respective successors and
assigns of the parties hereto, provided that no Borrower may assign or transfer
any of its rights or obligations hereunder without the prior written consent of
the Lenders. Each Lender may at any time grant participations in any of its
rights hereunder or under any of the Notes to any Person, provided that (x) in
the case of any such participation, the participant shall not have any rights
under this Agreement or any of the other Credit Documents (the participant's
rights against such Lender in respect of such participation to be those set
forth in the agreement executed by such Lender in favor of the participant
relating thereto) and all amounts payable by the Borrowers hereunder shall be
determined as if such Lender had not sold such participation, except that the
participant shall be entitled to the benefits of Sections 1.11 and 3.04 of this
Agreement to the extent that such Lender would be entitled to such benefits if
the participation had not been entered into or sold and (y) no Lender shall
transfer, grant or assign any participation under which the participant shall
have rights to approve any amendment to or waiver of this Agreement or any other
Credit Document except to the extent such amendment or waiver would extend the
final scheduled maturity of any Loan or Note in which such participant is
participating, or reduce the rate or extend the time of payment of interest or
Fees thereon (except in connection with a waiver of the applicability of any
post-default increase in interest rates), or reduce the principal amount
thereof, or increase such participant's participating interest in any Commitment
over the amount thereof then in effect (it being understood that a waiver of any
Default or Event of Default or of a mandatory reduction in the Total Commitment,
or a mandatory prepayment, shall not constitute a change in the terms of any
Commitment).
(b) Notwithstanding the foregoing, (x) any Lender may assign all or a
portion of its Commitment and its rights and obligations hereunder to another
Lender (or an Affiliate of such assigning Lender), and (y) with the consent of
the Administrative Agent and, so long as no Default under Section 8.01(a) or
8.01(h) or Event of Default exists, Parent (which consent shall not be
unreasonably withheld), any Lender may assign all or a portion of its Commitment
and its rights and obligations hereunder to one or more Persons. No assignment
pursuant to the immediately preceding sentence by a Lender (or by Lenders which
are Affiliates of each other) shall to the extent such assignment represents an
assignment to an institution other than one or more Lenders hereunder (or to an
Affiliate of an assigning Lender), be in an aggregate amount less than
$10,000,000 unless the entire Commitment of the assigning Lender (or group of
Lenders which are Affiliates) is so assigned. If any Lender so sells or assigns
all or a part of its rights hereunder or under the Notes, any reference in this
Agreement or the Notes to such
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assigning Lender shall thereafter refer to such Lender and to the respective
assignee to the extent of their respective interests and the respective assignee
shall have, to the extent of such assignment (unless otherwise provided
therein), the same rights and benefits as it would if it were such assigning
Lender. Each assignment pursuant to this Section 11.04(b) shall be effected by
the assigning Lender and the assignee Lender executing an Assignment Agreement
(appropriately completed). At the time of any such assignment, (i) either the
assigning or the assignee Lender shall pay to the Administrative Agent a
nonrefundable assignment fee of $3,500, (ii) Annex I shall be deemed to be
amended to reflect the Commitment of the respective assignee (which shall result
in a direct reduction to the Commitment of the assigning Lender) and of the
other Lenders, and (iii) the Borrowers at such time will issue new Notes to the
respective assignee and to the assigning Lender in conformity with the
requirements of Section 1.06. To the extent any assignment pursuant to this
Section 11.04(b) is to a Person which is not already a Lender hereunder and
which is not a United States Person (as such term is defined in Section
7701(a)(30) of the Code) for Federal income tax purposes, the respective
assignee Lender shall provide to Parent and the Administrative Agent the
appropriate Internal Revenue Service Forms (and, if applicable, a Section 3.04
Certificate) described in Section 3.04(b). To the extent that an assignment of
all or any portion of a Lender's Commitments and related outstanding obligations
pursuant to this Section 11.04(b) would, at the time of such assignment, result
in increased costs under Section 1.11 or 3.04 from those being charged by the
respective assigning bank prior to such assignment, then the Borrowers shall not
be obligated to pay such increased costs (although the Borrowers shall be
obligated to pay any other increased costs of the type described above resulting
from changes specified in said Section 1.11 or 3.04 occurring after the date of
the respective assignment). Each Lender and the Borrowers agree to execute such
documents (including without limitation amendments to this Agreement and the
other Credit Documents) as shall be necessary to effect the foregoing. Nothing
in this clause (b) shall prevent or prohibit any Lender from pledging its Notes
or Loans to a Federal Reserve Bank in support of borrowings made by such Lender
from such Federal Reserve Bank.
