CONFORMED AS EXECUTED
EXHIBIT 10.14
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AMENDED AND RESTATED CREDIT AGREEMENT
among
MBIA INC.,
MBIA INSURANCE CORPORATION,
VARIOUS DESIGNATED BORROWERS,
VARIOUS LENDING INSTITUTIONS,
THE BANK OF NEW YORK,
BANK ONE, NA,
BARCLAYS BANK PLC
AND
FLEET NATIONAL BANK,
AS CO-SYNDICATION AGENTS
AND
DEUTSCHE BANK AG NEW YORK BRANCH,
AS ADMINISTRATIVE AGENT,
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Dated as of August 28, 1998
and
amended and restated, as of April 19, 2002
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$225,300,000
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TABLE OF CONTENTS
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SECTION 1. Amount and Terms of Credit................................................................ 1
1.01 Commitment................................................................................ 1
1.02 Minimum Borrowing Amounts, etc. .......................................................... 2
1.03 Notice of Borrowing of Revolving Loans.................................................... 2
1.04 Competitive Bid Borrowings................................................................ 2
1.05 Disbursement of Funds..................................................................... 4
1.06 Notes..................................................................................... 5
1.07 Conversions............................................................................... 5
1.08 Pro Rata Borrowings, etc. ................................................................ 6
1.09 Interest.................................................................................. 6
1.10 Interest Periods.......................................................................... 7
1.11 Increased Costs, Illegality, etc. ........................................................ 8
1.12 Compensation.............................................................................. 10
1.13 Change of Lending Office.................................................................. 11
1.14 Replacement of Lenders.................................................................... 11
1.15 Recommitment; Replacement of Non-Continuing Lender........................................ 12
1.16 Additional Commitments.................................................................... 12
1.17 Designated Borrowers...................................................................... 13
1.18 Retroactivity............................................................................. 13
SECTION 2. Fees; Commitments......................................................................... 14
2.01 Fees...................................................................................... 14
2.02 Voluntary Reduction of Commitments........................................................ 14
2.03 Mandatory Reduction of Commitments........................................................ 14
SECTION 3. Payments.................................................................................. 14
3.01 Voluntary Prepayments..................................................................... 14
3.02 Mandatory Prepayments..................................................................... 15
3.03 Method and Place of Payment............................................................... 16
3.04 Net Payments.............................................................................. 16
SECTION 4. Conditions Precedent...................................................................... 18
4.01 Conditions Precedent to the Restatement Effective Date.................................... 18
4.02 Conditions Precedent to Loans............................................................. 20
SECTION 5. Representations, Warranties and Agreements................................................ 21
5.01 Corporate Existence and Power............................................................. 21
5.02 Corporate and Governmental Authorization; No Contravention................................ 21
5.03 Binding Effect............................................................................ 21
5.04 Financial Information..................................................................... 21
(i)
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5.05 Litigation................................................................................ 21
5.06 Compliance with ERISA..................................................................... 22
5.07 Taxes..................................................................................... 22
5.08 Subsidiaries.............................................................................. 22
5.09 Not an Investment Company................................................................. 22
5.10 Public Utility Holding Company Act........................................................ 22
5.11 Ownership of Property; Liens.............................................................. 22
5.12 No Default................................................................................ 22
5.13 Full Disclosure.......................................................................... 23
5.14 Compliance with Laws...................................................................... 23
5.15 Capital Stock............................................................................. 23
5.16 Margin Stock.............................................................................. 23
5.17 Insolvency................................................................................ 23
SECTION 6. Affirmative Covenants..................................................................... 23
6.01 Information Covenants..................................................................... 23
6.02 Books, Records and Inspections............................................................ 25
6.03 Maintenance of Existence.................................................................. 25
6.04 Compliance with Laws; Payment of Taxes.................................................... 25
6.05 Insurance................................................................................. 26
6.06 Maintenance of Property................................................................... 26
SECTION 7. Negative Covenants........................................................................ 26
7.01 Liens..................................................................................... 26
7.02 Dissolution............................................................................... 27
7.03 Consolidations, Mergers and Sales of Assets............................................... 27
7.04 Use of Proceeds........................................................................... 27
7.05 Change in Fiscal Year..................................................................... 27
7.06 Transactions with Affiliates.............................................................. 27
7.07 Leverage Ratio............................................................................ 27
7.08 Minimum Net Worth......................................................................... 27
SECTION 8. Defaults.................................................................................. 27
8.01 Events of Default......................................................................... 27
8.02 Notice of Default......................................................................... 30
SECTION 9. Definitions............................................................................... 30
SECTION 10. Agents, etc............................................................................... 41
10.01 Appointment............................................................................... 41
10.02 Nature of Duties.......................................................................... 41
10.03 Lack of Reliance on the Agents............................................................ 41
10.04 Certain Rights of the Agents.............................................................. 42
10.05 Reliance.................................................................................. 42
10.06 Indemnification........................................................................... 42
(ii)
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10.07 The Agents in Their Individual Capacities................................................. 42
10.08 Holders................................................................................... 43
10.09 Resignation by an Agent................................................................... 43
10.10 Co-Syndication Agents..................................................................... 43
SECTION 11. Miscellaneous............................................................................. 43
11.01 Payment of Expenses, etc.................................................................. 43
11.02 Lender Enforceability Opinions............................................................ 44
11.03 Notices................................................................................... 44
11.04 Benefit of Agreement...................................................................... 44
11.05 No Waiver; Remedies Cumulative............................................................ 46
11.06 Payments Pro Rata......................................................................... 46
11.07 Calculations; Computations................................................................ 47
11.08 Governing Law; Submission to Jurisdiction; Venue; Waiver of Jury Trial.................... 47
11.09 Counterparts.............................................................................. 48
11.10 Headings Descriptive...................................................................... 48
11.11 Amendment or Waiver....................................................................... 48
11.12 Survival.................................................................................. 48
11.13 Domicile of Loans......................................................................... 48
11.14 Confidentiality........................................................................... 48
11.15 Lender Register........................................................................... 49
ANNEX I - Commitments
ANNEX II - Lender Addresses
ANNEX III - Subsidiaries
EXHIBIT A-1 - Form of Notice of Borrowing
EXHIBIT A-2 - Form of Notice of Competitive Bid Borrowing
EXHIBIT B-1 - Form of Revolving Note
EXHIBIT B-2 - Form of Competitive Bid Note
EXHIBIT C - Form of Section 3.04 Certificate
EXHIBIT D - Opinion of General Counsel to Borrowers
EXHIBIT E - Form of Officers' Certificate
EXHIBIT F - Form of Financial Guaranty Insurance Policy
EXHIBIT G - Form of Assignment Agreement
EXHIBIT H - Form of Commitment Assumption Agreement
EXHIBIT I - Form of DB Assumption Agreement
EXHIBIT J - Form of Lender's Opinions
EXHIBIT K - Form of Opinion of Designated Borrower's Counsel
EXHIBIT L - Form of Opinion of Counsel to Corp.
(iii)
AMENDED AND RESTATED CREDIT AGREEMENT, dated as of August 28, 1998 and
amended and restated, as of April 19, 2002 among MBIA INC. ("Parent"), a
Connecticut corporation, MBIA INSURANCE CORPORATION ("Corp."), a New York stock
insurance corporation, one or more Designated Borrowers (as hereinafter defined)
from time to time party hereto, the lenders from time to time party hereto
(each, a "Lender" and, collectively, the "Lenders"), DEUTSCHE BANK AG, NEW YORK
BRANCH, as Administrative Agent (in such capacity, together with any successor
Administrative Agent, the "Administrative Agent"), THE BANK OF NEW YORK, BANK
ONE, NA, BARCLAYS BANK plc and FLEET NATIONAL BANK as Co-Syndication Agents (in
such capacity, together with any successor Co-Syndication Agent, the
"Co-Syndication Agents" and, each a "Co-Syndication Agent"). Unless otherwise
defined herein, all capitalized terms used herein and defined in Section 9 are
used herein as so defined.
W I T N E S S E T H:
WHEREAS, the Borrowers, the Existing Lenders, the Co-Syndication Agents
and the Administrative Agent have entered into a Credit Agreement, dated as of
August 28, 1998 (as the same has been amended, modified or supplemented to, but
not including, the Restatement Effective Date, the "Existing Credit Agreement");
and
WHEREAS, the parties hereto wish to amend and restate the Existing
Credit Agreement in the form of this Agreement and make available to the
Borrowers the respective credit facilities provided for herein;
NOW, THEREFORE, the parties hereto agree that the Existing Credit
Agreement shall be and is hereby amended and restated in its entirety as
follows:
SECTION 1. Amount and Terms of Credit.
1.01 Commitment. (a) Subject to and upon the terms and conditions set
forth herein, each Lender severally agrees to make, at any time and from time to
time on and after the Restatement Effective Date and prior to the Final Maturity
Date, one or more additional loans (the "Revolving Loans" and each a "Revolving
Loan") to one or more of the Borrowers (on a several basis), which Revolving
Loans: (i) may be repaid and reborrowed in accordance with the provisions
hereof; (ii) except as hereinafter provided, may, at the option of any Borrower,
be incurred and maintained as, and/or converted into, Base Rate Loans or
Eurodollar Loans, provided that all Revolving Loans made as part of the same
Borrowing shall, unless otherwise specified herein, consist of Revolving Loans
of the same Type; and (iii) shall not exceed that aggregate Principal Amount
which, when added to the aggregate Principal Amount of all other Revolving Loans
then outstanding and the aggregate Principal Amount of all Competitive Bid Loans
then outstanding, equals the Total Commitment at such time.
(b) Subject to and upon the terms and conditions set forth herein,
(I) on the Restatement Effective Date, the Existing Competitive Bid Loans made
by each Existing Lender to any Borrower pursuant to the Existing Credit
Agreement and outstanding on the Restatement Effective Date (immediately prior
to giving effect thereto) shall be continued, and shall remain outstanding, as
Borrowings of Loans hereunder to such Borrower and (II) each Lender severally
agrees that one or more Borrowers may, at any time and from time to time on and
after the Restatement Effective Date and prior to the Final Maturity Date, (on a
several basis) incur a loan or loans (together with the Existing Competitive Bid
Loans continued pursuant to clause (I) above, the "Competitive Bid Loans" and
each, a "Competitive Bid Loan") from one or more Bidder Lenders pursuant to a
Competitive Bid Borrowing at any time and from time to time on and after the
Restatement Effective Date and prior to the date which is the third Business Day
preceding the date which is seven days prior to the Final Maturity Date,
provided that after giving effect to any Competitive Bid Borrowing and the use
of the proceeds thereof, the aggregate outstanding Principal Amount of
Competitive Bid Loans, when combined with the then aggregate outstanding
Principal Amount of all Revolving Loans, shall not exceed the Total Commitment
at such time.
1.02 Minimum Borrowing Amounts, etc. The aggregate Principal Amount
of each Borrowing shall not be less than the Minimum Borrowing Amount. More than
one Borrowing may be incurred on any day, provided that at no time shall there
be outstanding more than six Borrowings of Eurodollar Loans.
1.03 Notice of Borrowing of Revolving Loans. (a) Whenever a Borrower
desires to incur Revolving Loans, it shall give the Administrative Agent at its
Notice Office, (x) prior to 11:00 A.M. (New York time) at least three Business
Days' prior written notice (or telephonic notice promptly confirmed in writing)
of each Borrowing of Eurodollar Loans and (y) written notice (or telephonic
notice promptly confirmed in writing) prior to 11:00 A.M. (New York time) on the
date of each Borrowing of Base Rate Loans. Each such notice (each, a "Notice of
Borrowing") shall be in the form of Exhibit A-1 and shall be irrevocable and
shall specify (i) the identity of the applicable Borrower, (ii) the aggregate
principal amount of the Revolving Loans to be made pursuant to such Borrowing,
(iii) the date of Borrowing (which shall be a Business Day), (iv) whether the
respective Borrowing shall consist of Base Rate Loans or Eurodollar Loans, (v)
if Eurodollar Loans, the Interest Period to be initially applicable thereto and
(vi) if DB Loans, the DB Loan Maturity Date to be applicable thereto. The
Administrative Agent shall promptly give each Lender written notice (or
telephonic notice promptly confirmed in writing) of each proposed Borrowing, of
the portion thereof to be funded by such Lender and of the other matters covered
by the Notice of Borrowing.
(b) Without in any way limiting the obligation of any Borrower to
confirm in writing any telephonic notice permitted to be given hereunder, the
Administrative Agent may prior to receipt of written confirmation act without
liability upon the basis of such telephonic notice, believed by it in good faith
to be from an Authorized Officer of such Borrower. In each such case, each
Borrower hereby waives the right to dispute the Administrative Agent's record of
the terms of such telephonic notice absent manifest error.
1.04 Competitive Bid Borrowings. (a) Whenever any Borrower desires to
incur a Competitive Bid Borrowing (excluding Existing Competitive Bid Loans
continued hereunder on the Restatement Effective Date), it shall deliver to the
Administrative Agent, prior to 11:00 A.M. (New York time) (x) at least four
Business Days prior to the date of such proposed Competitive Bid Borrowing, in
the case of a Spread Borrowing, and (y) at least one Business Day prior to the
date of such proposed Competitive Bid Borrowing, in the case of an Absolute Rate
Borrowing, a written notice substantially in the form of Exhibit A-2 hereto (a
"Notice of
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Competitive Bid Borrowing"), which notice shall specify in each case (i) the
identity of the applicable Borrower, (ii) the date (which shall be a Business
Day) and the aggregate amount of the proposed Competitive Bid Borrowing, (iii)
the maturity date for repayment of each and every Competitive Bid Loan to be
made as part of such Competitive Bid Borrowing (which maturity date may be (A)
up to six months after the date of such Competitive Bid Borrowing in the case of
a Spread Borrowing and (B) no fewer than seven days and no more than 180 days
after the date of such Competitive Bid Borrowing in the case of an Absolute Rate
Borrowing, provided that in no event shall the maturity date of any Competitive
Bid Borrowing be later than the third Business Day preceding the Final Maturity
Date), (iv) the interest payment date or dates relating thereto, (v) whether the
proposed Competitive Bid Borrowing is to be an Absolute Rate Borrowing or a
Spread Borrowing, and (vi) any other terms to be applicable to such Competitive
Bid Borrowing. The Administrative Agent shall promptly notify each Bidder Lender
by telephone or facsimile of each such request for a Competitive Bid Borrowing
received by it from a Borrower and of the contents of the related Notice of
Competitive Bid Borrowing.
(b) Each Bidder Lender shall, if, in its sole discretion, it elects
to do so, irrevocably offer to make one or more Competitive Bid Loans to the
applicable Borrower as part of such proposed Competitive Bid Borrowing at a rate
or rates of interest specified by such Bidder Lender in its sole discretion and
determined by such Bidder Lender independently of each other Bidder Lender, by
notifying the Administrative Agent (which shall give prompt notice thereof to
such Borrower by facsimile), before 9:30 A.M. (New York time) on the date (the
"Reply Date") which is (x) in the case of an Absolute Rate Borrowing, the date
of such proposed Competitive Bid Borrowing and (y) in the case of a Spread
Borrowing, three Business Days before the date of such proposed Competitive Bid
Borrowing, of the minimum amount and maximum amount of each Competitive Bid Loan
which such Bidder Lender would be willing to make as part of such proposed
Competitive Bid Borrowing (which amounts may, subject to the proviso contained
in Section 1.01(b), exceed such Bidder Lender's Commitment), the rate or rates
of interest therefor and such Bidder Lender's lending office with respect to
such Competitive Bid Loan; provided that if the Administrative Agent in its
capacity as a Bidder Lender shall, in its sole discretion, elect to make any
such offer, it shall notify the respective Borrower of such offer before 9:15
A.M. (New York time) on the Reply Date. If any Bidder Lender shall elect not to
make such an offer, such Bidder Lender shall so notify the Administrative Agent,
before 9:30 A.M. (New York time) on the Reply Date, and such Bidder Lender shall
not be obligated to, and shall not, make any Competitive Bid Loan as part of
such Competitive Bid Borrowing; provided that the failure by any Bidder Lender
to give such notice shall not cause such Bidder Lender to be obligated to make
any Competitive Bid Loan as part of such proposed Competitive Bid Borrowing.
(c) The applicable Borrower shall, in turn, before 10:30 A.M. (New
York time) on the Reply Date, either:
(i) cancel such Competitive Bid Borrowing by giving the
Administrative Agent notice to such effect (it being understood and agreed that
if such Borrower gives no such notice of cancellation and no notice of
acceptance pursuant to clause (ii) below, then such Borrower shall be deemed to
have canceled such Competitive Bid Borrowing), or
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(ii) accept one or more of the offers made by any Bidder Lender or
Bidder Lenders pursuant to clause (b) above by giving notice (in writing or by
telephone confirmed in writing) to the Administrative Agent of the amount of
each Competitive Bid Loan (which amount shall be equal to or greater than the
minimum amount, and equal to or less than the maximum amount, notified to the
applicable Borrower by the Administrative Agent on behalf of such Bidder Lender
for such Competitive Bid Borrowing pursuant to clause (b) above) to be made by
each Bidder Lender as part of such Competitive Bid Borrowing, and reject any
remaining offers made by Bidder Lenders pursuant to clause (b) above by giving
the Administrative Agent notice to that effect; provided that the acceptance of
offers may only be made on the basis of ascending Absolute Rates (in the case of
an Absolute Rate Borrowing) or Spreads (in the case of a Spread Borrowing), in
each case commencing with the lowest rate so offered; provided further, however,
that if offers are made by two or more Bidder Lenders at the same rate and
acceptance of all such equal offers would result in a greater principal amount
of Competitive Bid Loans being accepted than the aggregate principal amount
requested by the applicable Borrower, if such Borrower elects to accept any such
offers such Borrower shall accept such offers pro rata from such Bidder Lenders
(on the basis of the maximum amounts of such offers) unless any such Bidder
Lender's pro rata share would be less than the minimum amount specified by such
Bidder Lender in its offer, in which case such Borrower shall have the right to
accept one or more such equal offers in their entirety and reject the other
equal offer or offers or to allocate acceptance among all such equal offers (but
giving effect to the minimum and maximum amounts specified for each such offer
pursuant to clause (b) above), as such Borrower may elect in its sole
discretion.
(d) If the applicable Borrower notifies the Administrative Agent
that such Competitive Bid Borrowing is deemed canceled, pursuant to clause
(c)(i) above, the Administrative Agent shall give prompt notice thereof to the
Bidder Lenders and such Competitive Bid Borrowing shall not be made.
(e) If the applicable Borrower accepts one or more of the offers
made by any Bidder Lender or Bidder Lenders pursuant to clause (c) (ii) above,
the Administrative Agent shall in turn promptly notify (x) each Bidder Lender
that has made an offer as described in clause (b) above, of the date and
aggregate amount of such Competitive Bid Borrowing and whether or not any offer
or offers made by such Bidder Lender pursuant to clause (b) above have been
accepted by the Borrower and (y) each Bidder Lender that is to make a
Competitive Bid Loan as part of such Competitive Bid Borrowing, of the amount of
each Competitive Bid Loan to be made by such Bidder Lender as part of such
Competitive Bid Borrowing.
