EXHIBIT 10.1
EXECUTION COPY
U.S. $3,500,000,000
364-DAY AUCTION BID ADVANCE AND REVOLVING
CREDIT FACILITY AGREEMENT
Dated as of May 25, 2001
Among
CREDIT SUISSE FIRST BOSTON, INC.,
and
CREDIT SUISSE FIRST BOSTON (USA), INC.
as Borrowers,
and
THE BANKS NAMED HEREIN,
as Banks,
and
THE CHASE MANHATTAN BANK,
as Administrative Agent,
and
THE BANK OF NEW YORK,
BANK ONE, NA (MAIN OFFICE CHICAGO),
CITIBANK, N.A. and
DEUTSCHE BANK AG, New York Branch and/or Cayman Islands Branch,
as Syndication Agents
-----------------------------
X.X. XXXXXX SECURITIES INC.,
as Sole Arranger, Sole Advisor and Sole Bookrunner
T A B L E O F C O N T E N T S
Page
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ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms...........................................1
SECTION 1.02. Computation of Time Periods....................................11
SECTION 1.03. Accounting Terms...............................................12
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Advances...................................................12
SECTION 2.02. Revolving Credit and Swing Line Borrowing Procedures...........17
SECTION 2.03. General Provisions Relating to Advances........................18
SECTION 2.04. Fees...........................................................19
SECTION 2.05. Termination or Reduction of the Facility.......................19
SECTION 2.06. Repayment of Advances..........................................20
SECTION 2.07. Interest.......................................................21
SECTION 2.08. Additional Interest on Eurodollar Rate Advances................22
SECTION 2.09. Interest Rate Determination....................................22
SECTION 2.10. Prepayments....................................................22
SECTION 2.11. Increased Costs................................................22
SECTION 2.12. Illegality.....................................................23
SECTION 2.13. Payments and Computations......................................24
SECTION 2.14. Taxes..........................................................25
SECTION 2.15. Sharing of Payments, Etc.......................................27
SECTION 2.16. Substitution of Lenders........................................27
SECTION 2.17. Use of Proceeds................................................28
SECTION 2.18. Extension of Termination Date and Maturity Date................28
SECTION 2.19. Conversion and Continuation of Revolving Credit Borrowings.....29
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. Conditions of Effectiveness....................................30
SECTION 3.02. Conditions Precedent to Each Borrowing.........................31
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrowers................32
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ARTICLE V
COVENANTS OF THE BORROWERS
SECTION 5.01. Affirmative Covenants..........................................34
SECTION 5.02. Negative Covenants.............................................38
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default..............................................40
ARTICLE VII
THE ADMINISTRATIVE AGENT
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc................................................45
SECTION 8.02. Notices, Etc...................................................45
SECTION 8.03. No Waiver; Remedies............................................45
SECTION 8.04. Costs, Expenses and Taxes......................................46
SECTION 8.05. Right of Set-Off...............................................47
SECTION 8.06. Binding Effect.................................................47
SECTION 8.07. Assignments and Participations.................................47
SECTION 8.08. Confidentiality................................................50
SECTION 8.09. Parity.........................................................51
SECTION 8.10. Survival.......................................................51
SECTION 8.11. Governing Law..................................................51
SECTION 8.12. Execution in Counterparts......................................51
SECTION 8.13. Currency Indemnity.............................................51
SECTION 8.14. Waiver Under Existing Credit Agreements........................52
SECTION 8.15. WAIVER OF JURY TRIAL...........................................52
SECTION 8.16. Jurisdiction; Consent To Service of Process....................52
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SCHEDULES AND EXHIBITS
Schedule 1 Lending Offices
Schedule 2.01 Lenders and Commitments
Exhibit A-1 Auction Bid Request
Exhibit A-2 Notice of Auction Bid Request
Exhibit A-3 Auction Bid
Exhibit A-4 Auction Bid Accept Letter
Exhibit B-1 Revolving Credit Borrowing Request
Exhibit B-2 Swing Line Borrowing Request
Exhibit C Request of Extension
Exhibit D-1 Opinion of Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Exhibit D-2 Opinion of Xxxxxx X. XxXxxxxxxx, Esq., General Counsel of the
Borrowers
Exhibit D-3 Opinion of Xxxxxxxx Xxxxx & Xxxx
Exhibit E Assignment and Acceptance
Exhibit F Guarantee Agreement
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U.S. $3,500,000,000 364-DAY
AUCTION BID ADVANCE AND REVOLVING
CREDIT FACILITY AGREEMENT
DATED AS OF MAY 25, 2001
CREDIT SUISSE FIRST BOSTON, INC., a Delaware corporation
("CSFB Inc."), CREDIT SUISSE FIRST BOSTON (USA), INC., a Delaware corporation
("CSFB (USA)" and, together with CSFB Inc., the "Borrowers"), the banks (the
"Banks") listed on Schedule 2.01 hereof, THE CHASE MANHATTAN BANK ("Chase"), as
administrative agent for the Lenders and the Swing Line Banks hereunder (the
"Administrative Agent") and THE BANK OF NEW YORK, BANK ONE, NA (MAIN OFFICE
CHICAGO), CITIBANK, N.A. and DEUTSCHE BANK AG, New York Branch and/or Cayman
Islands Branch, as syndication agents (collectively, the "Syndication Agents"),
agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. CERTAIN DEFINED TERMS. As used in this
Agreement, the following terms shall have the following meanings (such meanings
to be equally applicable to both the singular and plural forms of the terms
defined):
"ADVANCE" means an advance by a Lender to a Borrower pursuant
to Section 2.01 and shall include Revolving Credit Advances, Swing Line
Advances and Auction Bid Advances.
"AFFILIATE" means, as to any Person, any other Person that,
directly or indirectly, Controls, is Controlled by or is under common
Control with such Person or is a director or officer of such Person.
"AGGREGATE DEBIT ITEMS" means all those items listed as debit
items in Exhibit A to Rule 15c3-3, adopted by the Commission under the
Securities Exchange Act of 1934, as amended from time to time.
"APPLICABLE LENDING OFFICE" means, with respect to each
Lender, such Lender's Domestic Lending Office in the case of a Base
Rate Advance and such Lender's Eurodollar Lending Office in the case of
a Eurodollar Rate Advance.
"APPLICABLE RATE" means, for any day, with respect to any
Eurodollar Rate Advance, or with respect to the facility fees or
utilization fees payable hereunder, as the case may be, the applicable
rate per annum set forth below under the caption "Eurodollar Spread
prior to Termination Date" (in the case of any Eurodollar Rate Advance
to a Borrower outstanding prior to the earlier of the Termination Date
and the date on which the obligations of the Lenders to make Advances
to such Borrower are terminated pursuant to Article VI), "Eurodollar
Spread on and after Termination Date" (in the case of any Eurodollar
Rate Advance outstanding on or at any time after the earlier of the
Termination Date and the date on which the obligations of the Lenders
to make Advances to such Borrower are terminated pursuant to Article
VI), "Facility Fee Rate" (in the case of any facility fee payable
pursuant to clause (a) of Section 2.04) or "Utilization Fee Rate" (in
the case of any utilization fee payable pursuant to clause (c) of
Section 2.04), as the case may be, based upon the ratings by S&P and
Moody's, respectively, applicable on such date to the Index Debt:
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======================================================================================================
EURODOLLAR EURODOLLAR
SPREAD SPREAD FACILITY
PRIOR TO ON AND AFTER FEE UTILIZATION
INDEX DEBT RATINGS: TERMINATION DATE TERMINATION DATE RATE FEE RATE
------------------------------------------------------------------------------------------------------
Category 1 A/A2 or better .235% .500% .090% .050%
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Category 2 X-,XXXx, XXX/X0, Xxx0, Xxx0 .325% .525% .125% .075%
------------------------------------------------------------------------------------------------------
Category 3 BBB-/Baa3 or below .450% .750% .175% .125%
======================================================================================================
For purposes of the foregoing, (i) if either S&P or Moody's
shall not have in effect a rating for the Index Debt (other than by
reason of the circumstances referred to in the last sentence of this
definition), then the Borrowers and the Lenders shall negotiate in good
faith to select a substitute rating agency and during such negotiations
the ratings with respect to the Index Debt shall be deemed to be equal
to the available remaining rating; (ii) if both S&P and Moody's shall
not have in effect a rating for the Index Debt (other than by reason of
the circumstances referred to in the last sentence of this definition),
then such rating agencies shall be deemed to have established ratings
in Category 3; (iii) if the ratings established or deemed to have been
established by S&P and Moody's for the Index Debt shall fall within
different Categories, the ratings with respect to the Index Debt shall
be deemed to be (A) the higher of the two ratings so long as the two
ratings are adjacent and (B) the rating that is one rating higher than
the lower of the two ratings so long as the two ratings are not
adjacent; and (iv) if the ratings established or deemed to have been
established by S&P and Moody's for the Index Debt shall be changed
(other than as a result of a change in the rating system of S&P or
Moody's), such change shall be effective as of the date on which it is
first announced by the applicable rating agency. Each change in the
Applicable Rate shall apply during the period commencing on the
effective date of such change and ending on the date immediately
preceding the effective date of the next such change. If the rating
system of S&P or Moody's shall change, or if either such rating agency
shall cease to be in the business of rating corporate debt obligations,
the Borrowers and the Lenders shall negotiate in good faith to amend
this definition to reflect such changed rating system or the
unavailability of ratings from such rating agency and, pending the
effectiveness of any such amendment, the Applicable Rate shall be
determined by reference to the rating of such rating agency most
recently in effect prior to such change or cessation and the rating of
the other rating agency.
"APPROPRIATE LENDER" means (a) as to the Facility, a Lender
that has a Commitment for a portion of, or an Advance under, the
Facility, (b) as to the Swing Line Advances, a Swing Line Bank or (c)
as to the Auction Bid Advances, any Lender making an Auction Bid
Advance.
"ASSIGNMENT AND ACCEPTANCE" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by the
Administrative Agent, in substantially the form of Exhibit E hereto.
"AUCTION BID" means an offer by a Lender to make an Auction
Bid Advance pursuant to Section 2.01(c).
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"AUCTION BID ACCEPT LETTER" means a notification made by a
Borrower pursuant to Section 2.01(c)(iv) in the Form of Exhibit A-4.
"AUCTION BID ADVANCE" means an Advance by a Lender to a
Borrower as part of an Auction Bid Borrowing resulting from the auction
bidding procedure described in Section 2.01(c).
"AUCTION BID BORROWING" means a Borrowing consisting of
simultaneous Auction Bid Advances from each of the Lenders whose offer
to make one or more Auction Bid Advances as part of such Borrowing has
been accepted by a Borrower under the auction bidding procedure
described in Section 2.01(c).
"AUCTION BID RATE" means, as to any Auction Bid made by a
Lender pursuant to Section 2.01(c)(ii), (x) in the case of a Eurodollar
Auction Bid Advance, the Margin, and (y) in the case of a Fixed Rate
Advance, the fixed rate of interest offered by the Lender making such
Auction Bid.
"AUCTION BID REQUEST" means a request made pursuant to Section
2.01(c) in the form of Exhibit A-1.
"BASE RATE" means, for any period, a fluctuating interest rate
per annum as shall be in effect from time to time which rate per annum
shall at all times be equal to the higher of:
(a) the Prime Rate; or
(b) 1/2 of one percent per annum above the Federal
Funds Rate.
"BASE RATE ADVANCE" means an Advance which bears interest as
provided in Section 2.07(a)(i).
"BHCA" has the meaning specified in Section 5.02(c).
"BORROWING" means a borrowing initially consisting of Advances
of the same Type made on the same day by a Lender or Lenders to a
Borrower pursuant to Article II. Types of Borrowings may be referred to
herein as "Base Rate Borrowings", "Eurodollar Rate Borrowings" or
"Fixed Rate Borrowings".
"BUSINESS DAY" means a day of the year on which banks are not
required or authorized to close in New York City and, if the applicable
Business Day relates to any Eurodollar Rate Advances, on which dealings
are carried on in the London interbank market.
"COMMISSION" means the U.S. Securities and Exchange Commission
or any other regulatory body which succeeds to the functions of the
U.S. Securities and Exchange Commission.
"COMMITMENT" has the meaning specified in Section 2.01(a). On
the Effective Date, the aggregate Commitments equal $3,500,000,000.
"CONFIDENTIAL INFORMATION" means information that the
Borrowers furnish to the Administrative Agent, the Syndication Agents,
any Swing Line
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Bank or any Lender and designate in writing to be confidential, but
does not include any such information that is or becomes generally
available to the public or that is or becomes available to the
Administrative Agent, the Syndication Agents, such Swing Line Bank or
such Lender from a source other than the Borrowers.
"CONTROL" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of
a Person, whether through the ownership of voting securities, by
contract or otherwise, and "Controlling" and "Controlled" shall have
meanings correlative thereto.
"CREDIT SUISSE GROUP" means Credit Suisse Group, a corporation
with limited liability organized under the laws of Switzerland.
"CSFB" means Credit Suisse First Boston, a Swiss bank.
"CSFB BROKER-DEALER" means Credit Suisse First Boston
Corporation, a Massachusetts corporation and an indirectly wholly owned
Subsidiary of CSFB, Inc., and each other Subsidiary of CSFB Inc. that
is a U.S. registered broker-dealer.
"CSFB INC. EVENT OF DEFAULT" means (a) any Event of Default
referred to in (i) clause (a) of Section 6.01 which is attributable to
any failure of CSFB Inc. to make a payment referred to therein, (ii)
clause (b) of Section 6.01 which is attributable to any representation
or warranty made by CSFB Inc. or the Guarantor or (iii) clause (c) of
Section 6.01 which is attributable to any failure by CSFB Inc. or the
Guarantor to observe or perform any term, covenant or agreement
referred to therein and (b) any Event of Default referred to in clause
(d) through (o), inclusive, of Section 6.01. A CSFB Inc.
Event of Default may also constitute a CSFB (USA) Event of Default.
"CSFB (USA) EVENT OF DEFAULT" means (a) any Event of Default
referred to in (i) clause (a) of Section 6.01 which is attributable to
any failure of CSFB (USA) to make a payment referred to therein, (ii)
clause (b) of Section 6.01 which is attributable to any representation
or warranty made by CSFB (USA) or the Guarantor or (iii) clause (c) of
Section 6.01 which is attributable to any failure by CSFB (USA) or the
Guarantor to observe or perform any term, covenant or agreement
referred to therein and (b) any Event of Default referred to in clause
(d) through (o), inclusive, of Section 6.01. A CSFB (USA) Event of
Default may also constitute a CSFB Inc. Event of Default.
"DEBT" of any Person means (i) all indebtedness 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, (iv) all obligations of such Person as lessee
under leases which shall have been or should be, in accordance with
generally accepted accounting principles, recorded as capital leases,
(v) all amounts available to be drawn, and the amount of all unpaid
drawings, under letters of credit issued for the account of such
Person, and (vi) all obligations of such Person under direct or
indirect guaranties in respect of, and obligations (contingent or
otherwise) to purchase or otherwise acquire, or otherwise to assure a
creditor against loss in respect
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of, indebtedness or obligations of others of the kinds referred to
in clauses (i) through (v) above.
"DEFAULT" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both
"DOLLARS" or "$" shall mean lawful money of the United States
of America.
"DOMESTIC LENDING OFFICE" means, with respect to any Lender,
the office of such Lender specified as its "Domestic Lending Office"
opposite its name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Lender, or such other office
of such Lender as such Lender may from time to time specify to the
Borrowers and the Administrative Agent.
"EFFECTIVE DATE" means the date on which this Agreement
becomes effective pursuant to Section 3.01.
"ELIGIBLE ASSIGNEE" means (i) a commercial bank organized or
licensed under the laws of the United States, or any State thereof, and
having total assets in excess of $2,000,000,000; (ii) a savings and
loan association or savings bank organized under the laws of the United
States, or any State thereof, and having total assets in excess of
$2,000,000,000; (iii) a commercial bank organized under the laws of any
other country, or a political subdivision of any such country, having
total assets in excess of $2,000,000,000; (iv) the central bank of any
country; (v) a finance company, insurance company or other financial
institution or fund (whether a corporation, partnership or other
entity) which is engaged in making, purchasing or otherwise investing
in commercial loans in the ordinary course of its business, and having
total assets in excess of $1,000,000,000; (vi) any Lender; (vii) an
Affiliate of any Lender; and (viii) any special purpose corporation
organized under the laws of the United States or any State thereof
which is (A) engaged in making, purchasing or otherwise investing in
commercial loans in the ordinary course of its business and that issues
(or the parent of which issues) commercial paper rated at least
"Prime-1" by Moody's or "A-1" by S&P or a comparable rating from the
successor or either of them and (B) advised by any Lender which is a
banking institution.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"ERISA AFFILIATE" means any Person who for purposes of Title
IV of ERISA is a member of a Borrower's controlled group, or under
common control with a Borrower, within the meaning of Section 414 of
the Internal Revenue Code of 1986, as amended from time to time.
"ERISA EVENT" means (i) the occurrence with respect to a Plan
of a Borrower or any of its ERISA Affiliates of a reportable event,
within the meaning of Section 4043 of ERISA, unless the 30-day notice
requirement with respect thereto has been waived by the PBGC; (ii) the
provision by the administrator of any Plan of a Borrower or any of its
ERISA Affiliates of a notice of intent to terminate such Plan under a
distress termination, pursuant to
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Section 4041(c) of ERISA (including any such notice with respect to a
plan amendment referred to in Section 4041(e) of ERISA which would be
deemed to be, or result in, a distress termination); (iii) the
cessation of operations at a facility of a Borrower or any of its ERISA
Affiliates in the circumstances described in Section 4062(e) of ERISA;
(iv) the withdrawal by a Borrower or any of its ERISA Affiliates from a
Multiple Employer Plan during a plan year for which it was a
substantial employer, as defined in Section 4001(a)(2) of ERISA; (v)
the conditions set forth in Section 302(f)(1)(A) and (B) of ERISA to
the creation of a lien upon property or rights to property of a
Borrower or any of its ERISA Affiliates for failure to make a required
payment to a Plan are satisfied; (vi) the adoption of an amendment to a
Plan of a Borrower or any of its ERISA Affiliates requiring the
provision of security to such Plan, pursuant to Section 307 of ERISA;
or (vii) the occurrence of any event or condition described in Section
4042(a)(1), (2) or (3) of ERISA that constitutes grounds for the
termination of, or the appointment of a trustee to administer, a Plan
of a Borrower or any of its ERISA Affiliates.
"EUROCURRENCY LIABILITIES" has the meaning assigned to that
term in Regulation D of the Board of Governors of the Federal Reserve
System, as in effect from time to time.
"EURODOLLAR LENDING OFFICE" means, with respect to any Lender,
the office of such Lender specified as its "Eurodollar Lending Office"
opposite its name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Lender (or, if no such office
is specified, its Domestic Lending Office), or such other office of
such Lender as such Lender may from time to time specify to the
Borrowers and the Administrative Agent.
"EURODOLLAR RATE" means, with respect to any Eurodollar Rate
Borrowing for any Interest Period, (i) the interest rate per annum for
deposits in U.S. dollars for a maturity most nearly comparable to such
Interest Period which appears on page 3750 (or any successor page) of
the Dow Xxxxx Market Service as of 11:00 a.m., London time, on the day
that is two Business Days prior to the first day of such Interest
Period, or if such a rate does not appear on page 3750 (or any
successor page) of the Dow Xxxxx Market Service, (ii) an interest rate
per annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal
to the rate at which dollar deposits approximately equal in principal
amount to (a) in the case of a Revolving Credit Borrowing, Chase's
portion of such Eurodollar Rate Borrowing and (b) in the case of an
Auction Bid Borrowing, a principal amount that would have been Chase's
portion of such Eurodollar Rate Borrowing had such Auction Bid
Borrowing been a Revolving Credit Borrowing, and for a maturity
comparable to such Interest Period are offered to the principal London
office of Chase in immediately available funds in the London interbank
market at approximately 11:00 a.m., London time, two Business Days
prior to the commencement of such Interest Period.
"EURODOLLAR RATE ADVANCE" means an Advance which bears
interest as provided in Section 2.07(a)(ii).
"EURODOLLAR RATE RESERVE PERCENTAGE" of any Lender for the
Interest Period for any Eurodollar Rate Advance means the reserve
percentage applicable during such Interest Period (or if more than one
such percentage shall be so applicable, the daily average of such
percentages for those days in
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such Interest Period during which any such percentage shall be so
applicable) under regulations issued from time to time by the Board of
Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including, without
limitation, any emergency, supplemental or other marginal reserve
requirement) for such Lender with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities having a term equal
to such Interest Period.
"EVENTS OF DEFAULT" has the meaning specified in Section 6.01.
"EXISTING CREDIT AGREEMENTS" means (i) the U.S. $1,495,000,000
364-Day Auction Bid Advance and Revolving Credit Facility Agreement
dated as of June 30, 2000, among CSFB Inc., Credit Suisse First Boston
International (Guernsey) Ltd., various lenders party thereto, and
Chase, as Administrative Agent and (ii) the Third Amended and Restated
Credit Agreement dated as of May 26, 2000, among Xxxxxxxxx, Xxxxxx &
Xxxxxxxx, Inc., Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation,
various lenders party thereto, and Chase, as Administrative Agent .
"FACILITY" means the aggregate of the Commitments of all
Lenders without taking into account any utilization or deemed
utilization of the Commitments.
"FACILITY USAGE" means, at any time, the sum of the amount of
Advances outstanding at such time.
"FEDERAL BANKRUPTCY CODE" means the Bankruptcy Reform Act of
1978, as amended from time to time.
"FEDERAL FUNDS RATE" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the
weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds
brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day 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 it.
"FIXED RATE" means, for the period for each Fixed Rate Advance
comprising part of the same Auction Bid Borrowing, the fixed interest
rate per annum determined for such Advance, as provided in Section
2.01(c).
"FIXED RATE ADVANCE" means an Auction Bid Advance that bears
interest at a fixed rate per annum determined as provided in Section
2.01(c).
"FOCUS REPORT" means the Financial and Operational Combined
Uniform Single Report required to be filed with the Commission or the
NYSE on a monthly and quarterly basis or any report which is required
in lieu of such report.
"GAAP" means generally accepted accounting principles in the
United States of America.
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"GUARANTEE" means the Guarantee Agreement in the form of
Exhibit F hereto between Credit Suisse Group and Chase, as
Administrative Agent on behalf of the Beneficiaries (as defined
therein).
"GUARANTOR" means Credit Suisse Group.
"IBA" has the meaning specified in Section 5.02(c).
"INDEX DEBT" means senior, unsecured long-term indebtedness
for borrowed money of the Guarantor that is not guaranteed by any other
Person or subject to any other credit enhancement.
"INSUFFICIENCY" means, with respect to any Plan, the amount of
"unfunded benefit liabilities" (as defined in Section 4001(a)(18) of
ERISA), if any, for such Plan.
"INTEREST PERIOD" means, for each Advance comprising part of
the same Borrowing, the period commencing on the date of such Advance
(or the last day of the immediately preceding Interest Period
applicable to such Borrowing, as the case may be) and ending on the
last day of the period selected by the applicable Borrower pursuant to
the provisions below. The duration of each such Interest Period shall
be (a) in the case of a Base Rate Advance which is a Swing Line Advance
other than an Unrefunded Swing Line Advance, five Business Days, and in
the case of all other Base Rate Advances, 1, 2, 3 or 6 months, (b) in
the case of a Eurodollar Rate Advance, 1, 2, 3 or 6 months, and (c) in
the case of a Fixed Rate Advance, any period of not fewer than seven
and not more than 360 days, in each case as the applicable Borrower may
select pursuant to notice given in accordance with Section 2.01(c),
2.02(a), 2.02(b) or 2.19, as the case may be; PROVIDED, HOWEVER, that:
(i) the duration of any Interest Period for an
Auction Bid Advance or a Swing Line Advance which commences
before the Termination Date and would otherwise end after the
Termination Date shall end on the Termination Date;
(ii) the duration of the Interest Period for any
Advance which commences before the Maturity Date and would
otherwise end after the Maturity Date shall end on the
Maturity Date;
(iii) Interest Periods commencing on the same date
for Advances comprising part of the same Borrowing shall be of
the same duration; and
(iv) whenever the last day of any Interest Period
would otherwise occur on a day other than a Business Day, the
last day of such Interest Period shall be extended to occur on
the next succeeding Business Day, PROVIDED, in the case of any
Interest Period for a Eurodollar Rate Advance, that if such
extension would cause the last day of such Interest Period to
occur in the next following calendar month, the last day of
such Interest Period shall occur on the next preceding
Business Day.