(c) Notwithstanding any other provisions of this Section 11.04, no
transfer or assignment of the interests or obligations of any Lender hereunder
or any grant of participation therein shall be permitted if such transfer,
assignment or grant would require any Borrower to file a registration statement
with the Securities and Exchange Commission or to qualify the Loans under the
"Blue Sky" laws of any State.
11.05 No Waiver; Remedies Cumulative. No failure or delay on the part of
any Agent or any Lender in exercising any right, power or privilege hereunder or
under any other Credit Document shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, power or privilege hereunder or under
any other Credit Document preclude any other or further exercise thereof or the
exercise of any other right, power or privilege hereunder or thereunder. The
rights and remedies herein expressly provided are cumulative and not exclusive
of any rights or remedies which any Agent or any Lender would otherwise have.
11.06 Payments Pro Rata. (a) The Administrative Agent agrees that
promptly after its receipt of each payment from or on behalf of any Borrower in
respect of any Obligations of such Borrower hereunder, it shall distribute such
payment to the Lenders (other than any Lender that has expressly waived its
right to receive its pro rata share thereof) pro rata based
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upon their respective shares, if any, of the Obligations with respect to which
such payment was received.
(b) Each of the Lenders agrees that, if it should receive any amount
hereunder (whether by voluntary payment, by realization upon security, by the
exercise of the right of setoff or banker's lien, by counterclaim or cross
action, by the enforcement of any right under the Credit Documents, or
otherwise) which is applicable to the payment of the principal of, or interest
on, the Loans or Fees, of a sum which with respect to the related sum or sums
received by other Lenders is in a greater proportion than the total of such
Obligation then owed and due to such Lender bears to the total of such
Obligation then owed and due to all of the Lenders immediately prior to such
receipt, then such Lender receiving such excess payment shall purchase for cash
without recourse or warranty from the other Lenders an interest in the
Obligations of the respective Borrower to such Lenders in such amount as shall
result in a proportional participation by all of the Lenders in such amount,
provided that if all or any portion of such excess amount is thereafter
recovered from such Lender, such purchase shall be rescinded and the purchase
price restored to the extent of such recovery, but without interest.
(c) Notwithstanding anything to the contrary contained herein, the
provisions of the preceding Sections 11.06(a) and (b) shall be subject to the
express provisions of this Agreement which require, or permit, differing
payments to be made to Non-Defaulting Lenders as opposed to Defaulting Lenders.
11.07 Calculations; Computations. (a) The financial statements to be
furnished to the Lenders pursuant hereto shall be made and prepared in
conformity with GAAP or Statutory Accounting Principles, as the case may be,
consistently applied throughout the periods involved (except as set forth in the
notes thereto or as otherwise disclosed in writing by the Borrowers to the
Lenders and with respect to any interim financial statements, subject to changes
resulting from audit and normal year-end audit adjustments), provided that (x)
except as otherwise specifically provided herein, all computations determining
compliance with Sections 7.07 and 7.08, including definitions used therein,
shall utilize accounting principles and policies in effect at the time of the
preparation of, and in conformity with those used to prepare, the December 31,
1997 financial statements delivered to the Lenders pursuant to Section 5.04(a)
and (y) if at any time the computations determining compliance with Sections
7.07 and 7.08 utilize accounting principles different from those utilized in the
financial statements furnished to the Lenders, such financial statements shall
be accompanied by reconciliation work-sheets.
(b) All computations of interest and Fees hereunder shall be made on the
actual number of days elapsed over a year of 360 days (365-366 days for interest
on Base Rate Loans when the Base Rate is based on the Prime Lending Rate).