1.05 Disbursement of Funds. (a) No later than 12:00 Noon (New York
time) (or 3:00 P.M. (New York time) in the case of (x) a Borrowing of Base Rate
Loans for which a Notice of Borrowing was given on the date of such Borrowing
and (y) a Competitive Bid Borrowing) on the date specified in each Notice of
Borrowing or Notice of Competitive Bid Borrowing, each Lender will make
available its pro rata share, if any, of such Borrowing requested to be made on
such date. All such amounts shall be made available to the Administrative Agent
in Dollars, and immediately available funds at the Payment Office and the
Administrative Agent promptly will make available to the applicable Borrower by
depositing to the account designated by such Borrower, which account shall be at
an institution in the same city as the respective Payment Office, the aggregate
of the amounts so made available in the type
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of funds received. Unless the Administrative Agent shall have been notified by
any Lender participating in a Borrowing prior to the date of such Borrowing that
such Lender does not intend to make available to the Administrative Agent its
portion of the Borrowing or Borrowings to be made on such date, the
Administrative Agent may assume that such Lender has made such amount available
to the Administrative Agent on such date of Borrowing, and the Administrative
Agent, in reliance upon such assumption, may (in its sole discretion and without
any obligation to do so) make available to the applicable Borrower a
corresponding amount. If such corresponding amount is not in fact made available
to the Administrative Agent by such Lender and the Administrative Agent has made
available same to the applicable Borrower, the Administrative Agent shall be
entitled to recover such corresponding amount from such Lender. If such Lender
does not pay such corresponding amount forthwith upon the Administrative Agent's
demand therefor, the Administrative Agent shall promptly notify the applicable
Borrower, and such Borrower shall pay such corresponding amount to the
Administrative Agent within three Business Days of receipt of such notice unless
previously paid by such Lender. The Administrative Agent shall also be entitled
to recover on demand from such Lender or such Borrower, as the case may be,
interest on such corresponding amount in respect of each day from the date such
corresponding amount was made available by the Administrative Agent to such
Borrower to the date such corresponding amount is recovered by the
Administrative Agent, at a rate per annum equal to (x) if paid by such Lender,
the overnight Federal Funds Effective Rate or (y) if paid by such Borrower, the
then applicable rate of interest, calculated in accordance with Section 1.09,
for the respective Loans.
(b) Nothing herein shall be deemed to relieve any Lender from its
obligation to fulfill its commitments hereunder or to prejudice any rights which
any Borrower may have against any Lender as a result of any default by such
Lender hereunder.
1.06 Notes. (a) Each Borrower's obligation to pay the principal of,
and interest on, the Loans made to it by each Lender shall be evidenced (i) if
Revolving Loans, by a promissory note substantially in the form of Exhibit B-1
with blanks appropriately completed (each, a "Revolving Note" and, collectively,
the "Revolving Notes") and (ii) if Competitive Bid Loans, by a promissory note
substantially in the form of Exhibit B-2 with blanks appropriately completed
(each a "Competitive Bid Note" and, collectively, the "Competitive Bid Notes").
(b) Each Lender will note on its internal records the amount of each
Loan made by it and each payment in respect thereof and will, prior to any
transfer of any of its Notes, endorse on the reverse side thereof the
outstanding Principal Amount of Loans evidenced thereby. Failure to make any
such notation shall not affect a Borrower's obligations in respect of such
Loans.
1.07 Conversions. Each Borrower shall have the option to convert on
any Business Day occurring on or after the Restatement Effective Date, all or a
portion at least equal to the applicable Minimum Borrowing Amount of its
Revolving Loans constituting Base Rate Loans or Eurodollar Loans into a
Borrowing or Borrowings of Revolving Loans constituting Eurodollar Loans or Base
Rate Loans, respectively, provided that (i) no partial conversion shall reduce
the outstanding principal amount of the Eurodollar Loans made pursuant to a
Borrowing to less than the Minimum Borrowing Amount applicable thereto, (ii)
Base Rate Loans may not be converted into Eurodollar Loans when a Default or
Event of Default is then in existence if the
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Administrative Agent or the Required Lenders shall have determined in its or
their sole discretion not to permit such conversion and (iii) Borrowings of
Eurodollar Loans resulting from this Section 1.07 shall be limited in number as
provided in Section 1.02. Each such conversion shall be effected by the
respective Borrower giving the Administrative Agent at the Notice Office, prior
to 12:00 Noon (New York time), at least three Business Days' (or one Business
Day in the case of a conversion into Base Rate Loans) prior written notice (or
telephonic notice promptly confirmed in writing) (each, a "Notice of
Conversion") specifying the Revolving Loans to be so converted, the Type of
Loans (as to interest option) to be converted into and, if to be converted into
a Borrowing of Eurodollar Loans, the Interest Period to be initially applicable
thereto. The Administrative Agent shall give each Lender prompt notice of any
such proposed conversion affecting any of its Loans.
1.08 Pro Rata Borrowings, etc. All Revolving Loans incurred pursuant
to a Borrowing shall be made by the Lenders pro rata on the basis of their
respective Commitments. It is understood that no Lender shall be responsible for
any default by any other Lender in its obligation to make Revolving Loans
hereunder, and that each Lender shall be obligated to make the Revolving Loans
provided to be made by it hereunder, regardless of the failure of any other
Lender to fulfill its commitments hereunder and regardless of whether such
Lender has made any Competitive Bid Loans hereunder.
1.09 Interest. (a) The unpaid principal amount of each Base Rate Loan
shall bear interest from the date of the Borrowing thereof until the earlier of
(i) maturity (whether by acceleration or otherwise) and (ii) conversion of such
Base Rate Loan to a Eurodollar Loan pursuant to Section 1.07, at a rate per
annum which shall at all times be equal to the sum of the Base Rate plus the
Applicable Margin, each as in effect from time to time.
(b) The unpaid principal amount of each Eurodollar Loan shall bear
interest from the date of the Borrowing thereof until the earlier of (i)
maturity (whether by acceleration or otherwise) and (ii) conversion of such
Eurodollar Loan to a Base Rate Loan pursuant to Section 1.07, 1.10 or 1.11(b),
as applicable, at a rate per annum which shall, during each Interest Period
applicable thereto, be equal to the sum of the LIBOR for such Interest Period,
plus the Applicable Margin as in effect from time to time.
(c) The unpaid principal amount of each Competitive Bid Loan shall
bear interest from the date of the Borrowing thereof until maturity (whether by
acceleration or otherwise) at a rate or rates per annum specified by a Bidder
Lender or Bidder Lenders, as the case may be, pursuant to Section 1.04(b) and
accepted by the respective Borrower pursuant to Section 1.04(c).
(d) All overdue principal and, to the extent permitted by law,
overdue interest in respect of each Loan shall bear interest at a rate per annum
equal to the greater of (x) the rate which is 2% in excess of the rate borne by
the respective Loans immediately prior to the respective payment default and (y)
the rate which is 2% in excess of the rate otherwise applicable to Base Rate
Loans, provided that principal in respect of Eurodollar Loans and Competitive
Bid Loans shall bear interest from the date same becomes due (whether by
acceleration or otherwise) until the end of the Interest Period applicable
thereto at a rate per annum equal to 2% plus the
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rate of interest applicable on the due date therefor. Interest which accrues
under this Section 1.08(c) shall be payable on demand.
(e) Interest shall accrue from and including the date of any
Borrowing to but excluding the date of any repayment thereof, and in the case of
DB Loans, compounded as described below, and shall be payable (i) in respect of
each Base Rate Loan (other than a DB Loan), quarterly in arrears on the last
Business Day of each March, June, September and December, (ii) in respect of
each Eurodollar Loan (other than a DB Loan), on the last day of each Interest
Period applicable thereto and, in the case of an Interest Period in excess of
three months, on each date occurring at three month intervals after the first
day of such Interest Period, (iii) in respect of each DB Loan, on the applicable
DB Loan Maturity Date, (iv) in respect of each Competitive Bid Loan, at such
times as specified in the Notice of Competitive Bid Borrowing relating thereto,
and (v) in respect of each Loan, on any prepayment or conversion (other than the
prepayment or conversion of any Base Rate Loan) (on the amount prepaid or
converted), at maturity (whether by acceleration or otherwise) and, after such
maturity, on demand. Interest on any Existing Competitive Bid Loans which
accrued under the Existing Credit Agreement prior to the Restatement Effective
Date, but which remains unpaid on such date (and which was not required to be
paid on or prior to such date in accordance with the terms of the Existing
Credit Agreement or this Agreement) shall be payable at the times otherwise
provided above (but calculated at the respective rates provided in the Existing
Credit Agreement for periods occurring prior to the Restatement Effective Date)
for the interest involved, without any change on the Restatement Effective Date
as to the Interest Periods then in effect. Notwithstanding anything to the
contrary contained in this Agreement, although interest in respect of each DB
Loan shall be payable only on the DB Loan Maturity Date for such DB Loan as
provided in clause (iii) of the immediately preceding sentence, interest on each
DB Loan shall compound on each date on which interest thereon would have been
payable pursuant to clause (i) or (ii) of such sentence if such Loan were not a
DB Loan and such compounded interest shall thereafter bear interest hereunder at
the same rate per annum as the principal of the DB Loan to which such compounded
interest relates.
(f) All computations of interest hereunder shall be made in
accordance with Section 11.07(b).
(g) The Administrative Agent, upon determining the interest rate for
any Borrowing for any Interest Period, shall promptly notify the applicable
Borrower and the Lenders thereof.
1.10 Interest Periods. (a) At the time a Borrower gives a Notice of
Borrowing or a Notice of Conversion in respect of the making of, or conversion
into, a Borrowing of Eurodollar Loans (in the case of the initial Interest
Period applicable thereto) or prior to 12:00 Noon (New York Time) on the third
Business Day prior to the expiration of an Interest Period applicable to a
Borrowing of Eurodollar Loans, it shall have the right to elect by giving the
Administrative Agent written notice (or telephonic notice promptly confirmed in
writing) of the Interest Period applicable to such Borrowing, which Interest
Period shall, at the option of such Borrower, be a one, two, three or six month
period or such other period available to all Lenders. Notwithstanding anything
to the contrary contained above:
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(i) the initial Interest Period for any Borrowing shall commence on
the date of such Borrowing (including, where relevant, the date of any
conversion from a Borrowing of Base Rate Loans) and each Interest Period
occurring thereafter in respect of such Borrowing shall commence on the day on
which the next preceding Interest Period expires;
(ii) if any Interest Period begins on (x) the last Business Day of a
month, it shall end on the last Business Day of the month in which it is to end
and (y) a day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period, such Interest Period shall
end on the last Business Day of such calendar month;
(iii) if any Interest Period would otherwise expire on a day which is
not a Business Day, such Interest Period shall expire on the next succeeding
Business Day, provided that if any Interest Period would otherwise expire on a
day which is not a Business Day but is a day of the month after which no further
Business Day occurs in such month, such Interest Period shall expire on the next
preceding Business Day;
(iv) no Interest Period may be elected that would extend beyond the
Final Maturity Date;
(v) no Interest Period in respect of a DB Loan may be elected that
would extend beyond the DB Loan Maturity Date for such DB Loan;
(vi) no Interest Period may be elected at any time when a Default or
an Event of Default is then in existence if the Administrative Agent or the
Required Lenders shall have determined in its or their sole discretion not to
permit such election; and
(vii) all Eurodollar Loans comprising a Borrowing shall at all times
have the same Interest Period.
(b) If upon the expiration of any Interest Period, the applicable
Borrower has failed to (or may not) elect a new Interest Period to be applicable
to the Revolving Loans subject to the expiring Interest Period as provided
above, such Borrower shall be deemed to have elected, in the case of Eurodollar
Loans, to convert such Borrowing into a Borrowing of Base Rate Loans effective
as of the expiration date of such current Interest Period.
1.11 Increased Costs, Illegality, etc. (a) In the event that (x) in
the case of clause (i) below, the Administrative Agent or (y) in the case of
clause (ii) or (iii) below, any Lender shall have determined (which
determination shall, absent manifest error, be final and conclusive and binding
upon all parties hereto):
(i) on any date for determining LIBOR for any Interest Period that,
by reason of any changes arising after the Original Effective Date affecting the
relevant interbank market, adequate and fair means do not exist for ascertaining
the applicable interest rate on the basis provided for in the definition of
LIBOR; or
(ii) at any time, that such Lender shall actually incur increased
costs or reductions in the amounts received or receivable hereunder with respect
to any Eurodollar Loans or Competitive Bid Loans (other than any increased cost
or reduction in the amount received or
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receivable resulting from the imposition of or a change in the rate of taxes or
similar charges) because of (x) any change since the Original Effective Date
(or, in the case of any Competitive Bid Loan, since the making of such
Competitive Bid Loan) in any applicable law, governmental rule, regulation,
guideline or order (or in the interpretation or administration thereof and
including the introduction of any new law or governmental rule, regulation,
guideline or order) (such as, for example, but not limited to, a change in
official reserve requirements, but, in all events, excluding amounts payable
pursuant to Section 1.11(c) and/or (y) other circumstances occurring since the
Original Effective Date affecting the relevant interbank market; or
(iii) at any time since the Original Effective Date, that the making
or continuance of any Eurodollar Loans or Competitive Bid Loans has become
unlawful by compliance by such Lender in good faith with any law, governmental
rule, regulation or guideline, or has become impracticable as a result of a
contingency occurring after the Original Effective Date which materially and
adversely affects the relevant interbank market;
then, and in any such event, such Lender (or the Administrative Agent in the
case of clause (i) above) shall (x) on such date and (y) within ten Business
Days of the date on which such event no longer exists give notice (by telephone
confirmed in writing) to the respective Borrower and, except in the case of
clause (i) above, to the Administrative Agent of such determination (which
notice the Administrative Agent shall promptly transmit to each of the other
Lenders). Thereafter and for so long as the applicable circumstance continues to
exist (w) in the case of clause (i) above, Eurodollar Loans (and Competitive Bid
Loans constituting a Spread Borrowing) shall no longer be available until such
time as the Administrative Agent notifies the respective Borrower and the
Lenders that the circumstances giving rise to such notice by the Administrative
Agent no longer exist in accordance with clause (y) of the preceding sentence,
and any Notice of Borrowing, Notice of Competitive Bid Borrowing or Notice of
Conversion given by a Borrower with respect to such Loans which have not yet
been incurred shall be deemed rescinded by the relevant Borrower, (x) in the
case of clause (ii) above, the applicable Borrower shall pay to such Lender,
upon written demand therefor, such additional amounts (in the form of an
increased rate of, or a different method of calculating, interest or otherwise
as such Lender in its sole discretion shall determine) as shall be required to
compensate such Lender for such increased costs or reductions in amounts
receivable hereunder (a written notice as to the additional amounts owed to such
Lender, showing the basis for the calculation thereof in reasonable detail,
submitted to the applicable Borrower by such Lender shall, absent manifest
error, be final and conclusive and binding upon all parties hereto), (y) in the
case of clause (iii) above, the applicable Borrower shall take one of the
actions specified in Section 1.11(b) as promptly as possible and, in any event,
within the time period required by law.
(b) At any time when any Eurodollar Loan or Competitive Bid Loan is
affected by the circumstances described in Section 1.11(a)(ii) or (iii), the
applicable Borrower may (and in the case of a Eurodollar Loan or Competitive Bid
Loan affected pursuant to Section 1.11(a)(iii), the applicable Borrower shall)
either (i) if the affected Eurodollar Loan or Competitive Bid Loan is then being
made pursuant to a Borrowing, cancel said Borrowing by giving the Administrative
Agent telephonic notice (confirmed promptly in writing) thereof on the same date
that the respective Borrower was notified by a Lender pursuant to Section
1.11(a)(ii) or (iii), or (ii) if the affected Eurodollar Loan or Competitive Bid
Loan is then outstanding, upon at least three Business Days' notice to the
Administrative Agent, (A) in the case of a Eurodollar
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Loan, require the affected Lender to convert each such Eurodollar Loan into a
Base Rate Loan, and (B) in the case of a Competitive Bid Loan, repay all such
Competitive Bid Loans in full, provided that if more than one Lender is affected
at any time, then all affected Lenders must be treated the same pursuant to this
Section 1.11(b).
(c) If any Lender shall have determined that after the Original
Effective Date, the adoption or effectiveness of any applicable law, rule or
regulation regarding capital adequacy, or any change therein after the Original
Effective Date, or any change after the Original Effective Date in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by such Lender or any corporation controlling such Lender
with any request or directive regarding capital adequacy (whether or not having
the force of law) of any such authority, central bank or comparable agency
adopted or effective after the Original Effective Date, has or would have the
effect of reducing the rate of return on such Lender's or such corporation's
capital or assets as a consequence of its commitments or obligations hereunder
to a level below that which such Lender or such other corporation could have
achieved but for such adoption, effectiveness, change or compliance (taking into
consideration such Lender's or such other corporation's policies with respect to
capital adequacy), then from time to time, within 15 days after written demand
by such Lender (with a copy to the Administrative Agent), the Borrowers jointly
and severally agree to pay to such Lender such additional amount or amounts as
will compensate such Lender or such other corporation for such reduction. In
determining such additional amounts, each Lender will act reasonably and in good
faith and will use averaging and attribution methods that are reasonable. Each
Lender, upon so determining that any additional amounts will be payable pursuant
to this Section 1.11(c), will give prompt written notice thereof to the
Borrowers, which notice shall set forth in reasonable detail the basis of the
calculation of such additional amounts, although the failure to give any such
notice shall not release or diminish any Borrower's obligations to pay
additional amounts pursuant to this Section 1.11(c) upon the subsequent receipt
of such notice.
1.12 Compensation. Each Borrower shall compensate each Lender, upon
its written request (which request shall set forth the basis for requesting such
compensation), for all reasonable losses, expenses and liabilities (including,
without limitation, any loss, expense or liability incurred by reason of the
liquidation or reemployment of deposits or other funds required by such Lender
to fund any Eurodollar Loans or Competitive Bid Loans made, or to be made, by it
to such Borrower but excluding in any event the loss of anticipated profits)
which such Lender may actually sustain: (i) if for any reason (other than a
default by such Lender or the Administrative Agent) a Borrowing of Eurodollar
Loans or Competitive Bid Loans does not occur on a date specified therefor in a
Notice of Borrowing, a Notice of Competitive Bid Borrowing or a Notice of
Conversion, given by such Borrower (whether or not withdrawn by such Borrower or
deemed withdrawn pursuant to Section 1.11(a)); (ii) if any prepayment, repayment
or conversion of any such Eurodollar Loans or Competitive Bid Loans occurs on a
date which is not the last day of an Interest Period applicable thereto; (iii)
if any prepayment of any such Eurodollar Loans or Competitive Bid Loans is not
made on any date specified in a notice of prepayment given by such Borrower;
(iv) if such Lender is required pursuant to Section 1.14 to assign any such
Eurodollar Loans or Competitive Bid Loans as of a date which is not the last day
of an Interest Period applicable thereto; or (v) as a consequence of (x) any
other default
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by such Borrower to repay its Eurodollar Loans or Competitive Bid Loans when
required by the terms of this Agreement or (y) an election made pursuant to
Section 1.11(b).