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"LENDER AFFILIATE" means, (a) with respect to any Lender, (i)
an Affiliate of such Lender or (ii) any entity (whether a corporation,
partnership, trust or otherwise) that is engaged in making, purchasing,
holding or otherwise investing in bank loans and similar extensions of
credit in the ordinary course of its business and is administered or
managed by a Lender or an Affiliate of such Lender and (b) with respect
to any Lender that is a fund which invests in bank loans and similar
extensions of credit, any other fund that invests in bank loans and
similar extensions of credit and is managed by the same investment
advisor as such Lender or by an Affiliate of such investment advisor.
"LENDERS" means the Banks listed on Schedule 2.01 hereof and
each Eligible Assignee that shall become a party hereto pursuant to
Section 8.07(a), (b) and (c).
"LIEN" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement.
"MAJORITY LENDERS" means at any time Lenders having
Commitments representing at least 51% of the aggregate Commitments (or
the aggregate Advances, if the Commitments have been terminated) or,
for purposes of actions taken to accelerate Advances under Article VI,
Lenders holding Advances representing at least 51% of the aggregate
principal amount of the Advances outstanding.
"MARGIN" means, as to any Eurodollar Auction Bid Advance, the
margin (expressed as a percentage rate per annum in the form of a
decimal to no more than four decimal places) to be added to or
subtracted from the Eurodollar Rate in order to determine the interest
rate applicable to such Auction Bid Advance, as specified in the
Auction Bid relating thereto.
"MATURITY DATE" means, subject to the terms of Section 2.18,
May 24, 2003.
"MOODY'S" means Xxxxx'x Investors Service, Inc.
"MULTIEMPLOYER PLAN" means a "multiemployer plan", as defined
in Section 4001(a)(3) of ERISA, to which a Borrower or any of its ERISA
Affiliates is making or accruing an obligation to make contributions,
or has within any of the preceding five plan years made or accrued an
obligation to make contributions, such plan being maintained pursuant
to one or more collective bargaining agreements.
"MULTIPLE EMPLOYER PLAN" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (i) is maintained for
employees of a Borrower or any of its ERISA Affiliates and at least one
Person other than such Borrower and its ERISA Affiliates or (ii) was so
maintained and in respect of which such Borrower or any of its ERISA
Affiliates could have liability under Section 4064 or 4069 of ERISA in
the event such plan has been or were to be terminated.
"NASD" means the National Association of Securities Dealers,
Inc., or any other self-regulatory organization which succeeds to the
functions of the National Association of Securities Dealers, Inc.
10
"NET ASSETS" means, with respect to any Person, the excess (if
positive) of (i) such Person's consolidated assets over (ii) such
Person's consolidated liabilities, each case determined in accordance
with GAAP.
"NET CAPITAL RULE" means Rule 15c3-1, adopted by the
Commission under the Securities Exchange Act of 1934, as amended from
time to time.
"NOTICE OF BORROWING" has the meaning specified in Section
2.02(a).
"NOTICE OF SWING LINE BORROWING" has the meaning specified in
Section 2.02(b).
"NYSE" means the New York Stock Exchange, Inc.
"OTHER TAXES" has the meaning specified in Section 2.14(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any
successor corporation thereto.
"PERSON" means an individual, partnership, corporation
(including a business trust), joint stock company, trust,
unincorporated association, joint venture or other entity, or a
government or any political subdivision or agency thereof.
"PLAN" means a Single Employer Plan or a Multiple Employer
Plan subject to Title IV of ERISA.
"PRIME RATE" means the prime commercial lending rate as
publicly announced by Chase in New York City to be in effect, from time
to time, as Chase's prime rate. The Prime Rate is a reference rate and
does not necessarily represent the lowest or best rate actually charged
to any customer.
"PRINCIPAL SUBSIDIARY" means each CSFB Broker-Dealer and each
other Subsidiary of CSFB Inc. the Net Assets of which constitute, as of
the last day of the most recently ended fiscal quarter of the
Borrowers, 5% or more of the consolidated Net Assets of CSFB Inc.
"REGISTER" has the meaning specified in Section 8.07(d).
"REVOLVING CREDIT ADVANCE" means an Advance by a Lender to a
Borrower as part of a Revolving Credit Borrowing pursuant to Section
2.01(a).
"REVOLVING CREDIT BORROWING" means a Borrowing consisting of
simultaneous Revolving Credit Advances made by the Lenders to a
Borrower pursuant to Section 2.01(a).
"S&P" means Standard and Poor's Ratings Services, a division
of the XxXxxx-Xxxx Companies, Inc.
"SIMILAR CREDIT AGREEMENT" has the meaning specified in
Section 8.09.
"SINGLE EMPLOYER PLAN" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (i) is maintained for
employees of a Borrower or any of its ERISA Affiliates and no Person
other than such
11
Borrower or any of its ERISA Affiliates or (ii) was so maintained and
in respect of which such Borrower or any of its ERISA Affiliates could
have liability under Section 4069 of ERISA in the event such plan has
been or were to be terminated.
"SIPA" means the Securities Investor Protection Act of 1970,
as amended from time to time.
"SIPC" means the Securities Investor Protection Corporation or
any successor thereto.
"SUBSIDIARY" means with respect to any Person (including a
Borrower), any Person that is accounted for as a consolidated
subsidiary of such Person in accordance with generally accepted
accounting principles.
"SWING LINE ADVANCE" has the meaning specified in Section
2.01(b).
"SWING LINE BANK" means each financial institution having a
Swingline Commitment in Schedule 2.01; PROVIDED, however, that with the
agreement of the Borrowers, any other Lender may become a Swing Line
Bank after the date hereof pursuant to a notification given to the
Administrative Agent by such Lender and the Borrowers which sets forth
such Lender's Swing Line Commitment (which shall not in any event
exceed such Lender's Commitment hereunder).
"SWING LINE BORROWING" means a Borrowing consisting of Swing
Line Advances.
"SWING LINE COMMITMENT" means the commitment of a Swing Line
Bank to make Swing Line Advances, as set forth opposite such Swing Line
Bank's name on Schedule 2.01 hereof or, in the case of a Lender
becoming a Swing Line Bank after the date hereof, as notified to the
Administrative Agent by such Lender and the Borrowers.
"TERMINATION DATE" means the earlier of (i) subject to the
terms of Section 2.18, May 24, 2002, and (ii) the date of termination
in whole of the Commitments pursuant to Section 2.05.
"TYPE" means, with respect to any Advance, a Base Rate
Advance, a Eurodollar Rate Advance or a Fixed Rate Advance.
"UNREFUNDED SWING LINE ADVANCES" has the meaning specified in
Section 2.01(b)(iii).
"WITHDRAWAL LIABILITY" shall have the meaning given such term
under Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. COMPUTATION OF TIME PERIODS. In this Agreement
in the computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the words "to" and "until"
each means "to but excluding".
12
SECTION 1.03. ACCOUNTING TERMS. All accounting terms not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles applicable to the entity in respect of which such
term is used.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. THE ADVANCES. (a) REVOLVING CREDIT ADVANCES.
Each Lender severally agrees, on the terms and conditions hereinafter set forth,
to make one or more Revolving Credit Advances (such advances, together with (i)
the Swing Line Advances and (ii) to the extent any Lender elects to make them,
Auction Bid Advances as provided in subsection (c) of this Section 2.01, being
the "Advances") to the Borrowers from time to time on any Business Day during
the period from the date hereof to but excluding the Termination Date (or, if
earlier with respect to either Borrower, the date on which the obligations of
the Lenders to make Advances to such Borrower are terminated pursuant to Article
VI) in an aggregate principal amount not to exceed at any time outstanding the
amount set opposite such Lender's name on Schedule 2.01 hereof or, if such
Lender has entered into any Assignment and Acceptance, set forth for such Lender
in the Register maintained by the Administrative Agent pursuant to Section
8.07(d), as such amount may be reduced pursuant to Section 2.05 (such Lender's
"Commitment"); PROVIDED, HOWEVER, that (A) the Facility Usage shall not at any
time exceed the Facility at such time, (B) the deemed use of the aggregate
amount of the Commitments resulting from outstanding Auction Bid Advances and
Swing Line Advances shall be applied to all the Lenders ratably according to
their respective Commitments and (C) each Revolving Credit Advance shall be made
as part of a Borrowing consisting of Revolving Credit Advances made by the
Lenders ratably in accordance with their Commitments. Each Revolving Credit
Borrowing shall be in an aggregate amount not less than $25,000,000 and in an
integral multiple of $5,000,000. Within the limits of the foregoing and of each
Lender's Commitment, each Borrower may, from time to time prior to the earlier
of the Termination Date and the date on which the obligations of the Lenders to
make Advances to such Borrower are terminated pursuant to Article VI, borrow
under this Section 2.01(a), repay pursuant to Section 2.06, prepay pursuant to
Section 2.10 and reborrow under this Section 2.01(a).
(b) THE SWING LINE ADVANCES. (i) Each Swing Line Bank
severally agrees, on the terms and subject to the conditions hereinafter set
forth, to make one or more Base Rate Advances (such advances made pursuant to
this Section 2.01(b) being the "Swing Line Advances") to the Borrowers from time
to time on any Business Day during the period from the date hereof to but
excluding the Termination Date (or, if earlier with respect to either
Borrower, the date on which the obligations of the Lenders to make Advances
to such Borrower are terminated pursuant to Article VI) in an aggregate
amount at any time outstanding not in excess of the amount of such Swing Line
Bank's Swing Line Commitment at such time; PROVIDED, HOWEVER, that
immediately after giving effect to each such Swing Line Advance, the Facility
Usage shall not exceed the Facility; PROVIDED FURTHER, HOWEVER, that (A) each
Swing Line Advance shall be deemed to utilize the Commitment of each Lender
by such Lender's pro rata portion (based on the Commitments of the Lenders)
of the amount of such Swing Line Advance; (B) the aggregate amount of Swing
Line Advances of each Swing Line Bank at any time outstanding, when added to
the aggregate amount of Revolving Credit Advances of such Swing Line Bank
then outstanding, may not exceed the Commitment of such Swing Line Bank; (C)
each Swing Line Borrowing
13
shall be in an amount of at least $25,000,000 and shall be in an integral
multiple of $5,000,000; and (D) each Swing Line Advance shall mature and be
repaid on the fifth Business Day after the date of such Swing Line Borrowing.
In no event may Swing Line Advances be borrowed hereunder if (x) the
Administrative Agent shall have received notice from the Majority Lenders
specifying that a Default or Event of Default shall have occurred and be
continuing, (y) such Default or Event of Default shall not have been
subsequently cured or waived and (z) any other applicable condition precedent
set forth in Article III has not been fulfilled or waived in accordance with
the terms thereof. All Swing Line Advances shall at all times be Base Rate
Advances and may not be converted to Advances of a different type. Swing Line
Advances shall be made by the Swing Line Banks pro rata in accordance with
the relative amounts of their Swing Line Commitments which, after giving
effect to the foregoing provisions of this Section 2.01(b)(i), are available
for the making of Swing Line Advances. Within the limits and subject to the
conditions of the foregoing, each Borrower may, prior to the earlier of the
Termination Date and the date on which the obligations of the Lenders to make
Advances to such Borrower are terminated pursuant to Article VI, borrow under
this Section 2.01(b), repay pursuant to Section 2.06(b) or prepay pursuant to
Section 2.10 and reborrow under this Section 2.01(b).
(ii) Notwithstanding the occurrence of any Default or Event of
Default or noncompliance with the conditions precedent set forth in Article III
or the minimum borrowing amounts specified in Section 2.01, if any Swing Line
Advances shall remain outstanding at 10:00 a.m., New York City time, on the
fourth Business Day following the borrowing date thereof and if by such time on
such fourth Business Day the Administrative Agent shall have received neither
(i) a notice of borrowing delivered by the applicable Borrower pursuant to
Section 2.02 requesting that Revolving Credit Advances be made pursuant to
Section 2.01(a) on the immediately succeeding Business Day in an amount at least
equal to the aggregate principal amount of such Swing Line Advances nor (ii) any
other notice satisfactory to the Administrative Agent indicating the applicable
Borrower's intent to repay all such Swing Line Advances on or before the
immediately succeeding Business Day with funds obtained from other sources, the
Administrative Agent shall be deemed to have received a notice from such
Borrower pursuant to Section 2.02 requesting that a Revolving Credit
Borrowing of Base Rate Advances be made pursuant to Section 2.01(a) on such
immediately succeeding Business Day in an amount equal to the aggregate
amount of such Swing Line Advances, and the procedures set forth in Section
2.02 shall be followed in making such Base Rate Advances, provided that the
proceeds of such Base Rate Advances received by the Administrative Agent
shall be immediately delivered to the Swing Line Banks and applied to the
direct repayment of such Swing Line Advances. Effective on the day such Base
Rate Advances are made, the portion of the Swing Line Advances so paid shall
no longer be outstanding as Swing Line Advances and shall be outstanding as
Revolving Credit Advances of the Lenders. On the day such Revolving Credit
Borrowing is made, each Swing Line Bank's proportionate share of such
Revolving Credit Advances shall be deemed to be funded from its Swing Line
Advances being refunded. Each Borrower authorizes the Administrative Agent
and each of the Swing Line Banks to charge such Borrower's accounts with the
Administrative Agent or such Swing Line Bank (up to the amount available in
each such account) in order to immediately pay the amount of such Swing Line
Advances to the extent amounts received from the Lenders are not sufficient
to repay in full such Swing Line Advances. If any portion of any such amount
paid (or deemed paid) to a Swing Line Bank should be recovered by or on
behalf of such Borrower from such Swing Line Bank in the event of the
bankruptcy or reorganization of such Borrower or otherwise, the loss of the
amount so recovered
14
shall be ratably shared among all the Lenders in the manner contemplated by
Section 2.15.
(iii) If, for any reason (including without limitation, the
occurrence of an event described in Section 6.01(e)), Base Rate Advances may not
be, or are not, made pursuant to subparagraph (b)(ii) of this Section to repay
Swing Line Advances as required by such subparagraph, effective on the date such
Base Rate Advances would otherwise have been made, each Lender severally,
unconditionally and irrevocably agrees that it shall, without regard to the
occurrence of any Default or Event of Default, purchase a participating interest
in such Swing Line Advances ("Unrefunded Swing Line Advances") in an amount
equal to the amount of Base Rate Advances which would otherwise have been made
by such Lender pursuant to subparagraph (b)(ii) of this Section. Each Lender
will immediately transfer to the Administrative Agent, in immediately available
funds, the amount of its participation, and the proceeds of such participation
shall be distributed by the Administrative Agent to the Swing Line Banks, pro
rata in accordance with the amount of their Swing Line Advances, to such extent
as will reduce the amount of the participating interest retained by each such
Swing Line Bank in its Swing Line Advances to the amount of the Base Rate
Advances which were to have been made by each such Swing Line Bank pursuant to
subparagraph (b)(ii) of this Section. Each Lender purchasing a participating
interest in Swing Line Advances under this Section 2.01(b)(iii) shall have the
same rights as a Lender under this Agreement. In the event any Lender fails to
make available to a Swing Line Bank the amount of such Lender's participation as
provided in this subparagraph (b)(iii), such Swing Line Bank shall be entitled
to recover such amount on demand from such Lender together with interest at
the customary rate set by the Swing Line Bank for correction of errors among
banks for one Business Day and thereafter at the Base Rate then in effect.
(iv) Each Lender's obligation to make Revolving Credit
Advances pursuant to subparagraph (b)(ii) of this Section and to purchase
participating interests pursuant to subparagraph (b)(iii) of this Section shall
be absolute and unconditional and shall not be affected by any circumstance,
including, without limitation, (i) any set-off, counterclaim, recoupment,
defense or other right which such Lender or either Borrower may have against a
Swing Line Bank, a Borrower, or any other Person, as the case may be, for any
reason whatsoever; (ii) the occurrence or continuance of a Default or an Event
of Default; (iii) any adverse change in the condition (financial or otherwise)
of either Borrower or any of its Subsidiaries; (iv) any breach of this Agreement
by either Borrower or any Lender; or (v) any other circumstance, happening or
event whatsoever, whether or not similar to any of the foregoing.
(c) THE AUCTION BID ADVANCES. (i) In order to request Auction
Bid Borrowings, a Borrower shall hand deliver or telecopy to the Administrative
Agent a duly completed Auction Bid Request substantially in the form of Exhibit
A-1 hereto, to be received by the Administrative Agent (i) in the case of a
Eurodollar Rate Borrowing, not later than 10:00 a.m., New York City time, four
Business Days before a proposed Auction Bid Borrowing and (ii) in the case of a
Fixed Rate Borrowing, not later than 10:00 a.m., New York City time, one
Business Day before a proposed Auction Bid Borrowing. No Base Rate Advance shall
be requested in, or made pursuant to, an Auction Bid Request. An Auction Bid
Request that does not conform substantially to the format of Exhibit A-1 may be
rejected in the Administrative Agent's sole discretion, and the Administrative
Agent shall promptly notify the applicable Borrower of such rejection by
telecopier. Such request shall in each case refer to this Agreement and specify
(x) whether the Borrowing then being requested is to be a Eurodollar Borrowing
or a Fixed Rate Borrowing, (y) the date of such
15
Borrowing (which shall be a Business Day occurring on or prior to the
Termination Date) and the aggregate principal amount thereof which shall be
in a minimum principal amount of $25,000,000 and in an integral multiple of
$5,000,000, and (z) the Interest Period with respect thereto. Promptly after
its receipt of an Auction Bid Request that is not rejected as aforesaid, the
Administrative Agent shall invite by telecopier (in the form set forth in
Exhibit A-2 hereto) the Lenders to bid, on the terms and conditions of this
Agreement, to make Auction Bid Advances pursuant to the Auction Bid Request.
A Borrower may request Auction Bids for up to three separate Interest Periods
in a single Auction Bid Request, provided that the aggregate principal amount
of each Borrowing requested shall be in a minimum principal amount of
$25,000,000 and in an integral multiple of $5,000,000.
(ii) Each Lender may, in its sole discretion, make one or more
Auction Bids to the applicable Borrower responsive to an Auction Bid Request.
Each Auction Bid by a Lender must be received by the Administrative Agent via
telecopier, in the form of Exhibit A-3 hereto, (A) in the case of a
Eurodollar Rate Auction Bid Borrowing, not later than 9:30 a.m., New York
City time, three Business Days before a proposed Auction Bid Borrowing and
(B) in the case of a Fixed Rate Borrowing, not later than 9:30 a.m., New York
City time, on the day of a proposed Auction Bid Borrowing. Multiple bids with
respect to each Interest Period specified in the related Auction Bid Request
will be accepted by the Administrative Agent. Auction Bids that do not
conform substantially to the format of Exhibit A-3 may be rejected by the
Administrative Agent after conferring with, and upon the instruction of, the
applicable Borrower, and the Administrative Agent shall notify the Lender
making such nonconforming bid of such rejection as soon as practicable. Each
Auction Bid shall refer to this Agreement and specify (x) the principal
amount (which shall be in a minimum amount of $5,000,000 and in an integral
multiple of $1,000,000, and which may equal the entire principal amount of
the Auction Bid Borrowing requested by the applicable Borrower) of the
Auction Bid Advance or Advances with respect to an Interest Period that the
applicable Lender is willing to make to the applicable Borrower, (y) the
Auction Bid Rate or Rates at which such Lender is prepared to make the
Auction Bid Advance or Advances and (z) the Interest Period and the last day
thereof. If a Lender submits an Auction Bid containing offers to make Auction
Bid Advances for different Interest Periods, then such Lender may specify the
maximum aggregate principal amount of Auction Bid Advances (which shall not
be less than $5,000,000 and which shall be an integral multiple of
$1,000,000) that such Lender is willing to make in response to the related
Auction Bid Request, and the applicable Borrower may not accept offers from
such Lender for Auction Bid Advances in an aggregate principal amount that
exceeds such specified maximum aggregate principal amount. An Auction Bid
submitted by a Lender pursuant to this subparagraph (ii) shall be irrevocable
unless rejected by the applicable Borrower.
(iii) The Administrative Agent shall, by 10:00 a.m., New York
City time, on the day specified in subparagraph (ii) above by which Auction Bids
must be received, notify the applicable Borrower by telecopier of all the
Auction Bids made, the Auction Bid Rate and the principal amount of each Auction
Bid Advance in respect of which an Auction Bid was made and the identity of the
Lender that made each bid. The Administrative Agent shall send a copy of all
Auction Bids to the applicable Borrower for its records as soon as practicable
after completion of the bidding process set forth in this Section 2.01(c).
(iv) The applicable Borrower may in its sole and absolute
discretion, subject only to the provisions of this subparagraph (iv) and Section
2.01, accept or reject any Auction Bid referred to in subparagraph (iii) above;
PROVIDED, HOWEVER,
16
that, immediately after giving effect to any such acceptance, the Facility
Usage shall not exceed the Facility. The applicable Borrower shall notify the
Administrative Agent by telephone, confirmed by telecopier in the form of an
Auction Bid Accept Letter substantially in the form of Exhibit A-4, whether
and to what extent it has decided to accept any of or all the bids referred
to in subparagraph (iii) above, (A) in the case of a Eurodollar Auction Bid
Advance, not later than 10:30 a.m. New York City time, three Business Days
before a proposed Auction Bid Borrowing, and (B) in the case of a Fixed Rate
Borrowing, not later than 10:30 a.m., New York City time, on the day of a
proposed Auction Bid Borrowing; PROVIDED, HOWEVER, that (A) the failure by
the applicable Borrower to give such notice shall be deemed to be a rejection
of all the bids referred to in subparagraph (iii) above, (B) any bid referred
to in subparagraph (iii) above which is not specified in such notice as being
accepted by the applicable Borrower shall (subject to clause (C) below) be
deemed rejected, (C) subject to the next following sentence, the applicable
Borrower shall not accept a bid for a particular Interest Period made at a
particular Auction Bid Rate if such Borrower has decided to reject a bid for
such Interest Period made at a lower Auction Bid Rate, (D) if the applicable
Borrower shall accept a bid or bids for a particular Interest Period made at
a particular Auction Bid Rate but the amount of such bid or bids plus the
amount of bids accepted at lower Auction Bid Rates exceeds the aggregate
principal amount specified for such Interest Period in the Auction Bid
Request, then such Borrower shall be deemed to have accepted a portion of
such bid or bids in an amount equal to the aggregate principal amount
specified for such Interest Period in the Auction Bid Request less the amount
of all other Auction Bids at a lower Auction Bid Rate accepted with respect
to such Interest Period, which acceptance, in the case of multiple bids at
such Auction Bid Rate, shall be made pro rata in accordance with the amount
of each such bid at such Auction Bid Rate, (E) Auction Bids shall not be
accepted for Auction Bid Advances in an amount in excess of the amount
specified in the relevant Auction Bid Request, and (F) except pursuant to
clause (D) above, no bid shall be accepted for an Auction Bid Advance unless
such Auction Bid Advance is in a minimum principal amount of $5,000,000 and
an integral multiple of $1,000,000; PROVIDED FURTHER, HOWEVER, that if an
Auction Bid Advance must be in an amount less than $5,000,000 because of the
provisions of clause (D) above, such Auction Bid Advance may be for a minimum
of $1,000,000 or any integral multiple thereof, and in calculating the pro
rata allocation of acceptances of portions of multiple bids at a particular
Auction Bid Rate pursuant to clause (D), the amounts shall be rounded to
integral multiples of $1,000,000 in a manner which shall be in the discretion
of the applicable Borrower. If a Lender submits an Auction Bid for multiple
Interest Periods specifying a maximum aggregate principal amount of Auction
Bid Advances that such Lender is willing to make in respect of an Auction Bid
Request and the applicable Borrower accepts Auction Bids from such Lender for
more than one Interest Period, then such Borrower shall instruct the
Administrative Agent how to apportion such Borrower's acceptances among such
bids for different Interest Periods to the extent, if any, necessary to
provide for acceptance of bids for such maximum specified amount of Auction
Bid Advances, but no more than such maximum amount. A notice given by the
applicable Borrower pursuant to this subparagraph (iv) shall be irrevocable.
(v) The Administrative Agent shall, by telecopy, promptly
notify each bidding Lender whether or not its Auction Bid has been accepted (and
if so, for which Interest Period or Interest Periods and in what amount and at
what Auction Bid Rate for each such Interest Period), and each successful bidder
will thereupon become bound, subject to the other applicable conditions
hereof, to make the Auction Bid Advance in respect of which its bid has been
accepted.
17
(vi) An Auction Bid Request shall not be made within five
Business Days after the date of any previous Auction Bid Request.
(vii) If the Administrative Agent shall elect to submit an
Auction Bid in its capacity as a Lender, it shall submit such bid directly to
the applicable Borrower one quarter of an hour earlier than the latest time at
which the other Lenders are required to submit their bids to the Administrative
Agent pursuant to subparagraph (ii) above.