(c) For purposes of this Agreement, the Dollar Equivalent of each Loan
that is an Alternate Currency Loan shall be calculated on the date when any such
Loan is made, on the second Business Day of each month and at such other times
as designated by the Administrative Agent at any time when a Default or an Event
of Default exists. Such Dollar Equivalent shall remain in effect until the same
is recalculated by the Administrative Agent as provided above and notice of such
recalculation is received by the Borrowers, it being understood that until such
notice is received, the Dollar Equivalent shall be that Dollar Equivalent as
last reported to the
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Borrowers by the Administrative Agent. The Administrative Agent shall promptly
notify the Borrowers and the Lenders of each such determination of the Dollar
Equivalent.
11.08 Governing Law; Submission to Jurisdiction; Venue; Waiver of Jury
Trial. (a) THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE CONSTRUED IN
ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK. Any legal
action or proceeding with respect to this Agreement or any other Credit Document
may be brought in the courts of the State of New York or of the United States
for the Southern District of New York, and, by execution and delivery of this
Agreement, each Borrower hereby irrevocably accepts for itself and in respect of
its property, generally and unconditionally, the jurisdiction of the aforesaid
courts. Each Borrower further irrevocably consents to the service of process out
of any of the aforementioned courts in any such action or proceeding by the
mailing of copies thereof by registered or certified mail, postage prepaid, to
it, to the extent located outside New York City, or by hand, to the extent
located within New York City, at its address for notices pursuant to Section
11.03, such service to become effective 30 days after such mailing. Nothing
herein shall affect the right of any Agent or any Lender to serve process in any
manner permitted by law or to commence legal proceedings or otherwise proceed
against any Borrower in any other jurisdiction.
(b) Each Borrower each hereby irrevocably waives any objection which it
may now or hereafter have to the laying of venue of any of the aforesaid actions
or proceedings arising out of or in connection with this Agreement or any other
Credit Document brought in the courts referred to in clause (a) above and hereby
further irrevocably waives and agrees not to plead or claim in any such court
that any such action or proceeding brought in any such court has been brought in
an inconvenient forum.
(c) Each of the parties to this Agreement hereby irrevocably waives all
right to a trial by jury in any action, proceeding or counterclaim arising out
of or relating to this Agreement, the other Credit Documents or the transactions
contemplated hereby or thereby.
11.09 Counterparts. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A set of counterparts
executed by all the parties hereto shall be lodged with Parent, Corp. and the
Administrative Agent.
11.10 Headings Descriptive. The headings of the several sections and
subsections of this Agreement are inserted for convenience only and shall not in
any way affect the meaning or construction of any provision of this Agreement.
11.11 Amendment or Waiver. Neither this Agreement nor any other Credit
Document nor any terms hereof or thereof may be changed, waived, discharged or
terminated unless such change, waiver, discharge or termination is in writing
signed by the Borrowers and the Required Lenders, provided that no such change,
waiver, discharge or termination shall, without the consent of each Lender
(other than a Defaulting Lender) directly affected thereby, (i) extend the Final
Maturity Date or reduce the rate or extend the time of payment of interest
(other
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than as a result of waiving the applicability of any post-default increase in
interest rates) or Fees or other amounts payable hereunder, or reduce the
principal amount thereof, or increase the Commitment of any Lender over the
amount thereof then in effect (it being understood that a waiver of any Default
or Event of Default or of a mandatory reduction in the Total Commitment shall
not constitute a change in the terms of any Commitment of any Lender), (ii)
amend, modify or waive any provision of this Section 11.11 or of Section
4.02(d), (iii) reduce the percentage specified in, or (except to give effect to
any additional facilities hereunder) otherwise modify, the definition of
Required Lenders, or (iv) consent to the assignment or transfer by any Borrower
of any of its rights and obligations under this Agreement.
11.12 Survival. All indemnities set forth herein including, without
limitation, in Section 1.11, 1.12 or 3.04 shall survive the execution and
delivery of this Agreement and the making and repayment of the Loans.