1.13 Change of Lending Office. Each Lender agrees that, upon the
occurrence of any event giving rise to the operation of Section 1.11(a)(ii) or
(iii), 1.11(c) or 3.04 with respect to such Lender, it will, if requested by the
applicable Borrower, use reasonable efforts (subject to overall policy
considerations of such Lender) to designate another lending office for any Loans
or Commitments affected by such event, provided that such designation is made on
such terms that such Lender and its lending office suffer no economic, legal or
regulatory disadvantage, with the object of avoiding or materially mitigating
the consequence of the event giving rise to the operation of any such Section.
Nothing in this Section 1.13 shall affect or postpone any of the obligations of
any Borrower or the right of any Lender provided in Section 1.11 or 3.04.
1.14 Replacement of Lenders. (a) Upon the occurrence of any event
giving rise to the operation of Section 1.11(a)(ii) or (iii), Section 1.11(c) or
Section 3.04 with respect to any Lender which results in such Lender charging to
any Borrower increased costs in excess of those being generally charged by the
other Lenders, (b) if a Lender becomes a Defaulting Lender, (c) if a Lender
becomes a Non-Continuing Lender, (d) if a Lender fails to maintain a long-term
debt rating of at least BBB- as determined by Standard & Poor's Corporation and
at least Baa3 as determined by Xxxxx'x Investors Service, Inc., (e) if a Lender
fails to deliver the opinion or opinions as required pursuant to Section 11.02
and/or (f) in the case of a refusal by a Lender to consent to a proposed change,
waiver, discharge or termination with respect to this Agreement which has been
approved by the Required Lenders, Parent and Corp. shall have the right, if no
Default or Event of Default then exists, to replace such Lender (the "Replaced
Lender"), upon prior written notice to the Administrative Agent and such
Replaced Lender, with one or more Person or Persons, none of whom shall
constitute a Defaulting Lender at the time of such replacement (collectively,
the "Replacement Lender") reasonably acceptable to the Administrative Agent,
provided that (i) at the time of any replacement pursuant to this Section 1.14,
the Replacement Lender and the Replaced Lender shall enter into one or more
Assignment Agreements pursuant to Section 11.04(b) (and with all fees payable
pursuant to said Section 11.04(b) to be paid by the Replacement Lender) pursuant
to which the Replacement Lender shall acquire all of the Commitments and
outstanding Loans of the Replaced Lender and, in connection therewith, shall pay
to the Replaced Lender in respect thereof an amount equal to the sum of (A) an
amount equal to the principal amount of, and all accrued but unpaid interest on,
all outstanding Loans of the Replaced Lender and (B) an amount equal to all
accrued, but theretofore unpaid, Fees owing to the Replaced Lender pursuant to
Section 2.01, and (ii) all obligations of the Borrowers under the Credit
Documents owing to the Replaced Lender (other than those specifically described
in clause (i) above in respect of which the assignment purchase price has been,
or is concurrently being, paid), including without limitation all amounts owing
to the Replaced Lender under Section 1.12 as a result of the assignment of its
Loans under clause (i) above, shall be paid in full to such Replaced Lender
concurrently with such replacement. Upon the execution of the respective
Assignment Agreements, the payment of amounts referred to in clauses (i) and
(ii) above and, if so requested by the Replacement Lender, delivery to the
Replacement Lender of the appropriate Note or Notes executed by the relevant
Borrowers, the Replacement Lender shall become a Lender hereunder and the
Replaced Lender shall cease to constitute a Lender hereunder, except with
respect to indemnification provisions applicable to the Replaced Lender under
this Agreement, which shall survive as to such Replaced Lender.
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1.15 Recommitment; Replacement of Non-Continuing Lender. Parent and
Corp. may, prior to (but not less than 60 days nor more than 120 days prior to)
the Final Maturity Date then in effect (each such Final Maturity Date, a
"Recommitment Deadline"), by written notice to the Administrative Agent (which
notice the Administrative Agent shall promptly transmit to each Lender), request
that the Final Maturity Date then in effect be extended. Such request shall be
accompanied by a certificate of an Authorized Officer of Parent stating that no
Default or Event of Default has occurred and is continuing. Each Lender shall
respond to such request, as promptly as practicable, by written notice to
Parent, Corp. and the Administrative Agent, with the failure of any Lender to
respond prior to the Recommitment Deadline being deemed to be a negative
response. In the event each Lender shall consent to such request of Parent and
Corp., on such Recommitment Deadline, the Final Maturity Date shall be
automatically extended to the date occurring 364 days following the Final
Maturity Date then in effect. If any Lender shall fail to consent to such
recommitment (any such Lender, a "Non-Continuing Lender"), Parent and Corp.
shall be entitled at any time prior to the Recommitment Deadline with respect to
such request to replace such Lender in accordance with the requirements of
Section 1.14, and in the event that the Replacement Lender with respect to each
such Non-Continuing Lender shall consent to such recommitment prior to such
Recommitment Deadline, such recommitment shall be effective as described in the
immediately preceding sentence as if each Lender had originally consented to
such request. No Lender shall be obligated to grant any recommitments pursuant
to this Section 1.15 and any such recommitment shall be in the sole discretion
of each such Lender. The Administrative Agent shall notify Parent, Corp. and
each Lender as to the effectiveness of any such recommitment.
1.16 Additional Commitments. At any time and from time to time on and
after the Restatement Effective Date and prior to the Final Maturity Date,
Parent and Corp. may request one or more Lenders or other lending institutions
to increase its Commitment (in the case of an existing Lender) or assume a
Commitment (in the case of any other lending institution) and, in the sole
discretion of each such Lender or other institution, any such Lender or other
institution may agree to so commit; provided that (i) no Default or Event of
Default then exists, (ii) the increase in the Total Commitment pursuant to any
such request shall be in an aggregate amount of at least $9,000,000 and (iii)
the aggregate increase in the Total Commitment pursuant to this Section 1.16
shall not exceed $75,000,000. Parent, Corp. and each such Lender or other
lending institution (each, an "Assuming Lender") which agrees to increase its
existing, or assume, a Commitment shall execute and deliver to the
Administrative Agent a Commitment Assumption Agreement substantially in the form
of Exhibit H (with the increase in, or in the case of a new Assuming Lender,
assumption of, such Lender's Commitment to be effective on the Business Day
following delivery of such Commitment Assumption Agreement to the Administrative
Agent). The Administrative Agent shall promptly notify each Lender as to the
occurrence of each Commitment Assumption Date. On each Commitment Assumption
Date, (x) Annex I shall be deemed modified to reflect the revised Commitments of
the Lenders, (y) Parent and Corp. shall pay to each such Assuming Lender such up
front fee (if any) as may have been agreed between Parent, Corp. and such
Assuming Lender and (z) the Borrowers will issue new Notes to the Assuming
Lenders in conformity with the requirements of Section 1.06. Notwithstanding
anything to the contrary contained in this Agreement, in connection with any
increase in the Total Commitment pursuant to this Section 1.16, each Borrower
shall, in coordination with the Administrative Agent and the Lenders, repay
outstanding Revolving Loans of certain Lenders and, if necessary, incur
additional Revolving Loans from other Lenders, in
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each case so that such Lenders participate in each Borrowing of such Revolving
Loans pro rata on the basis of their Commitments (after giving effect to any
increase thereof). It is hereby agreed that any breakage costs of the type
described in Section 1.12 incurred by the Lenders in connection with the
repayment of Revolving Loans contemplated by this Section 1.16 shall be for the
account of the respective Borrowers.
1.17 Designated Borrowers. Parent or Corp. may from time to time
designate one or more Persons as a Designated Borrower (each, a "Designated
Borrower" and, collectively, the "Designated Borrowers"), subject to the
following terms and conditions:
(a) each such Person shall be a special purpose entity organized
under the laws of the United States of America, a state thereof or the
District of Columbia;
(b) each such Person shall enter into an appropriately completed DB
Assumption Agreement in the form of Exhibit I hereto on or prior to the date
of designation;
(c) each such Person shall furnish to each Lender its most recent
historic or pro forma financial statements (which financial statements may
be summary in nature and unaudited) on or prior to the date of designation;
(d) at the time of such designation, such Person shall not be
subject to any bankruptcy or insolvency proceeding of the type referred to
in Section 8.01(h) or (i) and shall not be subject to any material
litigation;
(e) on or prior to the date of designation, such Person shall
execute and deliver to each Lender a Revolving Note and a Competitive Bid
Note to evidence the DB Loans incurred by such Person;
(f) on or prior to the date of designation, the Administrative Agent
shall have received from such Person a certificate, signed by an Authorized
Officer of such Person in the form of Exhibit E with appropriate insertions
or deletions, together with (x) copies of its certificate of incorporation,
by-laws or other organizational documents and (y) the resolutions relating
to the Credit Documents which shall be satisfactory to the Administrative
Agent; and
(g) on or prior to the date of designation, the Administrative Agent
shall have received an opinion, addressed to each Agent and each of the
Lenders and dated the date of designation, from counsel to such Person which
opinion shall be substantially in the form of Exhibit K hereto.
1.18 Retroactivity. Notwithstanding anything in this Agreement to the
contrary, to the extent any notice required by Section 1.11 or 3.04 is given by
any Lender more than 90 days after such Lender obtained knowledge of the
occurrence of the event giving rise to the additional costs of the type
described in such Section, such Lender shall not be entitled to compensation
under Section 1.11 or 3.04 for any amounts incurred or accruing prior to the
90th day preceding the giving of such notice to the respective Borrower.
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SECTION 2. Fees; Commitments.
2.01 Fees. (a) Parent and Corp. jointly and severally agree to pay to
the Administrative Agent a facility fee (the "Facility Fee") for the account of
the Lenders pro rata on the basis of their respective Commitments for the period
from and including the Restatement Effective Date to but excluding the date the
Total Commitment has been terminated computed at a rate per annum equal to the
Applicable Margin on the Total Commitment as in effect from time to time.
Accrued Facility Fees shall be due and payable quarterly in arrears on the last
Business Day of each March, June, September and December, on the Final Maturity
Date or upon such earlier date as the Total Commitment shall be terminated and,
with respect to any Facility Fee owing to any Lender whose Commitment is
terminated pursuant to Section 1.14, on the date on which such Lender's
Commitment is terminated.
(b) Parent and Corp. jointly and severally agree to pay to the
Administrative Agent, for the account of the Administrative Agent, when and as
due, such fees as have been, or are from time to time, separately agreed upon.
(c) All computations of Fees shall be made in accordance with
Section 11.07(b).
2.02 Voluntary Reduction of Commitments. Upon at least three Business
Days' prior written notice (or telephonic notice confirmed in writing) to the
Administrative Agent at the Notice Office (which notice shall be deemed to be
given on a certain day only if given before 12:00 Noon (New York time) on such
day and shall be promptly transmitted by the Administrative Agent to each of the
Lenders), Parent and/or Corp. shall have the right, without premium or penalty,
to terminate or partially reduce the Total Unutilized Commitment, provided that
(x) any such termination shall apply to proportionately and permanently reduce
the Commitment of each Lender and (y) any partial reduction pursuant to this
Section 2.02 shall be in the amount of at least $10,000,000.
2.03 Mandatory Reduction of Commitments. (a) The Total Commitment
shall terminate in its entirety on May 31, 2002 unless the Restatement Effective
Date has occurred on or before such date and in the event of such termination
this Agreement shall cease to be of any force or effect and the Existing Credit
Agreement (and all commitments to extend credit thereunder in accordance with
the terms thereof) shall continue to be effective, as the same may have been, or
thereafter be, amended, modified or supplemented from time to time.
(b) The Total Commitment shall terminate in its entirety on the
Final Maturity Date.
SECTION 3. Payments.
3.01 Voluntary Prepayments. Each Borrower shall have the right to
prepay Revolving Loans made to it in whole or in part, without premium or
penalty, from time to time on the following terms and conditions: (i) such
Borrower shall give the Administrative Agent at the Payment Office written
notice (or telephonic notice promptly confirmed in writing) of its intent to
prepay the Revolving Loans, the amount of such prepayment and the specific
Borrowing(s) pursuant to which such Revolving Loans were made, which notice
shall be given
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by such Borrower at least three Business Days prior to the date of such
prepayment and which notice shall promptly be transmitted by the Administrative
Agent to each of the Lenders; (ii) each partial prepayment of any Borrowing
shall be in an aggregate principal amount of at least $1,000,000 provided that
no partial prepayment of Revolving Loans made pursuant to a Borrowing shall
reduce the aggregate principal amount of the Revolving Loans outstanding
pursuant to such Borrowing to an amount less than the Minimum Borrowing Amount
applicable thereto; (iii) each prepayment in respect of any Revolving Loans made
pursuant to a Borrowing shall be applied pro rata among such Revolving Loans;
and (iv) prepayments of Eurodollar Loans made pursuant to this Section 3.01 may
only be made on the last day of an Interest Period applicable thereto unless
concurrently with such prepayment any payments required to be made pursuant to
Section 1.12 as a result of such prepayment are made. No Borrower shall have the
right under this Section 3.01 to prepay any principal amount of any Competitive
Bid Loans.
3.02 Mandatory Prepayments. (a) If on any date the sum of the
aggregate outstanding Principal Amount of Revolving Loans and Competitive Bid
Loans (all the foregoing, collectively, the "Aggregate Loan Outstandings")
exceeds the Total Commitment as then in effect, the Borrowers, jointly and
severally, shall repay no later than the next following Business Day the
principal amount of Revolving Loans (but excluding DB Loans to the extent the
respective DB Loan Maturity Date has not occurred) in an aggregate Principal
Amount equal to such excess. If, after giving effect to the prepayment of all
outstanding Revolving Loans as set forth above, the remaining Aggregate Loan
Outstandings exceed the Total Commitment, the Borrowers, jointly and severally,
shall repay on such date the principal of Competitive Bid Loans in an aggregate
amount equal to such excess.
(b) On the maturity date specified pursuant to Section 1.04(a) with
respect to each Competitive Bid Loan, the applicable Borrower shall repay such
Competitive Bid Loan to the applicable Bidder Lender or Bidder Lenders.
(c) On each DB Loan Maturity Date, the respective Designated
Borrower shall repay the respective DB Loans in full.
(d) Notwithstanding anything to the contrary contained elsewhere in
this Agreement, all outstanding Revolving Loans and Competitive Bid Loans shall
be repaid in full on the Final Maturity Date.
(e) With respect to each prepayment of Revolving Loans required by
Section 3.02(a), the applicable Borrower may designate the Types of Revolving
Loans which are to be prepaid and the specific Borrowing(s) pursuant to which
made, provided that (i) if any prepayment of Eurodollar Loans made pursuant to a
single Borrowing shall reduce the outstanding Revolving Loans made pursuant to
such Borrowing to an amount less than the Minimum Borrowing Amount for such
Borrowing, then all Revolving Loans outstanding pursuant to such Borrowing shall
be immediately converted into Base Rate Loans and (ii) each prepayment of any
Revolving Loans made pursuant to a Borrowing shall be applied pro rata among
such Revolving Loans. In the absence of a designation by a Borrower as described
in the preceding sentence, the Administrative Agent shall, subject to the above,
make such designation in its sole discretion with a view, but no obligation, to
minimize breakage costs owing under Section 1.12.
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3.03 Method and Place of Payment. Except as otherwise specifically
provided herein, all payments under this Agreement shall be made to the
Administrative Agent for the ratable (based on its pro rata share) account of
the Lenders entitled thereto, not later than 12:00 Noon (New York Time) on the
date when due and shall be made in immediately available funds at the Payment
Office in Dollars, it being understood that written notice by a Borrower to the
Administrative Agent to make a payment from the funds in such Borrower's account
at the Payment Office shall constitute the making of such payment to the extent
of such funds held in such account. Any payments under this Agreement which are
made later than 12:00 Noon (New York Time) shall be deemed to have been made on
the next succeeding Business Day. Whenever any payment to be made hereunder
shall be stated to be due on a day which is not a Business Day, the due date
thereof shall be extended to the next succeeding Business Day and, with respect
to payments of principal, interest shall be payable during such extension at the
applicable rate in effect immediately prior to such extension. The
Administrative Agent will promptly make available to each Lender its pro rata
share (if any) of each payment so received by the Administrative Agent in the
funds so received.
3.04 Net Payments. (a) All payments made by each Borrower hereunder
or under any Note will be made without setoff, counterclaim or other defense.
Except as provided in Section 3.04(b), all such payments will be made free and
clear of, and without deduction or withholding for, any present or future taxes,
levies, imposts, duties, fees, assessments or other charges of whatever nature
now or hereafter imposed by any jurisdiction (or by any political subdivision or
taxing authority thereof or therein) with respect to such payments (but
excluding, except as provided in the second succeeding sentence, any tax levy,
impost, duty, fee, assessment or other governmental charge imposed on or
measured by the net income or net profits of a Lender (including, without
limitation, any franchise tax imposed on or measured by net income or net
profits and any branch profits taxes) pursuant to the laws of the jurisdiction
in which it is organized or the jurisdiction in which the principal office or
applicable lending office of such Lender is located (or any subdivision or
taxing authority thereof or therein)) and all interest, penalties or similar
liabilities with respect to such non-excluded taxes, levies, imposts, duties,
fees, assessments or other governmental charges (all such non-excluded taxes,
levies, imposts, duties, fees, assessments or other governmental charges being
referred to collectively as "Taxes"). If any Taxes are so levied or imposed, the
relevant Borrower shall pay the full amount of such Taxes to the relevant taxing
authority in accordance with applicable law and shall pay to the relevant Lender
such additional amounts as may be necessary so that every payment of all amounts
due under this Agreement or under any Note, after withholding or deduction for
or on account of any Taxes, will not be less than the amount provided for herein
or in such Note. If any amounts are payable in respect of Taxes pursuant to the
preceding sentence, the relevant Borrower agrees to reimburse each Lender
lending to such Borrower, upon the written request of such Lender, for taxes
imposed on or measured by the net income or net profits of such Lender
(including, without limitation, any franchise tax imposed on or measured by net
income or net profits and any branch profits taxes imposed by the United States
of America or similar taxes imposed by any political subdivision thereof)
pursuant to the laws of the jurisdiction in which such Lender is organized or in
which the principal office or applicable lending office of such Lender is
located (or of any subdivision or taxing authority therein or thereof) and for
any withholding of taxes as such Lender shall determine are payable by, or
withheld from, such Lender in respect of such amounts so paid to or on behalf of
such Lender pursuant to the preceding sentence and in respect of any amounts
paid to or on behalf of such Lender pursuant to
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this sentence. Each Borrower will furnish to the Administrative Agent within 45
days after the date the payment of any Taxes is due pursuant to applicable law
certified copies of tax receipts, if any, issued by such taxing authority or
other evidence reasonably acceptable to the Administrative Agent evidencing such
payment by such Borrower (or, if such Borrower has not received such certified
copies of tax receipts within such time period, then such Borrower shall furnish
such certified copies of tax receipts to the Administrative Agent within 15 days
after such Borrower has received such certified copies of tax receipts). Each
Borrower agrees to indemnify and hold harmless each Lender, and reimburse such
Lender upon its written request, for the amount of any Taxes so levied or
imposed and paid by such Lender. Such indemnification shall be made within 30
days after the date upon which such Lender makes written demand therefor, which
demand shall identify the nature and the amount of Taxes for which
indemnification is sought and shall include a copy of any written assessment
thereof.