(viii) All Notices required by this Section 2.01(c) shall be
given in accordance with Section 8.02. Notwithstanding any other provision of
this Agreement, neither Borrower shall request, and no Lender shall make, any
Auction Bid Advance having a borrowing date after the seventh day prior to the
Termination Date.
SECTION 2.02. REVOLVING CREDIT AND SWING LINE BORROWING
PROCEDURES. (a) Each Revolving Credit Borrowing shall be made on notice (a
"Notice of Borrowing"), given not later than 10:00 a.m. (New York City time) on
(i) if such Advances are Eurodollar Rate Advances, the third Business Day prior
to the date of the proposed Borrowing or (ii) if such Advances are Base Rate
Advances, one Business Day prior to the date of the proposed Borrowing. Such
Notice of Borrowing shall be in substantially the form of Exhibit B-1 or in such
other form as the Administrative Agent and the applicable Borrower may agree
upon, and shall in each case specify which Borrower is requesting such Borrowing
and the requested (A) date of the proposed Borrowing, (B) Type of Advances
comprising the proposed Borrowing, (C) amount of the proposed Borrowing, (D)
Interest Period for the proposed Borrowing and (E) additional information set
forth in Exhibit B-1, as the case may be. If the proposed Borrowing is comprised
of Eurodollar Rate Advances, the Administrative Agent shall promptly contact
Chase to determine the applicable Eurodollar Rate, which Chase shall promptly
provide. Promptly after receipt of such Eurodollar Rate from Chase, the
Administrative Agent shall notify the applicable Borrower and each Appropriate
Lender of the applicable interest rate under Section 2.07. No Auction Bid
Advance and no Fixed Rate Advance shall be requested or made pursuant to a
Notice of Borrowing. The Administrative Agent shall promptly advise the Lenders
of any notice given pursuant to this 2.02(a) and of each Lender's portion of the
requested Borrowing.
(b) Each Swing Line Borrowing shall be made on notice, given
not later than 12:00 noon (New York City time) on the date of the proposed Swing
Line Borrowing, by the applicable Borrower to the Administrative Agent, which
shall give each Swing Line Bank prompt notice thereof and of its portion of the
requested Swing Line Borrowing. Each such notice of a Swing Line Borrowing (the
"Notice of Swing Line Borrowing") shall be in the form of Exhibit B-2 or in such
other form as the Administrative Agent and the applicable Borrower may agree
upon, and shall be given by telephone, telex or telecopier and, if by
telephone, shall be confirmed immediately in writing (which may be by
telecopier) and shall specify therein the requested date (which shall be a
Business Day) and amount of such Swing Line Borrowing. Each Swing Line Bank
shall, not later than 3:00 p.m., New York City time, on the requested
borrowing date, make its portion of the requested Swing Line Borrowing
available to the Administrative Agent by wire transfer of immediately
available funds to the Administrative Agent. After the Administrative Agent's
receipt of such funds and upon fulfillment of the conditions set forth in
Article III, the Administrative Agent will make such funds available to the
applicable Borrower at the Administrative Agent's aforesaid address, or, if a
Borrowing shall not occur on
18
such date because any condition precedent herein specified shall not have
been met, return the amounts so received to the respective Swing Line Banks.
(c) Each Notice of Borrowing and Notice of Swing Line
Borrowing shall be irrevocable and binding on the applicable Borrower.
SECTION 2.03. GENERAL PROVISIONS RELATING TO ADVANCES. (a) If
(i) the Administrative Agent shall, at least one Business Day before the date of
any requested Borrowing comprised of Eurodollar Rate Advances, determine that
dollar deposits in the principal amounts of the Eurodollar Rate Advances
comprising such Borrowing are not generally available in the London interbank
market or that reasonable means do not exist for determining the Eurodollar Rate
or (ii) if the Majority Lenders shall, at least one Business Day before the date
of any requested Borrowing comprised of Eurodollar Rate Advances, notify the
Administrative Agent that the Eurodollar Rate for Eurodollar Rate Advances
comprising such Borrowing will not adequately reflect the cost to such Majority
Lenders of making or funding their respective Eurodollar Rate Advances for such
Borrowing, then, in each case, the Administrative Agent shall give prompt notice
thereof to the Borrowers and the right of the Borrowers to select Eurodollar
Rate Advances for such Borrowing or any subsequent Borrowing shall be suspended
until the Administrative Agent shall notify the Borrowers and the Lenders that
the circumstances giving rise to such suspension no longer exist, and each
Advance comprising any such Borrowing shall be a Base Rate Advance.
(b) In the case of any Borrowing to be comprised of Eurodollar
Rate Advances or Fixed Rate Advances, the applicable Borrower shall indemnify
each Lender against any loss, cost or expense incurred by such Lender as a
result of any failure to fulfill on or before the proposed date of Borrowing for
such Borrowing the applicable conditions set forth in Article III, including,
without limitation, any loss (including loss of anticipated profits), cost or
expense incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by such Lender to fund the Advance to be made by such
Lender as part of such Borrowing when such Advance, as a result of such failure,
is not made on such date. Each Lender agrees to use reasonable efforts
(consistent with its internal policy and legal and regulatory restrictions)
to minimize the amount of any loss of anticipated profits payable by the
applicable Borrower to such Lender pursuant to the immediately preceding
sentence.
(c) Subject to Section 2.18 and, in the case of Swing Line
Advances, Sections 2.01(b) and 2.02(b), each Lender shall make each Advance to
be made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds to the Administrative Agent in New York, New York,
not later than 11:00 a.m., New York City time (or 2:00 p.m., New York City time,
in the case of a Base Rate Advance), and the Administrative Agent shall promptly
credit the amounts so received to the general deposit account of the applicable
Borrower with the Administrative Agent or, if a Borrowing shall not occur on
such date because any condition precedent herein specified shall not have been
met, return the amounts so received to the respective Lenders. Auction Bid Rate
Advances shall be made by the Lender or Lenders whose Auction Bids therefor are
accepted pursuant to Section 2.01(c) in the amounts so accepted and Revolving
Credit Advances shall be made by the Lenders pro rata in accordance with Section
2.01(a).
(d) Unless the Administrative Agent shall have received notice
from a Lender prior to the date of any Revolving Credit Borrowing that such
Lender will not make available to the Administrative Agent such Lender's ratable
portion of such
19
Borrowing, the Administrative Agent may assume that such Lender has made such
portion available to the Administrative Agent on the date of such Borrowing
in accordance with subsection (a) of Section 2.02 and the Administrative
Agent may, in reliance upon such assumption, make available to the applicable
Borrower on such date a corresponding amount. If and to the extent that such
Lender shall not have so made such ratable portion available to the
Administrative Agent, such Lender and the applicable Borrower severally agree
to repay to the Administrative Agent forthwith on demand such corresponding
amount together with interest thereon, for each day from the date such amount
is made available to such Borrower until the date such amount is repaid to
the Administrative Agent, at (i) in the case of such Borrower, the interest
rate applicable at the time to Advances comprising such Borrowing and (ii) in
the case of such Lender, the Federal Funds Rate. If such Lender shall repay
to the Administrative Agent such corresponding amount, such amount so repaid
shall constitute such Lender's Advance as part of such Borrowing for purposes
of this Agreement.
(e) The failure of any Lender to make the Advance to be made
by it as part of any Borrowing shall not relieve any other Lender of its
obligation, if any, hereunder to make its Advance on the date of such Borrowing,
but no Lender shall be responsible for the failure of any other Lender to make
the Advance to be made by such other Lender on the date of any Borrowing.
SECTION 2.04. FEES. (a) The Borrowers agree, jointly and
severally, to pay to the Administrative Agent for the account of each Lender a
facility fee, which shall accrue at the Applicable Rate on the daily amount of
such Lender's Commitment from time to time in effect (whether used or unused)
from and including the date hereof in the case of each Bank and from the
effective date specified in the Assignment and Acceptance pursuant to which
it became a Lender in the case of each other Lender, to but excluding the
date on which such Commitment terminates. Accrued facility fees shall be
payable in arrears on the last Business Day of March, June, September and
December of each year, commencing June 30, 2001, on any date on which the
obligations of the Lenders to make Advances to a Borrower are terminated
pursuant to Article VI and on the Termination Date.
(b) The Borrowers agree, jointly and severally, to pay to the
Administrative Agent for its own account such fees as may from time to time be
agreed between the Administrative Agent and the Borrowers.
(c) For each day prior to and including the Termination Date
on which the aggregate amount of Facility Usage exceeds 50% of the aggregate
amount of the Commitments, each Borrower agrees to pay to the Administrative
Agent for the account of each Lender a utilization fee on the unpaid principal
amount of each Advance owed by it to such Lender at a rate per annum equal to
the Applicable Rate in effect for such day. Accrued utilization fees shall be
payable in arrears on the last Business Day of March, June, September and
December of each year, commencing June 30, 2001, on any date on which the
Advances become due and payable pursuant to Article VI and on the Termination
Date.
SECTION 2.05. TERMINATION OR REDUCTION OF THE FACILITY. (a)
The Commitments and the Swing Line Commitments shall be automatically terminated
on the Termination Date.
(b) The Borrowers shall have the right at any time prior to
the Termination Date, upon at least three Business Days' notice to the
Administrative
20
Agent, to terminate in whole or reduce ratably in part the unused portion of
the Facility (such unused portion being determined by subtracting the
Facility Usage from the Facility); PROVIDED, HOWEVER, that each partial
reduction shall be in an amount not less than $25,000,000 or an integral
multiple of $5,000,000 in excess thereof; PROVIDED FURTHER, HOWEVER, that the
Commitments shall not in any event be reduced to an amount less than the
Swing Line Commitments. Each notice delivered by the Borrowers pursuant to
this Section 2.05(b) shall be irrevocable; PROVIDED that a notice of
termination of the Commitments delivered by the Borrowers may state that such
notice is conditioned upon the effectiveness of other credit facilities, in
which case such notice may be revoked by the Borrowers (by notice to the
Administrative Agent on or prior to the specified effective date) if such
condition is not satisfied.
(c) Each reduction in the aggregate Commitments hereunder
shall be made ratably among the Lenders in accordance with their respective
Commitments. The Borrowers agree, jointly and severally, to pay to the
Administrative Agent for the account of the Lenders, on the date of each
termination or reduction, the facility fees on the amount of the Commitments so
terminated or reduced accrued to the date of such termination or reduction. Each
reduction in the aggregate Swing Line Commitments hereunder shall be made
ratably among the Swing Line Banks in accordance with their respective Swing
Line Commitments.
(d) Upon at least three Business Days' irrevocable notice to
the Administrative Agent, the Borrowers may at any time prior to the Termination
Date in whole permanently terminate, or from time to time in part permanently
reduce, the Swing Line Commitments; PROVIDED, HOWEVER, that (i) any outstanding
Swing Line Advances that would exceed the reduced or terminated Swing Line
Commitments must be prepaid in accordance with Section 2.10(b) and (ii) each
partial reduction of the Swing Line Commitments shall be in an integral multiple
of $5,000,000.
(e) Upon at least three Business Days' irrevocable notice to
the Administrative Agent, each Borrower may at any time prior to the Termination
Date in whole permanently terminate such Borrower's rights to borrow under this
Agreement; PROVIDED, HOWEVER, that any outstanding Advances made to such
Borrower, all accrued and unpaid interest thereon and all other amounts owed by
such Borrower hereunder (including indemnities with respect to any payments in
connection with such termination) shall be paid in full on or before the
effective date of any such termination in accordance with the terms hereof.
SECTION 2.06. REPAYMENT OF ADVANCES. (a) REVOLVING CREDIT
ADVANCES. The principal amount of each Revolving Credit Advance made to either
Borrower shall become due and payable, and such Borrower agrees to pay the
outstanding principal balance of each such Advance, on the Maturity Date.
(b) SWING LINE ADVANCES. Each Borrower shall repay the
outstanding principal amount of any Swing Line Advance made to it on the earlier
of (i) the date that is five Business Days after the date on which such Swing
Line Advance was made and (ii) the Termination Date.
(c) AUCTION BID ADVANCES. Each Borrower shall repay the
aggregate principal amount of each Auction Bid Advance made to it on the earlier
of (i) the last day of the Interest Period applicable to such Auction Bid
Advance and (ii) the Termination Date.
21
(d) Each Lender and each Swing Line Bank shall, and is hereby
authorized by each Borrower to, maintain in accordance with its usual practice
records evidencing the indebtedness of such Borrower to such Lender hereunder
from time to time, including the amounts and Types of and Interest Periods
applicable to the Advances made by such Lender from time to time and the amounts
of principal and interest paid to such Lender from time to time in respect of
such Advances.
(e) The entries made in the records maintained pursuant to
paragraph (d) of this Section 2.06 and in the Register maintained by the
Administrative Agent pursuant to Section 8.07(d) shall be PRIMA FACIE evidence
of the existence and amounts of the obligations of each Borrower to which such
entries relate; PROVIDED, HOWEVER, that the failure of any Lender, any Swing
Line Bank or the Administrative Agent to maintain or to make any entry in
such records or the Register, as applicable, or any error therein, shall not
in any manner affect the obligations of such Borrower to repay the Advances
in accordance with the terms of this Agreement.
SECTION 2.07. INTEREST. (a) ORDINARY INTEREST. Each Borrower
shall pay interest on the unpaid principal amount of each Advance owed by it to
each Lender from the date of such Advance until such principal amount shall
become due and payable, at the following rates per annum:
(i) BASE RATE ADVANCES. If such Advance is a Base Rate Advance
(including a Swing Line Advance), a rate per annum for any day during
the applicable Interest Period equal to the Base Rate in effect from
time to time during such Interest Period, payable in arrears on the
last day of such Interest Period and, if such Interest Period has a
duration of six months, on the day which occurs during such Interest
Period three months from the first day of such Interest Period.
(ii) EURODOLLAR RATE ADVANCES. If such Advance is a Eurodollar
Rate Advance, a rate per annum for any day during the applicable
Interest Period equal to the sum of (A) the Eurodollar Rate determined
by Chase to be in effect for the Interest Period applicable to such
Eurodollar Rate Advance plus (B) in the case of each Eurodollar
Revolving Credit Advance, the Applicable Rate in effect from time to
time during such Interest Period, and, in the case of each Eurodollar
Auction Bid Advance, the Margin (which may be negative) applicable to
such Advance, in each case payable in arrears on the last day of such
Interest Period and, if such Interest Period has a duration of six
months, on the day which occurs during such Interest Period three
months from the first day of such Interest Period.
(iii) FIXED RATE ADVANCES. If such Advance is a Fixed Rate
Advance, a rate per annum equal to the Fixed Rate applicable to such
Advance, payable in arrears on the last day of the Interest Period
applicable to such Fixed Rate Advance and, if such Interest Period has
a duration of more than 90 days, on each day which occurs during such
Interest Period every 90 days from the first day of such Interest
Period.
(b) DEFAULT INTEREST. Each Borrower shall pay interest on the
unpaid principal amount of each Advance made to it that is not paid when due
and, to the extent permitted by law, on the unpaid amount of all interest, fees
and other amounts payable hereunder by it that is not paid when due, payable on
demand, at a rate per annum equal at all times to (i) in the case of any amount
of principal, the greater of
22
(A) 2% per annum above the rate per annum required to be paid on such Advance
immediately prior to the date on which such amount became due and (B) 2% per
annum above the Base Rate in effect from time to time and (ii) in the case of
all other amounts, 2% per annum above the Base Rate in effect from time to time.
SECTION 2.08. ADDITIONAL INTEREST ON EURODOLLAR RATE ADVANCES.
The applicable Borrower shall pay to each Lender, so long as such Lender shall
be required under regulations of the Board of Governors of the Federal Reserve
System to maintain reserves with respect to liabilities or assets consisting of
or including Eurocurrency Liabilities, additional interest on the unpaid
principal amount of each Eurodollar Rate Advance of such Lender, from the date
of such Advance until such principal amount is paid in full, at an interest rate
per annum equal at all times to the remainder obtained by subtracting (i) the
Eurodollar Rate for the Interest Period for such Advance from (ii) the rate
obtained by dividing such Eurodollar Rate by a percentage equal to 100% minus
the Eurodollar Rate Reserve Percentage of such Lender for such Interest Period,
payable on each date on which interest is payable on such Advance. Such
additional interest shall be determined by such Lender and notified to the
applicable Borrower through the Administrative Agent.
SECTION 2.09. INTEREST RATE DETERMINATION. The Administrative
Agent shall give prompt notice to the applicable Borrower and the Appropriate
Lenders of the applicable Eurodollar Rate determined by Chase hereunder in
respect of each Interest Period for Eurodollar Rate Advances. The failure of the
Administrative Agent to give notice to the applicable Borrower pursuant to this
Section 2.09 shall not relieve such Borrower from its obligation to pay any
interest in accordance with the terms of this Agreement.
SECTION 2.10. PREPAYMENTS. (a) The Borrowers shall have no
right to prepay (i) any principal amount of any Revolving Credit Advances other
than as provided in subsection (b) below or (ii) any Auction Bid Advances.
(b) Each Borrower may, upon irrevocable notice given to the
Administrative Agent not later than 10:00 a.m. (New York City time) on the third
Business Day prior to the date of the proposed prepayment in the case of a
Eurodollar Rate Advance, and on the first Business Day prior to the date of the
proposed prepayment in the case of Base Rate Advances and Swing Line Advances,
stating the proposed date and aggregate principal amount of the prepayment, and
if such notice is given such Borrower shall, prepay the outstanding principal
amounts of the Advances made to it comprising part of the same Borrowing in
whole or ratably in part, together with accrued interest to the date of such
prepayment on the principal amount prepaid; PROVIDED, HOWEVER, that (x) each
partial prepayment shall be in an aggregate principal amount not less than
$25,000,000 or an integral multiple of $5,000,000 in excess thereof and (y) in
the case of any such prepayment of a Eurodollar Rate Advance, such Borrower
shall be obligated to reimburse the Lenders in respect thereof pursuant to
Section 8.04(c). Any prepayment of Advances after the Termination Date shall be
permanent, and no portion of Advances prepaid after the Termination Date may be
re-borrowed hereunder.
SECTION 2.11. INCREASED COSTS. (a) If, due to either (i) the
introduction of or any change (other than any change by way of imposition or
increase of reserve requirements, in the case of Eurodollar Rate Advances,
included in the Eurodollar Rate Reserve Percentage) in or in the interpretation
of any law or regulation or (ii) the compliance with any guideline or request
from any central bank or other governmental authority (whether or not having the
force of law), there shall
23
be any increase in the cost to any Lender of agreeing to make or making,
funding or maintaining Eurodollar Rate Advances or Fixed Rate Advances, then
the applicable Borrower, in the case of outstanding Advances, and each
Borrower, jointly and severally, in all other cases, agrees from time to
time, upon demand by such Lender (with a copy of such demand to the
Administrative Agent), to pay to the Administrative Agent for the account of
such Lender additional amounts sufficient to compensate such Lender for such
increased cost; PROVIDED, HOWEVER, that, before making any such demand, each
Lender agrees to use reasonable efforts (consistent with its internal policy
and legal and regulatory restrictions) to designate a different Applicable
Lending Office if the making of such a designation would avoid the need for,
or reduce the amount of, such increased cost and would not, in the reasonable
judgment of such Lender, be otherwise disadvantageous to such Lender. A
certificate as to the amount of such increased cost, submitted to the
applicable Borrower or the Borrowers, as the case may be, and the
Administrative Agent by such Lender, shall be conclusive and binding for all
purposes, absent manifest error.
(b) If any Lender determines that the adoption after the date
hereof of any applicable law, rule, regulation or guideline regarding minimum
capital, or any change therein, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof (whether or not
having the force of law) or compliance by any Lender with any such adoption or
change has the effect of reducing the rate of return on capital for such Lender
or any corporation controlling such Lender as a consequence of its Commitment or
Swing Line Commitment to lend hereunder to a level below that which such Lender
or such corporation could have achieved but for such adoption, change or
compliance, then from time to time, upon demand by such Lender, the Borrowers
agree, jointly and severally, to pay to such Lender such additional amount or
amounts as will compensate such Lender for such reduction.
SECTION 2.12. ILLEGALITY. Notwithstanding any other provision
of this Agreement, if any Lender shall in good faith determine that the
introduction of or any change in or in the interpretation of any law or
regulation makes it unlawful, or any central bank or other governmental
authority asserts that it is unlawful, for such Lender or its Eurodollar Lending
Office to perform its obligations hereunder to make Eurodollar Rate Advances or
to fund or maintain Eurodollar Rate Advances hereunder, such Lender shall so
notify the Borrowers and the Administrative Agent. Before giving any such notice
to the Borrowers pursuant to this Section, such Lender shall use reasonable
efforts (consistent with its internal policy and legal and regulatory
restrictions) to designate a different lending office if such designation will
avoid the need for giving such notice and would not, in the judgment of such
Lender, be otherwise disadvantageous to such Lender. Upon receipt of such
notice, (i) each then outstanding Eurodollar Rate Advance of such Lender shall
automatically convert to a Base Rate Advance and shall be maintained as a Base
Rate Advance through the last day of the Interest Period applicable thereto,
(ii) such Lender shall not submit an Auction Bid in response to a request for
Eurodollar Auction Bid Advances, and (iii) the obligation of such Lender to make
Eurodollar Rate Advances shall be suspended until such Lender shall notify the
Borrowers and the Administrative Agent that the circumstances causing such
suspension no longer exist. Without limiting the Borrowers' rights under Section
2.16, if at any time after such Lender gives notice of a determination as
provided above in this Section 2.12, a Borrower notifies the Administrative
Agent that it wishes to make a Borrowing consisting of Eurodollar Rate Advances
(or if at the time of such notice, a Borrower has previously notified the
Administrative Agent of such a Borrowing, but such Borrowing has not yet been
24
made), such notification of Borrowing shall be deemed to request that such
Lender (and only such Lender) make an Advance in the form of a Base Rate
Advance for the Interest Period corresponding to the Interest Period
applicable to the Eurodollar Rate Advances to be made by the other Lenders.
SECTION 2.13. PAYMENTS AND COMPUTATIONS. (a) Each Borrower
shall make each payment hereunder not later than 11:00 a.m. (New York City time)
on the day when due in U.S. dollars to the Administrative Agent at its address
referred to in Section 8.02 in same day funds. Except as required under Section
2.12, each Revolving Credit Borrowing, each payment or prepayment of principal
of any Revolving Credit Borrowing, each payment of the facility fees, each
reduction of the Commitments and each conversion or continuation of any
Revolving Credit Borrowing with a Revolving Credit Borrowing of any Type, shall
be allocated pro rata among the Lenders in accordance with their respective
Commitments (or, if such Commitments shall have expired or been terminated, in
accordance with the respective principal amounts of their outstanding Revolving
Credit Advances). Each payment of principal of any Auction Bid Borrowing shall
be allocated pro rata among the Lenders participating in such Borrowing in
accordance with the respective principal amounts of their outstanding Auction
Bid Advances comprising such Borrowing. Each payment of interest on any Auction
Bid Borrowing shall be allocated pro rata among the Lenders participating in
such Borrowing in accordance with the respective amounts of accrued and unpaid
interest on their outstanding Auction Bid Advances comprising such Borrowing.
For purposes of determining the available Commitments of the Lenders at any
time, each outstanding Auction Bid Borrowing and each outstanding Swing Line
Borrowing shall be deemed to have utilized the Commitments of the Lenders
(including those Lenders which shall not have made Swing Line Advances or shall
not have made Advances as part of such Auction Bid Borrowing) pro rata in
accordance with such respective Commitments; provided, HOWEVER, that the
Commitments so deemed to be utilized shall in any event be available for the
purpose of refinancing such Borrowing or such Swing Line Borrowing, as the case
may be. Each Lender agrees that in computing such Lender's portion of any
Borrowing to be made hereunder, the Administrative Agent may, in its
discretion, round each Lender's percentage of such Borrowing to the next higher
or lower whole dollar amount. Upon its acceptance of an Assignment and
Acceptance and recording of the information contained therein in the Register
pursuant to Section 8.07(d), from and after the effective date specified in such
Assignment and Acceptance, the Administrative Agent shall make all payments
hereunder in respect of the interest assigned thereby to the Lender assignee
thereunder, and the parties to such Assignment and Acceptance shall make all
appropriate adjustments in such payments for periods prior to such effective
date directly between themselves.
(b) All computations of interest pursuant to Section 2.07 and
of fees payable hereunder shall be made by the Administrative Agent, and all
computations of interest pursuant to Section 2.08, shall be made by a Lender, on
the basis of a year of 360 days, in each case for the actual number of days
(including the first day but excluding the last day) occurring in the period for
which such interest or fees are payable; PROVIDED, HOWEVER, that all
computations of interest based on the Base Rate when the Base Rate is determined
by reference to paragraph (a) of the definition thereof shall be made by the
Administrative Agent on the basis of a year of 365 or 366 days, as applicable,
in each case for the actual number of days (including the first day but
excluding the last day) occurring in the period for which such interest is
payable. Each determination by the Administrative Agent (or, in the case of
Section 2.08, by a Lender) of an interest rate hereunder shall be conclusive and
binding for all purposes, absent manifest error.