11.13 Domicile of Loans. Each Lender may transfer and carry its Loans
at, to or for the account of any branch office, Subsidiary or affiliate of such
Lender, provided that the Borrowers shall not be responsible for costs arising
under Section 1.11 or 3.04 resulting from any such transfer (other than a
transfer pursuant to Section 1.13 or 1.14) to the extent not otherwise
applicable to such Lender prior to such transfer.
11.14 Confidentiality. Subject to Section 11.04, the Lenders shall hold
all non-public information obtained pursuant to the requirements of this
Agreement in accordance with its customary procedure for handling confidential
information of this nature and in accordance with safe and sound banking
practices and in any event may make disclosure to its Affiliates, employees,
auditors, advisors or counsel or as reasonably required by any bona fide
transferee or participant in connection with the contemplated transfer of any
Loans or participation therein (so long as such transferee or participant agrees
to be bound by the provisions of this Section 11.14) or as required or requested
by any governmental agency or representative thereof or pursuant to legal
process, provided that, unless specifically prohibited by applicable law or
court order, each Lender shall notify Parent of any request by any governmental
agency or representative thereof (other than any such request in connection with
an examination of the financial condition of such Lender by such governmental
agency) for disclosure of any such non-public information prior to disclosure of
such information, and provided further that in no event shall any Lender be
obligated or required to return any materials furnished by Parent or any of its
Subsidiaries.
11.15 Lender Register. Each Borrower hereby designates the
Administrative Agent to serve as its agent, solely for purposes of this Section
11.15, to maintain a register (the "Lender Register") on which it will record
the Commitments from time to time of each of the Lenders, the Loans made by each
of the Lenders and each repayment in respect of the principal amount of the
Loans of each Lender. Failure to make any such recordation, or any error in such
recordation, shall not affect the Borrowers' obligations in respect of such
Loans. With respect to any Lender, the transfer of the Commitments of such
Lender and the rights to the principal of, and interest on, any Loan made
pursuant to such Commitments shall not be effective until such transfer is
recorded on the Lender Register maintained by the Administrative Agent with
respect to ownership of such Commitments and Loans and prior to such recordation
all amounts owing to the transferor with respect to such Commitments and Loans
shall remain owing to the
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transferor. The registration of assignment or transfer of all or part of any
Commitments and Loans shall be recorded by the Administrative Agent on the
Lender Register only upon the acceptance by the Administrative Agent of a
properly executed and delivered Assignment Agreement pursuant to Section
11.04(b). The Borrowers jointly and severally agree to indemnify the
Administrative Agent from and against any and all losses, claims, damages and
liabilities of whatsoever nature which may be imposed on, asserted against or
incurred by the Administrative Agent in performing its duties under this Section
11.15 other than those resulting from the Administrative Agent's willful
misconduct or gross negligence.
11.16 Judgment Currency. (a) The Borrowers' obligations hereunder and
under the other Credit Documents to make payments in the applicable Approved
Currency or Other Alternate Currency (the "Obligation Currency") shall not be
discharged or satisfied by any tender or recovery pursuant to any judgment
expressed in or converted into any currency other than the Obligation Currency,
except to the extent that such tender or recovery results in the effective
receipt by the Administrative Agent or the respective Lender of the full amount
of the Obligation Currency expressed to be payable to the Administrative Agent
or such Lender under this Agreement or the other Credit Documents. If, for the
purpose of obtaining or enforcing judgment against any Borrowers in any court or
in any jurisdiction, it becomes necessary to convert into or from any currency
other than the Obligation Currency (such other currency being hereinafter
referred to as the "Judgment Currency") an amount due in the Obligation
Currency, the conversion shall be made at the Relevant Currency Equivalent, and,
in the case of other currencies, the rate of exchange (as quoted by the
Administrative Agent or if the Administrative Agent does not quote a rate of
exchange on such currency, by a known dealer in such currency designated by the
Administrative Agent) determined, in each case, as of the Business Day
immediately preceding the day on which the judgment is given (such Business Day
being hereinafter referred to as the "Judgment Currency Conversion Date").