(b) Each Lender that is not a United States person (as such term is
defined in Section 7701(a)(30) of the Code) for Federal income tax purposes
agrees to deliver to the Borrowers and the Administrative Agent on or prior to
the Restatement Effective Date, or in the case of a Lender that assumes an
interest or is an assignee or transferee of an interest under this Agreement
pursuant to Section 1.14, 1.16 or 11.04 (unless the respective Lender was
already a Lender hereunder immediately prior to such assumption, assignment or
transfer), on the date of such assumption, assignment or transfer to such
Lender, (i) two accurate and complete original signed copies of Internal Revenue
Service Form 4224 or 1001 (or successor forms) certifying to such Lender's
entitlement to a complete exemption from United States withholding tax with
respect to payments to be made by the Borrowers under this Agreement and under
any Note or (ii) if the Lender is not a "bank" within the meaning of Section
881(c)(3)(A) of the Code and cannot deliver either Internal Revenue Service Form
1001 or 4224 pursuant to clause (i) above, (x) a certificate substantially in
the form of Exhibit C (any such certificate, a "Section 3.04 Certificate") and
(y) two accurate and complete original signed copies of Internal Revenue Service
Form W-8 (or successor form) certifying to such Lender's entitlement to a
complete exemption from United States withholding tax with respect to payments
of interest to be made by the Borrowers under this Agreement and under any Note.
In addition, each such Lender agrees that, from time to time after the
Restatement Effective Date, when a lapse in time or change in circumstances
renders the previous certification obsolete or inaccurate in any material
respect, it will deliver to the Borrowers and the Administrative Agent two new
accurate and complete original signed copies of Internal Revenue Service Form
4224 or 1001, or Form W-8 and a Section 3.04 Certificate, as the case may be,
and such other forms as may be required in order to confirm or establish the
entitlement of such Lender to a continued exemption from or reduction in United
States withholding tax with respect to payments made by the Borrowers under this
Agreement and any Note, or, if legally unable to deliver such forms, it shall
immediately notify the Borrowers and the Administrative Agent of its inability
to deliver any such Form or Certificate in which case such Lender shall not be
required to deliver any such Form or Certificate pursuant to this Section
3.04(b). Notwithstanding anything to the contrary contained in Section 3.04(a),
but subject to Section 11.04(b) and the immediately succeeding sentence, (x)
each Borrower shall be entitled, to the extent it is required to do so by law,
to deduct or withhold income or similar taxes imposed by the United States (or
any political subdivision or taxing authority hereof or therein) from interest,
fees or other amounts payable hereunder by such Borrower for the account of any
Lender which is not a United States person (as such term is defined in Section
7701(a)(30) of the Code) for Federal income tax purposes to the extent that
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such Lender has not provided to the Borrowers Internal Revenue Service Forms
that establish a complete exemption from such deduction or withholding and (y)
the Borrowers shall not be obligated pursuant to Section 3.04(a) hereof to
gross-up payments to be made to any such Lender in respect of income or similar
taxes imposed by the United States if (I) such Lender has not provided to the
Borrowers the Internal Revenue Service Forms required to be provided to the
Borrowers pursuant to this Section 3.04(b) or (II) in the case of a payment,
other than interest, to a Lender described in clause (ii) of the first sentence
of this Section 3.04(b) above, to the extent that such Forms do not establish a
complete exemption from withholding of such taxes. Notwithstanding anything to
the contrary contained in the preceding sentence or elsewhere in this Section
3.04 and except as set forth in Section 11.04(b), the Borrowers agree to pay
additional amounts and to indemnify each Lender in the manner set forth in
Section 3.04(a) (without regard to the identity of the jurisdiction requiring
the deduction or withholding) in respect of any Taxes deducted or withheld by it
as described in the immediately preceding sentence as a result of any changes
after the Original Effective Date in any applicable law, treaty, governmental
rule, regulation, guideline or order, or in the interpretation thereof, relating
to the deducting or withholding of such Taxes.
(c) If a Borrower pays any additional amount under this Section 3.04
to a Lender and such Lender determines in its sole discretion that it has
actually received or realized in connection therewith any refund or any
reduction of, or credit against, its Tax liabilities in or with respect to the
taxable year in which the additional amount is paid, such Lender shall pay to
the Borrower an amount that such Lender shall, in its sole discretion, determine
is equal to the net benefit, after tax, which was obtained by the Lender in such
year as a consequence of such refund, reduction or credit. Such amount shall be
paid as soon as practicable after receipt or realization by such Lender of such
refund, reduction or credit. Nothing in this Section 3.04(c) shall require any
Lender to disclose or detail the basis of its calculation of the amount of any
refund or reduction of, or credit against, its tax liabilities or any other
information to any Borrower or any other Person.
(d) Each Lender shall use reasonable efforts (consistent with legal
and regulatory restrictions and subject to overall policy considerations of such
Lender) to file any certificate or document or to furnish any information as
reasonably requested by a Borrower pursuant to any applicable treaty, law or
regulation, if the making of such filing or the furnishing of such information
would avoid the need for or reduce the amount of any amounts payable by a
Borrower under Section 3.04(a) and would not, in the reasonable judgment of such
Lender, be disadvantageous to such Lender.
SECTION 4. Conditions Precedent.
4.01 Conditions Precedent to the Restatement Effective Date. This
Agreement shall become effective on the date (the "Restatement Effective Date")
on which each of the following conditions shall be satisfied:
(a) Execution of Agreement; Notes. (i) Each of Parent, Corp., each
Agent and each of the Lenders shall have signed a copy hereof (whether the same
or different copies) and shall have delivered the same to the Administrative
Agent at its Notice Office or, in the case of the Lenders and the Agents, shall
have given to the Administrative Agent telephonic
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(confirmed in writing), written or facsimile transmission notice (actually
received) at such office that the same has been signed and mailed to it; and
(ii) there shall have been delivered to the Administrative Agent for the account
of each Lender the appropriate Notes executed by Parent and Corp., as
applicable, in each case in the amount, maturity and as otherwise provided
herein.
(b) Opinion of Counsel. The Administrative Agent shall have received
an opinion, addressed to each Agent and each of the Lenders and dated the
Restatement Effective Date, from Ram X. Xxxxxxxx, General Counsel of Parent and
Corp., which opinion shall be substantially in the form of Exhibit D hereto.
(c) Corporate Proceedings. (i) The Administrative Agent shall have
received from each of Parent and Corp. a certificate, dated the Restatement
Effective Date, signed by an Authorized Officer thereof in the form of Exhibit E
with appropriate insertions and deletions, together with (x) copies of its
certificate of incorporation, by-laws or other organizational documents and (y)
the resolutions relating to the Credit Documents which shall be satisfactory to
the Administrative Agent.
(ii) All corporate and legal proceedings and all instruments and
agreements in connection with the transactions contemplated by this Agreement
and the other Credit Documents shall be satisfactory in form and substance to
the Administrative Agent, and the Administrative Agent shall have received all
information and copies of all certificates, documents and papers, including good
standing certificates and any other records of corporate proceedings and
governmental approvals, if any, which the Administrative Agent may have
requested in connection therewith, such documents and papers, where appropriate,
to be certified by proper corporate or governmental authorities.
(d) Fees. The Borrowers shall have paid to the Administrative Agent
and the Lenders all fees and expenses (including, without limitation, legal fees
and expenses) agreed upon by such parties to be paid on or prior to such date.
(e) Existing Credit Agreement. On the Restatement Effective Date and
concurrently with the initial incurrence of Loans hereunder, (i) all Existing
Revolving Loans shall have been repaid in full in cash, together with accrued
but unpaid interest thereon, it being understood and agreed, however, that any
Existing Lender may net fund any Revolving Loans required to be made by it on
the Restatement Effective Date by permitting the principal amount of the
Existing Revolving Loans made by such Existing Lender to remain outstanding on
the Restatement Effective Date to satisfy such Existing Lender's obligation to
fund a like principal amount of Revolving Loans to be incurred hereunder by the
Borrowers on the Restatement Effective Date, and for purposes of this Section
4.01(e) only, such outstanding principal amount shall be deemed outstanding as
Revolving Loans under this Agreement and such corresponding Existing Revolving
Loans shall be deemed to have been so repaid in full, and (ii) there shall have
been paid in cash in full all accrued but unpaid Fees under, and as defined in,
the Existing Credit Agreement (including, without limitation any Facility Fees)
accrued but unpaid prior to but excluding the Restatement Effective Date and all
other amounts, costs and expenses (including, without limitation, breakage
costs, if any, with respect to Eurodollar Loans thereunder) then owing to any of
the Existing Lenders and/or the Administrative Agent, as agent under the
Existing Credit Agreement, in each case to the satisfaction of the
Administrative Agent or the
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Existing Lenders, as the case may be, regardless of whether or not such amounts
would otherwise be due and payable at such time pursuant to the terms of the
Existing Credit Agreement and (iii) all outstanding Notes (as defined in the
Existing Credit Agreement) issued by Parent or Corp. to the Existing Lenders
under the Existing Credit Agreement shall be deemed canceled.
The occurrence of the Restatement Effective Date shall constitute a
representation and warranty by each Borrower to the Agents and each of the
Lenders that all the conditions specified in Section 4.01 exist as of that time.
All the Notes, certificates, legal opinions and other documents and papers
referred to in this Section 4.01, unless otherwise specified, shall be delivered
to the Administrative Agent at the Administrative Agent's Notice Office for the
account of each of the Lenders and, except for the Notes, in sufficient
counterparts for each of the Lenders and shall be satisfactory in form and
substance to the Lenders. The Administrative Agent shall give Parent, Corp. and
each Lender written notice that the Restatement Effective Date has occurred.
4.02 Conditions Precedent to Loans. The obligation of each Lender to
make any Loans is subject, at the time of each such Loan, to the satisfaction of
the following conditions:
(a) Restatement Effective Date. The Restatement Effective Date shall
have occurred.
(b) Notice of Borrowing. The Administrative Agent shall have
received a Notice of Borrowing meeting the requirements of Section 1.03(a) with
respect to each incurrence of Revolving Loans and a Notice of Competitive Bid
Borrowing meeting the requirements of Section 1.04(a) with respect to each
incurrence of Competitive Bid Loans.
(c) No Default; Representations and Warranties. At the time of the
incurrence of each Loan and also after giving effect thereto, (i) there shall
exist no Default or Event of Default and (ii) all representations and warranties
made by any Borrower contained herein or in the other Credit Documents shall be
true and correct in all material respects with the same effect as though such
representations and warranties had been made on and as of the date of such Loan.
(d) Financial Guaranty Insurance Policy. In the case of each DB
Loan, Corp. shall have issued a financial guaranty insurance policy in the form
of Exhibit F attached hereto (as appropriately completed, a "Financial Guaranty
Insurance Policy"), in support of the principal of and interest on such DB Loan,
and such Financial Guaranty Insurance Policy shall be in full force and effect.
(e) Opinion of Counsel. In the case of each DB Loan, the
Administrative Agent shall have received an opinion, addressed to each Agent and
each of the Lenders and dated the date of the incurrence of such DB Loan, from
counsel to Corp., which opinion shall be substantially in the form of Exhibit L
hereto.
The acceptance of the benefits of each Loan shall constitute a
representation and warranty by the respective Borrower to the Agents and each of
the Lenders that all of the applicable conditions specified in Section 4.02
exist as of that time.
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SECTION 5. Representations, Warranties and Agreements. In order to
induce the Lenders to enter into this Agreement and to make the Loans provided
for herein, each of Parent and Corp. makes the following representations and
warranties to, and agreements with, the Lenders, all of which shall survive the
execution and delivery of this Agreement and the making of the Loans.
5.01 Corporate Existence and Power. Parent and Corp. are corporations
duly organized, validly existing and in good standing under the laws of the
jurisdiction of their incorporation, are duly qualified to transact business in
every jurisdiction where, by the nature of their businesses, such qualification
is necessary and where the failure to be so qualified, either individually or in
the aggregate could reasonably be expected to have a Material Adverse Effect,
and have all corporate powers and all governmental licenses, authorizations,
consents and approvals required to carry on their businesses as now conducted
and where the failure to have such governmental licenses, authorizations,
consents and approvals could reasonably be expected to have a Material Adverse
Effect.
5.02 Corporate and Governmental Authorization; No Contravention. The
execution, delivery and performance by the Borrowers of this Agreement and the
other Credit Documents (i) are within each of the Borrower's corporate powers,
(ii) have been duly authorized by all necessary corporate action, (iii) require
no action by or in respect of, or filing with, any governmental body, agency or
official, (iv) do not contravene, or constitute a default under, any provision
of applicable law or regulation or of the certificate of incorporation or
by-laws of each of the Borrowers or of any agreement, judgment, injunction,
order, decree or other instrument binding upon the Borrowers or any of their
Subsidiaries, and (v) do not result in the creation or imposition of any Lien on
any asset of the Borrowers or any of their Subsidiaries.
5.03 Binding Effect. This Agreement constitutes a valid and binding
agreement of each of the Borrowers enforceable in accordance with its terms, and
the other Credit Documents, when executed and delivered in accordance with this
Agreement, will constitute valid and binding obligations of each of the
Borrowers enforceable in accordance with their respective terms, provided that
the enforceability hereof and thereof is subject in each case to general
principles of equity and to bankruptcy, insolvency and similar laws affecting
the enforcement of creditors' rights generally.
5.04 Financial Information. (a) The consolidated balance sheet of
Parent and its Consolidated Subsidiaries as of December 31, 2001 and the related
consolidated statements of income, shareholders' equity and cash flows for the
Fiscal Year then ended, reported on by PricewaterhouseCoopers LLP, copies of
which have been delivered to each of the Lenders fairly present, in conformity
with GAAP or Statutory Accounting Principles, as applicable consistently
applied, the consolidated financial position of Parent and its Consolidated
Subsidiaries as of such dates and their consolidated results of operations and
cash flows for such periods stated.
(b) Since December 31, 2001 there has been no event, act, condition
or occurrence having a Material Adverse Effect.
5.05 Litigation. There is no action, suit or proceeding pending, or
to the knowledge of the Borrowers threatened, against or affecting the Borrowers
or any of their
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Subsidiaries before any court or arbitrator or any governmental body, agency or
official which could have a Material Adverse Effect or which in any manner draws
into question the validity or enforceability of, or could impair the ability of
the Borrowers to perform their obligations under, this Agreement or any of the
other Credit Documents.
5.06 Compliance with ERISA. (a) Parent, Corp. and each member of the
Controlled Group have fulfilled their obligations under the minimum funding
standards of ERISA and the Code with respect to each Plan and are in compliance
in all material respects with the presently applicable provisions of ERISA and
the Code, and have not incurred any liability to the PBGC or a Plan under Title
IV of ERISA.
(b) Neither Parent nor Corp. nor any member of the Controlled Group
is or ever has been obligated to contribute to any Multiemployer Plan.
5.07 Taxes. There have been filed on behalf of Parent and its
Subsidiaries all Federal, state and local income, excise, property and other tax
returns which are required to be filed by them and all taxes due pursuant to
such returns or pursuant to any assessment received by or on behalf of Parent or
any Subsidiary have been paid. The charges, accruals and reserves on the books
of each of Parent and its Subsidiaries in respect of taxes or other governmental
charges are, in the opinion of each of Parent and Corp., adequate. United States
income tax returns of Parent and its Subsidiaries have been examined and closed
through the Fiscal Year ended December 31, 1991.
5.08 Subsidiaries. Each of Parent's Subsidiaries is a corporation
duly organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation, is duly qualified to transact business in every
jurisdiction where, by the nature of its business, such qualification is
necessary and where the failure to be so qualified, either individually or in
the aggregate could reasonably be expected to have a Material Adverse Effect,
and has all corporate powers and all governmental licenses, authorizations,
consents and approvals required to carry on its business as now conducted and
where the failure to have such governmental licenses, authorizations, consents
and approvals could reasonably be expected to have a Material Adverse Effect.
Parent has no Subsidiaries except those Subsidiaries listed on Annex III, which
accurately sets forth each such Subsidiary's complete name and jurisdiction of
incorporation.
5.09 Not an Investment Company. No Borrower is an "investment
company" within the meaning of the Investment Company Act of 1940, as amended.
5.10 Public Utility Holding Company Act. No Borrower nor any of their
Subsidiaries is a "holding company", or a "subsidiary company" of a "holding
company", or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company", as such terms are defined in the Public Utility Holding
Company Act of 1935, as amended.
5.11 Ownership of Property; Liens. Parent and its Consolidated
Subsidiaries have title of their properties sufficient for the conduct of their
respective businesses and none of such property is subject to any Lien except as
permitted in Section 7.01.
5.12 No Default. No Default or Event of Default has occurred and is
continuing.
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5.13 Full Disclosure. All information heretofore furnished by the
Borrowers to the Administrative Agent or any Lender for purposes of or in
connection with this Agreement or any transaction contemplated hereby is, and
all such information hereafter furnished by the Borrowers to the Administrative
Agent or any Lender will be, true, accurate and complete in every material
respect or based on reasonable estimates on the date as of which such
information is stated or certified. The Borrowers have disclosed to the Lenders
in writing any and all facts which could have or cause a Material Adverse
Effect.
5.14 Compliance with Laws. Parent and each of its Subsidiaries is in
compliance with all applicable laws, except where any failure to comply with any
such laws would not, alone or in the aggregate, have a Material Adverse Effect.
5.15 Capital Stock. All Capital Stock, debentures, bonds, notes and
all other securities of each of Parent and its Subsidiaries presently issued and
outstanding are validly and properly issued in accordance with all applicable
laws, including, but not limited to, the "Blue Sky" laws of all applicable
states and the federal securities laws. The issued shares of Capital Stock of
each of Parent's and Corp.'s Wholly-Owned Subsidiaries are owned by Parent or
Corp. free and clear of any Lien or adverse claim. At least a majority of the
issued shares of Capital Stock of each of Parent's and Corp.'s other
Subsidiaries (other than Wholly-Owned Subsidiaries) is owned by Parent or Corp.
free and clear of any Lien or adverse claim.
5.16 Margin Stock. No Borrower nor any of their Subsidiaries are
engaged principally, or as one of their important activities, in the business of
purchasing or carrying any Margin Stock, and no part of the proceeds of any Loan
will be used to purchase or carry any Margin Stock, or be used for any purpose
which violates, or which is inconsistent with, the provisions of Regulation U or
X.
5.17 Insolvency. After giving effect to the execution and delivery of
the Credit Documents and the making of the Loans under this Agreement, no
Borrower will be "insolvent," within the meaning of such term as defined in
Section 101 of Title 11 of the United States Code or Section 2 of the Uniform
Fraudulent Transfer Act, or any other applicable state law pertaining to
fraudulent transfers, as each may be amended from time to time, or be unable to
pay its debts generally as such debts become due or have an unreasonably small
capital to engage in any business or transaction, whether current or
contemplated.