25
(c) Whenever any payment hereunder shall be stated to be due
on a day other than a Business Day, such payment shall be made on the next
succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest or fees, as the case may be;
PROVIDED, HOWEVER, that, if such extension would cause payment of interest on or
principal of Eurodollar Rate Advances to be made in the next following calendar
month, such payment shall be made on the next preceding Business Day.
(d) Unless the Administrative Agent shall have received notice
from a Borrower prior to the date on which any payment is due to the Lenders
hereunder that such Borrower will not make such payment in full, the
Administrative Agent may assume that such Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each Lender on such
due date an amount equal to the amount then due such Lender. If and to the
extent that a Borrower shall not have so made such payment in full to the
Administrative Agent, each Lender shall repay to the Administrative Agent
forthwith on demand such amount distributed to such Lender together with
interest thereon, for each day from the date such amount is distributed to such
Lender until the date such Lender repays such amount to the Administrative
Agent, at the Federal Funds Rate.
SECTION 2.14. TAXES. (a) Any and all payments by a Borrower
hereunder shall be made, in accordance with Section 2.13, free and clear of and
without deduction for any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect
thereto, EXCLUDING, in the case of each Lender and the Administrative Agent,
taxes imposed on or measured by its net income, and franchise taxes imposed
on it, by the jurisdiction under the laws of which such Lender or the
Administrative Agent (as the case may be) is organized or any political
subdivision thereof and, in the case of each Lender, taxes imposed on or
measured by its net income, and franchise taxes imposed on it, by the
jurisdiction of such Lender's Applicable Lending Office or any political
subdivision thereof (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities being hereinafter referred
to as "Taxes"). If a Borrower shall be required by law to deduct any Taxes
from or in respect of any sum payable hereunder to any Lender or the
Administrative Agent, (i) the sum payable shall be increased as may be
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 2.14) such Lender or
the Administrative Agent (as the case may be) receives an amount equal to the
sum it would have received had no such deductions been made, (ii) such
Borrower shall make such deductions and (iii) such Borrower shall pay the
full amount deducted to the relevant taxation authority or other authority in
accordance with applicable law.
(b) In addition, the Borrowers agree, jointly and severally,
to pay any present or future stamp or documentary taxes or any other excise or
property taxes, charges or similar levies which arise from any payment made
hereunder or from the execution, delivery, enforcement or registration of, or
otherwise with respect to, this Agreement (hereinafter referred to as "Other
Taxes").
(c) Without duplication with respect to any amounts paid
pursuant to Section 2.14(a) or (b), to the extent attributable to an Advance
made to a Borrower, such Borrower will, and in each other case, the Borrowers
will, on a joint and several basis, indemnify each Lender, each Swing Line Bank
and the Administrative Agent for the full amount of Taxes or Other Taxes
(including, without limitation, any Taxes or Other Taxes imposed by any
jurisdiction on amounts payable under this
26
Section 2.14) paid by such Lender, such Swing Line Bank or the Administrative
Agent (as the case may be) and any liability (including penalties, interest
and expenses) arising therefrom or with respect thereto, whether or not such
Taxes or Other Taxes were correctly or legally asserted. This indemnification
shall be made within 30 days from the date such Lender, such Swing Line Bank
or the Administrative Agent (as the case may be) makes written demand
therefor.
(d) Within 30 days after the date of any payment of Taxes, the
applicable Borrower will furnish to the Administrative Agent, at its address
referred to in Section 8.02, the original or a certified copy of a receipt
evidencing payment thereof. If any payment hereunder is to be made by a Borrower
through an account or branch outside the United States or on behalf of a
Borrower by a payor that is not a United States person and if no taxes are
payable with respect to such payment, such Borrower will, upon the request of
the Majority Lenders, furnish, or will cause the payor to furnish, to the
Administrative Agent, at such address, a certificate from each appropriate
taxing authority, or an opinion of counsel acceptable to the Administrative
Agent, in either case stating that such payment is exempt from or not subject
to Taxes. For purposes of this subsection (d) and subsection (e), the terms
"United States" and "United States person" shall have the meanings specified
in Section 7701 of the Internal Revenue Code of 1986, as amended.
(e) Each Lender that is organized under the laws of any
jurisdiction other than the United States of America or any political
subdivision thereof (a "Non-U.S. Lender") shall deliver to the Borrowers and the
Administrative Agent (i) two copies of either United States Internal Revenue
Service Form W-8BEN or Form W-8ECI or (ii) in the case of a Non-U.S. Lender
claiming exemption from Federal withholding tax under Section 871(h) or 881(c)
of the United States Internal Revenue Code (the "Code") with respect to payments
of "portfolio interest", a Form W-8BEN or any successor form accompanied by a
certificate representing that such Non-U.S. Lender is not a bank for purposes of
Section 881(c) of the Code, is not a ten percent shareholder of either Borrower
within the meaning of 871(h)(3)(B) of the Code and is not a controlled foreign
corporation related to either Borrower within the meaning of Section 864(d)(4)
of the Code. Such forms shall be properly executed and delivered to the
Borrowers on or before the date upon which such Non-U.S. Lender becomes a party
to this Agreement (or, in the case of a Non-U.S. Lender that is an assignee or
participant, on or before the date of assignment or transfer) or, in the event
that such Non-U.S. Lender changes its applicable lending office, the date such
new lending office is designated. In addition, each Non-U.S. Lender shall
deliver successor forms promptly upon the obsolescence or invalidity of any form
previously delivered by such Non-U.S. Lender.
(f) For any period with respect to which a Lender has failed
to provide a Borrower with the appropriate form described in Section 2.14(e)
(OTHER THAN if such failure is due to a change in law occurring subsequent to
the date on which a form originally was required to be provided, or if such form
otherwise is not required under the first sentence of subsection (e) above),
such Lender shall not be entitled to indemnification under Section 2.14(c) with
respect to Taxes imposed by the United States; PROVIDED, HOWEVER, that, should a
Lender become subject to Taxes because of its failure to deliver a form required
hereunder, the applicable Borrower shall take such steps (at the expense of such
Lender) as such Lender shall reasonably request to assist such Lender to recover
such Taxes.
(g) Subject to compliance with Section 8.07, in the event that
a Lender that originally provided such form as may be required under Section
2.14(e) thereafter
27
ceases to qualify for complete exemption from United States withholding tax,
such Lender may assign its interest under this Agreement to any assignee and
such assignee shall be entitled to the same benefits under this Section 2.14
as the assignor provided that (i) the rate of United States withholding tax
applicable to such assignee shall not exceed the rate then applicable to the
assignor and (ii) in the reasonable judgment of such Lender, such assignment
will not subject such Lender to any unreimbursed cost or be otherwise
disadvantageous to such Lender.
(h) Any Lender claiming any additional amounts payable
pursuant to this Section 2.14 shall use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions) to change the
jurisdiction of its Eurodollar Lending Office if the making of such a change
would avoid the need for, or reduce the amount of, any such additional amounts
that may thereafter accrue and would not, in the reasonable judgment of such
Lender, be otherwise disadvantageous to such Lender.
(i) Without prejudice to the survival of any other agreement
of the Borrowers hereunder, the agreements and obligations of the Borrowers
contained in this Section 2.14 shall survive the payment in full of principal
and interest hereunder.
SECTION 2.15. SHARING OF PAYMENTS, ETC. If any Lender shall
obtain any payment (whether voluntary, involuntary, through the exercise of any
right of set-off, or otherwise) on account of the Revolving Credit Advances made
by it (other than pursuant to Section 2.03(b), 2.08, 2.11, 2.14, 2.16 or 2.18)
to either Borrower in excess of its ratable share of payments on account of the
Revolving Credit Advances to such Borrower obtained by all the Lenders, such
Lender shall forthwith purchase from the other Lenders such participations in
the Revolving Credit Advances to such Borrower made by them as shall be
necessary to cause such purchasing Lender to share the excess payment ratably
with each of them; PROVIDED, HOWEVER, that, if all or any portion of such excess
payment is thereafter recovered from such purchasing Lender, such purchase from
each Lender shall be rescinded and such Lender shall repay to the purchasing
Lender the purchase price to the extent of such recovery together with an amount
equal to such Lender's ratable share (according to the proportion of (i) the
amount of such Lender's required repayment to (ii) the total amount so recovered
from the purchasing Lender) of any interest or other amount paid or payable by
the purchasing Lender in respect of the total amount so recovered. The foregoing
provisions shall apply equally to payments obtained in respect of Unrefunded
Swing Line Advance participations held by the Lenders pursuant to Section
2.01(b)(iii), with the same effect as if each reference in the immediately
preceding sentence to "Revolving Credit Advances" of a Borrower were a reference
to participations in Unrefunded Swing Line Advances of such Borrower. Each
Borrower agrees that any Lender so purchasing a participation from another
Lender pursuant to this Section 2.15 may, to the fullest extent permitted by
law, exercise all its rights of payment (including the right of set-off) with
respect to such participation as fully as if such Lender were the direct
creditor of such Borrower in the amount of such participation.
SECTION 2.16. SUBSTITUTION OF LENDERS. If (i) any Lender shall
request payment by a Borrower of any amounts payable by such Borrower pursuant
to Section 2.11 or 2.14 and at such time additional amounts payable by a
Borrower to such Lender pursuant to Section 2.11 or 2.14 shall continue to
accrue or (ii) any Lender's obligation to make Eurodollar Rate Advances shall be
suspended pursuant to Section 2.12, then, in each case, the Borrowers may demand
that such Lender assign its rights and obligations hereunder to one or more
Eligible Assignees selected by the Borrowers in accordance with Section 8.07;
PROVIDED, HOWEVER, that no Lender shall
28
be obligated to make any such assignment as a result of a demand by the
Borrowers unless and until such Lender shall have received one or more
payments from the Borrowers or one or more Eligible Assignees in an aggregate
amount at least equal to the aggregate outstanding principal amount of the
Advances owing to such Lender, together with accrued interest and accrued
fees thereon to the date of payment of such principal amount and all other
amounts payable to such Lender under this Agreement.
SECTION 2.17. USE OF PROCEEDS. The proceeds of the Advances
shall be available (and each Borrower agrees that it shall use such proceeds)
for general corporate purposes outside of Switzerland.
SECTION 2.18. EXTENSION OF TERMINATION DATE AND MATURITY DATE.
(a) The Borrowers may, by delivery to the Administrative Agent of a written
request of extension (a "Request of Extension") in substantially the form of
Exhibit C, given no earlier than 45 days and no later than 30 days prior to May
24, 2002 (the "First Extension Date") and, if the Termination Date shall have
been extended pursuant hereto on the First Extension Date, May 23, 2003 (the
"Second Extension Date"; and together with the First Extension Date, each an
"Extension Date"), respectively, request that each Lender agree to extend the
Termination Date applicable to its Commitment by, in the case of the First
Extension Date, 364 days and, in the case of the Second Extension Date, an
additional 364 days. Each Lender shall respond by returning a completed Request
of Extension to the Administrative Agent no earlier than 30 days and no later
than 15 days prior to the Extension Date identified in such Request of
Extension, and the Administrative Agent shall promptly but in no event later
than such 10th day prior to such Extension Date, notify the Borrowers as to each
Lender's response. A failure on the part of any Lender to return a completed
Request of Extension hereunder shall be deemed a rejection by such Lender of
such Request of Extension. If on the 10th day prior to the Extension Date
identified in such Request of Extension, the Majority Lenders (determined as of
such 10th day) shall have agreed to such extension, then the Termination Date
shall, on such Extension Date, become the date which is 364 days from such
Extension Date and the Maturity Date shall become the date which is one year
after such new Termination Date, in each case as to each Lender which agreed to
such extension; PROVIDED, HOWEVER, that such extension of the Termination Date
and the Maturity Date shall not become effective as to any Lender which did not
agree to such extension. If on such 10th day the Majority Lenders (determined as
of such 10th day) shall not have agreed to such extension, such extension shall
not become effective as to any Lender.
(b) If on the 10th day referred to above, the Majority Lenders
(determined as of such 10th day) have approved such extension, but any Lender
has notified the Administrative Agent that such Lender does not agree to an
extension requested by a Request of Extension, the Borrowers may demand such
Lender to assign, pursuant to Section 8.07, all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a
portion of its Commitment and the Advances owing it) to an Eligible Assignee,
with such assignment to be consummated before the 5th day prior to such
Extension Date identified in such Request of Extension; PROVIDED, HOWEVER,
that no Lender shall be obligated to make any such assignment as a result of
a demand by the Borrowers unless and until such Lender shall have received
one or more payments from the applicable Borrowers or one or more Eligible
Assignees in an aggregate amount at least equal to the aggregate outstanding
principal amount of the Advances owing to such Lender, together with accrued
interest and accrued fees thereon to the date of payment of such principal
amount and all other amounts payable to such Lender under this Agreement.
29
SECTION 2.19. CONVERSION AND CONTINUATION OF REVOLVING CREDIT
BORROWINGS. Each Borrower shall have the right at any time upon prior
irrevocable notice to the Administrative Agent (i) not later than 11:00 a.m.,
New York City time, one Business Day prior to conversion, to convert any
Revolving Credit Borrowing of such Borrower into a Borrowing consisting of Base
Rate Advances and (ii) not later than 11:00 a.m., New York City time, three
Business Days prior to conversion or continuation, to convert any Revolving
Credit Borrowing of such Borrower into a Borrowing consisting of Eurodollar Rate
Advances or to continue any Borrowing consisting of Eurodollar Rate Advances to
such Borrower for an additional Interest Period, subject in each case to the
following:
(a) each conversion or continuation shall be made pro rata
among the Lenders in accordance with the respective principal amounts
of the Advances comprising the converted or continued Borrowing;
(b) less than all the outstanding principal amount of any
Borrowing may be converted or continued, but in such case the aggregate
principal amount of such Borrowing converted or continued shall be an
integral multiple of $5,000,000 and not less than $25,000,000;
(c) accrued interest on an Advance (or portion thereof) being
converted shall be paid by the applicable Borrower at the time of
conversion;
(d) if any Borrowing consisting of Eurodollar Rate Advances is
converted at a time other than the end of the Interest Period
applicable thereto, the applicable Borrower shall pay, upon demand, any
amounts due to the Lenders pursuant to Section 8.04(c) as a result of
such conversion;
(e) any portion of a Borrowing maturing or required to be
repaid in less than one month or 30 days, respectively, may not be
converted into or continued as a Borrowing consisting of Eurodollar
Rate Advances;
(f) any portion of a Borrowing consisting of Eurodollar Rate
Advances which cannot be continued as such by reason of clause (e)
above shall be automatically converted at the end of the Interest
Period in effect for such Borrowing into a Revolving Credit Borrowing
consisting of Base Rate Advances;
(g) no Interest Period may be selected for any Borrowing that
would end later than the Maturity Date; and
(h) at any time when there shall have occurred and be
continuing any Default or Event of Default, no Borrowing may be
converted into or continued as a Eurodollar Rate Advance.
Each notice pursuant to this Section 2.19 shall be irrevocable
and shall refer to this Agreement and specify (i) the identity and amount of the
Revolving Credit Borrowing that the applicable Borrower requests to be converted
or continued, (ii) the Type of Advances into which such Borrowing is to be
converted to or continued, (iii) if such notice requests a conversion, the date
of such conversion (which shall be a Business Day) and (iv) if such Borrowing is
to be converted to or continued as a Borrowing consisting of Eurodollar Rate
Advances, the Interest Period with respect thereto. If no Interest Period is
specified in any such notice with respect to any conversion to or continuation
as a Borrowing consisting of Eurodollar Rate
30
Advances, the applicable Borrower shall be deemed to have selected an
Interest Period of one month's duration. The Administrative Agent shall
advise the other Lenders of any notice given pursuant to this Section 2.19
and of each Lender's portion of any converted or continued Borrowing. If the
applicable Borrower shall not have given notice in accordance with this
Section to continue any Borrowing into a subsequent Interest Period (and
shall not otherwise have given notice in accordance with this Section to
convert such Borrowing), such Borrowing shall, at the end of the Interest
Period applicable thereto (unless repaid pursuant to the terms hereof),
automatically be continued into a new Interest Period as a Base Rate
Borrowing.
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. CONDITIONS OF EFFECTIVENESS. This Agreement
shall become effective as of May 25, 2001, when, and only when, before 3:00 p.m.
May 25, 2001, (x) the Existing Credit Agreements shall have been terminated and
all indebtedness and other monetary obligations thereunder shall have been
repaid in full by the borrowers thereunder and (y) the Administrative Agent
shall have received (i) counterparts of this Agreement executed by the
Borrowers, the Administrative Agent and each Lender, (ii) counterparts of the
Guarantee executed by the Guarantor and the Administrative Agent and (iii) all
of the following documents, each document (unless otherwise indicated) being
dated the date of receipt thereof by the Administrative Agent (which date shall
be the same for all such documents except as otherwise approved by the
Administrative Agent), in form and substance satisfactory to the Administrative
Agent:
(a) Certified copies of the resolutions of the Board of
Directors of each Borrower approving or authorizing approval of the
execution, delivery and performance of this Agreement and of all
documents evidencing other necessary corporate action and governmental
and regulatory approvals, if any, with respect to this Agreement.
(b) A certificate of the Secretary or an Assistant Secretary
of each Borrower certifying the names and true signatures of the
officers of such Borrower authorized to sign this Agreement and the
other documents to be delivered hereunder.
(c) a certificate or certificates of an appropriate officer of
the jurisdiction of organization of each Borrower, dated as of a date
reasonably near the Effective Date, attaching the certificate of
incorporation or other constitutive documents of such Borrower and each
amendment thereto on file in his office and certifying that (i) such
certificate of incorporation or other constitutive documents are true
and complete copies thereof, (ii) such amendments (if any) are the only
amendments to such certificate of incorporation or other constitutive
documents on file in his office, (iii) such Borrower has paid all
franchise taxes to the date of such certificate and (iv) such Borrower
is duly incorporated and in good standing under the laws of such
jurisdiction; and
(d) A favorable opinion of each of Cleary, Gottlieb, Xxxxx &
Xxxxxxxx, Xxxxxx X. XxXxxxxxxx, Esq., General Counsel of the Borrowers,
and Xxxxxxxx Kraft & Xxxx, counsel for the Guarantor, substantially in
the
31
form of Exhibit X-0, X-0, and D-3, respectively, and as to such
other matters as any Lender and any Swing Line Bank through the
Administrative Agent may reasonably request.
(e)(i) Certified copies of the resolutions of the Board of
Directors of the Guarantor approving or authorizing approval of the
execution, delivery and performance of the Guarantee and of all
documents evidencing other necessary corporate action and governmental
and regulatory approvals, if any, with respect to the Guarantee.
(ii) A certificate of the Secretary, an Assistant Secretary, a
Director or another officer of the Guarantor certifying the names of
the officers of the Guarantor authorized to sign the Guarantee and the
other documents to be delivered thereunder.
(iii) A certificate from the jurisdiction of domicile of the
Guarantor as to registration and incorporation of the Guarantor, dated
as of a date reasonably near the Effective Date, and a certified copy
of the By-Laws of the Guarantor as presently in force and on file in
such jurisdiction.
SECTION 3.02. CONDITIONS PRECEDENT TO EACH BORROWING. The
obligation of each Lender to make an Advance on the occasion of each Borrowing
(including the initial Borrowing) and the obligation of the Swing Line Banks to
make Swing Line Advances hereunder shall be subject to the further conditions
precedent that on the date of such Borrowing: (a) the following statements shall
be true (and each of the giving of the applicable Notice of Borrowing and the
acceptance by the applicable Borrower of the proceeds of such Borrowing shall
constitute a representation and warranty by such Borrower that on the date of
such Borrowing such statements (other than any such statements with respect to
representations and warranties made by the other Borrower) are true):
(i) The representations and warranties contained in Article
III of the Guarantee (excluding that set forth in the last sentence of
Section 3.05 thereof) and contained in Article IV hereof (excluding
that contained in Section 4.01(l)) are correct on and as of the date of
such Borrowing, before and after giving effect to such Borrowing and to
the application of the proceeds therefrom, as though made on and as of
such date, and
(ii) No Default has occurred and is continuing, or would
result from such Borrowing or from the application of the proceeds
therefrom; and
(b) the Administrative Agent shall have received such other
approvals, opinions or documents as the Majority Lenders through the
Administrative Agent may reasonably request. During the term of this Agreement
(whether or not any Advances are outstanding hereunder), each Lender shall use
reasonable efforts to promptly notify the Borrowers of any approvals, opinions
or documents which such Lender may thereafter request pursuant to this clause
(b) of Section 3.02.
32
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. REPRESENTATIONS AND WARRANTIES OF THE BORROWERS.
Each Borrower represents and warrants as follows:
(a) Such Borrower and each of its Principal Subsidiaries (i)
is duly organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation (or, if not a corporation, the
jurisdiction of its organization), (ii) has all corporate power (or, in
the case of any such Principal Subsidiary which is not a corporation,
has all necessary power) to own its property and carry on its business
as now being conducted and (iii) is duly qualified to do business and
is in good standing in each jurisdiction in which it owns or leases
property or in which the conduct of its business requires it to so
qualify or be licensed except to the extent that failure to so qualify
(or be so licensed or registered) does not and is not reasonably likely
to have a material adverse effect on the consolidated financial
condition or operations of the Guarantor and its Subsidiaries.
(b) The execution, delivery and performance by such Borrower
of this Agreement are within such Borrower's corporate powers, have
been duly authorized by all necessary corporate action, and do not and
will not (i) contravene such Borrower's charter or by-laws, (ii)
violate any law, rule, regulation, order, writ, judgment, injunction,
decree, determination or award, (iii) conflict with or result in the
breach of, or constitute a default under, any agreement to which such
Borrower or any of its Principal Subsidiaries is a party or which is
binding on such Borrower's or any of its Principal Subsidiaries'
properties or (iv) result in or require the creation or imposition of
any Lien upon or with respect to any of the properties of such Borrower
or any of its Principal Subsidiaries.
(c) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body
is required for the due execution, delivery and performance by such
Borrower of this Agreement.
(d) This Agreement is a legal, valid and binding obligation of
such Borrower enforceable against such Borrower in accordance with its
terms.
(e) There is no pending or threatened action or proceeding
affecting such Borrower or any Principal Subsidiary of such Borrower
before any court, governmental agency or arbitrator, (i) which has or
is likely to have a material adverse effect on the consolidated
financial condition or business of the Guarantor and its Subsidiaries
or (ii) which purports to affect the legality, validity or
enforceability of this Agreement.
(f) Neither such Borrower nor the Guarantor is an "investment
company", as such term is defined in the Investment Company Act of
1940, as amended.
(g) No ERISA Event has occurred or is reasonably expected to
occur with respect to any Plan of such Borrower or any of its ERISA
Affiliates that has resulted in or is reasonably likely to result in
liability of such Borrower or any of its ERISA Affiliates exceeding
$30,000,000.
33
(h) Schedule B (Actuarial Information) to the most recent
annual report (Form 5500 Series) for each Plan of such Borrower or any
of its ERISA Affiliates at the time of such filing, copies of which
have been filed with the Internal Revenue Service and furnished to the
Banks, is complete and accurate and fairly presents the funding status
of such Plan, and since the date of such Schedule B there has been no
material adverse change in such funding status except any change that
has been previously disclosed in writing to the Banks.
(i) Neither such Borrower nor any of its ERISA Affiliates has
incurred or is reasonably expected to incur any Withdrawal Liability
exceeding $30,000,000 to any Multiemployer Plan.
(j) Neither such Borrower nor any of its ERISA Affiliates has
been notified by the sponsor of a Multiemployer Plan of such Borrower
or any of its ERISA Affiliates that such Multiemployer Plan is in
reorganization or has been terminated with a resulting Withdrawal
Liability exceeding $30,000,000, within the meaning of Title IV of
ERISA, and no such Multiemployer Plan is reasonably expected to be in
reorganization or to be terminated, within the meaning of Title IV of
ERISA, with a resulting Withdrawal Liability exceeding $30,000,000.
(k) No part of the proceeds of any Advance will be used in
such a manner as to result in a violation of Section 7 of the
Securities Exchange Act of 1934 or any of the margin regulations of the
Board of Governors of the Federal Reserve System promulgated
thereunder, including, without limitation, Regulations U, T and X
thereunder.
(l) No material adverse change in the financial position or
business of the Guarantor or the Guarantor and its Subsidiaries, on a
consolidated basis, has occurred since December 31, 2000.