(b) If there is a change in the rate of exchange prevailing between the
Judgment Currency Conversion Date and the date of actual payment of the amount
due, the Borrowers covenant and agree to pay, or cause to be paid, such
additional amounts, if any (but in any event not a lesser amount) as may be
necessary to ensure that the amount paid in the Judgment Currency, when
converted at the rate of exchange prevailing on the date of payment, will
produce the amount of the Obligation Currency which could have been purchased
with the amount of Judgment Currency stipulated in the judgment or judicial
award at the rate of exchange prevailing on the Judgment Currency Conversion
Date.
(c) For purposes of determining the Relevant Currency Equivalent or any
other rate of exchange for this Section, such amounts shall include any premium
and costs payable in connection with the purchase of the Obligation Currency.
11.17 Euro. (a) If at any time that an Alternate Currency Loan is
outstanding, the relevant Alternate Currency is fully replaced as the lawful
currency of the country that issued such Alternate Currency (the "Issuing
Country") by the Euro so that all payments are to be made in the Issuing Country
in Euros and not in the Alternate Currency previously the lawful currency of
such country, then such Alternate Currency Loan shall be automatically converted
into a Loan denominated in Euros in a principal amount equal to the amount of
Euros into which the principal amount of such Alternate Currency Loan would be
converted pursuant to the EMU
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Legislation and thereafter no further Loans will be available in such Alternate
Currency, with the basis of accrual of interest, notices requirements and
payment offices with respect to such converted Loans to be that consistent with
the convention and practices in the London interbank market for Euro denominated
Loans.
(b) The applicable Borrowers shall from time to time, at the request of
any Lender, pay to such Lender the amount of any losses, damages, liabilities,
claims, reduction in yield, additional expense, increased cost, reduction in any
amount payable, reduction in the effective return of its capital, the decrease
or delay in the payment of interest or any other return forgone by such Lender
or its affiliates as a result of the tax or currency exchange resulting from the
introduction, changeover to or operation of the Euro in any applicable nation or
eurocurrency market.
* * *
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IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Agreement to be duly executed and delivered as of the date first above
written.
MBIA Inc. MBIA INC.,
000 Xxxx Xxxxxx as a Xxxxxxxx
Xxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxx Xxxxxx
By /s/ Xxxxxx Xxxxxx
--------------------------------
with a copy to: Title: Treasurer
000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxx X. Xxxxxx
MBIA Insurance Corporation MBIA INSURANCE CORPORATION,
000 Xxxx Xxxxxx as a Xxxxxxxx
Xxxxxx, Xxx Xxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxx Xxxxxx
By /s/ Xxxxxx Xxxxxx
--------------------------------
with a copy to: Title: Treasurer
000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxx X. Xxxxxx
DEUTSCHE BANK AG NEW YORK BRANCH,
Individually and as Administrative Agent
By /s/ Xxxx Xxxxx
----------------------------------------
Title: Director
By /s/ Xxxx X. XxXxxx
----------------------------------------
Title: Director
THE BANK OF NEW YORK
By /s/ Xxxxx Xxxxx
--------------------------------------
Title: Vice President
BANK ONE, NA
By /s/ Xxxxxxxx Xxxxxxx
--------------------------------------
Title: Director
BARCLAYS BANK plc
By /s/ Xxxxxx X. XxXxxxxx
-------------------------------------
Title: Associate Director
FLEET NATIONAL BANK
By /s/ Xxxxxxxx X. Xxxxx
-------------------------------------
Title: Portfolio Manager
JPMORGAN CHASE BANK
By /s/ XxxxXxxx Xxxxxx
-------------------------------------
Title: Vice President
BANK OF AMERICA, N.A.
By /s/ Xxx X. Xxxxxx
-------------------------------------
Title: Managing Director
XXXXX FARGO BANK, N.A.
By /s/ Xxxxxx X. Xxxxx
-------------------------------------
Title: Vice President
By /s/ Xxxx X. XxXxxxxx
-------------------------------------
Title: Vice President
ABN AMRO BANK N.V.