SECTION 6. Affirmative Covenants. The Borrowers hereby covenant and
agree that on and as of the Restatement Effective Date and thereafter until the
Commitments have terminated, no Notes are outstanding and the Loans, together
with interest, Fees and all other obligations (other than any indemnities
described in Section 11.12 which are not then owing) incurred hereunder, are
paid in full:
6.01 Information Covenants. Parent and Corp. will furnish to each
Lender:
(a) as soon as available and in any event within 60 days after the
end of each of the first three quarterly fiscal periods in each Fiscal Year
of Parent and Corp., consolidated balance sheets of each of Parent and its
Subsidiaries and Corp. and its Subsidiaries as at the end of such period and
the related consolidated statements of
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income, changes in stockholders' equity and cash flows of each of Parent and
its Subsidiaries and Corp. and its Subsidiaries for such period and (in the
case of the second and third quarterly periods) for the period from the
beginning of the current Fiscal Year to the end of such quarterly period,
setting forth in each case in comparative form the consolidated figures for
the corresponding periods of the previous Fiscal Year, all in reasonable
detail and certified by an Authorized Officer of each of Parent and Corp. as
presenting fairly, in accordance with GAAP (except as specifically set forth
therein; provided any exceptions or qualifications thereto must be
acceptable to the Required Lenders) on a basis consistent with such prior
fiscal periods, the information contained therein, subject to changes
resulting from normal year-end audit adjustments;
(b) as soon as available and in any event within 120 days after the
end of each Fiscal Year of Parent and Corp., consolidated balance sheets of
each of Parent and its Subsidiaries and Corp. and its Subsidiaries as at the
end of such year and the related consolidated statements of income,
operations, changes in stockholders' equity and cash flows of each of Parent
and its Subsidiaries and Corp. and its Subsidiaries for such Fiscal Year,
setting forth in each case in comparative form the consolidated figures for
the previous fiscal year, all in reasonable detail and accompanied by a
report thereon of PricewaterhouseCoopers LLP or other independent public
accountants of recognized national standing selected by Parent, which report
shall state that such consolidated financial statements present fairly the
consolidated financial position of each of Parent and its Subsidiaries and
Corp. and its Subsidiaries as at the dates indicated and the consolidated
results of their operations and cash flows for the periods indicated in
conformity with GAAP applied on a basis consistent with prior years (except
as otherwise specified in such report; provided any exceptions or
qualifications thereto must be acceptable to the Required Lenders) and that
the audit by such accountants in connection with such consolidated financial
statements has been made in accordance with generally accepted auditing
standards;
(c) within five Business Days after any Borrower becomes aware of
the occurrence of any Default, a certificate of an Authorized Officer of
each of the Borrowers setting forth the details thereof and the action which
the Borrowers are taking or propose to take with respect thereto;
(d) promptly upon the mailing thereof to the security holders of the
Borrowers generally, copies of all financial statements, reports and proxy
statements so mailed;
(e) promptly upon the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration statements
on Form S-8 or its equivalent) and annual, quarterly or monthly reports
which the Borrowers shall have filed with the Securities and Exchange
Commission or any national securities exchange;
(f) if and when Parent, Corp. or any member of the Controlled Group
(i) gives or is required to give notice to the PBGC of any "reportable
event" (as defined in Section 4043 of ERISA) with respect to any Plan which
might constitute grounds for a termination of such Plan under Title IV of
ERISA, or knows that the plan administrator of any Plan has given or is
required to give notice of any such reportable event, a copy of
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the notice of such reportable event given or required to be given to the
PBGC; (ii) receives notice of complete or partial withdrawal liability under
Title IV of ERISA, a copy of such notice; or (iii) receives notice from the
PBGC under Title IV of ERISA of an intent to terminate or appoint a trustee
to administer any Plan, a copy of such notice;
(g) promptly after any Borrower knows of the commencement thereof,
notice, of any litigation, dispute or proceeding involving a claim against
any of the Borrowers and/or any Subsidiary for $10,000,000 or more in excess
of amounts covered in full by applicable insurance;
(h) from time to time such additional information regarding the
financial position or business of the Borrowers and their Subsidiaries as
the Administrative Agent, at the request of any Lender, may reasonably
request;
(i) at the request of any Lender, promptly after the filing thereof,
a copy of the annual statements for each calendar year and quarterly
statements for each calendar quarter as filed with the New York Insurance
Department or other then comparable agency of other jurisdictions and the
financial statements of Corp. for each calendar year or quarter prepared in
accordance with Statutory Accounting Principles accompanied by a report
thereon of the independent public accountants of Parent referred to in
paragraph (b) above; and
(j) at the request of any Lender, at any time when a DB Loan is
outstanding, quarterly and annual summary financial statements of the
applicable Designated Borrower as promptly as possible after the end of each
fiscal quarter and fiscal year of such Designated Borrower.
6.02 Books, Records and Inspections. The Borrowers will (i) keep, and
will cause each Subsidiary to keep, proper books of record and account in which
full, true and correct entries in conformity with GAAP or Statutory Accounting
Principles, as applicable, shall be made of all dealings and transactions in
relation to its business and activities; and (ii) permit, and will cause each
Subsidiary to permit, representatives of any Lender at such Lender's expense
prior to the occurrence of an Event of Default and at the Borrowers' expense
after the occurrence of an Event of Default to visit and inspect any of their
respective properties, to examine their respective books and records and to
discuss their respective affairs, finances and accounts with their respective
officers, employees and independent public accountants. The Borrowers agree to
cooperate and assist in such visits and inspections, in each case at such
reasonable times and as often as may reasonably be desired.
6.03 Maintenance of Existence. Each of the Borrowers shall maintain
its existence and carry on its business in substantially the same manner and in
substantially the same fields as such business is now carried on and maintained.
6.04 Compliance with Laws; Payment of Taxes. The Borrowers will, and
will cause each of their Subsidiaries and each member of the Controlled Group
to, comply with applicable laws (including but not limited to ERISA),
regulations and similar requirements of governmental authorities (including but
not limited to the PBGC), except where (i) the necessity
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of such compliance is being contested in good faith through appropriate
proceedings diligently pursued; and (ii) any failure to comply with any such
laws would not, alone or in the aggregate, have a Material Adverse Effect. The
Borrowers will, and will cause each of their Subsidiaries to, pay promptly when
due all taxes, assessments, governmental charges, claims for labor, supplies,
rent and other obligations which, if unpaid, might become a lien against the
property of the Borrowers or any Subsidiary, except liabilities being contested
in good faith by appropriate proceedings diligently pursued.
6.05 Insurance. The Borrowers will maintain, and will cause each of
their Material Subsidiaries to maintain (either in the name of the Borrowers or
in such Material Subsidiary's own name), with financially sound and reputable
insurance companies, insurance on all their property in at least such amounts
and against at least such risks as are usually insured against in the same
general area by companies of established repute engaged in the same or similar
businesses.
6.06 Maintenance of Property. The Borrowers shall, and shall cause
each Material Subsidiary to, maintain all of their properties and assets in good
condition, repair and working order, ordinary wear and tear excepted.
SECTION 7. Negative Covenants. The Borrowers hereby covenant and agree
that on and as of the Restatement Effective Date and thereafter until the
Commitments have terminated, no Notes are outstanding and the Loans, together
with interest, Fees and all other obligations (other than any indemnities
described in Section 11.12 which are not then owing) incurred hereunder, are
paid in full:
7.01 Liens. Neither Parent nor any of its Consolidated Subsidiaries
will create, assume or suffer to exist any Lien on any asset now owned or
hereafter acquired by it, except:
(i) Liens securing any loan to be made under the Credit Agreement
among Corp., the banks signatory thereto and Credit Suisse First Boston, New
York Branch, originally dated as of December 29, 1989, as amended and restated
on October 1, 1997 and as may be amended thereafter from time to time;
(ii) Liens created on certain insurance premiums by a Trust Agreement
effective December 31, 1989 between Municipal Bond Investors Assurance
Corporation, MBIA Insurance Corp. of Illinois and the trustee thereunder, as
amended on February 28, 1995 and as may be amended from time to time thereafter;
(iii) as to Corp., Liens (in addition to Liens permitted under Section
7.01(i), (iv) and (v)) in an aggregate principal amount of up to $10,000,000;
(iv) Liens not securing Debt which are incurred in the ordinary
course of business;
(v) Liens securing repurchase agreements constituting a borrowing of
funds by Parent or any Subsidiary of Parent in the ordinary course of business
for liquidity purposes; and
-26-
(vi) Liens securing any Conduit Debt or Insured Debt (or any guaranty
made by Corp. of such Conduit Debt or Insured Debt, as the case may be),
provided that any such Liens attach only to the underlying assets that are the
subject of such Conduit Debt or Insured Debt, as applicable.
7.02 Dissolution. No Borrower shall suffer or permit dissolution or
liquidation either in whole or in part or redeem or retire any shares of their
own stock, except through corporate reorganization to the extent permitted by
Section 7.03.
7.03 Consolidations, Mergers and Sales of Assets. The Borrowers will
not consolidate or merge with or into, or sell, lease or otherwise transfer all
or any substantial part of their assets to, any other Person, provided that (a)
any Borrower (other than any Designated Borrower) may merge with another Person
if (i) such Person was organized under the laws of the United States of America
or one of its states, (ii) one of the Borrowers is the corporation surviving
such merger and (iii) immediately after giving effect to such merger, no Default
shall have occurred and be continuing, and (b) Subsidiaries of the Borrowers may
merge with one another.
7.04 Use of Proceeds. No portion of the proceeds of the Loans will be
used by the Borrowers or any Subsidiary (i) directly or indirectly, for the
purpose, whether immediate, incidental or ultimate, of purchasing or carrying
any Margin Stock, or (ii) for any purpose in violation of any applicable law or
regulation.
7.05 Change in Fiscal Year. Neither Parent nor Corp. shall change its
Fiscal Year without the consent of the Required Lenders.
7.06 Transactions with Affiliates. Neither Parent nor any of its
Subsidiaries shall enter into, or be a party to, any transaction with any
Affiliate of Parent or such Subsidiary (which Affiliate is not one of the
Borrowers or a Subsidiary), except as permitted by law and in the ordinary
course of business and pursuant to reasonable terms.
7.07 Leverage Ratio. Parent and Corp. will not permit the ratio of
Consolidated Total Debt to Consolidated Total Capitalization at any time to
exceed 0.30:1.00.
7.08 Minimum Net Worth. Parent and Corp. will not permit Consolidated
Net Worth to be less than $2,500,000,000 at any time.
SECTION 8. Defaults.
8.01 Events of Default. Upon the occurrence of any of the following
specified events (each, an "Event of Default"):
(a) any Borrower shall fail to pay when due any principal of any
Loan, or shall fail to pay any interest on any Loan within three Business
Days after such interest shall become due, or shall fail to pay any fee or
other amount payable hereunder within five Business Days after such fee or
other amount becomes due; or
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(b) any Borrower shall fail to observe or perform any covenant
contained in Sections 6.01(c), 6.02(ii), 6.03, 6.06, 7.02, 7.03, 7.04, or
7.08; or
(c) any Borrower shall fail to observe or perform any covenant
contained in Section 7.01 for five days after the earlier of (i) the first
day on which any Borrower has knowledge of such failure or (ii) written
notice thereof has been given to any Borrower by the Administrative Agent at
the request of any Lender; or
(d) any Borrower shall fail to observe or perform any covenant or
agreement contained herein (other than those covered by clause (a), (b) or
(c) above, but including, without limitation, any covenant contained in
Section 7.07) for 30 days after the earlier of (i) the first day on which
any Borrower has knowledge of such failure or (ii) written notice thereof
has been given to any Borrower by the Administrative Agent at the request of
any Lender; or
(e) any representation, warranty, certification or statement made or
deemed made by any Borrower in Section 5 of this Agreement or in any
certificate, financial statement or other document delivered pursuant to
this Agreement shall prove to have been incorrect or misleading in any
material respect when made (or deemed made); or
(f) Parent or any Subsidiary shall fail to make any payment in
respect of Debt outstanding in an aggregate principal amount equal to or in
excess of $10,000,000 (other than the Notes) when due at final stated
maturity (after giving effect to any applicable grace period); or
(g) any event or condition shall occur which results in the
acceleration of the maturity of Debt outstanding in an aggregate amount
equal to or in excess of $10,000,000 of Parent or any Subsidiary or the
mandatory prepayment or purchase of such Debt by Parent (or its designee) or
such Subsidiary (or its designee) prior to the scheduled maturity thereof;
or
(h) Parent or any Material Subsidiary shall commence a voluntary
case or other proceeding seeking liquidation, reorganization or other relief
with respect to themselves or their debts under any bankruptcy, insolvency
or other similar law now or hereafter in effect or seeking the appointment
of a trustee, receiver, liquidator, custodian or other similar official of
them or any substantial part of their property, or shall consent to any such
relief or to the appointment of or taking possession by any such official in
an involuntary case or other proceeding commenced against them, or shall
make a general assignment for the benefit of creditors, or shall fail
generally, or shall admit in writing their inability, to pay their debts as
they become due, or shall take any corporate action to authorize any of the
foregoing, or shall become or be declared by a court of competent
jurisdiction to be insolvent; or
(i) an involuntary case or other proceeding shall be commenced
against Parent or any Material Subsidiary seeking liquidation,
reorganization or other relief with respect to them or their debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect or
seeking the appointment of a trustee, receiver, liquidator,
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custodian or other similar official of them or any substantial part of their
property, and such involuntary case or other proceeding shall remain
undismissed and unstayed for a period of 60 days; or an order for relief
shall be entered against Parent or any Material Subsidiary under the federal
bankruptcy laws as now or hereafter in effect; or
(j) Parent, Corp. or any member of the Controlled Group shall fail
to pay when due any material amount which they shall have become liable to
pay to the PBGC or to a Plan under Title IV of ERISA; or the PBGC shall
institute proceedings under Title IV of ERISA to terminate or to cause a
trustee to be appointed to administer any such Plan or Plans or a proceeding
shall be instituted by a fiduciary of any such Plan or Plans to enforce
Section 515 or 4219(c)(5) of ERISA and such proceeding shall not have been
dismissed within 30 days thereafter; or a condition shall exist by reason of
which the PBGC would be entitled to obtain a decree adjudicating that any
such Plan or Plans must be terminated; or
(k) one or more judgments or orders for the payment of money in an
aggregate amount in excess of $25,000,000 shall be rendered against Parent
or any Subsidiary and such judgment or order shall continue unsatisfied and
unstayed for a period of 30 days; or
(l) a federal tax lien in excess of $10,000,000 shall be filed
against Parent or any Subsidiary under Section 6323 of the Code or a lien in
excess of $10,000,000 of the PBGC shall be filed against any Parent or any
Subsidiary under Section 4068 of ERISA and in either case such lien shall
remain undischarged for a period of 25 days after the date of filing; or
(m) (i) any Person or two or more Persons acting in concert shall
have acquired beneficial ownership (within the meaning of Rule 13d-3 of the
Securities and Exchange Commission under the Exchange Act) of 40% or more of
the outstanding shares of the voting stock of Parent; or (ii) as of any date
a majority of the Board of Directors of Parent consists of individuals who
were not either (A) directors of Parent as of the corresponding date of the
previous year, (B) selected or nominated to become directors by the Board of
Directors of Parent of which a majority consisted of individuals described
in clause (A), or (C) selected or nominated to become directors by the Board
of Directors of Parent of which a majority consisted of individuals
described in clause (A) and individuals described in clause (B); or
(n) Parent shall at any time or times and for any reason cease to
own (either directly or indirectly through a wholly-owned intermediate
Subsidiary) all of the Capital Stock or other ownership interests (except
for director's qualifying shares) of Corp.; or
(o) at any time when any DB Loan is outstanding, the respective
Financial Guaranty Insurance Policy or any material provision thereof shall
cease to be in full force or effect or Corp. shall deny or disaffirm its
obligations under such Financial Guaranty Insurance Policy;
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then, and in every such event, the Administrative Agent shall (i) if
requested by the Required Lenders, by notice to Parent and Corp. terminate
the Commitments and they shall thereupon terminate, and (ii) if requested by
the Required Lenders, by notice to Parent and Corp. declare the Notes
(together with accrued interest thereon) and all other amounts payable
hereunder and under the other Credit Documents to be, and the Notes
(together with all accrued interest thereon) and all other amounts payable
hereunder and under the other Credit Documents shall thereupon become,
immediately due and payable without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by the Borrowers;
provided that if any Event of Default specified in clause (h) or (i) above
occurs with respect to Parent or Corp., without any notice to Parent or
Corp. or any other act by the Administrative Agent or the Lenders, the Total
Commitment shall thereupon automatically terminate and the Notes (together
with accrued interest thereon) and all other amounts payable hereunder and
under the other Credit Documents shall automatically become immediately due
and payable without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Borrowers; provided, further,
that, except in the case of an Event of Default under Section 8.01(o), the
principal of and interest on DB Loans shall not become due and payable
pursuant to this Section 8.01 prior to their respective DB Loan Maturity
Date. Notwithstanding the foregoing, the Administrative Agent shall have
available to it all other remedies at law or equity, and shall exercise any
one or all of them at the request of the Required Lenders.
8.02 Notice of Default. The Administrative Agent shall give notice to
the Borrowers of any Default under Sections 8.01(c) or 8.01(d) promptly upon
being requested to do so by any Lender and shall thereupon notify all the
Lenders thereof.
SECTION 9. Definitions. As used herein, the following terms shall have
the meanings herein specified unless the context otherwise requires. Defined
terms in this Agreement shall include in the singular number the plural and in
the plural the singular:
"Absolute Rate" shall mean an interest rate (rounded to the nearest
..0001) expressed as a decimal.
"Absolute Rate Borrowing" shall mean a Competitive Bid Borrowing with
respect to which a Borrower has requested that the Bidder Lenders offer to make
Competitive Bid Loans at Absolute Rates.
"Administrative Agent" shall have the meaning provided in the first
paragraph of this Agreement.
"Affiliate" shall mean, with respect to any Person, any other Person
directly or indirectly controlling (including but not limited to all directors
and officers of such Person), controlled by, or under direct or indirect common
control with such Person. A Person shall be deemed to control a corporation if
such Person possesses, directly or indirectly, the power (i) to vote 10% or more
of the securities having ordinary voting power for the election of directors of
such corporation or (ii) to direct or cause the direction of the management and
policies of such corporation, whether through the ownership of voting
securities, by contract or otherwise.
"Agents" shall mean the Administrative Agent and the Co-Syndication
Agents.
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"Aggregate Loan Outstandings" shall have the meaning provided in Section
3.02(a).
"Agreement" shall mean this Amended and Restated Credit Agreement, as
the same may be from time to time modified, amended and/or supplemented.