(m) Each CSFB Broker-Dealer is a registered broker-dealer in
each jurisdiction in which it owns or leases property or in which the
conduct of its business requires it to so register except to the extent
that failure to so register does not and is not reasonably likely to
have a material adverse effect on the financial condition or operations
of such CSFB Broker-Dealer or the consolidated financial condition or
operations of Credit Suisse Group and its Subsidiaries. Each CSFB
Broker-Dealer is a member organization in good standing of the NYSE and
the NASD and is duly registered as a broker-dealer with the Commission.
(n) The Part I FOCUS Reports of each CSFB Broker-Dealer for
the quarter most recently ended, and for the month ended March 31,
2001, each prepared in accordance with NYSE and Commission rules and
regulations and generated from the same information used by such CSFB
Broker-Dealer to prepare the Part II FOCUS Report filed with the NYSE
or Commission for each such period, copies of which are to be furnished
to each Bank, are correct in all material respects.
(o) Each CSFB Broker-Dealer is engaged, directly or
indirectly, in the business of investment banking.
34
ARTICLE V
COVENANTS OF THE BORROWERS
SECTION 5.01. AFFIRMATIVE COVENANTS. So long as the principal
of or interest on any Advance shall remain unpaid or any Lender shall have any
Commitment hereunder, each Borrower will, unless the Majority Lenders shall
otherwise consent in writing:
(a) COMPLIANCE WITH LAWS, ETC. Comply, and cause each
Principal Subsidiary owned by it to comply, with all applicable laws
(including, without limitation, any applicable federal or state
securities laws, any applicable provisions of ERISA and the Racketeer
Influenced and Corrupt Organizations Chapter of the Organized Crime
Control Act of 1970), rules, regulations and orders, except when the
failure to so comply is not reasonably likely to have a material
adverse effect on the consolidated financial condition or operations of
the Guarantor and its Subsidiaries or, in the case of any such failure
by a Principal Subsidiary, on the financial condition or operations of
such Principal Subsidiary.
(b) MAINTENANCE OF EXISTENCE. Preserve and maintain, and cause
each Principal Subsidiary owned by it to preserve and maintain, its
corporate existence in good standing and qualify and remain qualified
to do business as a foreign corporation in each jurisdiction in which
the character of the properties owned or leased by it therein or the
conduct of its business is such that failure to qualify or be licensed
has or would be reasonably likely to have a material adverse effect on
the consolidated financial condition or operations of the Guarantor and
its Subsidiaries; PROVIDED, HOWEVER, that the foregoing shall not
prohibit any merger, consolidation or liquidation permitted by Sections
5.01(f), 5.02(b) and 5.02(i).
(c) PAYMENT OF TAXES, ETC. Pay and discharge, and cause each
Principal Subsidiary owned by it to pay and discharge, before the same
shall become delinquent, all taxes, assessments and governmental
charges or levies imposed upon it or upon its property; PROVIDED,
HOWEVER, that neither such Borrower nor any of its Subsidiaries shall
be required to pay or discharge any such tax, assessment, charge or
claim that is being contested in good faith and by proper proceedings
and as to which appropriate reserves are being maintained in accordance
with generally accepted accounting principles.
(d) MAINTENANCE OF INSURANCE. Maintain, and cause each
Principal Subsidiary owned by it to maintain, insurance with
responsible and reputable insurance companies or associations in such
amounts and covering such risks as is usually carried by companies
engaged in similar businesses and owning similar properties in the same
general areas in which such Borrower or such Subsidiary operates.
(e) REPORTING REQUIREMENTS. Furnish to the Lenders:
(i) as soon as available and in any event within 90
days after the end of each fiscal year of each Borrower, a
copy of the annual audit report for such year for such
Borrower and its Subsidiaries, containing consolidated
financial statements for such year certified in a manner
acceptable to the Majority Lenders by KPMG LLP or other
35
independent public accountants acceptable to the Majority
Lenders, together with (A) a certificate of the chief
financial officer or the comptroller or other appropriate
officer of such Borrower stating that no Default with respect
to such Borrower or the Guarantor has occurred and is
continuing or, if such a Default has occurred and is
continuing, a statement as to the nature thereof and the
action that such Borrower or the Guarantor, as the case may
be, has taken and proposes to take with respect thereto and
(B) a summary of legal proceedings relating to the Guarantor
or any of its Subsidiaries the likely effect of which would be
to result in a material adverse change in the financial
condition of the Guarantor and its Subsidiaries on a
consolidated basis;
(ii) as soon as available and in any event within 45
days after the end of each of the first three quarters of each
fiscal year of each of the Borrowers and each CSFB
Broker-Dealer, consolidated balance sheets of each Borrower
and its Subsidiaries and each CSFB Broker-Dealer and its
Subsidiaries as of the end of such quarter and consolidated
statements of income and cash flows of each Borrower and its
Subsidiaries and each CSFB Broker-Dealer and its Subsidiaries
for the period commencing at the end of the previous fiscal
year and ending with the end of such quarter, certified by the
chief financial officer or the comptroller or other
appropriate officer of each Borrower and each CSFB
Broker-Dealer, respectively, together with (A) a certificate
of said officer stating that no Default with respect to such
Borrower or the Guarantor has occurred and is continuing or,
if such a Default has occurred and is continuing, a statement
as to the nature thereof and the action that such Borrower or
the Guarantor, as the case may be, has taken and proposes to
take with respect thereto and (B) a summary of legal
proceedings relating to the Guarantor or any of its
Subsidiaries the likely effect of which would be to result in
a material adverse change in the financial condition of the
Guarantor and its Subsidiaries on a consolidated basis;
(iii) as soon as available and in any event within 90
days after the end of each fiscal year of each CSFB
Broker-Dealer, a copy of the annual audit report for such year
for such CSFB Broker-Dealer and its Subsidiaries, containing
consolidated financial statements for such year certified in a
manner acceptable to the Majority Lenders by KPMG LLP or other
independent public accountants acceptable to the Majority
Lenders, together with a certificate of such accounting firm
to the Lenders stating that in the course of the regular audit
of the business of such CSFB Broker-Dealer and its
Subsidiaries, which audit was conducted by such accounting
firm in accordance with generally accepted auditing standards,
such accounting firm has obtained no knowledge that a Default
under Section 5.02 or 6.01(n) has occurred and is continuing
or, if such accounting firm has obtained knowledge that such a
Default has occurred and is continuing, a statement as to the
nature thereof;
(iv) promptly after the sending or filing thereof, a
copy of any notification given by any CSFB Broker-Dealer to
the Commission regarding a net capital deficit or any capital
withdrawal made pursuant to the Net Capital Rule;
36
(v) within two Business Days after any CSFB
Broker-Dealer files its Part II FOCUS Report for each month
with the NYSE or the Commission, a Part I FOCUS Report for
such CSFB Broker-Dealer for such period, prepared in
accordance with NYSE and Commission rules and regulations, and
generated from the same information used by such CSFB
Broker-Dealer to prepare the Part II FOCUS Report filed with
the NYSE or the Commission for such period; PROVIDED, HOWEVER,
that, notwithstanding the foregoing, a copy of any Part I
FOCUS Report for such CSFB Broker-Dealer actually filed with
the NYSE or the Commission shall be furnished to the Lenders
promptly upon the filing thereof;
(vi) as soon as available and in any event within 90
days after the end of the first six months of each fiscal year
of CSFB, consolidated balance sheets of CSFB and its
Subsidiaries as of the end of such six month period and
consolidated statements of income of CSFB and its Subsidiaries
for the period commencing at the end of the previous fiscal
year and ending with the end of such six month period,
certified by the chief financial officer or the comptroller or
other appropriate officer of CSFB (it being understood that
the furnishing of any such certified balance sheets and
statements of income by either Borrower shall fulfill this
requirement for the relevant period for both Borrowers);
(vii) as soon as available and in any event within
180 days after the end of each fiscal year of CSFB, a copy of
the annual audit report for such year for CSFB and its
Subsidiaries, containing consolidated financial statements for
such year certified in a manner acceptable to the Majority
Lenders by KPMG LLP or other independent public accountants
acceptable to the Majority Lenders (it being understood that
the furnishing of any such certified audit report by either
Borrower shall fulfill this requirement for the relevant
fiscal year for both Borrowers);
(viii) as soon as available and in any event within
90 days after the end of the first six months of each of
Credit Suisse Group's financial years, Credit Suisse Group's
consolidated semi-annual report and unaudited accounts,
certified in a manner acceptable to the Majority Lenders by
the chief financial officer or the comptroller or other
appropriate officer of Credit Suisse Group, as at the end of
and for such six month period, together with copies of the
related directors' reports;
(ix) as soon as available and in any event within 180
days after the end of each of Credit Suisse Group's financial
years, Credit Suisse Group's consolidated and unconsolidated
annual reports and audited accounts as at the end of and for
that financial year, certified in a manner acceptable to the
Majority Lenders by independent public accountants acceptable
to the Majority Lenders, together with copies of the related
directors' and auditors' reports;
(x) as soon as possible and in any event within five
days after the occurrence of each Event of Default with
respect to such Borrower or the Guarantor and each event
which, with the giving of notice or
37
lapse of time, or both, would constitute an Event of Default
with respect to such Borrower or the Guarantor, a statement of
the Chief Financial Officer or other appropriate officer of
such Borrower setting forth details of such Event of Default
or event and the action which such Borrower or the Guarantor,
as the case may be, has taken and proposes to take with
respect thereto;
(xi) promptly after the sending or filing thereof,
(A) copies of all reports which such Borrower or any CSFB
Broker-Dealer sends to any holders of its securities
registered with the Commission under the Securities Exchange
Act of 1934, as amended, and (B) copies of all regular,
periodic and special reports, and all registration statements,
that such Borrower or any CSFB Broker-Dealer, as applicable,
files with the Commission or any governmental agency that may
be substituted therefor, or with any national securities
exchange in each case with respect to such securities;
(xii) promptly after the filing or receiving thereof,
(a) copies of all notices received from the Internal Revenue
Service, the Department of Labor or the PBGC by such Borrower
or any Subsidiary of such Borrower with respect to an ERISA
Event and (b) copies of each Schedule B (Actuarial
Information) to the annual report (Form 5500 Series) filed
with the Internal Revenue Service for each Plan of such
Borrower and any of its ERISA Affiliates;
(xiii) promptly after the commencement thereof,
notice of all actions, suits, investigations, litigation and
proceedings before any court or governmental department,
commission, board, bureau, agency or instrumentality, domestic
or foreign, affecting the Guarantor or any of its Subsidiaries
the likely effect of which would be to result in a material
adverse change in the financial condition of the Guarantor and
its Subsidiaries, on a consolidated basis;
(xiv) such other information respecting the condition
or operations, financial or otherwise, of such Borrower or any
of its Subsidiaries as any Lender through the Administrative
Agent may from time to time reasonably request;
(xv) (A) at the same time as sent to the Guarantor's
shareholders, any circular, document or other written
information sent to the Guarantor's shareholders as such
(including interim reports if and to the extent that these are
prepared and distributed); and
(B) such other information relating to the
consolidated financial condition or business of the Guarantor
and its Subsidiaries as the Administrative Agent (or any
Lender through the Administrative Agent) may from time to time
reasonably request, except for such information as is
customarily and reasonably regarded by the Guarantor as
confidential; and
(xvi) promptly after the announcement thereof by the
applicable rating agency, notice of any change in the rating
of the Index Debt by S&P or Xxxxx'x (or any substitute rating
agency).
38
(f) OWNERSHIP OF PRINCIPAL SUBSIDIARIES. In the case of CSFB
Inc., maintain ownership of 100% of (i) the voting common stock of each
Principal Subsidiary and (ii) the combined voting power of all capital
stock of each Principal Subsidiary entitled to vote in the election of
directors; PROVIDED, HOWEVER, that the foregoing shall not prohibit any
merger or consolidation of a Principal Subsidiary with or into a
Borrower or another Person or any liquidation of a Principal Subsidiary
into a Borrower or another Subsidiary of CSFB Inc., so long as the
requirements of clauses (i) and (ii) of this sentence are satisfied by
CSFB Inc. with respect to the surviving entity in any such merger or
consolidation or the Subsidiary receiving such liquidation (in each
case if such surviving or receiving entity is not CSFB Inc.). In the
case of CSFB (USA), maintain ownership of 100% of (i) the voting common
stock of each CSFB Broker-Dealer and (ii) the combined voting power of
all capital stock of each CSFB Broker-Dealer entitled to vote in the
election of directors; PROVIDED, HOWEVER, that the foregoing shall not
prohibit any merger or consolidation of a CSFB Broker-Dealer with or
into another Person or any liquidation of a CSFB Broker-Dealer into
another Subsidiary of CSFB (USA), so long as the entity surviving such
merger or consolidation or receiving such liquidation is a CSFB
Broker-Dealer in respect of which the requirements of clauses (i) and
(ii) of this sentence are satisfied by CSFB (USA).
SECTION 5.02. NEGATIVE COVENANTS. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, each Borrower
will not, without the written consent of the Majority Lenders:
(a) LIENS, ETC. Create or suffer to exist any Lien, upon or
with respect to any of its properties of any character (including,
without limitation, the capital stock of the Principal Subsidiaries
owned by it) whether now owned or hereafter acquired, or assign any
right of such Borrower to receive income to secure or provide for the
payment of any Debt of any Person, OTHER THAN any of the following
Liens as to which no enforcement, collection, execution, levy or
foreclosure proceeding shall have been commenced: (i) Liens for taxes,
assessments and governmental charges or levies to the extent not
required to be paid under Section 5.01(c) hereof; (ii) Liens imposed by
law arising in the ordinary course of business securing obligations
that are not overdue for a period of more than 30 days; (iii) pledges
or deposits to secure obligations under workers' compensation laws or
similar legislation or to secure public or statutory obligations; (iv)
Liens incurred in the ordinary course of business.
(b) MERGERS, ETC. Consolidate with or merge into or with, or
sell or otherwise dispose of all or substantially all of its assets to,
any Person, or acquire all or substantially all of the assets of any
Person, unless, in the case of any such proposed consolidation, merger
or acquisition of assets, (i) immediately after giving effect to such
transaction, (A) no Default would exist and (B) the ratings by S&P and
Xxxxx'x of the Index Debt would not be less than the ratings by S&P and
Xxxxx'x of the Index Debt immediately before giving effect to such
proposed transaction and (ii) in the case of any proposed merger or
consolidation to which such Borrower will be a party (unless such
Borrower will be the survivor), the corporation formed by any such
consolidation or into which such Borrower shall be merged shall (A)
assume such Borrower's obligations hereunder pursuant to an agreement
or instrument reasonably satisfactory in form and substance to the
Administrative Agent and (B) be a direct or indirect wholly-owned
Subsidiary of the Guarantor.
39
(c) INTERNATIONAL BANKING ACT OF 1978; BANK HOLDING COMPANY
ACT OF 1956. Violate the International Banking Act of 1978, as amended
from time to time ("IBA") or the Bank Holding Company Act of 1956, as
amended from time to time ("BHCA"), or any order, regulation,
interpretation or advice issued or promulgated by, or on behalf of, the
Board of Governors of the Federal Reserve System with respect to the
applicability of the IBA or the BHCA to such Borrower, its Subsidiaries
and its and their respective activities (including, without limitation,
any restrictions on such Borrower's ability to, directly or indirectly,
acquire the voting stock of a company or engage in investment banking
or merchant banking activity) if such violation could reasonably be
expected to have a material adverse effect on the financial condition
or operations of any CSFB Broker-Dealer or the consolidated financial
condition or operations of the Guarantor and its Subsidiaries.
(d) COMPLIANCE WITH ERISA. Permit to exist any occurrence of
any Reportable Event (as defined in Title IV of ERISA), or any other
event or condition, which presents a material risk of termination by
the PBGC of any Plan and the imposition of liability on such Borrower
or any of its ERISA Affiliates exceeding $30,000,000.
(e) PREPAYMENTS, ETC. OF SUBORDINATED DEBT. Prepay, redeem,
purchase, defease or otherwise satisfy prior to the scheduled maturity
thereof, or make any payment in violation of any subordination terms
of, any Debt which is subordinated in right of payment to the
obligations of such Borrower under this Agreement at any time when (i)
an Advance is outstanding hereunder or (ii) any interest, fees or other
amounts are due and payable by such Borrower hereunder; PROVIDED,
HOWEVER, that such limitation shall not apply to the prepayment,
redemption, purchase or defeasance by such Borrower of any subordinated
medium-term note or other such subordinated debt if such Borrower
immediately reissues subordinated Debt in a principal amount equal to
or greater than the amount of such subordinated debt so prepaid,
redeemed, purchased or defeased and such reissued subordinated Debt (A)
is subordinated in right of payment to the Debt under this Agreement on
terms no less favorable to the Lenders than the Debt being so prepaid,
redeemed, purchased or defeased and (B) does not mature prior to the
stated maturity of, and has an average life equal to or greater than,
the Debt being so prepaid, redeemed, purchased or defeased.
(f) LOANS AND ADVANCES. Make any loans, advances or other
extensions of credit to Credit Suisse Group or any Subsidiary of Credit
Suisse Group; PROVIDED, HOWEVER, that so long as no Event of Default
shall have occurred and be continuing (i) such Borrower may make loans,
advances or other extensions of credit to any Subsidiary of Credit
Suisse Group (other than a Subsidiary of such Borrower) on terms no
less favorable to such Borrower than it would obtain in a comparable
arm's-length transaction in the ordinary course of business and (ii)
such Borrower may make loans, advances or other extensions of credit to
any of its Subsidiaries so long as such loans, advances or other
extensions of credit bear interest at a rate consistent with reasonable
business practices.
(g) DEBT. Create or suffer to exist any Debt other than Debt
which ranks PARI PASSU with, or subordinate in right of payment to, the
senior indebtedness of such Borrower represented by the Advances.
40
(h) COMPLIANCE WITH NET CAPITAL RULE. Permit any violation of
the Net Capital Rule by any CSFB Broker-Dealer to remain uncured for 5
days after a Borrower obtains knowledge of such violation.
(i) MAINTENANCE OF OWNERSHIP OF THE CSFB BROKER-DEALERS. Sell
or otherwise dispose of any shares of common stock of any CSFB
Broker-Dealer; PROVIDED, HOWEVER, that a merger between CSFB
Broker-Dealers may be effected so long as the surviving entity is a
wholly-owned Subsidiary of CSFB (USA) and a registered broker-dealer.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. EVENTS OF DEFAULT. If any of the following
events ("Events of Default") shall occur and be continuing:
(a) Either Borrower shall fail to pay any principal of any
Advance made to it when the same becomes due and payable, or shall fail
to pay any interest on any Advance made to it or any fees payable
hereunder within five days after such interest or fees become due and
payable; or
(b) Any representation or warranty made by either Borrower
herein or by the Guarantor in the Guarantee or by either Borrower or
the Guarantor (or any of their officers) in connection with this
Agreement or the Guarantee shall prove to have been incorrect in any
material respect when made or deemed made; or
(c) Either Borrower shall fail to perform or observe any term,
covenant or agreement contained in Section 5.01(e)(viii) or 5.02 or the
Guarantor shall fail to perform or observe any covenant or agreement
contained in Sections 4.02 and 4.03 of the Guarantee; or either
Borrower or the Guarantor shall fail to perform or observe any other
term, covenant or agreement contained in this Agreement or the
Guarantee on its part to be performed or observed if the failure to
perform or observe such other term, covenant or agreement shall remain
unremedied for 21 days after written notice thereof shall have been
given to the Guarantor or, as the case may be, by the Administrative
Agent or any Lender; or
(d) Any one or more of the Guarantor, the Borrowers and the
Principal Subsidiaries shall fail to pay any principal of or premium or
interest on any Debt which is outstanding in a principal amount of at
least $100,000,000 in the aggregate (but excluding Debt represented by
the Advances) of the Guarantor, the Borrowers or the Principal
Subsidiaries (as the case may be), when the same becomes due and
payable (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise), and such failure shall continue
after the applicable grace period, if any, specified in the agreement
or instrument relating to such Debt and, in the case of the Principal
Subsidiaries (other than CSFB (USA)), such failure shall continue for
10 days after the later of the date the same becomes due and payable
and the last day of the applicable grace period, if any; or any such
Debt shall be declared to be due and payable, or required to be prepaid
(other than by a regularly scheduled
41
required prepayment), redeemed, purchased or defeased, or an offer to
prepay, redeem, purchase or defease such Debt shall be required to be
made, in each case prior to the stated maturity thereof; or
(e) the Guarantor, any Borrower or any Principal Subsidiary
shall generally not pay its debts as such debts become due, or shall
admit in writing its inability to pay its debts generally, or shall
make a general assignment for the benefit of creditors; or any
proceeding shall be instituted by or against the Guarantor, any
Borrower or any Principal Subsidiary seeking to adjudicate it a
bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, or
composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors, or seeking the entry
of an order for relief or the appointment of a receiver, trustee,
custodian or other similar official for it or for any substantial part
of its property and, in the case of any such proceeding instituted
against it (but not instituted by it), either such proceeding shall
remain undismissed or unstayed for a period of 60 days, or any of the
actions sought in such proceeding (including, without limitation, the
entry of an order for relief against, or the appointment of a receiver,
trustee, custodian or other similar official for, it or for any
substantial part of its property) shall occur; or the Guarantor, any
Borrower or any Principal Subsidiary shall take any corporate action to
authorize any of the actions set forth above in this subsection (e); or
(f) Any judgment or order for the payment of money in excess
of $100,000,000 or its equivalent in the aggregate shall be rendered
against any one or more of the Guarantor, the Borrowers and the
Principal Subsidiaries and there shall be any period of 10 consecutive
days during which a stay of enforcement of such judgment or order, by
reason of a pending appeal or otherwise, shall not be in effect; or
(g) Any non-monetary judgment or order shall be rendered
against the Guarantor, any Borrower or any Principal Subsidiary that
would be reasonably likely to have a material adverse effect on the
Guarantor and its Subsidiaries as a whole, and there shall be any
period of 10 consecutive days during which a stay of enforcement of
such judgment or order, by reason of a pending appeal or otherwise,
shall not be in effect; or
(h) Any ERISA Event shall have occurred with respect to a Plan
of any Borrower or any of its ERISA Affiliates and the sum (determined
as of the date of occurrence of such ERISA Event) of the Insufficiency
of such Plan and the Insufficiency of any and all other Plans of any
Borrower and its ERISA Affiliates with respect to which an ERISA Event
shall have occurred and then exist (or the liability of any Borrower
and its ERISA Affiliates related to such ERISA Event) exceeds
$30,000,000; or
(i) Any CSFB Broker-Dealer shall cease to be a member
organization of the NYSE or the NASD or shall fail to maintain its
registration as a broker-dealer with the Commission; PROVIDED, HOWEVER,
that a merger between CSFB Broker-Dealers may be effected so long as
the surviving entity is in compliance with this Section 6.01(i); or the
Commission or the NYSE shall make a decision, enter an order, or take
other action with respect to any CSFB Broker-Dealer, which materially
adversely affects its business, and such decision, order or other
action shall continue unstayed and in effect for a period of 30 days;
or
42
(j) CSFB and its Affiliates shall cease to own beneficially,
directly or indirectly, capital stock of CSFB Inc. (or any successor
thereof resulting from a transaction permitted by Section 5.02(b))
representing at least 51% of (i) the common stock of CSFB Inc. and (ii)
the combined voting power of all capital stock of CSFB Inc. entitled to
vote in the election of directors; or
(k) CSFB Inc. shall cease to own beneficially, directly or
indirectly, 100% of the voting stock of CSFB (USA) (or any successor
thereof resulting from a transaction permitted by Sections 5.01(f),
5.02(b) and 5.02(i)); or
(l) CSFB (USA) shall cease to own beneficially, directly or
indirectly, 100% of the voting stock of each CSFB Broker-Dealer (or any
successor thereof resulting from a transaction permitted by Section
5.02(b)); or
(m) The SIPC shall apply for a protective decree with respect
to any CSFB Broker-Dealer as provided in the SIPA and such application
shall remain undismissed for a period of 30 days;
(n) Any CSFB Broker-Dealer shall fail to maintain net capital
equal to at least 5% of its Aggregate Debit Items as required to be
shown on any FOCUS Report for such CSFB Broker-Dealer; or
(o) the Guarantee shall for any reason be held by a court of
competent jurisdiction not to be, or shall be asserted by either
Borrower or the Guarantor not to be, valid in accordance with the terms
thereof;
then, and in any such event, (x) the Administrative Agent shall at the request,
or may with the consent, of the Majority Lenders, by notice to CSFB Inc., in the
case of a CSFB Inc. Event of Default, and/or CSFB (USA), in the case of a CSFB
(USA) Event of Default, declare the obligation of each Lender to make Revolving
Credit Advances to such Borrower and the obligation of each of the Swing Line
Banks to make Swing Line Advances to such Borrower to be terminated, whereupon
the same shall forthwith terminate, (y) the Administrative Agent shall at the
request, or may with the consent, of the Majority Lenders, by notice to the
Borrowers, declare the Advances, all interest thereon and all other amounts
payable under this Agreement to be forthwith due and payable (regardless of
whether such Event of Default is a CSFB Inc. Event of Default or a CSFB (USA)
Event of Default), whereupon the Advances, all such interest and all such
amounts shall become and be forthwith due and payable, without presentment,
demand, protest or further notice of any kind, all of which are hereby
expressly waived by the Borrowers, and (z) the obligations of the Lenders to
make Advances to any Borrower in respect of which the lending obligations
hereunder have not been terminated pursuant to clause (x) above shall be
subject to the prior written consent of the Majority Lenders; PROVIDED,
HOWEVER, that, in the event of an actual or deemed entry of an order for
relief with respect to any Borrower under the Federal Bankruptcy Code or upon
the occurrence of an Event of Default described in Section 6.01(e), (A) the
obligation of each Lender to make Advances to such Borrower and of each Swing
Line Bank to make Swing Line Advances to such Borrower shall automatically be
terminated and (B) all the Advances, all such interest and all such amounts
shall automatically become and be due and payable, without presentment,
demand, protest or any notice of any kind, all of which are hereby expressly
waived by the Borrowers.