By /s/ Xxxx X. Xxxxx
-------------------------------------
Title: Vice President
By /s/ Xxxxx X. Xxxxxxxx
-------------------------------------
Title: GVP
NATIONAL AUSTRALIA BANK LIMITED ACN004044937
By /s/ Xxxxxxx X. XxXxxx
----------------------------------------
Title: Vice President
NORDDEUTSCHE LANDESBANK
GIROZENTRALE
New York and/or Cayman Islands Branch
By /s/ Xxxxxxxxx Xxxxxx
-------------------------------------
Title: Vice President
By /s/ Xxxxx Xxxxxx
-------------------------------------
Title: Vice President & Manager
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK
INTERNATIONAL", NEW YORK BRANCH
By /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Title: Executive Director
By /s/ Xxx Xxxxx
-------------------------------------
Title: Managing Director
ANNEX I
COMMITMENTS
Lender Commitment
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Deutsche Bank AG, New York Branch and/or Cayman $55,000,000
Islands Branches
-------------------------------------------------------------------------------
The Bank of New York $52,000,000
-------------------------------------------------------------------------------
Bank One, N.A. $52,000,000
-------------------------------------------------------------------------------
Barclays Bank plc $52,000,000
-------------------------------------------------------------------------------
Fleet National Bank $52,000,000
-------------------------------------------------------------------------------
JPMorgan Chase Bank $43,300,000
-------------------------------------------------------------------------------
Bank of America, N. A. $43,300,000
-------------------------------------------------------------------------------
Xxxxx Fargo Bank, N.A. $33,300,000
-------------------------------------------------------------------------------
ABN-AMRO Bank, N.V. $16,700,000
-------------------------------------------------------------------------------
National Australia Bank Limited $16,700,000
-------------------------------------------------------------------------------
Norddeutsche Landesbank Girozentrale, New York and/or $16,700,000
Cayman Islands Branch
-------------------------------------------------------------------------------
Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A., $16,700,000
"Rabobank International", New York Branch
-------------------------------------------------------------------------------
Total $449,700,000
===============================================================================
ANNEX II
LENDER ADDRESSES
Deutsche Bank AG 00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx Branch Xxx Xxxx, XX 00000
Attn.: Xxxx Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
e-mail: xxxx.xxxxx@xx.xxx
---------------------------------------------------------------------------
The Bank of New York Xxx Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
e-mail: xxxxxx@xxxxxxxx.xxx
---------------------------------------------------------------------------
Bank One, N.A. 000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxx Xxxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
e-mail: xxx_xxxxxxxxx@xxxxxxx.xxx
---------------------------------------------------------------------------
Barclays Bank plc 000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
e-mail: xxxxxx.xxxxxxxx@xxxxxx.xxx
---------------------------------------------------------------------------
Fleet National Bank 000 Xxxx Xxxxxx XXXX 0000
Xxxxxxxx, XX 00000-0000
Attn: Xxxxxxxxx X. Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
e-mail: xxxxx_x_xxxxxxxx@xxxxx.xxx
---------------------------------------------------------------------------
ANNEX II
JPMorgan Chase 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxxx Xxxxxx
Tel:: (000) 000-0000
Fax: (000) 000-0000
e-mail: xxxxxxxx.xxxxxx@xxxxx.xxx
--------------------------------------------------------------------------------
Bank of America, N.A. 000 Xxxx Xxxxxx
00xx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxx X'Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
e-mail: xxxx.xxxxxx@xxxxxxxxxxxxx.xxx
with a copy to:
000 Xxxx Xxxxxx
00xx Xxxxx
Xxxxxx, XX 00000
Attn: Xxx Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
e-mail: xxx.x.xxxxxx@xxxxxxxxxxxxx.xxx
--------------------------------------------------------------------------------
Xxxxx Fargo Bank, N.A. 000 X. Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
e-mail: xxxxxxx@xxxxxxxxxx.xxx
--------------------------------------------------------------------------------
ABN AMRO Bank, N.V. 00 Xxxx 00xx Xxxxxx
Xxx Xxxx XX 00000
Attn: Xxxx Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
e-mail: xxxx.xxxxx@xxxxxxx.xxx
--------------------------------------------------------------------------------
ANNEX II
National Australia Bank Limited, 000 Xxxx Xxxxxx, Xxxxx 00
Xxx Xxxx Branch ACN 004044937 Xxx Xxxx, XX 00000
Attn: Xxxx XxXxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
e-mail: xxxxxxx@xxxxx.xxx
--------------------------------------------------------------------------------
Norddeutsche Landesbank Girozentrale, 1114 Avenue of the Americas
New York Branch and/or Xxxxxx Xxxxxxx Xxx Xxxx, XX 00000
Branch Attn: Xxxxx Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
e-mail: xxxxx.xxxxxx@xxxxxx.xxx
--------------------------------------------------------------------------------
Rabobank International 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
e-mail: x.x.xxxxxx@xxx.xxxxxxxx.xxx
--------------------------------------------------------------------------------
ANNEX III
SUBSIDIARIES OF MBIA INC.
NAME OF SUBSIDIARY JURISDICTION OF
INCORPORATION
--------------------------------------------------------------------------------
MBIA INSURANCE CORPORATION NEW YORK
--------------------------------------------------------------------------------
MUNICIPAL ISSUERS SERVICE CORPORATION NEW YORK
--------------------------------------------------------------------------------
MBIA INSURANCE CORP. OF ILLINOIS ILLINOIS
--------------------------------------------------------------------------------
MBIA ASSET MANAGEMENT, LLC DELAWARE
--------------------------------------------------------------------------------
MBIA MUNICIPAL INVESTORS SERVICE CORPORATION DELAWARE
--------------------------------------------------------------------------------
COLORADO INVESTOR SERVICES CORPORTION COLORADO
--------------------------------------------------------------------------------
MBIA INVESTMENT MANAGEMENT CORP. DELAWARE
--------------------------------------------------------------------------------
MBIA CAPITAL MANAGEMENT CORP. DELAWARE
--------------------------------------------------------------------------------
1838 INVESTMENT ADVISORS, INC. DELAWARE
--------------------------------------------------------------------------------
1838 DELAWARE HOLDING, LLC DELAWARE
--------------------------------------------------------------------------------
MBIA & ASSOCIATES CONSULTING, INC. DELAWARE
--------------------------------------------------------------------------------
MBIA CAPITAL CORP. DELAWARE
--------------------------------------------------------------------------------
MBIA INTERNATIONAL MARKETING SERVICES, XXX.XXXXXXX AUSTRALIA
--------------------------------------------------------------------------------
MBIA ASSURANCE S.A. FRANCE
--------------------------------------------------------------------------------
MBIA SINGAPORE PTE LTD SINGAPORE
--------------------------------------------------------------------------------
MBIA SERVICES COMPANY DELAWARE
--------------------------------------------------------------------------------
MBIA MUNISERVICES COMPANY DELAWARE
--------------------------------------------------------------------------------
MUNICIPAL TAX COLLECTION BUREAU, INC. PENNSYLVANIA
--------------------------------------------------------------------------------
XXXX X. XXXXXX, INC. CALIFORNIA
--------------------------------------------------------------------------------
XXXXX X. XXXXXXX, INC. CALIFORNIA
--------------------------------------------------------------------------------
MUNICIPAL RESOURCE CONSULTANTS CALIFORNIA
--------------------------------------------------------------------------------
MUNI RESOURCES, LLC DELAWARE
--------------------------------------------------------------------------------
CAPITAL ASSET HOLDINGS GP, INC. FLORIDA
--------------------------------------------------------------------------------
CAPMAC HOLDINGS INC DELAWARE
--------------------------------------------------------------------------------
CAPITAL MARKETS ASSURANCE CORPORATION NEW YORK
--------------------------------------------------------------------------------
CAPMAC INVESTMENT MANAGEMENT, INC. DELAWARE
--------------------------------------------------------------------------------
CAPMAC FINANCIAL SERVICES, INC. DELAWARE
--------------------------------------------------------------------------------
CAPMAC FINANCIAL SERVICES (EUROPE) LTD. UNITED KINGDOM
--------------------------------------------------------------------------------
CAPMAC ASIA LTD BERMUDA
--------------------------------------------------------------------------------