"Applicable Margin" shall mean, as of any date, with respect to (i) any
Eurodollar Loan or Base Rate Loan, a percentage per annum set forth below under
the caption "Eurodollar Rate" or "Base Rate" as applicable, determined, in each
case, by reference to (x) for Revolving Loans incurred by Parent, the Applicable
Public Rating in effect on such date as set forth below under the caption
"Parent's Public Rating S&P/Xxxxx'x" and (y) for Revolving Loans incurred by
Corp or a Designated Borrower, the Applicable Public Rating in effect on such
date as set forth below under the caption "Corp's Public Rating S&P/Xxxxx'x" and
(ii) any Facility Fee, the Applicable Margin per annum set forth below under the
caption "Facility Fee" determined, in each case, by reference to the lower of
Parent's and Corp's Applicable Public Rating in effect on such date as set forth
below under the captions "Parent's Public Rating S&P/Xxxxx'x" and "Corp's Public
Rating S&P/Xxxxx'x" respectively:
Parent's Public Corp's Public
Rating Rating
S&P/Xxxxx'x S&P/Xxxxx'x Eurodollar Rate Base Rate Facility Fee
=================================================================================================================
Xxxxx 0 Xxxxx 0
XX/Xx0 or above AAA/Aaa 0.18% 0% 0.07%
-----------------------------------------------------------------------------------------------------------------
Xxxxx 0 Xxxxx 0
XX-/Xx0 XXx/Xx0 0.28% 0% 0.08%
-----------------------------------------------------------------------------------------------------------------
Xxxxx 0 Xxxxx 0
Xx/ X0 XX / Aa2 0.38% 0% 0.09%
-----------------------------------------------------------------------------------------------------------------
Xxxxx 0 Xxxxx 0
X / X0 XX- / Xx0 0.48% 0% 0.10%
-----------------------------------------------------------------------------------------------------------------
Xxxxx 0 Xxxxx 0
X-/X0 A+ /A1 0.88% 0% 0.15%
-----------------------------------------------------------------------------------------------------------------
Xxxxx 0 Xxxxx 0
BBB+/Baa1 A / A2 0.98% 0% 0.16%
-----------------------------------------------------------------------------------------------------------------
Xxxxx 0 Xxxxx 0
XXX/Xxx0 xx xxxxx X-/X0 or lower 1.08% 0% 0.17%
-----------------------------------------------------------------------------------------------------------------
provided that, (A) notwithstanding anything to the contrary set forth in the
grid above (and notwithstanding the Applicable Public Rating at the time), upon
the occurrence and during the continuance of any Event of Default, the
Applicable Margin shall be the rate described above in Level 7; (B) for purposes
of the foregoing, in the event of a split in the Applicable Public Rating
-31-
from Xxxxx'x and S&P, the applicable level shall be (1) the lower of such
ratings in the event such ratings are one level apart, (2) midpoint (if any) of
such levels in the event such ratings are two or more levels apart and (3) the
lower of the two intermediate ratings in the event there is no midpoint rating;
(C) if at any time Parent or Corp., as the case may be, does not have an
Applicable Public Rating with either Xxxxx'x or S&P (other than by reason of the
circumstances referred to in the last sentence of this definition), the
Applicable Margin as set forth in Level 7 will apply; (D) if at any time either
Xxxxx'x or S&P shall not have in effect an Applicable Public Rating, the
Applicable Margin shall be determined solely by the Applicable Public Rating
established by the rating agency that does have an Applicable Public Rating then
in effect; and (E) if at any time the Applicable Public Ratings established or
deemed to have been established by Xxxxx'x and S&P shall be changed (other than
as a result of a change in the rating system of Xxxxx'x or S&P), such change
shall be effective as of the date on which it is first announced by the
applicable rating agency. Each change in the Applicable Margin shall apply
during the period commencing on the effective date of such change and ending on
the date immediately preceding the effective date of the next such change. If
the rating system of Xxxxx'x or S&P shall change, or if either such rating
agency shall cease to be in the business of providing the Applicable Public
Rating, Parent (on its own behalf and/or on behalf of Corp.) and the Lenders
shall negotiate in good faith to amend this definition to reflect such changed
rating system or the unavailability of ratings from such rating agency and,
pending the effectiveness of any such amendment, the Applicable Margin shall be
determined by reference to the rating most recently in effect prior to such
change or cessation.
"Applicable Public Rating" shall mean, as of any date, the highest
rating that has been most recently announced by S&P and Moody's (i) in respect
of Parent, for its long-term senior unsecured debt and (ii) in respect of Corp.,
for its insurer claims paying ability.
"Assignment Agreement" shall mean the Assignment Agreement in the form
of Exhibit G (appropriately completed).
"Assuming Lender" shall have the meaning provided in Section 1.16.
"Authorized Officer" shall mean any senior officer of any Borrower
designated as such in writing to the Administrative Agent by such Borrower.
"Base Rate" shall mean, at any time, the higher of (i) the rate which is
1/2 of 1% in excess of the Federal Funds Effective Rate and (ii) the Prime
Lending Rate.
"Base Rate Loan" shall mean each Revolving Loan that is not a Eurodollar
Loan.
"Bidder Lender" shall mean each Lender that has notified in writing (and
has not withdrawn such notice) the Administrative Agent that it desires to
participate generally in the bidding arrangements relating to Competitive Bid
Borrowings.
"Borrowers" shall mean Parent, Corp. and each Designated Borrower, if
any.
"Borrowing" shall mean (i) the incurrence by a single Borrower of
Revolving Loans that are Base Rate Loans on a pro rata basis from all Lenders;
(ii) the incurrence by a single Borrower of Revolving Loans that are Eurodollar
Loans on a pro rata basis from all
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Lenders, on a given date (or resulting from conversions on a given date), having
the same Interest Period; and (iii) a Competitive Bid Borrowing, provided that
(x) Base Rate Loans incurred pursuant to Section 1.11(b) shall be considered
part of any related Borrowing of Eurodollar Loans and (y) each Borrowing
applicable to each of the Existing Competitive Bid Loans outstanding on the
Restatement Effective Date shall continue to be applicable thereto as if the
Existing Credit Agreement had not been amended and restated as herein provided
(although such Existing Competitive Bid Loans, shall constitute Competitive Bid
Loans, as provided for in this Agreement).
"Business Day" shall mean (i) for all purposes other than as covered by
clause (ii) below, any day excluding Saturday, Sunday and any day which shall be
in the City of New York a legal holiday or a day on which banking institutions
are authorized by law or other governmental actions to close, (ii) with respect
to all notices and determinations in connection with, and payments of principal
and interest on, Eurodollar Loans and Competitive Bid Loans made pursuant to a
Spread Borrowing, any day which is a Business Day described in clause (i) and
which is also a day for trading by and between banks in the London interbank
Eurodollar market.
"Capital Stock" means any nonredeemable capital stock of Parent or any
Consolidated Subsidiary (to the extent issued to a Person other than the
Borrowers), whether common or preferred.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time and the regulations promulgated and the rulings issued thereunder.
Section references to the Code are to the Code, as in effect on the Restatement
Effective Date and any subsequent provisions of the Code, amendatory thereof,
supplemental thereto or substituted therefor.
"Commitment" shall mean, with respect to each Lender, at any time, the
amount set forth opposite such Lender's name on Annex I, as the same may be
increased pursuant to Section 1.16 and/or reduced pursuant to Sections 2.02,
2.03 or 8.01.
"Commitment Assumption Agreement" shall mean each Commitment Assumption
Agreement in the form of Exhibit H attached hereto executed in accordance with
Section 1.16.
"Commitment Assumption Date" shall mean the Business Day following the
date on which each Commitment Assumption Agreement is delivered to the
Administrative Agent pursuant to Section 1.16.
"Competitive Bid Borrowing" shall mean a Borrowing by a single Borrower
of Competitive Bid Loans pursuant to Section 1.04.
"Competitive Bid Loan" shall have the meaning specified in Section
1.01(b).
"Competitive Bid Note" shall have the meaning provided in Section
1.06(a).
"Conduit Debt" shall mean any debt of a special purpose entity that is
consolidated on Parent's financial statements in accordance with GAAP, provided
that (i) the
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proceeds of such debt are used by such special purpose entity to make loans to,
or to purchase assets from, any Person that is not an Affiliate of Parent, in
the ordinary course of business and (ii) such debt and/or payment with respect
to accounts receivable and other assets underlying such debt are guaranteed by
Corp., in the ordinary course of business.
"Consolidated Net Worth" shall mean the Net Worth of Parent and its
Subsidiaries determined on a consolidated basis.
"Consolidated Subsidiary" shall mean at any date any Subsidiary or other
entity the accounts of which, in accordance with GAAP, would be consolidated
with those of Parent in its consolidated financial statements as of such date.
"Consolidated Total Capitalization" shall mean, as of any date of
determination, the sum of (i) Consolidated Total Debt and (ii) Consolidated Net
Worth.
"Consolidated Total Debt" shall mean, as of any date of determination,
all Debt of Parent and its Subsidiaries on such date determined on a
consolidated basis.
"Co-Syndication Agent" shall have the meaning provided in the first
paragraph of this Agreement.
"Controlled Group" shall mean all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with either Parent or Corp., are treated as a
single employer under Section 414 of the Code.
"Credit Documents" shall mean this Agreement, the Notes and each
Financial Guaranty Insurance Policy delivered pursuant to Section 4.02(d).
"DB Assumption Agreement" shall mean an Assumption Agreement in the form
of Exhibit I attached hereto executed in accordance with Section 1.17.
"DB Loan Maturity Date" shall mean (a) with respect to each DB Loan
constituting a Revolving Loan, the maturity date selected by the respective
Designated Borrower in accordance with Section 1.03(a) as being applicable to
such DB Loan, which maturity date shall not be more than 180 days after the date
of incurrence of such DB Loan (and in no event later than the Final Maturity
Date) and (b) with respect to each DB Loan constituting a Competitive Bid Loan,
the maturity of such Competitive Bid Loan selected in accordance with Section
1.04(a).
"DB Loans" shall mean any Loans incurred by a Designated Borrower.
"Debt" of any Person shall mean at any date, without duplication, (i)
all obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person to pay the deferred purchase price of property or
services, except trade accounts payable arising in the ordinary course of
business, (iv) all obligations of such Person as lessee under capital leases,
(v) all obligations of such Person to reimburse any bank or other Person in
respect of amounts payable under a banker's acceptance, (vi) all Redeemable
Preferred Stock of such Person (in the
-34-
event such Person is a corporation), (vii) all obligations (absolute or
contingent) of such Person to reimburse any bank or other Person in respect of
amounts paid under a letter of credit or similar instrument, (viii) all Debt of
others secured by a Lien on any asset of such Person, whether or not such Debt
is assumed by such Person, (ix) all Debt of others Guaranteed by such Person and
(x) solely for the purpose of determining the ratio of Consolidated Total Debt
to Consolidated Total Capitalization pursuant to Section 7.07, obligations under
any repurchase agreements secured by Liens constituting a borrowing of funds for
a period exceeding 90 days (other than obligations under such repurchase
agreements entered into by Parent or any of its Subsidiaries in the ordinary
course of business in connection with the asset management business of MBIA
Asset Management and its Subsidiaries), provided, that notwithstanding the
foregoing, the following shall not constitute "Debt" of any Person: (I) the
obligations referred to in the parenthetical in clause (x) above, (II)
investment agreements entered into by Parent or any of its Subsidiaries in the
ordinary course of business in connection with the asset management business of
MBIA Asset Management and its Subsidiaries, (III) in the case of Corp., the Debt
of others guaranteed by Corp. in the ordinary course of its business and (IV)
any Conduit Debt and any Insured Debt or any guaranty thereof by Corp. in the
ordinary course of business.
"Default" shall mean any event, act or condition which with notice or
lapse of time, or both, would constitute an Event of Default.
"Defaulting Lender" shall mean any Lender with respect to which a Lender
Default is in effect.
"Designated Borrower" shall mean each Person designated as a Designated
Borrower in accordance with Section 1.17.
"Deutsche Bank" shall mean Deutsche Bank AG, New York Branch.
"Dollars" and the sign "$" shall each mean freely transferable lawful
money of the United States.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the regulations promulgated and rulings issued
thereunder. Section references to ERISA are to ERISA, as in effect as of the
Restatement Effective Date and any subsequent provisions of ERISA, amendatory
thereof, supplemental thereto or substituted therefor.
"Eurodollar Loan" shall mean each Revolving Loan that at the election of
any Borrower is bearing interest by reference to LIBOR.
"Event of Default" shall have the meaning specified in Section 8.01.
"Exchange Act" shall mean the U.S. Securities Exchange Act of 1934, as
amended.
"Existing Competitive Bid Loans" shall mean each "Competitive Bid Loan"
under, and as defined in, the Existing Credit Agreement.
-35-
"Existing Credit Agreement" shall have the meaning provided in the first
WHEREAS clause of this Agreement.
"Existing Lenders" shall mean each of the lenders party to the Existing
Credit Agreement on the Restatement Effective Date.
"Existing Revolving Loan" shall mean each "Revolving Loan" under, and as
defined in, the Existing Credit Agreement.
"Facility Fees" shall have the meaning specified in Section 2.01(a).
"Federal Funds Effective Rate" shall mean, for any period, a fluctuating
interest rate equal for each day during such period to the weighted average of
the rates on overnight Federal Funds transactions with members of the Federal
Reserve System arranged by Federal Funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day which is a Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three Federal Funds
brokers of recognized standing selected by the Administrative Agent.
"Fees" shall mean all amounts payable pursuant to, or referred to in,
Section 2.01.
"Final Maturity Date" shall mean the date occurring 364 days after the
Restatement Effective Date, or such later date to which the Final Maturity Date
shall have been extended pursuant to Section 1.15.
"Financial Guaranty Insurance Policy" shall have the meaning specified
in Section 4.02(d).
"Fiscal Year" means any fiscal year of the Borrowers.
"GAAP" shall mean generally accepted accounting principles in the United
States of America as in effect on the date of this Agreement.
"Guarantee" by any Person means any obligation, contingent or otherwise,
of such Person directly or indirectly guaranteeing any Debt or other obligation
of any other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person (i) to
secure, purchase or pay (or advance or supply funds for the purchase or payment
of) such Debt or other obligation (whether arising by virtue of partnership
arrangements, by agreement to keep-well, to purchase assets, goods, securities
or services, to provide collateral security, to take-or-pay, or to maintain
financial statement conditions or otherwise) or (ii) entered into for the
purpose of assuring in any other manner the obligee of such Debt or other
obligation of the payment thereof or to protect such obligee against loss in
respect thereof (in whole or in part), provided that the term Guarantee shall
not include: (i) endorsements for collection or deposit in the ordinary course
of business; and (ii) in the case of Corp., Debt of others guaranteed by Corp.
in the ordinary course of its business. The term "Guarantee" used as a verb has
a corresponding meaning.
-36-
"Insured Debt" shall mean any debt of Parent or its Subsidiaries that is
guaranteed by Corp., provided that the proceeds of such debt are used to
purchase securities, instruments, notes or other obligations issued or owed by
any Person that is not an Affiliate of Parent, in the ordinary course of
business.
"Interest Period" shall mean (a) with respect to any Eurodollar Loan,
the interest period applicable thereto, as determined pursuant to Section 1.10
and (b) with respect to any Competitive Bid Loan, the period beginning on the
date of incurrence thereof and ending on the stated maturity date thereof.
"Interest Rate Basis" shall mean LIBOR and/or such other basis for
determining an interest rate as the Borrowers and the Administrative Agent may
agree upon from time to time.
"Lender" or "Lenders" shall have the meaning provided in the first
paragraph of this Agreement.
"Lender Default" shall mean (i) the refusal (which has not been
retracted) of a Lender to make available its portion of any incurrence of
Revolving Loans or (ii) a Lender having notified the Administrative Agent and/or
any Borrower that it does not intend to comply with its obligations under
Section 1.01, in the case of either clause (i) or (ii) as a result of the
appointment of a receiver or conservator with respect to such Lender at the
direction or request of any regulatory agency or authority.
"Lender Register" shall have the meaning provided in Section 11.15.
"LIBOR" shall mean for each Interest Period applicable to a Loan (other
than a Base Rate Loan), the rate per annum that appears on page 3750 of the Dow
Xxxxx Telerate Screen (or any successor page) for Dollar deposits with
maturities comparable to such Interest Period as of 11:00 A.M. (London time) on
the date which is two Business Days prior to the commencement of such Interest
Period or, if such a rate does not appear on page 3750 of the Dow Xxxxx Telerate
Screen (or any successor page), the offered quotations to first-class banks in
the London interbank market by Deutsche Bank for Dollar deposits of amounts in
same day funds comparable to the outstanding principal amount of such
Dollar-denominated Loan with maturities comparable to such Interest Period
determined as of 11:00 A.M. (London time) on the date which is two Business Days
prior to the commencement of such Interest Period.
"Lien" shall mean, with respect to any asset, any mortgage, deed to
secure debt, deed of trust, lien, pledge, charge, security interest, security
title, preferential arrangement which has the practical effect of constituting a
security interest or encumbrance, servitude or encumbrance of any kind in
respect of such asset to secure or assure payment of a Debt or a Guarantee,
whether by consensual agreement or by operation of statute or other law, or by
any agreement, contingent or otherwise, to provide any of the foregoing. For the
purposes of this Agreement, Parent or any Subsidiary shall be deemed to own
subject to a Lien any asset which they have acquired or hold subject to the
interest of a vendor or lessor under any conditional sale agreement, capital
lease or other title retention agreement relating to such asset.
"Loan" shall mean each Revolving Loan and each Competitive Bid Loan.
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"Margin Stock" shall have the meaning provided in Regulation U.
"Material Adverse Effect" shall mean, with respect to any event, act,
condition or occurrence of whatever nature (including any adverse determination
in any litigation, arbitration, or governmental investigation or proceeding),
whether singly or in conjunction with any other event or events, act or acts,
condition or conditions, occurrence or occurrences, whether or not related, a
material adverse change in, or a material adverse effect upon, any of (a) the
rights and remedies of the Administrative Agent or the Lenders under the Credit
Documents, or the ability of each Borrower to perform its obligations under the
Credit Documents to which it is a party, as applicable, or (b) the legality,
validity or enforceability of any Credit Document.
"Material Subsidiary" shall mean any Subsidiary with a Net Worth greater
than $5,000,000.
"MBIA Asset Management" shall mean MBIA Asset Management, LLC, a limited
liability company organized under the laws of Delaware.
"Minimum Borrowing Amount" shall mean (i) for any Revolving Loans
$2,500,000, and (ii) for any Competitive Bid Loans, $1,000,000.
"Multiemployer Plan" shall mean a plan within the meaning of Section
4001(a)(3) of ERISA.
"Net Worth" shall mean, as to any Person, the sum of its capital stock,
capital in excess of par or stated value of shares of its capital stock,
retained earnings and any other account which, in accordance with GAAP,
constitutes stockholders equity, excluding any treasury stock.
"Non-Continuing Lender" shall have the meaning specified in Section
1.15.
"Non-Defaulting Lender" shall mean each Lender other than a Defaulting
Lender.
"Note" shall mean each Revolving Note and each Competitive Bid Note.
"Notice of Borrowing" shall have the meaning provided in Section
1.03(a).
"Notice of Competitive Bid Borrowing" shall have the meaning provided in
Section 1.04(a).
"Notice of Conversion" shall have the meaning provided in Section 1.07.
"Notice Office" shall mean the office of the Administrative Agent at 00
Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000 or such other office as the Administrative
Agent may designate to the Borrowers from time to time.