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ARTICLE VII
THE ADMINISTRATIVE AGENT
Subject to the further provisions of this Article VII, each of
the Lenders and each Swingline Bank hereby irrevocably appoints the
Administrative Agent as its agent and authorizes the Administrative Agent to
take such actions on its behalf and to exercise such powers as are delegated to
the Administrative Agent by the terms hereof, together with such actions and
powers as are reasonably incidental thereto.
The bank serving as the Administrative Agent hereunder shall
have the same rights and powers in its capacity as a Lender as any other Lender
and may exercise the same as though it were not the Administrative Agent, and
such bank and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Borrowers or their
Subsidiaries or other Affiliate thereof as if it were not the Administrative
Agent hereunder.
The Administrative Agent shall not have any duties or
obligations except those expressly set forth herein. Without limiting the
generality of the foregoing, (a) the Administrative Agent shall not be subject
to any fiduciary or other implied duties, regardless of whether a Default has
occurred and is continuing, (b) the Administrative Agent shall not have any duty
to take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated hereby that the
Administrative Agent is required to exercise in writing by the Majority Lenders
(or such other number or percentage of the Lenders as shall be necessary under
the circumstances as provided in Section 8.01), and (c) except as expressly set
forth herein, the Administrative Agent shall not have any duty to disclose, and
shall not be liable for the failure to disclose, any information relating to the
Guarantor, the Borrowers or any of their Subsidiaries that is communicated to or
obtained by the bank serving as Administrative Agent or any of its Affiliates in
any capacity (other than as Administrative Agent). The Administrative Agent
shall not be liable for any action taken or not taken by it with the consent
or at the request of the Majority Lenders (or such other number or percentage
of the Lenders as shall be necessary under the circumstances as provided in
Section 8.01) or in the absence of its own gross negligence or wilful
misconduct. The Administrative Agent shall be deemed not to have knowledge of
any Default unless and until written notice thereof is given to the
Administrative Agent by the applicable Borrower or a Lender, and the
Administrative Agent shall not be responsible for or have any duty to
ascertain or inquire into (i) any statement, warranty or representation made
by any other Person in or in connection with this Agreement, (ii) the
contents of any certificate, report or other document delivered hereunder or
in connection herewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth herein, (iv) the
validity, enforceability, effectiveness (other than its own execution) or
genuineness of this Agreement or any other agreement, instrument or document,
or (v) the satisfaction of any condition set forth in Article III or
elsewhere herein, other than to confirm receipt of items expressly required
to be delivered to the Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and
shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing
reasonably believed by it to be genuine and to have been signed or sent by the
proper Person. The Administrative Agent also may rely upon any statement made to
it orally or by telephone and believed by it to be
44
made by the proper Person, and shall not incur any liability for relying
thereon. The Administrative Agent may consult with legal counsel (who may be
counsel for either Borrower or the Guarantor), independent accountants and
other experts selected by it, and shall not be liable for any action taken or
not taken by it in accordance with the advice of any such counsel,
accountants or experts.
The Administrative Agent may perform any and all its duties
and exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Affiliates. The exculpatory provisions of the preceding
paragraphs shall apply to any such sub-agent and to the Affiliates of the
Administrative Agent and any such sub-agent, and shall apply to their respective
activities in connection with the syndication of the credit facilities provided
for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided in this paragraph, the Administrative Agent may
resign at any time by notifying the Lenders, the Swingline Banks and the
Borrowers. Upon any such resignation, the Majority Lenders shall have the right,
subject to the approval of the Borrowers (provided no Event of Default exists),
to appoint a successor. If no successor shall have been so appointed by the
Majority Lenders and shall have accepted such appointment within 30 days after
the retiring Administrative Agent gives notice of its resignation, then the
retiring Administrative Agent may, on behalf of the Lenders and the Swingline
Banks, appoint a successor Administrative Agent which shall be a bank with an
office in New York, New York, or an Affiliate of any such bank. Upon the
acceptance of its appointment as Administrative Agent hereunder by a
successor, such successor shall succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Administrative Agent,
and the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder. The fees payable by the Borrowers to a successor
Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Borrowers and such successor. After the
Administrative Agent's resignation hereunder, the provisions of this Article
and Section 8.04 shall continue in effect for the benefit of such retiring
Administrative Agent, its sub-agents and their respective Related Parties in
respect of any actions taken or omitted to be taken by any of them while it
was acting as Administrative Agent.
Each Lender acknowledges that it has, independently and
without reliance upon the Administrative Agent or any other Lender and based on
such documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any related agreement or any document furnished hereunder or thereunder.
45
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. AMENDMENTS, ETC. No amendment or waiver of any
provision of this Agreement, nor consent to any departure by a Borrower
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Majority Lenders and each Borrower, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given; PROVIDED, HOWEVER, that no amendment, waiver or consent
shall, unless in writing and signed by all the Lenders, do any of the following:
(a) waive any of the conditions specified in Section 3.01 or 3.02, (b) increase
the Commitments of the Lenders or subject the Lenders to any additional
obligations, (c) reduce or forgive the principal of, or interest on, the
Advances or any fees or other amounts payable hereunder, (d) postpone any date
fixed for any payment of principal of, or interest on, the Advances or any fees
or other amounts payable hereunder, (e) change the definition of "Majority
Lenders" or the percentage of the Commitments or of the aggregate unpaid
principal amount of the Advances which shall be required for the Lenders, the
Swing Line Banks or any of them to take any action hereunder, (f) modify the
second, third or fourth sentence of Section 2.13, Section 2.15 or any other
provision providing for the equal or ratable treatment of the Lenders or (g)
amend this Section 8.01; PROVIDED FURTHER, HOWEVER, that no amendment, waiver or
consent shall, unless in writing and signed by (i) the Administrative Agent in
addition to the Lenders required above to take such action, affect the rights or
duties of the Administrative Agent under this Agreement or (ii) a Swing Line
Bank in addition to the Lenders required above to take such action, increase
such Swing Line Bank's Swing Line Commitment or otherwise affect the rights or
obligations of such Swing Line Bank hereunder.
SECTION 8.02. NOTICES, ETC. All notices and other
communications provided for hereunder shall be in writing (including telecopier
communication) and mailed, telecopied or delivered, to each Borrower at its
address at Eleven Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Telecopy No.
000-000-0000, Attention: Corporate Treasurer; if to any Bank, at its Domestic
Lending Office specified opposite its name on Schedule 1 hereto; if to any other
Lender, at its Domestic Lending Office specified in the Assignment and
Acceptance pursuant to which it became a Lender; and if to the Administrative
Agent, at its address at One Chase Xxxxxxxxx Xxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Telecopy No. (000) 000-0000, Attention: Xxxxx X. Xxxxxxx, with a
copy to The Chase Manhattan Bank, One Chase Xxxxxxxxx Xxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Telecopy No. 000-000-0000, Attention: Xxxx Buyers-Xxxxx;
or, as to each of the aforementioned parties, at such other address as shall be
designated by such party in a written notice to the Borrowers and the
Administrative Agent and, in the case of any such notice by a Borrower or the
Administrative Agent, to each other party thereto. All such notices and
communications shall, when mailed or telecopied be effective when deposited in
the mails or telecopied respectively, except that notices and communications to
the Administrative Agent pursuant to Article II or VII shall not be effective
until received by the Administrative Agent.
SECTION 8.03. NO WAIVER; REMEDIES. No failure on the part of
any Lender, any Swing Line Bank or the Administrative Agent to exercise, and no
delay in exercising, any right hereunder shall operate as a waiver thereof;
nor shall any single or partial exercise of any such right preclude any other
or further exercise thereof or the exercise of any other right. The remedies
herein provided are cumulative and not exclusive of any remedies provided by
law.
46
SECTION 8.04. COSTS, EXPENSES AND TAXES. (a) The Borrowers
agree, jointly and severally, to pay on demand all costs and expenses in
connection with the syndication of the credit facilities provided for herein and
the preparation, execution, delivery, administration, modification and amendment
of this Agreement and the other documents to be delivered hereunder, including,
without limitation, the reasonable fees and out-of-pocket expenses of counsel
for the Administrative Agent with respect thereto and with respect to advising
the Administrative Agent as to its rights and responsibilities under this
Agreement. The Borrowers further agree, jointly and severally, to pay on demand
all costs and expenses, if any (including, without limitation, reasonable fees
and expenses of counsel for the Administrative Agent and the Lenders hereunder),
in connection with the enforcement (whether through negotiations, legal
proceedings or otherwise) of this Agreement and the other documents to be
delivered hereunder, including, without limitation, reasonable fees and expenses
of counsel for the Administrative Agent and the Lenders hereunder in connection
with the enforcement of rights under this Section 8.04(a).
(b) The Borrowers agree, jointly and severally, to indemnify
and hold harmless the Administrative Agent, each Swing Line Bank and each Lender
and each of their Affiliates and their officers, directors, employees, agents
and advisors (each, an "Indemnified Party") from and against any and all claims,
damages, losses, liabilities and expenses (including, without limitation,
reasonable fees and expenses of counsel) that may be incurred by or asserted or
awarded against any Indemnified Party, in each case arising out of or in
connection with or by reason of, or in connection with an Event of Default or
with the preparation for a defense of, any investigation, litigation or
proceeding arising out of, related to or in connection with this Agreement,
including, without limitation, any transaction in which the proceeds of any
Borrowing hereunder are or are to be applied, whether or not an Indemnified
Party is a party thereto and whether or not the transactions contemplated hereby
are consummated, except to the extent any such claim, damage, loss, liability or
expense is found in a final, non-appealable judgment by a court of competent
jurisdiction to have resulted from such Indemnified Party's gross negligence or
willful misconduct.
(c) If any payment, prepayment or conversion of any Eurodollar
Rate Advance or Fixed Rate Advance is made other than on the last day of the
Interest Period for such Advance, as a result of a payment pursuant to Section
2.10 or 2.12, a conversion of a Revolving Credit Advance pursuant to Section
2.19, acceleration of the maturity of the Advances pursuant to Section 6.01 or
for any other reason, the applicable Borrower shall, upon demand by any Lender
(with a copy of such demand to the Administrative Agent), pay to the
Administrative Agent for the account of such Lender any amounts required to
compensate such Lender for any additional losses, costs or expenses which it may
reasonably incur as a result of such payment, including, without limitation, any
loss (including loss of anticipated profits), cost or expense incurred by
reason of the liquidation or reemployment of deposits or other funds acquired
by any Lender to fund or maintain such Advance. In the event of the failure
to borrow, convert, continue or prepay any Revolving Credit Advance on the
date specified in any notice delivered pursuant hereto, the failure to borrow
any Auction Bid Advance after accepting the Auction Bid to make such Advance
or the assignment of any Advance other than on the last day of the Interest
Period applicable thereto as a result of a request by the Borrowers pursuant
to Section 2.16, 2.18(b) or 8.07(a), then, in any such event, the applicable
Borrower shall, upon demand by any Lender (with a copy of such demand to the
Administrative Agent), pay to the Administrative Agent for the account of
such Lender any amounts required to compensate such Lender for any additional
losses, costs or expenses which it may reasonably incur as a result of such
event, including, without limitation, any loss
47
(including loss of anticipated profits), cost or expense incurred by reason
of the liquidation or reemployment of deposits or other funds acquired by any
Lender to fund or maintain such Advance. A certificate as to the amount of
such losses, costs or expenses submitted to the applicable Borrower and the
Administrative Agent by such Lender shall be conclusive and binding for all
purposes, absent manifest error.
SECTION 8.05. RIGHT OF SET-OFF. Upon (i) the occurrence and
during the continuance of any Event of Default and (ii) the making of the
request or the granting of the consent specified by Section 6.01 to authorize
the Administrative Agent to declare the Advances due and payable pursuant to the
provisions of Section 6.01, each Lender and each Swing Line Bank is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other indebtedness at any
time owing by such Lender or such Swing Line Bank to or for the credit or the
account of the applicable Borrower against any and all of the obligations of
such Borrower now or hereafter existing under this Agreement and any Advances
held by such Lender or such Swing Line Bank, whether or not such Lender or such
Swing Line Bank shall have made any demand under this Agreement and although
such obligations may be unmatured. Each Lender and each Swing Line Bank agrees
promptly to notify the applicable Borrower after any such set-off and
application made by such Lender or such Swing Line Bank; PROVIDED, HOWEVER, that
the failure to give such notice shall not affect the validity of such set-off
and application. The rights of each Lender and each Swing Line Bank under this
Section are in addition to other rights and remedies (including, without
limitation, other rights of set-off) which such Lender or such Swing Line Bank
may have.
SECTION 8.06. BINDING EFFECT. This Agreement shall become
effective in accordance with Section 3.01 and thereafter shall be binding upon
and inure to the benefit of the Borrowers, the Administrative Agent, each Swing
Line Bank and each Lender and their respective successors and assigns, except
that the Borrowers shall not have the right to assign their rights hereunder or
any interest herein without the prior written consent of the Lenders and the
Swing Line Banks.
SECTION 8.07. ASSIGNMENTS AND PARTICIPATIONS. (a) Each Lender
may and, if demanded by the Borrowers (pursuant to Section 2.16 or 2.18(b)) upon
at least five Business Days' notice to such Lender and the Administrative Agent,
will assign to one or more banks or other entities all or a portion of its
rights and obligations under this Agreement (including, without limitation, all
or a portion of its Commitment and the Advances owing to it); PROVIDED, HOWEVER,
that (i) each such assignment shall be of a constant, and not a varying,
percentage of all rights and obligations under this Agreement, (ii) the amount
of the Commitment of the assigning Lender being assigned pursuant to each such
assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than $10,000,000 (or
$5,000,000, in the case of an assignment to a Lender Affiliate) or the remaining
amount of such Lender's Commitment and shall be an integral multiple of
$500,000, (iii) each such assignment shall be to a Lender, a Lender Affiliate, a
Person described in clause (viii) of the definition of "Eligible Assignee" in
Section 1.01 or, with the consent of the Borrowers (such consent not to be
unreasonably withheld), any other Eligible Assignee, (iv) each such assignment
made as a result of a demand by the Borrowers pursuant to this Section 8.07(a)
shall be arranged by the Borrowers after consultation with the Administrative
Agent and shall be either an assignment of all of the rights and obligations of
the assigning Lender under this Agreement or an assignment of a portion of such
rights and obligations made concurrently with another such assignment or other
such
48
assignments that together cover all of the rights and obligations of the
assigning Lender under this Agreement, (v) no Lender shall be obligated to make
any such assignment as a result of a demand by the Borrowers pursuant to this
Section 8.07(a) unless and until such Lender shall have received one or more
payments from either the Borrowers or one or more Eligible Assignees in an
aggregate amount at least equal to the aggregate outstanding principal amount of
the Advances owing to such Lender, together with accrued interest thereon to the
date of payment of such principal amount and all other amounts payable to such
Lender under this Agreement and (vi) the parties to each such assignment shall
execute and deliver to the Administrative Agent, for its acceptance and
recording in the Register, an Assignment and Acceptance, together with a
processing and recordation fee of $3,500 (or $1,000, in the case of an
assignment to a Lender Affiliate); PROVIDED, HOWEVER, that, if such assignment
is made as a result of a demand by the Borrowers pursuant to this Section
8.07(a), the Borrowers shall pay or cause to be paid such fee. Upon such
execution, delivery, acceptance and recording, from and after the effective date
specified in each Assignment and Acceptance, (x) the assignee thereunder shall
be a party hereto and, to the extent that rights and obligations hereunder have
been assigned to it pursuant to such Assignment and Acceptance, have the rights
and obligations of a Lender hereunder and (y) the Lender assignor thereunder
shall, to the extent that rights and obligations hereunder have been assigned by
it pursuant to such Assignment and Acceptance, relinquish its rights (other than
any such rights which by their terms survive the termination of this Agreement
or the payment in full of principal and interest hereunder) and be released from
its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's rights
and obligations under this Agreement, such Lender shall cease to be a party
hereto (other than with respect to any such rights which by their terms
survive the termination of this Agreement or the payment in full of principal
and interest hereunder)). Notwithstanding the foregoing, any Lender assigning
its rights and obligations under this Agreement may retain any Auction Bid
Advances made by it, outstanding at such time, and in such case shall retain
its rights hereunder in respect of any Advances so retained until such
Advances have been repaid in full in accordance with this Agreement.
(b) By executing and delivering an Assignment and Acceptance,
the Lender assignor thereunder and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) other than as
provided in such Assignment and Acceptance, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or document
furnished pursuant hereto; (ii) such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of the Borrowers or the Guarantor or the performance or observance by the
Borrowers or the Guarantor of any of their obligations under this Agreement or
the Guarantee or any other instrument or document furnished pursuant hereto;
(iii) such assignee confirms that it has received a copy of this Agreement and
the Guarantee, together with copies of the financial statements referred to in
Section 5.01 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (iv) such assignee will, independently and without
reliance upon the Administrative Agent, such assigning Lender or any other
Lender and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under this Agreement; (v) such assignee confirms that it is an Eligible
Assignee; (vi) such
49
assignee appoints and authorizes the Administrative Agent to take such action
as agent on its behalf and to exercise such powers under this Agreement as
are delegated to the Administrative Agent by the terms hereof, together with
such powers as are reasonably incidental thereto; and (vii) such assignee
agrees that it will perform in accordance with their terms all of the
obligations which by the terms of this Agreement are required to be performed
by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender and an assignee representing that it is an Eligible
Assignee, the Administrative Agent shall, if such Assignment and Acceptance has
been completed and is in substantially the form of Exhibit E hereto, (i) accept
such Assignment and Acceptance, (ii) record the information contained therein in
the Register and (iii) give prompt notice thereof to the Borrowers.
(d) The Administrative Agent shall maintain at its address
referred to in Section 8.02 a copy of each Assignment and Acceptance delivered
to and accepted by it and a register for the recordation of the names and
addresses of each of the Lenders and, with respect to Lenders, the Commitment
of, and principal amount of the Advances owing to, each such Lender from time
to time (the "Register"). The entries in the Register shall be conclusive and
binding, absent manifest error, and the Borrowers, the Administrative Agent
and the Lenders may treat each Person whose name is recorded in the Register
as a Lender hereunder for the purposes of this Agreement. The Register shall
be available for inspection by the Borrowers or any Lender at any reasonable
time and from time to time upon reasonable prior notice.
(e) Each Lender may sell participations to one or more banks
or other entities in or to all or a portion of its rights and obligations under
this Agreement (including, without limitation, all or a portion of its
Commitment and the Advances owing to it); PROVIDED, HOWEVER, that (i) such
Lender's obligations under this Agreement (including, without limitation, its
Commitment to the Borrowers hereunder) shall remain unchanged, (ii) such Lender
shall remain solely responsible to the other parties hereto for the performance
of such obligations, (iii) such Lender shall remain the holder of any such
Advances for all purposes of this Agreement, (iv) the Borrowers, the
Administrative Agent, the Swing Line Banks and the other Lenders shall continue
to deal solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement and (v) such Lender shall not sell a
participation pursuant to this Section 8.07(e) to any bank or other entity which
is not a Lender, a Lender Affiliate or a Person described in clause (viii) of
the definition of "Eligible Assignee" in Section 1.01 without the consent of the
Borrowers, such consent not to be unreasonably withheld. Any agreement or
instrument pursuant to which a Lender sells such a participation shall provide
that such Lender shall retain the sole right to enforce this Agreement and to
approve any amendment, modification or waiver of any provision of this
Agreement; PROVIDED, HOWEVER, that such agreement or instrument may provide that
such Lender will not, without the consent of the participant, agree to any
amendment, modification or waiver described in the first proviso to Section 8.01
that affects such participant. Subject to paragraph (f) of this Section, the
Borrowers agree that each participant shall be entitled to the benefits of
Sections 2.03(b), 2.11, 2.14 and 8.04(c) to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to paragraph (b) of
this Section. To the extent permitted by law, each participant also shall be
entitled to the benefits of Section 8.05 as though it were a Lender, provided
such participant agrees to be subject to Section 2.15 as though it were a
Lender.
50
(f) A participant shall not be entitled to receive any greater
payment under Section 2.11 or 2.14 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such participant,
unless the sale of the participation to such participant is made with the
Borrowers' prior written consent. A participant that is organized under the laws
of a jurisdiction outside the United States shall not be entitled to the
benefits of Section 2.14 unless the Borrowers are notified of the participation
sold to such participant and such participant agrees, for the benefit of the
Borrowers, to comply with Section 2.14(e) as though it were a Lender.
(g) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
8.07, disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Borrowers furnished to such Lender
by or on behalf of the Borrowers; PROVIDED, HOWEVER, that, prior to any such
disclosure, the assignee or participant or proposed assignee or participant
shall agree to preserve the confidentiality of any Confidential Information
relating to the Borrowers received by it from such Lender on terms substantially
the same as those applicable to such Lender under Section 8.08.
(h) Notwithstanding any other provision set forth in this
Agreement, any Lender may at any time create a security interest in all or any
portion of its rights under this Agreement (including, without limitation, the
Advances owing to it) in favor of any Federal Reserve Bank in accordance with
Regulation A of the Board of Governors of the Federal Reserve System, and each
Borrower will, if requested, issue a note to be pledged to such Federal Reserve
Bank evidencing its obligations in respect of principal of and interest on
Advances of such Lender hereunder.
(i) Except as expressly provided in this Agreement, the Swing
Line Banks may not assign or delegate any of their respective rights and duties
hereunder without the prior written consent of the Borrowers and the
Administrative Agent.
(j) Prior to any assignment to, or purchase of a participation
by, any employee benefit plan or any entity the assets of which would be
considered "plan assets" within the meaning of U.S. Department of Labor
regulations (29 CFR ss. 2510.3-101, or any successor thereto) (together referred
to herein as "employee benefit plans") of any rights and obligations under this
Agreement, each such employee benefit plan or other such entity shall represent
to the Borrowers that the holding of any such assignment or the purchase and
holding of any such participation hereunder by such plan or other entity is
exempt from the prohibited transaction rules of ERISA and the Internal Revenue
Code of 1986, as amended from time to time. This representation shall be made on
each date from and including the date of any assignment or purchase of any
participation and through the date of disposition thereof.
SECTION 8.08. CONFIDENTIALITY. None of the Administrative
Agent or any Lender shall disclose any Confidential Information to any Person
without the consent of the Borrowers, other than (a) to the Administrative
Agent's or such Lender's Affiliates and its and their officers, directors,
employees, agents and advisors and to actual or prospective Eligible Assignees
and participants, and then only on a confidential basis, (b) as required by any
law, rule or regulation or judicial process and (c) as requested or required by
any state, federal or foreign authority or examiner regulating banks or banking.
51
SECTION 8.09. PARITY. If at any time hereafter either Borrower
shall enter into a Similar Credit Agreement (i) that shall contain a term or
condition (not including any such term or condition which would otherwise be
subject to this clause (i) but relates to the matters as are covered herein
by Section 2.03 or the definition of "Applicable Rate" in Section 1.01) which
a reasonable Person would conclude is favorable to a lender and that is not
contained in this Agreement or (ii) that shall contain a modification of a
term or condition (not including any such term or condition which would
otherwise be subject to this clause (ii) but relates to the matters as are
covered herein by Section 2.03 or the definition of "Applicable Rate" in
Section 1.01) contained herein, which a reasonable Person would conclude is
more favorable to a lender than the term or condition as set forth herein,
then such Borrower will promptly notify the Administrative Agent and the
Lenders of such term or condition (or modification thereof) and, at the
request of the Majority Lenders, shall agree to an amendment of this
Agreement so that it shall contain such a term or condition or modification,
as the case may be, applicable to such Borrower. "Similar Credit Agreement"
means a committed senior unsecured bank credit agreement or similar agreement
with respect to indebtedness for money borrowed (which shall not be deemed to
include letter of credit facilities) (i) which has an initial commitment
termination date of 364 days or less, (ii) the proceeds of which may be used
by a Borrower for the same purposes the proceeds hereunder are permitted to
be used by such Borrower under Section 2.16 and (iii) which contains terms
and conditions which, when taken as a whole, have similar or comparable
import and effect on the relevant Borrower and its Subsidiaries as the terms
and conditions contained in Section 6.01(j).