"Obligations" shall mean all amounts, direct or indirect, contingent or
absolute, of every type or description, and at any time existing, owing to any
Agent or any Lender pursuant to the terms of this Agreement or any other Credit
Document.
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"Original Effective Date" shall mean August 28, 1998.
"Payment Office" shall mean the office of the Administrative Agent at 00
Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000 or such other office or offices as the
Administrative Agent may designate to the Borrowers from time to time.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
pursuant to Section 4002 of ERISA, or any successor thereto.
"Person" shall mean any individual, partnership, limited liability
company, joint venture, firm, corporation, association, trust or other
enterprise or business entity or any government or political subdivision or any
agency, department or instrumentality thereof.
"Plan" shall mean at any time an employee pension benefit plan which is
covered by Title IV of ERISA or subject to the minimum funding standards under
Section 412 of the Code and is either (i) maintained by a member of the
Controlled Group for employees of any member of the Controlled Group or (ii)
maintained pursuant to a collective bargaining agreement or any other
arrangement under which more than one employer makes contributions and to which
a member of the Controlled Group is then making or accruing an obligation to
make contributions or has within the preceding 5 plan years made contributions.
"Prime Lending Rate" shall mean the rate which Deutsche Bank announces
from time to time as its prime lending rate, the Prime Lending Rate to change
when and as such prime lending rate changes. The Prime Lending Rate is a
reference rate and does not necessarily represent the lowest or best rate
actually charged to any customer. Deutsche Bank may make commercial loans or
other loans at rates of interest at, above or below the Prime Lending Rate.
"Principal Amount" shall mean the stated principal amount of each Loan.
"Recommitment Deadline" shall have the meaning specified in Section
1.15.
"Redeemable Preferred Stock" of any Person shall mean any preferred
stock issued by such Person which is at any time prior to the Final Maturity
Date either (i) mandatorily redeemable (by sinking fund or similar payments or
otherwise) or (ii) redeemable at the option of the holder thereof.
"Regulation U" shall mean Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor to all
or a portion thereof establishing margin requirements.
"Regulation X" shall mean Regulation X of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor to all
or a portion thereof establishing margin requirements.
"Replaced Lender" shall have the meaning provided in Section 1.14.
"Replacement Lender" shall have the meaning provided in Section 1.14.
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"Required Lenders" shall mean at any time Non-Defaulting Lenders having
at least a majority of the aggregate Commitments of all Non-Defaulting Lenders;
provided that if the Total Commitment has been terminated, then the Required
Lenders shall mean Lenders whose outstanding Loans equal or exceed a majority of
the aggregate outstanding Loans at such time.
"Restatement Effective Date" shall have the meaning provided in Section
4.01.
"Revolving Loan" shall have the meaning specified in Section 1.01(a).
"Revolving Note" shall have the meaning provided in Section 1.06(a).
"Section 3.04 Certificate" shall have the meaning provided in Section
3.04(b)(ii).
"Spread" shall mean a percentage per annum in excess of, or less than,
an Interest Rate Basis.
"Spread Borrowing" shall mean a Competitive Bid Borrowing with respect
to which a Borrower has requested the Bidder Lenders to make Competitive Bid
Loans at a Spread over or under a specified Interest Rate Basis.
"Statutory Accounting Principles" shall mean statutory accounting
principles prescribed by the National Association of Insurance Commissioners
that are to be used in making the calculations for purposes of determining
compliance with the terms of this Agreement.
"Subsidiary" of any Person shall mean and include (i) any corporation
more than 50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such Person directly or
indirectly through Subsidiaries and (ii) any partnership, association, joint
venture or other entity in which such Person directly or indirectly through
Subsidiaries, has more than a 50% equity interest at the time. Unless otherwise
expressly provided, all references herein to "Subsidiary" shall mean a
Subsidiary of Parent.
"Taxes" shall have the meaning provided in Section 3.04(a).
"Total Commitment" shall mean, at any time, the sum of the Commitments
of each of the Lenders at such time.
"Total Unutilized Commitment" shall mean, at any time, (i) the Total
Commitment at such time less (ii) the sum of the aggregate Principal Amount of
all outstanding Loans at such time.
"Type" shall mean any type of Loan determined with respect to the
interest option applicable thereto.
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"UCC" shall mean the Uniform Commercial Code.
"Wholly-Owned Subsidiary" of any Person shall mean any other Person to
the extent all of the capital stock or other ownership interests in such other
Person, other than directors' qualifying shares, is owned directly or indirectly
by such first Person.
"Written" or "in writing" shall mean any form of written communication
or a communication by means of facsimile transmission, telegraph or cable.
SECTION 10. Agents, etc.
10.01 Appointment. The Lenders hereby designate Deutsche Bank as
Administrative Agent and each of The Bank of New York, Bank One, NA, Barclays
Bank plc and Fleet National Bank as Co-Syndication Agents to act as specified
herein and in the other Credit Documents. Each Lender hereby irrevocably
authorizes, and each holder of any Note by the acceptance of such Note shall be
deemed irrevocably to authorize, each Agent to take such action on its behalf
under the provisions of this Agreement, the other Credit Documents and any other
instruments and agreements referred to herein or therein and to exercise such
powers and to perform such duties hereunder and thereunder as are specifically
delegated to or required of such Agent by the terms hereof and thereof and such
other powers as are reasonably incidental thereto. The Agents may perform any of
their duties hereunder by or through their respective officers, directors,
agents, employees or affiliates.
10.02 Nature of Duties. No Agent shall have any duties or
responsibilities except those expressly set forth in this Agreement and the
other Credit Documents. No Agent or any of its respective officers, directors,
agents, employees or affiliates shall be liable for any action taken or omitted
by them hereunder or under any other Credit Document or in connection herewith
or therewith, unless caused by their gross negligence or willful misconduct. The
duties of each Agent shall be mechanical and administrative in nature; no Agent
shall have by reason of this Agreement or any other Credit Document a fiduciary
relationship in respect of any Lender or the holder of any Note; and nothing in
this Agreement or any other Credit Document, expressed or implied, is intended
to or shall be so construed as to impose upon either Agent any obligations in
respect of this Agreement or any other Credit Document except as expressly set
forth herein or therein with respect to such Agent.
10.03 Lack of Reliance on the Agents. Independently and without
reliance upon any Agent, each Lender and the holder of each Note, to the extent
it deems appropriate, has made and shall continue to make (i) its own
independent investigation of the financial condition and affairs of the
Borrowers and their Subsidiaries in connection with the making and the
continuance of the Loans and the taking or not taking of any action in
connection herewith and (ii) its own appraisal of the creditworthiness of the
Borrowers and their Subsidiaries and, except as expressly provided in this
Agreement, no Agent shall have any duty or responsibility, either initially or
on a continuing basis, to provide any Lender or the holder of any Note with any
credit or other information with respect thereto, whether coming into its
possession before the making of the Loans or at any time or times thereafter. No
Agent shall be responsible to any Lender or the holder of any Note for any
recitals, statements, information, representations or warranties herein or in
any document, certificate or other writing delivered in connection herewith or
for the
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execution, effectiveness, genuineness, validity, enforceability, perfection,
collectibility, priority or sufficiency of this Agreement or any other Credit
Document or the financial condition of the Borrowers and their Subsidiaries or
be required to make any inquiry concerning either the performance or observance
of any of the terms, provisions or conditions of this Agreement or any other
Credit Document, or the financial condition of the Borrowers and their
Subsidiaries or the existence or possible existence of any Default or Event of
Default.
10.04 Certain Rights of the Agents. If any Agent shall request
instructions from the Required Lenders with respect to any act or action
(including failure to act) in connection with this Agreement or any other Credit
Document, such Agent shall be entitled to refrain from such act or taking such
action unless and until such Agent shall have received instructions from the
Required Lenders; and no Agent shall incur liability to any Person by reason of
so refraining. Without limiting the foregoing, neither any Lender nor the holder
of any Note shall have any right of action whatsoever against an Agent as a
result of such Agent acting or refraining from acting hereunder or under any
other Credit Document in accordance with the instructions of the Required
Lenders.
10.05 Reliance. Each Agent shall be entitled to rely, and shall be
fully protected in relying, upon any note, writing, resolution, notice,
statement, certificate, telex, teletype, facsimile or telecopier message,
cablegram, radiogram, order or other document or telephone message signed, sent
or made by any Person that such Agent believed to be the proper Person, and,
with respect to all legal matters pertaining to this Agreement and any other
Credit Document and its duties hereunder and thereunder, upon advice of counsel
selected by such Agent.
10.06 Indemnification. To the extent an Agent is not reimbursed and
indemnified by the Borrowers, the Lenders will reimburse and indemnify such
Agent, in proportion to their respective "percentages" as used in determining
the Required Lenders, for and against any and all liabilities, obligations,
losses, damages, penalties, claims, actions, judgments, costs, expenses or
disbursements of whatsoever kind or nature which may be imposed on, asserted
against or incurred by such Agent in performing its respective duties hereunder
or under any other Credit Document, in any way relating to or arising out of
this Agreement or any other Credit Document provided that no Lender shall be
liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from the gross negligence or willful misconduct of such Agent.
10.07 The Agents in Their Individual Capacities. With respect to its
obligation to make Loans under this Agreement, each Agent shall have the rights
and powers specified herein for a "Lender" and may exercise the same rights and
powers as though it were not performing the duties specified herein; and the
term "Lenders," "Required Lenders," "holders of Notes" or any similar terms
shall, unless the context clearly otherwise indicates, include the Agents in
their individual capacities. Each Agent may accept deposits from, lend money to,
and generally engage in any kind of banking, trust or other business with any
Borrower or any Affiliate of any Borrower as if they were not performing the
duties specified herein, and may accept fees and other consideration from any
Borrower for services in connection with this Agreement and otherwise without
having to account for the same to the Lenders.
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10.08 Holders. The Administrative Agent may deem and treat the payee
of any Note as the owner thereof for all purposes hereof unless and until a
written notice of the assignment, transfer or endorsement thereof, as the case
may be, shall have been filed with the Administrative Agent. Any request,
authority or consent of any Person who, at the time of making such request or
giving such authority or consent, is the holder of any Note shall be conclusive
and binding on any subsequent holder, transferee, assignee or indorsee, as the
case may be, of such Note or of any Note or Notes issued in exchange therefor.
10.09 Resignation by an Agent. (a) The Administrative Agent may resign
from the performance of all its functions and duties hereunder and/or under the
other Credit Documents at any time by giving 15 Business Days' prior written
notice to the Borrowers and the Lenders. Such resignation shall take effect upon
the appointment of a successor Administrative Agent pursuant to clauses (b) and
(c) below or as otherwise provided below. Upon the effectiveness of such
resignation, the resigning Administrative Agent shall return to Parent and/or
Corp. a pro-rated portion of any administrative fee that has been paid in
advance for the period following the effectiveness of its resignation.
(b) Upon any such notice of resignation, the Required Lenders shall
appoint a successor Administrative Agent hereunder who shall be a Lender,
commercial bank or trust company reasonably acceptable to Parent and Corp.
(c) If a successor Administrative Agent shall not have been so
appointed within such 15 Business Day period, the Administrative Agent, with the
consent of Parent and Corp., shall then appoint a successor Administrative Agent
who shall serve as Administrative Agent hereunder until such time, if any, as
the Required Lenders appoint a successor Administrative Agent as provided above.
(d) Each of the Co-Syndication Agents may resign from the
performance of all of its functions and duties hereunder and/or under the other
Credit Documents in such capacity at any time by giving five Business Days'
prior written notice to the Lenders. Such resignation shall take effect at the
end of such five Business Days.
10.10 Co-Syndication Agents. Nothing this Agreement shall impose on
any of the Co-Syndication Agents, in their capacity as such, any duties or
obligations.
SECTION 11. Miscellaneous.
11.01 Payment of Expenses, etc. The Borrowers jointly and severally
agree to: (i) pay all reasonable out-of-pocket costs and expenses (1) of the
Administrative Agent in connection with the negotiation, syndication,
preparation, execution and delivery of the Credit Documents and the documents
and instruments referred to therein and any amendment, waiver or consent
relating thereto (including, without limitation, the reasonable fees and
disbursements of White & Case LLP) and (2) of the Agents and each of the Lenders
in connection with the enforcement of the Credit Documents and the documents and
instruments referred to therein (including, without limitation, the reasonable
fees and disbursements of counsel for each Agent and for each of the Lenders);
(ii) pay and hold each of the Agents and Lenders harmless from and against any
and all present and future stamp, VAT and other similar taxes with respect to
the
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foregoing matters and/or fees and save each of the Lenders harmless from and
against any and all liabilities with respect to or resulting from any delay or
omission (other than to the extent attributable to such Lender) to pay such
taxes; and (iii) indemnify each Lender (including in its capacity as an Agent),
its officers, directors, employees, representatives and agents from and hold
each of them harmless against any and all losses, liabilities, claims, damages
or expenses incurred by any of them as a result of, or arising out of, or in any
way related to, or by reason of, an investigation, litigation or other
proceeding (whether or not an Agent or any Lender is a party thereto and whether
or not any such investigation, litigation or other proceeding is between or
among an Agent, any Lender, or any third Person or otherwise) related to the
entering into and/or performance of any Credit Document or the use of the
proceeds of any Loans hereunder or the consummation of any transactions
contemplated in any Credit Document, and in each case, including, without
limitation, the reasonable fees and disbursements of counsel incurred in
connection with any such investigation, litigation or other proceeding (but
excluding any such losses, liabilities, claims, damages or expenses to the
extent incurred by reason of the gross negligence or willful misconduct of the
Person to be indemnified).
11.02 Lender Enforceability Opinions. Within 45 days following the
Restatement Effective Date, each Lender (other then Existing Lenders) agrees to
deliver to Parent and Corp. an opinion or opinions (as applicable) of counsel to
such Lender (which opinion or opinions may be from internal counsel to such
Lender) substantially in the form of Exhibit J or in such other form as is
reasonably acceptable to Parent and Corp. relating to the enforceability of such
Lender's obligations under the Credit Documents. Upon a Lender first becoming a
party hereunder after the Restatement Effective Date pursuant to Section 1.14,
1.16 or 11.04, such Lender agrees to deliver to Parent and Corp. unless such
opinion has been waived by Parent and Corp. an opinion or opinions (as
applicable) of counsel to such Lender (which opinion or opinions may be from
internal counsel to such Lender) substantially in the form of Exhibit J or in
such other form as is reasonably acceptable to Parent and Corp. relating to the
enforceability of such Lender's obligations under the Credit Documents.
Notwithstanding the foregoing, the failure by a Lender to provide the opinion or
opinions referred to in this Section 11.02 shall not affect any of the
obligations of the Borrowers hereunder or under the other Credit Documents.
11.03 Notices. Except as otherwise expressly provided herein, all
notices and other communications provided for hereunder shall be in writing
(including telecopier or facsimile) and mailed, telecopied, faxed or delivered,
if to a Borrower, at the address specified opposite its signature below or in
the other relevant Credit Documents, as the case may be; if to any Lender or the
Administrative Agent, at its address specified for such Lender or the
Administrative Agent on Annex II hereto; or, at such other address as shall be
designated by any party in a written notice to the other parties hereto. All
such notices and communications shall be mailed, telecopied or sent by overnight
courier, and shall be effective when received.
11.04 Benefit of Agreement. (a) This Agreement shall be binding upon
and inure to the benefit of and be enforceable by the respective successors and
assigns of the parties hereto, provided that no Borrower may assign or transfer
any of its rights or obligations hereunder without the prior written consent of
the Lenders. Each Lender may at any time grant participations in any of its
rights hereunder or under any of the Notes to any Person, provided that (x) in
the case of any such participation, the participant shall not have any rights
under this
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Agreement or any of the other Credit Documents (the participant's rights against
such Lender in respect of such participation to be those set forth in the
agreement executed by such Lender in favor of the participant relating thereto)
and all amounts payable by the Borrowers hereunder shall be determined as if
such Lender had not sold such participation, except that the participant shall
be entitled to the benefits of Sections 1.11 and 3.04 of this Agreement to the
extent that such Lender would be entitled to such benefits if the participation
had not been entered into or sold and (y) no Lender shall transfer, grant or
assign any participation under which the participant shall have rights to
approve any amendment to or waiver of this Agreement or any other Credit
Document except to the extent such amendment or waiver would extend the final
scheduled maturity of any Loan or Note in which such participant is
participating, or reduce the rate or extend the time of payment of interest or
Fees thereon (except in connection with a waiver of the applicability of any
post-default increase in interest rates), or reduce the principal amount
thereof, or increase such participant's participating interest in any Commitment
over the amount thereof then in effect (it being understood that a waiver of any
Default or Event of Default or of a mandatory reduction in the Total Commitment,
or a mandatory prepayment, shall not constitute a change in the terms of any
Commitment).
(b) Notwithstanding the foregoing, (x) any Lender may assign all or
a portion of its Commitment and its rights and obligations hereunder to another
Lender (or an Affiliate of such assigning Lender), and (y) with the consent of
the Administrative Agent and, so long as no Default under Section 8.01(a) or
8.01(h) or Event of Default exists, Parent (which consent shall not be
unreasonably withheld), any Lender may assign all or a portion of its Commitment
and its rights and obligations hereunder to one or more Persons. No assignment
pursuant to the immediately preceding sentence by a Lender (or by Lenders which
are Affiliates of each other) shall to the extent such assignment represents an
assignment to an institution other than one or more Lenders hereunder (or to an
Affiliate of an assigning Lender), be in an aggregate amount less than
$10,000,000 unless the entire Commitment of the assigning Lender (or group of
Lenders which are Affiliates) is so assigned. If any Lender so sells or assigns
all or a part of its rights hereunder or under the Notes, any reference in this
Agreement or the Notes to such assigning Lender shall thereafter refer to such
Lender and to the respective assignee to the extent of their respective
interests and the respective assignee shall have, to the extent of such
assignment (unless otherwise provided therein), the same rights and benefits as
it would if it were such assigning Lender. Each assignment pursuant to this
Section 11.04(b) shall be effected by the assigning Lender and the assignee
Lender executing an Assignment Agreement (appropriately completed). At the time
of any such assignment, (i) either the assigning or the assignee Lender shall
pay to the Administrative Agent a nonrefundable assignment fee of $3,500, (ii)
Annex I shall be deemed to be amended to reflect the Commitment of the
respective assignee (which shall result in a direct reduction to the Commitment
of the assigning Lender) and of the other Lenders, and (iii) the Borrowers at
such time will issue new Notes to the respective assignee and to the assigning
Lender in conformity with the requirements of Section 1.06. To the extent any
assignment pursuant to this Section 11.04(b) is to a Person which is not already
a Lender hereunder and which is not a United States Person (as such term is
defined in Section 7701(a)(30) of the Code) for Federal income tax purposes, the
respective assignee Lender shall provide to Parent and the Administrative Agent
the appropriate Internal Revenue Service Forms (and, if applicable, a Section
3.04 Certificate) described in Section 3.04(b). To the extent that an assignment
of all or any portion of a Lender's Commitments and related outstanding
obligations pursuant to this Section 11.04(b) would, at the time of such
assignment,
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result in increased costs under Section 1.11 or 3.04 from those being charged by
the respective assigning bank prior to such assignment, then the Borrowers shall
not be obligated to pay such increased costs (although the Borrowers shall be
obligated to pay any other increased costs of the type described above resulting
from changes specified in said Section 1.11 or 3.04 occurring after the date of
the respective assignment). Each Lender and the Borrowers agree to execute such
documents (including without limitation amendments to this Agreement and the
other Credit Documents) as shall be necessary to effect the foregoing. Nothing
in this clause (b) shall prevent or prohibit any Lender from pledging its Notes
or Loans to a Federal Reserve Bank in support of borrowings made by such Lender
from such Federal Reserve Bank.
(c) Notwithstanding any other provisions of this Section 11.04, no
transfer or assignment of the interests or obligations of any Lender hereunder
or any grant of participation therein shall be permitted if such transfer,
assignment or grant would require any Borrower to file a registration statement
with the Securities and Exchange Commission or to qualify the Loans under the
"Blue Sky" laws of any State.
11.05 No Waiver; Remedies Cumulative. No failure or delay on the part
of any Agent or any Lender in exercising any right, power or privilege hereunder
or under any other Credit Document shall operate as a waiver thereof; nor shall
any single or partial exercise of any right, power or privilege hereunder or
under any other Credit Document preclude any other or further exercise thereof
or the exercise of any other right, power or privilege hereunder or thereunder.
The rights and remedies herein expressly provided are cumulative and not
exclusive of any rights or remedies which any Agent or any Lender would
otherwise have.
11.06 Payments Pro Rata. (a) The Administrative Agent agrees that
promptly after its receipt of each payment from or on behalf of any Borrower in
respect of any Obligations of such Borrower hereunder, it shall distribute such
payment to the Lenders (other than any Lender that has expressly waived its
right to receive its pro rata share thereof) pro rata based upon their
respective shares, if any, of the Obligations with respect to which such payment
was received.
(b) Each of the Lenders agrees that, if it should receive any amount
hereunder (whether by voluntary payment, by realization upon security, by the
exercise of the right of setoff or banker's lien, by counterclaim or cross
action, by the enforcement of any right under the Credit Documents, or
otherwise) which is applicable to the payment of the principal of, or interest
on, the Loans or Fees, of a sum which with respect to the related sum or sums
received by other Lenders is in a greater proportion than the total of such
Obligation then owed and due to such Lender bears to the total of such
Obligation then owed and due to all of the Lenders immediately prior to such
receipt, then such Lender receiving such excess payment shall purchase for cash
without recourse or warranty from the other Lenders an interest in the
Obligations of the respective Borrower to such Lenders in such amount as shall
result in a proportional participation by all of the Lenders in such amount,
provided that if all or any portion of such excess amount is thereafter
recovered from such Lender, such purchase shall be rescinded and the purchase
price restored to the extent of such recovery, but without interest.
(c) Notwithstanding anything to the contrary contained herein, the
provisions of the preceding Sections 11.06(a) and (b) shall be subject to the
express provisions of this
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Agreement which require, or permit, differing payments to be made to
Non-Defaulting Lenders as opposed to Defaulting Lenders.
11.07 Calculations; Computations. (a) The financial statements to be
furnished to the Lenders pursuant hereto shall be made and prepared in
conformity with GAAP or Statutory Accounting Principles, as the case may be,
consistently applied throughout the periods involved (except as set forth in the
notes thereto or as otherwise disclosed in writing by the Borrowers to the
Lenders and with respect to any interim financial statements, subject to changes
resulting from audit and normal year-end audit adjustments), provided that (x)
except as otherwise specifically provided herein, all computations determining
compliance with Sections 7.07 and 7.08, including definitions used therein,
shall utilize accounting principles and policies in effect at the time of the
preparation of, and in conformity with those used to prepare, the December 31,
1997 financial statements delivered to the Lenders pursuant to Section 5.04(a)
and (y) if at any time the computations determining compliance with Sections
7.07 and 7.08 utilize accounting principles different from those utilized in the
financial statements furnished to the Lenders, such financial statements shall
be accompanied by reconciliation work-sheets.
(b) All computations of interest and Fees hereunder shall be made on
the actual number of days elapsed over a year of 360 days (365-366 days for
interest on Base Rate Loans when the Base Rate is based on the Prime Lending
Rate).
11.08 Governing Law; Submission to Jurisdiction; Venue; Waiver of Jury
Trial. (a) THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE CONSTRUED IN
ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK. Any legal
action or proceeding with respect to this Agreement or any other Credit Document
may be brought in the courts of the State of New York or of the United States
for the Southern District of New York, and, by execution and delivery of this
Agreement, each Borrower hereby irrevocably accepts for itself and in respect of
its property, generally and unconditionally, the jurisdiction of the aforesaid
courts. Each Borrower further irrevocably consents to the service of process out
of any of the aforementioned courts in any such action or proceeding by the
mailing of copies thereof by registered or certified mail, postage prepaid, to
it, to the extent located outside New York City, or by hand, to the extent
located within New York City, at its address for notices pursuant to Section
11.03, such service to become effective 30 days after such mailing. Nothing
herein shall affect the right of any Agent or any Lender to serve process in any
manner permitted by law or to commence legal proceedings or otherwise proceed
against any Borrower in any other jurisdiction.
(b) Each Borrower each hereby irrevocably waives any objection which
it may now or hereafter have to the laying of venue of any of the aforesaid
actions or proceedings arising out of or in connection with this Agreement or
any other Credit Document brought in the courts referred to in clause (a) above
and hereby further irrevocably waives and agrees not to plead or claim in any
such court that any such action or proceeding brought in any such court has been
brought in an inconvenient forum.
-47-
(c) Each of the parties to this Agreement hereby irrevocably waives
all right to a trial by jury in any action, proceeding or counterclaim arising
out of or relating to this Agreement, the other Credit Documents or the
transactions contemplated hereby or thereby.
11.09 Counterparts. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A set of counterparts
executed by all the parties hereto shall be lodged with Parent, Corp. and the
Administrative Agent.
11.10 Headings Descriptive. The headings of the several sections and
subsections of this Agreement are inserted for convenience only and shall not in
any way affect the meaning or construction of any provision of this Agreement.
11.11 Amendment or Waiver. Neither this Agreement nor any other Credit
Document nor any terms hereof or thereof may be changed, waived, discharged or
terminated unless such change, waiver, discharge or termination is in writing
signed by the Borrowers and the Required Lenders, provided that no such change,
waiver, discharge or termination shall, without the consent of each Lender
(other than a Defaulting Lender) directly affected thereby, (i) extend the Final
Maturity Date or reduce the rate or extend the time of payment of interest
(other than as a result of waiving the applicability of any post-default
increase in interest rates) or Fees or other amounts payable hereunder, or
reduce the principal amount thereof, or increase the Commitment of any Lender
over the amount thereof then in effect (it being understood that a waiver of any
Default or Event of Default or of a mandatory reduction in the Total Commitment
shall not constitute a change in the terms of any Commitment of any Lender),
(ii) amend, modify or waive any provision of this Section 11.11 or of Section
4.02(d), (iii) reduce the percentage specified in, or (except to give effect to
any additional facilities hereunder) otherwise modify, the definition of
Required Lenders, or (iv) consent to the assignment or transfer by any Borrower
of any of its rights and obligations under this Agreement.
11.12 Survival. All indemnities set forth herein including, without
limitation, in Section 1.11, 1.12 or 3.04 shall survive the execution and
delivery of this Agreement and the making and repayment of the Loans.
11.13 Domicile of Loans. Each Lender may transfer and carry its Loans
at, to or for the account of any branch office, Subsidiary or affiliate of such
Lender, provided that the Borrowers shall not be responsible for costs arising
under Section 1.11 or 3.04 resulting from any such transfer (other than a
transfer pursuant to Section 1.13 or 1.14) to the extent not otherwise
applicable to such Lender prior to such transfer.
11.14 Confidentiality. Subject to Section 11.04, the Lenders shall
hold all non-public information obtained pursuant to the requirements of this
Agreement in accordance with its customary procedure for handling confidential
information of this nature and in accordance with safe and sound banking
practices and in any event may make disclosure to its Affiliates, employees,
auditors, advisors or counsel or as reasonably required by any bona fide
transferee or participant in connection with the contemplated transfer of any
Loans or participation therein (so long as such transferee or participant agrees
to be bound by the provisions of this Section 11.14)
-48-
or as required or requested by any governmental agency or representative thereof
or pursuant to legal process, provided that, unless specifically prohibited by
applicable law or court order, each Lender shall notify Parent of any request by
any governmental agency or representative thereof (other than any such request
in connection with an examination of the financial condition of such Lender by
such governmental agency) for disclosure of any such non-public information
prior to disclosure of such information, and provided further that in no event
shall any Lender be obligated or required to return any materials furnished by
Parent or any of its Subsidiaries.
11.15 Lender Register. Each Borrower hereby designates the
Administrative Agent to serve as its agent, solely for purposes of this Section
11.15, to maintain a register (the "Lender Register") on which it will record
the Commitments from time to time of each of the Lenders, the Loans made by each
of the Lenders and each repayment in respect of the principal amount of the
Loans of each Lender. Failure to make any such recordation, or any error in such
recordation, shall not affect the Borrowers' obligations in respect of such
Loans. With respect to any Lender, the transfer of the Commitments of such
Lender and the rights to the principal of, and interest on, any Loan made
pursuant to such Commitments shall not be effective until such transfer is
recorded on the Lender Register maintained by the Administrative Agent with
respect to ownership of such Commitments and Loans and prior to such recordation
all amounts owing to the transferor with respect to such Commitments and Loans
shall remain owing to the transferor. The registration of assignment or transfer
of all or part of any Commitments and Loans shall be recorded by the
Administrative Agent on the Lender Register only upon the acceptance by the
Administrative Agent of a properly executed and delivered Assignment Agreement
pursuant to Section 11.04(b). The Borrowers jointly and severally agree to
indemnify the Administrative Agent from and against any and all losses, claims,
damages and liabilities of whatsoever nature which may be imposed on, asserted
against or incurred by the Administrative Agent in performing its duties under
this Section 11.15 other than those resulting from the Administrative Agent's
willful misconduct or gross negligence.
* * *
-49-
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Agreement to be duly executed and delivered as of the date first above
written.
MBIA Inc. MBIA INC.,
000 Xxxx Xxxxxx as a Xxxxxxxx
Xxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxx Xxxxxx
By /s/ Xxxxxx Xxxxxx
------------------------------------------
with a copy to: Title: Treasurer
000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxx X. Xxxxxx
MBIA Insurance Corporation MBIA INSURANCE CORPORATION,
000 Xxxx Xxxxxx as a Xxxxxxxx
Xxxxxx, Xxx Xxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxx Xxxxxx
By /s/ Xxxxxx Xxxxxx
------------------------------------------
with a copy to: Title: Treasurer
000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxx X. Xxxxxx
DEUTSCHE BANK AG NEW YORK BRANCH,
Individually and as Administrative Agent
By: /s/ Xxxx Xxxxx
-----------------------------------------
Title: Director
By: /s/ Xxxx X. XxXxxx
-----------------------------------------
Title: Director
THE BANK OF NEW YORK
By /s/ Xxxxx Xxxxx
------------------------------------------
Title: Vice President
BANK ONE, NA
By /s/ Xxxxxxxx Xxxxxxx
------------------------------------------
Title: Director
BARCLAYS BANK plc
By /s/ Xxxxxx X. XxXxxxxx
------------------------------------------
Title: Associate Director
FLEET NATIONAL BANK
By /s/ Xxxxxxxx X. Xxxxx
------------------------------------------
Title: Portfolio Manager
JPMORGAN CHASE BANK
By /s/ XxxxXxxx Xxxxxx
------------------------------------------
Title: Vice President
BANK OF AMERICA, N.A.
By /s/ Xxx X. Xxxxxx
------------------------------------------
Title: Managing Director
XXXXX FARGO BANK, N.A.
By /s/ Xxxxxx X. Xxxxx
------------------------------------------
Title: Vice President
By /s/ Xxxx X. XxXxxxxx
------------------------------------------
Title: Vice President
ABN AMRO BANK N.V.
By /s/ Xxxx X. Xxxxx
------------------------------------------
Title: Vice President
By /s/ Xxxxx X. Xxxxxxxx
------------------------------------------
Title: GVP
NATIONAL AUSTRALIA BANK LIMITED
ACN004044937
By /s/ Xxxxxxx X. XxXxxx
------------------------------------------
Title: Vice President
NORDDEUTSCHE LANDESBANK
GIROZENTRALE
New York and/or Cayman Islands Branch
By /s/ Xxxxxxxxx Xxxxxx
------------------------------------------
Title: Vice President
By /s/ Xxxxx Xxxxxx
------------------------------------------
Title: Vice President & Manager
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK
INTERNATIONAL", NEW YORK BRANCH
By /s/ Xxxxxx X. Xxxxxx
------------------------------------------
Title: Executive Director
By /s/ Xxxxxx X. Xxxxxx
------------------------------------------
Title: Managing Director
ANNEX I
COMMITMENTS
Lender Commitment
------------------------------------------------------------------------------
Deutsche Bank AG New York Branch and/or Cayman
Islands Branches $ 28,000,000
------------------------------------------------------------------------------
The Bank of New York $ 26,000,000
------------------------------------------------------------------------------
Bank One, N.A. $ 26,000,000
------------------------------------------------------------------------------
Barclays Bank plc $ 26,000,000
------------------------------------------------------------------------------
Fleet National Bank $ 26,000,000
------------------------------------------------------------------------------
JPMorgan Chase Bank $ 21,700,000
------------------------------------------------------------------------------
Bank of America, N.A. $ 21,700,000
------------------------------------------------------------------------------
Xxxxx Fargo Bank, N.A. $ 16,700,000
------------------------------------------------------------------------------
ABN-AMRO Bank, N.V. $ 8,300,000
------------------------------------------------------------------------------
National Australia Bank Limited $ 8,300,000
------------------------------------------------------------------------------
Norddeutsche Landesbank Girozentrale, New York and/or $ 8,300,000
------------------------------------------------------------------------------
Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A.,
"Rabobank International", New York Branch $ 8,300,000
------------------------------------------------------------------------------
Total $ 225,300,000
==============================================================================
ANNEX II
LENDER ADDRESSES
------------------------------------------------------------------------------
Deutsche Bank AG 00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx Branch Xxx Xxxx, XX 00000
Attn.: Xxxx Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
e-mail: xxxx.xxxxx@xx.xxx
------------------------------------------------------------------------------
The Bank of New York Xxx Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
e-mail: xxxxxx@xxxxxxxx.xxx
------------------------------------------------------------------------------
Bank One, N.A. 000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxx Xxxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
e-mail: xxx_xxxxxxxxx@xxxxxxx.xxx
------------------------------------------------------------------------------
Barclays Bank plc 000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
e-mail: xxxxxx.xxxxxxxx@xxxxxx.xxx
------------------------------------------------------------------------------
Fleet National Bank 000 Xxxx Xxxxxx XXXX 0000
Xxxxxxxx, XX 00000-0000
Attn: Xxxxxxxxx X. Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
e-mail: xxxxx_x_xxxxxxxx@xxxxx.xxx
------------------------------------------------------------------------------
-----------------------------------------------------------------------------
JPMorgan Chase 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxxx Xxxxxx
Tel:: (000) 000-0000
Fax: (000) 000-0000
e-mail: xxxxxxxx.xxxxxx@xxxxx.xxx
-----------------------------------------------------------------------------
Bank of America, N.A. 000 Xxxx Xxxxxx
00xx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxx X'Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
e-mail: xxxx.xxxxxx@xxxxxxxxxxxxx.xxx
with a copy to:
000 Xxxx Xxxxxx
00xx Xxxxx
Xxxxxx, XX 00000
Attn: Xxx Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
e-mail: xxx.x.xxxxxx@xxxxxxxxxxxxx.xxx
-----------------------------------------------------------------------------
Xxxxx Fargo Bank, N.A. 000 X. Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
e-mail: xxxxxxx@xxxxxxxxxx.xxx
-----------------------------------------------------------------------------
ABN AMRO Bank, N.V. 00 Xxxx 00xx Xxxxxx
Xxx Xxxx XX 00000
Attn: Xxxx Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
e-mail: xxxx.xxxxx@xxxxxxx.xxx
-----------------------------------------------------------------------------
ANNEX II
------------------------------------------------------------------------------
National Australia Bank Limited, 000 Xxxx Xxxxxx, Xxxxx 00
Xxx Xxxx Branch ACN 004044937 Xxx Xxxx, XX 00000
Attn: Xxxx XxXxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
e-mail: xxxxxxx@xxxxx.xxx
------------------------------------------------------------------------------
Norddeutsche Landesbank Girozentrale, 1114 Avenue of the Americas
New York Branch and/or Cayman Xxx Xxxx, XX 00000
Islands Branch Attn: Xxxxx Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
e-mail: xxxxx.xxxxxx@xxxxxx.xxx
------------------------------------------------------------------------------
Rabobank International 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
e-mail: x.x.xxxxxx@xxx.xxxxxxxx.xxx
------------------------------------------------------------------------------
ANNEX III
SUBSIDIARIES OF MBIA INC.
MBIA INSURANCE CORPORATION (NEW YORK)
MUNICIPAL ISSUERS SERVICE CORPORATION (NEW YORK)
MBIA INSURANCE CORP. OF ILLINOIS (ILLINOIS)
MBIA ASSET MANAGEMENT, LLC (DELAWARE)
MBIA MUNICIPAL INVESTORS SERVICE CORPORATION (DELAWARE)
COLORADO INVESTOR SERVICES CORPORTION (COLORADO)
MBIA INVESTMENT MANAGEMENT CORP. (DELAWARE)
MBIA CAPITAL MANAGEMENT CORP. (DELAWARE)
1838 INVESTMENT ADVISORS, INC. (DELAWARE)
1838 DELAWARE HOLDING, LLC (DELAWARE)
MBIA & ASSOCIATES CONSULTING, INC.
MBIA CAPITAL CORP. (DELAWARE)
MBIA INTERNATIONAL MARKETING SERVICES, XXX.XXXXXXX (AUSTRALIA)
MBIA ASSURANCE S.A. (FRANCE)
MBIA SINGAPORE PTE LTD (SINGAPORE)
MBIA SERVICES COMPANY (DELAWARE)
MBIA MUNISERVICES COMPANY (DELAWARE)
MUNICIPAL TAX COLLECTION BUREAU, INC. (PENNSYLVANIA)
XXXX X. XXXXXX, INC. (CALIFORNIA)
XXXXX X. XXXXXXX, INC. (CALIFORNIA)
MUNICIPAL RESOURCE CONSULTANTS (CALIFORNIA)
MUNI RESOURCES, LLC (DELAWARE)
CAPITAL ASSET HOLDINGS GP, INC. (FLORIDA)
CAPMAC HOLDINGS INC (DELAWARE)
CAPITAL MARKETS ASSURANCE CORPORATION (NEW YORK)
CAPMAC INVESTMENT MANAGEMENT, INC. (DELAWARE)
CAPMAC FINANCIAL SERVICES, INC. (DELAWARE)
CAPMAC FINANCIAL SERVICES (EUROPE) LTD. (UNITED KINGDOM)
CAPMAC ASIA LTD (BERMUDA)