SECTION 8.10. SURVIVAL. All covenants, agreements,
representations and warranties made by the Borrowers and the Principal
Subsidiaries herein and in the certificates or other instruments delivered in
connection with or pursuant to this Agreement shall be considered to have been
relied upon by the other parties hereto and shall survive the execution and
delivery of this Agreement and the making of any Advances, regardless of any
investigation made by any such other party or on its behalf and notwithstanding
that the Administrative Agent or any Lender may have had notice or knowledge of
any Default or incorrect representation or warranty at the time any credit is
extended hereunder, and shall continue in full force and effect as long as the
principal of or any accrued interest on any Advance or any fee or any other
amount payable under this Agreement is outstanding and unpaid and so long as the
Commitments have not expired or terminated. The provisions of Sections 2.11,
2.12, 2.13 and 8.04 and Article VII shall survive and remain in full force and
effect regardless of the consummation of the transactions contemplated hereby,
the repayment of the Advances and the expiration or termination of the
Commitments or the termination of this Agreement or any provision hereof.
SECTION 8.11. GOVERNING LAW. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of New York.
SECTION 8.12. EXECUTION IN COUNTERPARTS. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be
an original and all of which taken together shall constitute one and the same
agreement.
SECTION 8.13. CURRENCY INDEMNITY. The sole currency of account
and payment for all sums payable by the Borrowers under this Agreement,
including in respect of indemnities, costs and damages, is Dollars. Any amount
received or recovered in a currency other than Dollars (whether as a result of a
judgment or order
52
of a court of any jurisdiction, or the enforcement thereof, in the winding up
or dissolution of a Borrower or otherwise) by the Administrative Agent, or
any Lender in respect of any sum expressed to be due to it from a Borrower
shall only constitute a discharge to such Borrower to the extent of the
amount of Dollars that the recipient is able to purchase with the amount so
received or recovered in that currency on the date of that receipt or
recovery (or, if it is not practicable to make that purchase on that date, on
the first date on which it is practicable to do so). If that amount of
Dollars is less than the amount of Dollars expressed to be due to the
recipient under this Agreement, the applicable Borrower shall indemnify it
against any loss sustained by it as a result. In any event, the applicable
Borrower shall indemnify the recipient against the cost of making any such
purchase. For the purpose of this Agreement, it will be sufficient for any
recipient to demonstrate that it would have suffered a loss had an actual
purchase been made. These indemnities constitute a separate and independent
cause of action, shall apply irrespective of any indulgence granted by the
Administrative Agent or any Lender and shall continue in full force and
effect despite any other judgment, order, claim or proof for a liquidated
amount in respect of any sum due under this Agreement or any other judgment
or order.
SECTION 8.14. WAIVER UNDER EXISTING CREDIT AGREEMENTS. The
banks who are parties to the Existing Credit Agreements agree that their
commitments thereunder and their rights under the Guarantee Agreement (as
defined in the Existing Credit Agreement referred to in clause (i) of the
definition of such term) shall be deemed terminated upon the effectiveness of
this Agreement pursuant to Section 3.01 and hereby waive any prior notice of
such termination of their commitments under either of the Existing Credit
Agreements.
SECTION 8.15. WAIVER OF JURY TRIAL. EACH OF THE BORROWERS, THE
ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY WAIVES ALL RIGHT TO
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON
CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
GUARANTEE, THE ADVANCES OR THE ACTIONS OF THE ADMINISTRATIVE AGENT OR ANY LENDER
IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
SECTION 8.16. JURISDICTION; CONSENT TO SERVICE OF PROCESS. (a)
Each of the Borrowers hereby irrevocably and unconditionally submits, for itself
and its property, to the nonexclusive jurisdiction of any New York State court
or Federal court of the United States of America sitting in the Borough of
Manhattan, The City of New York, and any appellate court from any thereof, in
any suit, action or proceeding arising out of or relating to this Agreement
or any other document delivered hereunder, or for recognition or enforcement
of any judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the
extent permitted by law, Federal court. Each of the parties hereto agrees
that a final judgment in any such action or proceeding shall be conclusive
and may be enforced in other jurisdictions by suit on the judgment or in any
other manner provided by law. Nothing in this Agreement shall affect any
right that the Administrative Agent or any Lender may otherwise have to bring
any action or proceeding relating to this Agreement or any other document
delivered hereunder against any Borrower or any of its Subsidiaries or any of
their respective properties in the courts of any jurisdiction.
53
(b) Each of the Borrowers hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement or
any other document delivered hereunder in any New York State or Federal court.
Each of the parties hereto hereby irrevocably waives, to the fullest extent
permitted by law, the defense of an inconvenient forum to the maintenance of
such action or proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to
service of process in the manner provided for notices in Section 8.02. Nothing
in this Agreement will affect the right of any party to this Agreement to serve
process in any other manner permitted by law.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
CREDIT SUISSE FIRST BOSTON, INC.,
by: /s/ Xxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Managing Director and Corporate
Treasurer
CREDIT SUISSE FIRST BOSTON (USA), INC.,
by: /s/ Xxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Managing Director and Corporate
Treasurer
THE CHASE MANHATTAN BANK, in its
individual capacity and as Administrative
Agent,
by:
-----------------------------------------
Name:
Title:
THE BANK OF NEW YORK,
by:
-----------------------------------------
Name:
Title:
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
CREDIT SUISSE FIRST BOSTON, INC.,
by:
-----------------------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON (USA), INC.,
by:
-----------------------------------------
Name:
Title:
by:
-----------------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK, in its
individual capacity and as Administrative
Agent,
by: /s/ Xxxx Buyers Xxxxx
-----------------------------------------
Name: Xxxx Buyers Xxxxx
Title: Managing Director
THE BANK OF NEW YORK,
by:
-----------------------------------------
Name:
Title:
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
CREDIT SUISSE FIRST BOSTON, INC.,
by:
-----------------------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON (USA), INC.,
by:
-----------------------------------------
Name:
Title:
by:
-----------------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK, in its
individual capacity and as Administrative
Agent,
by:
-----------------------------------------
Name:
Title:
THE BANK OF NEW YORK,
by: /s/ Xxxx Xxxxx
-----------------------------------------
Name: Xxxx Xxxxx
Title: Vice President
BANK ONE, NA (MAIN OFFICE CHICAGO)
by: /s/ Xxxxxx de Diego
-----------------------------------------
Name: Xxxxxx de Diego
Title: Director, Capital Markets
CITIBANK, N.A.,
by:
-----------------------------------------
Name:
Title:
DEUTSCHE BANK AG, NEW YORK
BRANCH AND/OR CAYMAN ISLANDS BRANCH,
by:
-----------------------------------------
Name:
Title:
by:
-----------------------------------------
Name:
Title:
BANK ONE, NA (MAIN OFFICE CHICAGO)
by:
-----------------------------------------
Name:
Title:
CITIBANK, N.A.,
by: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
DEUTSCHE BANK AG, NEW YORK
BRANCH AND/OR CAYMAN ISLANDS BRANCH,
by:
-----------------------------------------
Name:
Title:
by:
-----------------------------------------
Name:
Title:
BANK ONE, NA (MAIN OFFICE CHICAGO)
by:
-----------------------------------------
Name:
Title:
CITIBANK, N.A.,
by:
-----------------------------------------
Name:
Title:
DEUTSCHE BANK AG, NEW YORK
BRANCH AND/OR CAYMAN ISLANDS BRANCH,
by: /s/ Xxxxx X. Xxxxxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Director
by: /s/ Xxxx X. XxXxxx
-----------------------------------------
Name: Xxxx X. XxXxxx
Title: Director
SIGNATURE PAGE TO THE CREDIT
SUISSE FIRST BOSTON, INC. AND
CREDIT SUISSE FIRST BOSTON
(USA), INC. 364-DAY AUCTION
BID ADVANCE AND REVOLVING
CREDIT FACILITY AGREEMENT,
DATED AS OF MAY 25, 2001.
LENDER: IntesaBci New York Branch
by: /s/ X. Xxxxxxxxx
--------------------------------
Name: X. Xxxxxxxxx
Title: Vice President
/s/ Xxxxx Xxxxxx
-----------------------------------
Xxxxx Xxxxxx
Vice President
SIGNATURE PAGE TO THE CREDIT
SUISSE FIRST BOSTON, INC. AND
CREDIT SUISSE FIRST BOSTON
(USA), INC. 364-DAY AUCTION
BID ADVANCE AND REVOLVING
CREDIT FACILITY AGREEMENT,
DATED AS OF MAY 25, 2001.
LENDER: Bank of Tokyo-Mitsubishi Trust Company
by: /s/ Xxxx X. Still
--------------------------------------
Name: Xxxx X. Still
Title: Vice President
SIGNATURE PAGE TO THE CREDIT
SUISSE FIRST BOSTON, INC. AND
CREDIT SUISSE FIRST BOSTON
(USA), INC. 364-DAY AUCTION
BID ADVANCE AND REVOLVING
CREDIT FACILITY AGREEMENT,
DATED AS OF MAY 25, 2001.
LENDER: BNP Paribas
by: /s/ Xxxxx Xxxxxx
--------------------------------
Name: Xxxxx Xxxxxx
Title: Director
/s/ Xxxxxxx Xxxxxx
--------------------------------
Xxxxxxx Xxxxxx
Vice President
SIGNATURE PAGE TO THE CREDIT
SUISSE FIRST BOSTON, INC. AND
CREDIT SUISSE FIRST BOSTON
(USA), INC. 364-DAY AUCTION
BID ADVANCE AND REVOLVING
CREDIT FACILITY AGREEMENT,
DATED AS OF MAY 25, 2001.
LENDER: Commerzbank AG, New York and
Grand Cayman Branches
by: /s/ Xxxxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Assistant Treasurer
by: /s/ Xxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
SIGNATURE PAGE TO THE CREDIT
SUISSE FIRST BOSTON, INC. AND
CREDIT SUISSE FIRST BOSTON
(USA), INC. 364-DAY AUCTION
BID ADVANCE AND REVOLVING
CREDIT FACILITY AGREEMENT,
DATED AS OF MAY 25, 2001.
LENDER: Credit Lyonnais New York Branch
by: /s/ Xxxx Xxxxx-Cryde
--------------------------------
Name: Xxxx Xxxxx-Cryde
Title: Senior Vice President
SIGNATURE PAGE TO THE CREDIT
SUISSE FIRST BOSTON, INC. AND
CREDIT SUISSE FIRST BOSTON
(USA), INC. 364-DAY AUCTION
BID ADVANCE AND REVOLVING
CREDIT FACILITY AGREEMENT,
DATED AS OF MAY 25, 2001.
LENDER: Danske Bank A/S
by: /s/ Xxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
by: /s/ Xxxx X. X'Xxxxx
--------------------------------
Name: Xxxx X. X'Xxxxx
Title: Assistant General Manager
SIGNATURE PAGE TO THE CREDIT
SUISSE FIRST BOSTON, INC. AND
CREDIT SUISSE FIRST BOSTON
(USA), INC. 364-DAY AUCTION
BID ADVANCE AND REVOLVING
CREDIT FACILITY AGREEMENT,
DATED AS OF MAY 25, 2001.
LENDER: HSBC Bank USA
by: /s/ Xxxx X. Xxxxx
--------------------------------
Name: Xxxx X. Xxxxx
Title: FVP
SIGNATURE PAGE TO THE CREDIT
SUISSE FIRST BOSTON, INC. AND
CREDIT SUISSE FIRST BOSTON
(USA), INC. 364-DAY AUCTION
BID ADVANCE AND REVOLVING
CREDIT FACILITY AGREEMENT,
DATED AS OF MAY 25, 2001.
LENDER: Lloyds TSB Bank plc
by: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Director, Financial
Institutions, USA G311
LENDER: Lloyds TSB Bank plc
by: /s/ Xxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Director-Project
Finance (USA) B374
SIGNATURE PAGE TO THE CREDIT
SUISSE FIRST BOSTON, INC. AND
CREDIT SUISSE FIRST BOSTON
(USA), INC. 364-DAY AUCTION
BID ADVANCE AND REVOLVING
CREDIT FACILITY AGREEMENT,
DATED AS OF MAY 25, 2001.
LENDER: Mellon Bank
by: /s/ Xxxxxx Xxxxxx
--------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
SIGNATURE PAGE TO THE CREDIT
SUISSE FIRST BOSTON, INC. AND
CREDIT SUISSE FIRST BOSTON
(USA), INC. 364-DAY AUCTION
BID ADVANCE AND REVOLVING
CREDIT FACILITY AGREEMENT,
DATED AS OF MAY 25, 2001.
LENDER: Standard Chartered Bank
by: /s/ Xxxxxxx Xxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxx
Title: Senior Vice President
by: /s/ Xxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxx Xxxxxxx
Title: Senior Vice President
SIGNATURE PAGE TO THE CREDIT
SUISSE FIRST BOSTON, INC. AND
CREDIT SUISSE FIRST BOSTON
(USA), INC. 364-DAY AUCTION
BID ADVANCE AND REVOLVING
CREDIT FACILITY AGREEMENT,
DATED AS OF MAY 25, 2001.
LENDER: Svenska Handelsbanken
by: /s/ Xxxxxxxx Xxxxxx
--------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Senior Vice President
by: /s/ X.X. Xxxxx
--------------------------------
Name: X.X. Xxxxx
Title: Vice President
SIGNATURE PAGE TO THE CREDIT
SUISSE FIRST BOSTON, INC. AND
CREDIT SUISSE FIRST BOSTON
(USA), INC. 364-DAY AUCTION
BID ADVANCE AND REVOLVING
CREDIT FACILITY AGREEMENT,
DATED AS OF MAY 25, 2001.
LENDER: Westpac Banking Corporation
by: /s/ Xxxxx Xxxxxx
--------------------------------
Name: Xxxxx Xxxxxx
Title: Head of Corporate &
Institutional Relationships
SIGNATURE PAGE TO THE CREDIT
SUISSE FIRST BOSTON, INC. AND
CREDIT SUISSE FIRST BOSTON
(USA), INC. 364-DAY AUCTION
BID ADVANCE AND REVOLVING
CREDIT FACILITY AGREEMENT,
DATED AS OF MAY 25, 2001.
LENDER: National Australia Bank Limited
by: /s/ Xxxxxxx X. XxXxxx
--------------------------------
Name: Xxxxxxx X. XxXxxx
Title: Vice President
SIGNATURE PAGE TO THE CREDIT
SUISSE FIRST BOSTON, INC. AND
CREDIT SUISSE FIRST BOSTON
(USA), INC. 364-DAY AUCTION
BID ADVANCE AND REVOLVING
CREDIT FACILITY AGREEMENT,
DATED AS OF MAY 25, 2001.
LENDER: Norddeutsche Landesbank Girozentrale,
New York and/or Cayman Islands Branch
by: /s/ Xxxxx Xxxxxx
--------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
by: /s/ Hinrich Xxxx
--------------------------------
Name: Hinrich Xxxx
Title: Vice President
SIGNATURE PAGE TO THE CREDIT
SUISSE FIRST BOSTON, INC. AND
CREDIT SUISSE FIRST BOSTON
(USA), INC. 364-DAY AUCTION
BID ADVANCE AND REVOLVING
CREDIT FACILITY AGREEMENT,
DATED AS OF MAY 25, 2001.
LENDER: Royal Bank of Canada
by: /s/ X.X. Xxxxxxxxx
--------------------------------
Name: X.X. Xxxxxxxxx
Title: Senior Manager
SIGNATURE PAGE TO THE CREDIT
SUISSE FIRST BOSTON, INC. AND
CREDIT SUISSE FIRST BOSTON
(USA), INC. 364-DAY AUCTION
BID ADVANCE AND REVOLVING
CREDIT FACILITY AGREEMENT,
DATED AS OF MAY 25, 2001.
LENDER: Banco Santander Central Hispano, S.A.
by: /s/ Xxxxx Xxxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
by: /s/ Xxx Xxxxx
--------------------------------
Name: Xxx Xxxxx
Title: Assistant Vice President
SIGNATURE PAGE TO THE CREDIT
SUISSE FIRST BOSTON, INC. AND
CREDIT SUISSE FIRST BOSTON
(USA), INC. 364-DAY AUCTION
BID ADVANCE AND REVOLVING
CREDIT FACILITY AGREEMENT,
DATED AS OF MAY 25, 2001.
LENDER: Bayerische Landesbank
Bayerische Landesbank Girozentrale
Brienner Xxxxxxx 00
00000 Xxxxxxx
by: /s/ Xxxxx Xxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxx
Title: First Vice President
by: /s/ Xxxxxx Xxxxxx
--------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
SIGNATURE PAGE TO THE CREDIT
SUISSE FIRST BOSTON, INC. AND
CREDIT SUISSE FIRST BOSTON
(USA), INC. 364-DAY AUCTION
BID ADVANCE AND REVOLVING
CREDIT FACILITY AGREEMENT,
DATED AS OF MAY 25, 2001.
LENDER: Landesbank Baden-Wurttemberg
London Branch
Bucklersbury House, 00 Xxxxxx Xxxxxx
Xxxxxx XX0X 0XX
by: /s/ Xxx Xxxxx
--------------------------------
Name: Xxx Xxxxx
Title: Manager
by: /s/ Xxxxxx Xxxx
--------------------------------
Name: Xxxxxx Xxxx
Title: Assistant Manager
SIGNATURE PAGE TO THE CREDIT
SUISSE FIRST BOSTON, INC. AND
CREDIT SUISSE FIRST BOSTON
(USA), INC. 364-DAY AUCTION
BID ADVANCE AND REVOLVING
CREDIT FACILITY AGREEMENT,
DATED AS OF MAY 25, 2001.
LENDER: Skandinaviska Enskilda Xxxxxx XX (publ)
by: /s/ Xxxxx Xxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxx
Title:
by: /s/ Ulf Hellners
--------------------------------
Name: Ulf Hellners
Title:
SIGNATURE PAGE TO THE CREDIT
SUISSE FIRST BOSTON, INC. AND
CREDIT SUISSE FIRST BOSTON
(USA), INC. 364-DAY AUCTION
BID ADVANCE AND REVOLVING
CREDIT FACILITY AGREEMENT,
DATED AS OF MAY 25, 2001.
LENDER: Xxxxx Fargo Bank, N.A.
by: /s/ Xxxxxx X. Xxxxx, Xx.
--------------------------------
Name: Xxxxxx X. Xxxxx, Xx.
Title: Vice President
by: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
SIGNATURE PAGE TO THE CREDIT
SUISSE FIRST BOSTON, INC. AND
CREDIT SUISSE FIRST BOSTON
(USA), INC. 364-DAY AUCTION
BID ADVANCE AND REVOLVING
CREDIT FACILITY AGREEMENT,
DATED AS OF MAY 25, 2001.
LENDER: WESTDEUTSCHE LANDESBANK GIROZENTRALE
through the New York Branch
by: /s/ Xxxxxxx X. Xxx
--------------------------------
Name: Xxxxxxx X. Xxx
Title: Director
by: /s/ Xxxxxxxxx Xxxxxxxxxx
--------------------------------
Name: Xxxxxxxxx Xxxxxxxxxx
Title: Managing Director
Credit Department
SIGNATURE PAGE TO THE CREDIT
SUISSE FIRST BOSTON, INC. AND
CREDIT SUISSE FIRST BOSTON
(USA), INC. 364-DAY AUCTION
BID ADVANCE AND REVOLVING
CREDIT FACILITY AGREEMENT,
DATED AS OF MAY 25, 2001.
LENDER: Banca Di Roma
New York Branch
by: /s/ X. Xxxxx
--------------------------------
Name: X. Xxxxx
Title: Assistant Treasurer
by: /s/ C. Strike
--------------------------------
Name: C. Strike
Title: Assistant Vice President
SIGNATURE PAGE TO THE CREDIT
SUISSE FIRST BOSTON, INC. AND
CREDIT SUISSE FIRST BOSTON
(USA), INC. 364-DAY AUCTION
BID ADVANCE AND REVOLVING
CREDIT FACILITY AGREEMENT,
DATED AS OF MAY 25, 2001.
LENDER: Australia and New Zealand
Banking Group Limited
by: /s/ Xxx X. Xxxxxxx
--------------------------------
Name: Xxx X. Xxxxxxx
Title: Executive Vice President--
Americas
SIGNATURE PAGE TO THE CREDIT
SUISSE FIRST BOSTON, INC. AND
CREDIT SUISSE FIRST BOSTON
(USA), INC. 364-DAY AUCTION
BID ADVANCE AND REVOLVING
CREDIT FACILITY AGREEMENT,
DATED AS OF MAY 25, 2001.
LENDER: BANCA ANTONIANA POPOLARE VENETA,
New York Branch
by: /s/ Xxxxxxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxxxxxx X. Xxxxxxxxx
Title: Senior Vice President &
Deputy Manager
by: /s/ Xxxxxxxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: General Counsel
SIGNATURE PAGE TO THE CREDIT
SUISSE FIRST BOSTON, INC. AND
CREDIT SUISSE FIRST BOSTON
(USA), INC. 364-DAY AUCTION
BID ADVANCE AND REVOLVING
CREDIT FACILITY AGREEMENT,
DATED AS OF MAY 25, 2001.
LENDER: Banca Monte dei Paschi di Siena S.p.A.
by: /s/ Giulio Natalicchi
--------------------------------
Name: Giulio Natalicchi
Title: Senior Vice President &
General Manager
by: /s/ Xxxxx X. Xxxxx
--------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
SIGNATURE PAGE TO THE CREDIT
SUISSE FIRST BOSTON, INC. AND
CREDIT SUISSE FIRST BOSTON
(USA), INC. 364-DAY AUCTION
BID ADVANCE AND REVOLVING
CREDIT FACILITY AGREEMENT,
DATED AS OF MAY 25, 2001.
LENDER: CREDIT INDUSTRIEL ET COMMERCIAL
by: /s/ Xxxx Xxxxx
--------------------------------
Name: Xxxx Xxxxx
Title: Vice President
by: /s/ Xxxx XxXxxxx Xxxxx
--------------------------------
Name: Xxxx XxXxxxx Xxxxx
Title: Vice President
SIGNATURE PAGE TO THE CREDIT
SUISSE FIRST BOSTON, INC. AND
CREDIT SUISSE FIRST BOSTON
(USA), INC. 364-DAY AUCTION
BID ADVANCE AND REVOLVING
CREDIT FACILITY AGREEMENT,
DATED AS OF MAY 25, 2001.
LENDER: The Fuji Bank, Limited
by: /s/ Xxxx Xxxxxx
--------------------------------
Name: Xxxx Xxxxxx
Title: Vice President & Manager
SIGNATURE PAGE TO THE CREDIT
SUISSE FIRST BOSTON, INC. AND
CREDIT SUISSE FIRST BOSTON
(USA), INC. 364-DAY AUCTION
BID ADVANCE AND REVOLVING
CREDIT FACILITY AGREEMENT,
DATED AS OF MAY 25, 2001.
LENDER: BAYERISCHE HYPO- UND VEREINSBANK AG,
NEW YORK BRANCH
by: /s/ Xxxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Managing Director
by: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Associate Director
SIGNATURE PAGE TO THE CREDIT
SUISSE FIRST BOSTON, INC. AND
CREDIT SUISSE FIRST BOSTON
(USA), INC. 364-DAY AUCTION
BID ADVANCE AND REVOLVING
CREDIT FACILITY AGREEMENT,
DATED AS OF MAY 25, 2001.
LENDER: Royal Bank of Scotland PLC
by: /s/ Xxxx Xxxxxx
--------------------------------
Name: Xxxx Xxxxxx
Title: Senior Relationship Manager
SIGNATURE PAGE TO THE CREDIT
SUISSE FIRST BOSTON, INC. AND
CREDIT SUISSE FIRST BOSTON
(USA), INC. 364-DAY AUCTION
BID ADVANCE AND REVOLVING
CREDIT FACILITY AGREEMENT,
DATED AS OF MAY 25, 2001.
LENDER: Sumitomo Mitsui Banking Corporation
by: /s/ Xxxxx X. X. Xxxxxx
--------------------------------
Name: Xxxxx X. X. Xxxxxx
Title: Senior Vice President
SIGNATURE PAGE TO THE CREDIT
SUISSE FIRST BOSTON, INC. AND
CREDIT SUISSE FIRST BOSTON
(USA), INC. 364-DAY AUCTION
BID ADVANCE AND REVOLVING
CREDIT FACILITY AGREEMENT,
DATED AS OF MAY 25, 2001.
LENDER: BBL International (UK) Limited
by: /s/ X.X. Xxxxxx
--------------------------------
Name: X.X. Xxxxxx
Title: Authorized Signatory
by: /s/ G.A. Xxxxxxx
--------------------------------
Name: G.A. Xxxxxxx
Title: Authorized Signatory
SIGNATURE PAGE TO THE CREDIT
SUISSE FIRST BOSTON, INC. AND
CREDIT SUISSE FIRST BOSTON
(USA), INC. 364-DAY AUCTION
BID ADVANCE AND REVOLVING
CREDIT FACILITY AGREEMENT,
DATED AS OF MAY 25, 2001.
LENDER: The Northern Trust Company
by: /s/ Xxxxx Xxxxx
--------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
SIGNATURE PAGE TO THE CREDIT
SUISSE FIRST BOSTON, INC. AND
CREDIT SUISSE FIRST BOSTON
(USA), INC. 364-DAY AUCTION
BID ADVANCE AND REVOLVING
CREDIT FACILITY AGREEMENT,
DATED AS OF MAY 25, 2001.
LENDER: The Tokai Bank, LTD.
by: /s/ Shinichi Makatani
--------------------------------
Name: Shinichi Makatani
Title: Assistant General Manager
SIGNATURE PAGE TO THE CREDIT
SUISSE FIRST BOSTON, INC. AND
CREDIT SUISSE FIRST BOSTON
(USA), INC. 364-DAY AUCTION
BID ADVANCE AND REVOLVING
CREDIT FACILITY AGREEMENT,
DATED AS OF MAY 25, 2001.
LENDER: The Sanwa Bank, Limited
by: /s/ Xxxx-Xxxxxx Xxxxxxx
--------------------------------
Name: Xxxx-Xxxxxx Xxxxxxx
Title: Vice President
SIGNATURE PAGE TO THE CREDIT
SUISSE FIRST BOSTON, INC. AND
CREDIT SUISSE FIRST BOSTON
(USA), INC. 364-DAY AUCTION
BID ADVANCE AND REVOLVING
CREDIT FACILITY AGREEMENT,
DATED AS OF MAY 25, 2001.
LENDER: UNICREDITO ITALIANO-NEW YORK BRANCH
by: /s/ Xxxxxxxxxxx Xxxxx
--------------------------------
Name: Xxxxxxxxxxx Xxxxx
Title: First Vice President &
Deputy Manager
by: /s/ Xxxxxx Xxxxx
--------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
EXHIBIT F
GUARANTEE AGREEMENT (this "AGREEMENT") dated as of
May 25, 2001, from CREDIT SUISSE GROUP, a corporation with
limited liability organized under the laws of Switzerland
(the "GUARANTOR"), in favor of the Beneficiaries (as defined
herein).
Reference is made to the U.S. $3,500,000,000 364-Day Auction Bid
Advance and Revolving Credit Facility Agreement dated as of May 25, 2001 (as
amended, supplemented or modified from time to time, the "CREDIT AGREEMENT"),
among Credit Suisse First Boston, Inc. ("CSFB INC."), Credit Suisse First Boston
(USA), Inc. ("CSFB (USA)" and, together with CSFB Inc., (the "BORROWERS"), the
financial institutions party thereto, as lenders (the "Lenders"), The Chase
Manhattan Bank, as Administrative Agent (the "AGENT") and The Bank of New York,
Bank One, NA (Main Chicago Office), Citibank, N.A. and Deutsche Bank AG, New
York Branch and/or Cayman Islands Branch, as Syndication Agents (the
"SYNDICATION AGENTS").
The Lenders have agreed to extend credit to the Borrowers pursuant
to, and subject to the terms specified in, the Credit Agreement. The obligations
of the Lenders to extend credit under the Credit Agreement are conditioned on,
among other things, the execution and delivery by the Guarantor of a guarantee
agreement in the form hereof. As the indirect or direct owner of 100% of the
issued and outstanding voting stock of each of CSFB Inc. and CSFB (USA), the
Guarantor derives substantial benefits from the extension of credit to the
Borrowers under the Credit Agreement. As consideration therefor and in order to
induce the Lenders to extend credit to the Borrowers under the Credit Agreement,
the Guarantor is willing to execute and deliver this Agreement. Accordingly, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. TERMS DEFINED IN THE CREDIT AGREEMENT. Capitalized
terms used herein and not defined herein shall have the meanings set forth in
the Credit Agreement.
SECTION 1.02. DEFINITION OF CERTAIN TERMS USED HEREIN. As used
herein, the following terms shall have the following meanings:
"BENEFICIARIES" shall mean the Lenders, the Administrative Agent and
their respective successors and assigns.
"BORROWED MONEY" includes any Indebtedness (a) for or in respect of
money borrowed or raised (whether or not for cash) by whatever means
(including acceptances, deposits and finance leases) or (b) for the
deferred purchase price of assets or services (other than goods or
services obtained on normal commercial terms in the ordinary course of
trading or business).
"CREDIT AGREEMENT" shall have the meaning assigned to such term in
the recitals hereto.
2
"DOLLARS" or "$" shall mean lawful money of the United States of
America.
"ENCUMBRANCE" shall mean any mortgage, charge, pledge, lien or other
encumbrance securing any obligation of any Person or any other type of
preferential arrangement (including, without limitation, title transfer
and retention arrangements) having a similar effect:
"INDEBTEDNESS" shall include any obligation (whether incurred as
principal or as surety) for the payment or repayment of money, whether
present or future, actual or contingent.
ARTICLE II
GUARANTEE
SECTION 2.01. GUARANTEE. The Guarantor unconditionally and
irrevocably guarantees, as a primary obligor and not merely as a surety, the due
and punctual payment by each Borrower of (i) the principal of and premium, if
any, and interest (including interest accruing during the pendency of any
bankruptcy, insolvency, receivership or similar proceeding, regardless of
whether allowed or allowable as a claim in such proceeding) on the Advances made
to such Borrower, when and as due, whether at maturity, by acceleration, upon
one or more dates set for prepayment or otherwise, and (ii) all other monetary
obligations, including fees, costs, expenses and indemnities, of each Borrower
to the Lenders or the other Beneficiaries under the Credit Agreement (including
monetary obligations incurred during the pendency of any bankruptcy, insolvency,
receivership or similar proceeding, regardless of whether allowed or allowable
as a claim in such proceeding) (all the foregoing obligations being collectively
called the "OBLIGATIONS"). The Guarantor further agrees that the Obligations may
be extended or renewed, in whole or in part, without notice to or further assent
from it, and that it will remain bound upon its guarantee notwithstanding any
extension or renewal of any Obligation.
SECTION 2.02. PAYMENT AND PERFORMANCE. If at any time either
Borrower fails to make any payment to the Beneficiaries of any or all the
Obligations when due (subject to any applicable notice or grace periods) under
and in strict accordance with the terms of the Credit Agreement, the Guarantor
shall, on or before the Business Day immediately following the date of written
demand by the Administrative Agent or any Beneficiary, pay to such Beneficiary
or to the Administrative Agent for the benefit of the Beneficiaries any
Obligations that such Borrower has failed to pay as aforesaid. Any amounts paid
by the Guarantor hereunder in respect of Advances, interest and fees shall be
applied in accordance with the terms of the Credit Agreement.
SECTION 2.03. GUARANTEE OF PAYMENT. The Guarantor further agrees
that its guarantee hereunder constitutes a guarantee of payment when due and not
of collection, and waives any right to require that any resort be had by the
Administrative Agent or any Lender to any balance of any deposit account or
credit on the books of the Administrative Agent or any Lender in favor of either
Borrower or any other person.
3
SECTION 2.04. NO DISCHARGE OR DIMINISHMENT OF GUARANTEE. The
obligations of the Guarantor hereunder shall be absolute and unconditional and
shall not be subject to any reduction, limitation, impairment or termination for
any reason, including, without limitation, any claim of waiver, release,
surrender, alteration or compromise, and shall not be subject to any defense or
setoff, counterclaim, recoupment or termination whatsoever by reason of the
invalidity, illegality or unenforceability of the Obligations or otherwise.
Without limiting the generality of the foregoing, the obligations of the
Guarantor hereunder shall not be discharged or impaired or otherwise affected
by:
(a) the failure of the Administrative Agent or any Beneficiary to
assert any claim or demand or to enforce any remedy under the Credit
Agreement, any guarantee or any other agreement;
(b) any lack of validity or enforceability of either or both
Borrowers' obligations under the Credit Agreement;
(c) any change in time, manner or place of payment of, or in the
principal amount, interest rate or any other term of, any of the
Obligations, or any other amendment or waiver of, or any consent to or
departure from any of the terms of, the Obligations or the Credit
Agreement;
(d) any change in ownership or control of either or both Borrowers
(it being expressly understood that Obligations incurred after the date of
any such change shall continue to be covered by this Agreement to the
extent provided in Section 2.01);
(e) any bankruptcy, insolvency, winding up or reorganization of, or
similar proceedings involving, either or both Borrowers; or
(f) any other act, omission or circumstance which might constitute a
defense available to either or both Borrowers or might in any manner or to
any extent vary the risk of the Guarantor or otherwise operate as a
discharge of the Guarantor as a matter of law or equity (other than the
indefeasible payment in full of all the Obligations).
SECTION 2.05. AVOIDANCE OF PAYMENTS. The Guarantor further agrees
that its guarantee shall continue to be effective or be reinstated, as the
case may be, if at any time payment, or any part thereof, of principal of or
interest on any Obligation is rescinded or must otherwise be restored by the
Administrative Agent or any Beneficiary upon the bankruptcy or reorganization
of either Borrower or otherwise, all as though such payment had not been made.
SECTION 2.06. INDEPENDENT OBLIGATIONS. The obligations of the
Guarantor hereunder are independent of the obligations of either Borrower or of
any other Person and a separate action or actions may be brought and prosecuted
against the Guarantor whether or not action is brought against either Borrower
or any other Person, and whether or not either Borrower or any other Person is
joined in such action.
4
SECTION 2.07. CONTINUING OBLIGATION. This Agreement constitutes a
primary obligation of the Guarantor and is a continuing obligation and shall (a)
remain in full force and effect in accordance with the terms hereof until the
Commitments shall have expired or been terminated and the Lenders shall have
received payment in full of all the Obligations and until all possibility for
the rescission or return of any payment to the Beneficiaries shall have ended,
(b) be binding upon the Guarantor and its successors and assigns and (c) inure
to the benefit of and be enforceable by the Beneficiaries and their respective
successors and permitted assigns.
SECTION 2.08. WAIVER. Except for notices or demands expressly
required hereunder, the Guarantor hereby waives, to the extent permitted by
applicable law, (a) acceptance hereof by the Beneficiaries, (b) presentment,
demand for performance, protest, promptness, diligence, notice of acceptance,
notice of dishonor and any other notice with respect to any of the Obligations,
this Agreement or any obligation of the Guarantor hereunder and (c) any other
notices or demands of any kind.
SECTION 2.09. SUBROGATION. The Guarantor will not exercise any
rights against either Borrower that it may acquire by way of subrogation
hereunder, by any payment made hereunder or otherwise, until the Commitments
shall have expired or been terminated with respect to such Borrower and the
Obligations shall have been paid in full. If any amount shall nevertheless be
paid to the Guarantor on account of such subrogation rights at any time prior to
the expiration or termination of the Commitments with respect to such Borrower
and payment in full of the Obligations and all of the Guarantor's payment
obligations contained in this Agreement, such amount shall be held in trust for
the benefit of the Beneficiaries and shall forthwith be paid to the
Beneficiaries or the Administrative Agent for the benefit of the Beneficiaries
and shall be credited and applied toward the Obligations in accordance with the
terms hereof and of the Credit Agreement. Subject to the foregoing, nothing
contained in this Agreement shall be deemed a waiver of the Guarantor's right of
subrogation against either Borrower.
SECTION 2.10. TAXES. (a) Any and all payments by the Guarantor
hereunder shall be made free and clear of and without deduction for any and all
present or future taxes, levies, imposts, deductions, charges or withholdings,
and all liabilities with respect thereto, EXCLUDING, in the case of each
Beneficiary, taxes imposed to or measured by its net income, and franchise taxes
imposed on it, by the jurisdiction under the laws of which such Beneficiary is
organized or any political subdivision thereof and, in the case of each Lender,
taxes imposed on or measured by its net income, and franchise taxes imposed on
it, by the jurisdiction of such Lender's Applicable Lending Office or any
political subdivision thereof (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities being hereinafter referred to
as "TAXES"). If the Guarantor shall be required by law to deduct any Taxes from
or in respect of any sum payable hereunder to any Beneficiary, (i) the sum
payable shall be increased as may be necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section 2.10) such Beneficiary receives an amount equal to the sum it would
have received had no such deductions been made, (ii) the Guarantor shall make
such deductions and (iii) the Guarantor shall pay the full amount deducted to
the relevant taxation authority or other authority in accordance with applicable
law.
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(b) In addition, the Guarantor agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies which arise from any payment made hereunder or from the
execution, delivery, enforcement or registration of, or otherwise with respect
to, this Agreement (hereinafter referred to as "OTHER TAXES").
(c) The Guarantor will indemnify each Beneficiary for the full
amount of Taxes or Other Taxes (including, without limitation, any Taxes or
Other Taxes imposed by any jurisdiction on amounts payable under this Section
2.10) paid by such Beneficiary and any liability (including penalties, interest
and expenses) arising therefrom or with respect thereto, whether or not such
Taxes or Other Taxes were correctly or legally asserted. This indemnification
shall be made within 30 days from the date such Beneficiary makes written demand
therefor.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Guarantor represents and warrants to each Beneficiary that:
SECTION 3.01. ORGANIZATION; POWER. The Guarantor (i) is duly
organized, validly existing and in good standing utider the laws of Switzerland,
(ii) has all corporate power to own its property and carry its business as now
being conducted and (iii) is duly qualified to do business and is in good
standing in each jurisdiction in which it owns or leases property or in which
the conduct of its business requires it to so qualify or be licensed except to
the extent that failure to so qualify (or be so licensed or registered) does not
and is not reasonably likely to have a material adverse effect on the
consolidated financial condition or operations of the Guarantor and its
Subsidiaries.
SECTION 3.02. AUTHORIZATION. The execution, delivery and performance
by the Guarantor of this Agreement are within the Guarantor's corporate powers,
have been duly authorized by all necessary corporate action, and do not and will
not (i) contravene the Guarantor's constitutive documents, (ii) violate any law,
rule, regulation (including, without limitation, any exchange control or similar
regulation), order, writ, judgment, injunction, decree, determination or award,
(iii) conflict with or result in the breach of, or constitute a default under,
any agreement to which the Guarantor or any of its Subsidiaries is a party or
which is binding on the Guarantor's or any of its Subsidiaries' properties or
(iv) result in or require the creation or imposition of any Lien upon or with
respect to any of the properties of the Guarantor or any of its Subsidiaries.
SECTION 3.03. GOVERNMENTAL APPROVALS. No authorization or approval
or other action by, and no notice to or filing with, any governmental authority
or regulatory body is required for the due execution, delivery and performance
by the Guarantor of this Agreement (including, without limitation, the making of
payments hereunder in Dollars, as contemplated hereby).
6
SECTION 3.04. ENFORCEABILITY. This Agreement is a legal, valid and
binding obligation of the Guarantor enforceable against the Guarantor in
accordance with its terms.
SECTION 3.05. FINANCIAL STATEMENTS. The consolidated balance sheets
of the Guarantor and its consolidated Subsidiaries as at December 31, 2000, and
the related consolidated statements of profit and loss account and source and
application of funds of the Guarantor and such Subsidiaries for the fiscal year
or six-month period then ended, as applicable, copies of which have been
furnished to each Lender, fairly present the financial condition of the
Guarantor and such Subsidiaries as at such date and the results of the
operations of the Guarantor and such Subsidiaries for the period ended on such
date, all in accordance with applicable provisions of Swiss law. During the
period from December 31, 2000 to the date of this Agreement there has not
occurred any material adverse change in the Guarantor's financial condition or
business or in the consolidated financial position or business of it and its
Subsidiaries.
SECTION 3.06. LITIGATION. There is no pending or threatened action
or proceeding affecting the Guarantor or any Subsidiary of the Guarantor before
any court, governmental agency or arbitrator, (a) which has or probably will
have a material adverse effect on the consolidated financial condition or
business of the Guarantor and its Subsidiaries or (b) which purports to affect
the legality, validity or enforceability of this Agreement.
ARTICLE IV
COVENANTS
The Guarantor covenants and agrees with each Beneficiary that so
long as this Agreement shall remain in effect and until the Commitments have
been terminated and all the Obligations shall have been paid in full, unless the
Majority Lenders shall otherwise consent in writing, the Guarantor:
SECTION 4.01. EXISTENCE. (a) Will preserve and maintain its
corporate existence, provided that the foregoing will not prohibit the Guarantor
from merging or consolidating with or into any other corporation if, (i)
immediately after giving effect thereto, no Default would exist and (ii) if the
Guarantor is not the surviving corporation, the surviving corporation shall
assume the Guarantor's obligations hereunder in an agreement or instrument
reasonably satisfactory in form and substance to the Majority Lenders.
SECTION 4.02. STATUS OF GUARANTEE. Will at all times cause its
payment obligations under this Agreement to rank at least equally and ratably in
all respects with all its other unsecured and unsubordinated indebtedness except
for such indebtedness as would, by virtue only of the law in force in its place
of incorporation, be preferred ire the event of its winding-up.
SECTION 4.03. LIENS. Will not create or have outstanding any
Encumbrance in respect of Borrowed Money on or over its assets, except for:
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(a) liens arising solely by operation of law (or by an agreement
evidencing the same) in the ordinary course of its business in respect of
indebtedness which either (a) has been due for less than 30 days or (b) is
being contested in good faith and by appropriate means;
(b) any Encumbrance created on any asset acquired by it after the
date of this Agreement for the purpose of financing or refinancing that
acquisition and securing a principal, capital or nominal amount not
exceeding the cost of that acquisition;
(c) any other Encumbrance created or outstanding with the prior
consent of the Majority Lenders; or
(d) any other Encumbrance created or outstanding on or over assets
of the Guarantor provided that the aggregate outstanding principal,
capital or nominal amount secured by all Encumbrances created or
outstanding under this exception on or over assets of the Guarantor does
not at any time exceed U.S.$200,000,000 or its equivalent (for the
avoidance of doubt, any Encumbrance on shares owned by and/or shares of
the share capital of the Guarantor in connection with the securing of
options ("Stillhalteroptionen") shall not be considered for the purposes
of this paragraph (d)).
ARTICLE V
MISCELLANEOUS
SECTION 5.01. CURRENCY INDEMNITY. The sole currency of account and
payment for all sums payable by the Guarantor under this Agreement, including in
respect of indemnities, costs and damages, is Dollars. Any amount received or
recovered in a currency other than Dollars (whether as a result of a judgment or
order of a court of any jurisdiction, or the enforcement thereof, in the winding
up or dissolution of the Guarantor or otherwise) by any Beneficiary in respect
of any sum expressed to be due to it from the Guarantor shall only constitute a
discharge to the Guarantor to the extent of the amount of Dollars that the
recipient is able to purchase with the amount so received or recovered in that
currency on the date of that receipt or recovery (or, if it is not practicable
to make that purchase on that date, on the first date on which it is practicable
to do so). If that amount of Dollars is less than the amount of Dollars
expressed to be due to the recipient under this Agreement, the Guarantor shall
indemnify it against any loss sustained by it as a result. In any event, the
Guarantor shall indemnify the recipient against the cost of making any such
purchase. For the purpose of this Guarantee, it will be sufficient for any
Beneficiary to demonstrate that it would have suffered a loss had an actual
purchase been made. These indemnities constitute a separate and independent
cause of action, shall apply irrespective of any indulgence granted by any
Beneficiary and shall continue in full force and effect despite any other
judgment, order, claim or proof for a liquidated amount in respect of any sum
due under this Agreement or the Credit Agreement or any other judgment or order.
SECTION 5.0. SURVIVAL OF AGEEMENT. This Agreement and the terms,
covenants and conditions hereof shall be binding upon the Guarantor and its
successors
8
and shall inure to the benefit of the Beneficiaries and their respective
successors and assigns. The Guarantor shall not be permitted to assign or
transfer any of its rights or obligations under this Agreement, except as
expressly contemplated by this Agreement or the Credit Agreement.
SECTION 5.03. WAIVERS; AMENDMENT. (a) No failure on the part of any
Beneficiary to exercise, and no delay in exercising, any right, power or remedy
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right, power or remedy by any Beneficiary preclude any
other or further exercise thereof or the exercise of any other right, power or
remedy. All remedies hereunder and under the Credit Agreement are cumulative and
are not exclusive of any other remedies provided by law. Except as provided in
the Credit Agreement, neither the Administrative Agent nor the Lenders shall be
deemed to have waived any rights hereunder or under any other agreement or
instrument unless such waiver shall be in writing and signed by such parties.
(b) (i) Neither this Agreement nor any provision hereof may be
waived, amended or modified except pursuant to a written agreement entered into
between the Guarantor and the Administrative Agent with the prior written
consent of the Majority Lenders and (ii) this Agreement shall not be terminated
and the Guarantor shall not be released from any of its obligations under
Article II of this Agreement without the prior written consent of all of the
Lenders.
SECTION 5.04. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 5.05. NOTICES. All communications and notices hereunder
shall be in writing and given as provided in Section 8.02 of the Credit
Agreement. All communications and notices hereunder to the Guarantor shall be
given to it at:
Credit Suisse Group
Xxxxxxxxxxx 0
Xxxxxxxx 0
0000, Xxxxxx
XXXXXXXXXXX
Telecopy No: 00-0-000-0000
SECTION 5.06. JURIDICTION; CONSENT TO SERVICE. The Guarantor
irrevocably agrees that any legal suit action or proceeding arising out of or
based upon this Agreement and the transactions contemplated hereby may be
instituted in any State or Federal court in the Borough of Manhattan, The
City of New York (each, a "New York Court"), irrevocably waives, to the
fullest extent it may effectively do so, any objection which it may now or
hereafter have to the laying of venue of any such proceeding in any such
court and irrevocably submits to the non-exclusive jurisdiction of any such
court in any such suit, action or proceeding. The Guarantor hereby appoints
Credit Suisse First Boston Corporation, acting through its offices located at
Eleven Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 in the Borough of Manhattan,
The City of New York and its successors as its authorized agent upon which
process may be served in any action arising out of or based on this Agreement
which may be instituted in any New York Court by any
9
Beneficiary. Such appointment shall be irrevocable until all obligations of the
Guarantor under this Agreement have been performed. The Guarantor shall take any
and all action, including the filing of any and all documents and instruments,
that may be necessary to continue such appointment or appointments in full force
and effect as aforesaid. Service of process upon the authorized agent at the
address indicated above, as such address may be changed within the Borough of
Manhattan, The City of New York by notice given by the authorized agent to the
Guarantor, shall be deemed, in every respect, effective service of process upon
the Guarantor. Notwithstanding the foregoing, any action arising out of or based
on this Guarantee may be instituted by any Beneficiary in any competent court in
Switzerland, and the Guarantor further submits to the jurisdiction of the courts
of its own domicile in any such action.
SECTION 5.07. COST AND EXPENSES. The Guarantor agrees to pay on
demand all costs and expenses, if any (including, without limitation, reasonable
fees and expenses of counsel for any Beneficiary) in connection with the
enforcement (whether through negotiations, legal proceedings or otherwise) of
this Agreement, including, without limitation, reasonable fees and expenses of
counsel for any Beneficiary in connection with the enforcement of rights under
this Section.
SECTION 5.08. WAIVER OF JURY TRIAL. THE GUARANTOR, THE
ADMINISTRATIVE AGENT AND THE BENEFICIARIES HEREBY IRREVOCABLY WAIVE ALL RIGHT TO
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON
CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
ACTIONS OF THE GUARANTOR, THE ADMINISTRATIVE AGENT OR THE BENEFICIARIES IN THE
NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
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IN WITNESS WHEREOF, the Guarantor has duly executed and delivered
this Agreement as of the day and year first above written.
CREDIT SUISSE GROUP,
by
-----------------------------
Name:
Title:
by
-----------------------------
Name:
Title:
The foregoing Guarantee
Agreement is hereby accepted
as of the date first above
written.
THE CHASE MANHATTAN BANK,
as Administrative Agent on behalf
of the Beneficiaries,
by
-----------------------------
Name:
Title:
