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Exhibit 99 Form of Credit Agreement among the Company and Various Banks
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U.S. $1,500,000,000
CREDIT AGREEMENT
AMONG
ASSOCIATES FIRST CAPITAL CORPORATION,
DEUTSCHE BANK AG
as Administrative Agent,
UNION BANK OF SWITZERLAND,
as Syndication Agent
COMMERZBANK AG
as Documentation Agent
and
THE SEVERAL BANKS NAMED HEREIN,
Dated as of March 31, 1996.
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TABLE OF CONTENTS*
SECTION 1. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1. Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2. Other Definitional Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 2. AMOUNT AND TERMS OF LOANS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.1. The Commitments and the Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.2. Procedure for Borrowing and Disbursement . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.3. Interest on Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 3. TERMS OF UNCOMMITTED ADVANCES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.1. The Uncommitted Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.2. Procedure for Borrowing and Disbursement . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.3. Interest on Uncommitted Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 4. ADDITIONAL TERMS RELATING TO LOANS AND UNCOMMITTED ADVANCES . . . . . . . . . . . . 13
4.1. Loan Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
4.2. Change in Circumstances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
4.3. Repayment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
4.4. Termination or Reduction of Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . 15
4.5. Facility, Utilization, Participation, Arrangement and Agency Fees . . . . . . . . . . . . . 15
4.6. Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
4.7. Pro Rata Treatment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
4.8. Illegality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
4.9. Increased Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
4.10. Taxes on Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
4.11. Additional Action in Certain Events . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
4.12. Indemnity for Losses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
4.13. Purpose of Credit Facility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
4.14. Maximum Interest Rate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 5. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 6. CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
6.1. Conditions of Initial Borrowings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
6.2. Conditions to All Borrowings; Repetition of Representations . . . . . . . . . . . . . . . . 26
SECTION 7. COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 8. EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 9. THE AGENT; THE SYNDICATION AGENT . . . . . . . . . . . . . . . . . . . . . . . . . . 33
9.1. Authorization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
9.2. Delegation of Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
9.3. Exculpatory Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
9.4. Reliance by Agent, Syndication Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
9.5. Notice of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
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9.6. Non-Reliance on Agent or Syndication Agent and Other Banks . . . . . . . . . . . . . . . . . 35
9.7. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
9.8. Agent in its Individual Capacity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
9.9. Successor Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 10. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
10.1. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
10.2. Expenses; Stamp Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
10.3. Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
10.4. No Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
10.5. Successors and Assigns; Lending Offices; Lending Affiliates; Additional Banks . . . . . . . 40
10.6. Proration of Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
10.7. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
10.8. Survival of Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . 44
10.9. Survival of Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
10.10. No Third Party Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
10.11. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
10.12. Jurisdiction; Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
10.13. Waiver of Trial by Jury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
10.14. Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
10.15. Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
10.16. Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
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CREDIT AGREEMENT, dated as of March 31, 1996, among ASSOCIATES FIRST
CAPITAL CORPORATION, a corporation organized under the laws of the State of
Delaware, United States of America, whose principal office is located at 000
Xxxx Xxxxxxxxx Xxxxxxx, Xxxxxx, Xxxxx 00000-0000, Xxxxxx Xxxxxx of America,
(the "Company"), the several banks which are parties hereto from time to time
(individually, a "Bank" and, collectively, the "Banks"), Union Bank of
Switzerland, as syndication agent (the "Syndication Agent"), Commerzbank AG, as
documentation agent (the "Documentation Agent"), and Deutsche Bank AG as
administrative agent for the Banks (in such capacity, the "Agent").
The parties to this Agreement hereby agree as follows:
SECTION 1. DEFINITIONS
1.1. DEFINED TERMS
As used in this Agreement, the following terms shall have the
following meanings:
"ACONA" shall mean Associates Corporation of North America, a Delaware
corporation.
"ACONA Agreement" shall mean the Credit Agreement, dated as of March
31, 1996, among ACONA, the Banks, Union Bank of Switzerland, as
syndication agent, Commerzbank AG, as documentation agent, and
Deutsche Bank AG, as administrative agent.
"Agreement" shall mean this Credit Agreement, as the same may be
amended, supplemented or modified from time to time.
"Applicable Laws" shall have the meaning as defined in Section 7.6.
"Base Rate" for any day shall mean the higher of (a) the rate of
interest announced by Deutsche Bank AG (or the successor Agent) in New
York City, New York from time to time as its prime rate (or in the
case of any successor Agent, its prime rate or other similar base
rate) (such prime rate, or other rate as the case may be, is not
intended to be the lowest rate of interest charged by Deutsche Bank AG
(or the successor Agent) in connection with extensions of credit to
debtors) and (b) the rate determined by Deutsche Bank AG (or the
successor Agent) to be the Federal Funds Rate plus 0.50% per annum.
"Base Rate Loans" shall mean those Loans (or portion thereof) as to
which interest is determined by reference to the Base Rate as elected
by the Company from time to time.
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"Board" shall have the meaning as defined in subsection 4.9(c).
"Borrowing Date" shall mean the Business Day requested by the Company
in its notice of borrowing pursuant to sections 2.2 or 3.2 as the date
for the making of the relevant Loan or Uncommitted Advance.
"Business Day" shall mean a day on which dealings in U.S. Dollars
between banks may be carried on in London and New York, New York and a
day on which banks are open for business in London and are not
required or authorized to close in New York City.
"Commitment" shall mean, with respect to any Bank, the amount
designated as such set forth opposite the name of such Bank on the
signature pages hereof or, if applicable, in the Commitment Register,
and as such amount may be reduced or terminated as provided in this
Agreement; and "Commitments" shall mean the aggregate amount of the
Commitments of all Banks.
"Commitment Register" shall have the meaning as defined in subsection
10.5(f).
"Consolidated Subsidiary" shall mean every Subsidiary except any
Subsidiary the accounts of which are, with the approval of the
independent public accountants of the Company, excluded from the
consolidated financial statements of the Company, but any such
Subsidiary shall be deemed not to constitute a Consolidated Subsidiary
only during any period or periods for which its accounts are so
excluded.
"Dollars" and the sign "$" shall mean freely transferable lawful money
of the United States of America.
"Effective Date" shall mean March 31, 1996.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time.
"Event of Default" shall have the meaning as defined in Section 8.
"Federal Funds Rate" means, for any period,
(a) a fluctuating interest rate per annum equal for each
day during such period to the weighted average of the rates on
overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as
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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
(b) if such rate is not so published for any day which is a
Business Day, the average of the quotations at approximately 11:00
a.m., New York time, for such day on such transactions received by
Deutsche Bank AG, from three federal funds brokers of recognized
standing selected by it.
"Finance Business" shall mean the business of making loans, extending
credit or providing financial accommodations to any person and such
activities as may be incidental thereto, including, but not limited
to: the purchase of obligations growing out of the sale or lease of
all types of consumer, commercial and industrial property; the making
of loans to individuals and business enterprises, including the
extension of wholesale or floor plan accommodations to permit
distributors and dealers to carry inventories of durable goods for
resale; factoring; leasing of tangible personal property to others;
mortgage brokerage and servicing; and other business of a similar
character to the extent that other companies similarly situated,
within the limits of sound trade practice, may have heretofore engaged
or may hereafter engage in such other business; but not including the
business of a federally insured deposit taking institution.
"Finance Subsidiary" shall mean a Subsidiary primarily engaged in the
Finance Business."
"Indebtedness" of any person shall mean all items (other than
stockholders' equity) which in accordance with generally accepted
accounting principles would be included in determining total
liabilities as shown on the liability side of a balance sheet of such
person as of the date on which such Indebtedness is to be determined.
"Interest Period" shall mean, with respect to any LIBOR Loan or any
Uncommitted Advance, the period commencing on the Borrowing Date with
respect to such Loan or Uncommitted Advance and ending on the Maturity
Date for such Loan or Uncommitted Advance; provided that Interest
Periods in respect of LIBOR Loans and Uncommitted Advances (or
portions thereof) not paid on their respective Maturity Dates shall,
for purposes of determining LIBOR, be such periods of one, two, three,
six, nine or twelve months' duration as the Agent shall select in its
sole discretion (the interest rate referred to in this proviso to be
recalculated and adjusted at the end of each such Interest Period for
the next succeeding Interest Period selected by the Agent).
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"Interest Rate" shall mean either the Base Rate or LIBOR, as the case
may be, which the Company may elect with respect to Loans as provided
in this Agreement.
"Lending Affiliate" shall have the meaning as defined in subsection
10.5(c).
"Lending Office" shall mean, with respect to any Bank, (a) initially,
its office and that of its Lending Affiliate, if any, designated in
Schedule 1 as the office at which such Bank's Loans and/or Uncommitted
Advances will be maintained and for the account of which all payments
of principal of, and interest on, such Bank's Loans and/or Uncommitted
Advances will be made and (b) subsequently, such other office of such
Bank as it may designate to the Agent pursuant to subsection 10.5(b)
as the office at which such Bank's Loans and/or Uncommitted Advances
will thereafter be maintained and for the account of which all
payments of principal of, and interest on, such Bank's Loans and/or
Uncommitted Advances will thereafter be made.
"LIBOR" shall mean, with respect to any Interest Period for any LIBOR
Loan, a rate per annum equal to the average (rounded upward if
necessary to the nearest 1/16 of 1% per annum) of the respective rates
per annum notified to the Agent on the second Business Day prior to
the commencement of such Interest Period by the principal New York
City office of each Reference Bank as the rate at which deposits in
Dollars are offered by each such Reference Bank to prime banks in the
London interbank market for delivery for same day value on the first
day of such Interest Period and for the number of months or days
comprised therein in an amount approximately equal to the amount of
the Loan of such Reference Bank to be outstanding during such Interest
Period.
"LIBOR Loans" shall mean those Loans (or portion thereof) as elected
by the Company as to which the rate of interest is determined by
reference to LIBOR as elected by the Company for an Interest Period
from time to time.
"Loans" shall mean each amount which each Bank advances to the Company
pursuant to subsection 2.1(a).
"Majority Banks" shall mean Banks to which at least 66 2/3% of the
aggregate unpaid principal amount of the Loans are owing or, if no
Loans shall be outstanding at the time of determination, Banks having
at least 66 2/3% of the aggregate amount of the Commitments.
"Margin" shall mean 0.10 percent (0.10%) per annum.
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"Maturity Date" shall mean (a) for a LIBOR Loan a day numerically
corresponding to the Borrowing Date for such Loan one month, two
months, three months, six months, nine months or twelve months from
such Borrowing Date as the Company shall elect in a notice of
borrowing pursuant to subsection 2.2(a) and, in the case of Maturity
Dates of nine or twelve months from such Borrowing Date, for which the
Agent and the Banks have determined that funding is available in
accordance with said subsection, (b) for a Base Rate Loan the Business
Day selected by the Company as the Maturity Date for such Base Rate
Loan in a notice of borrowing pursuant to subsection 2.2(a), which in
no event shall be later than the 30th day following the Borrowing Date
for such Base Rate Loan and (c) for an Uncommitted Advance the
Business Day selected by the Company as the Maturity Date for such
Uncommitted Advance in a notice of borrowing pursuant to subsection
3.2(a), which in no event shall be shorter than 7 days or longer than
180 days following the Borrowing Date for such Uncommitted Advance;
provided that (x) in the event that any Maturity Date for a Loan or
Uncommitted Advance would otherwise be a day which is not a Business
Day or in the event that a Maturity Date for a Loan or Uncommitted
Advance shall be specified to be a day which, subsequent to such
specification, ceases to be a Business Day, such Maturity Date shall
be extended to the next succeeding Business Day unless, in the case of
a Loan or Uncommitted Advance, such Business Day falls in another
calendar month, in which case such Maturity Date shall be the next
preceding Business Day, and any extension of time pursuant to this
clause with respect to any payment of principal shall be included in
computing interest in connection with such payment, (y) any Maturity
Date for a Loan or Uncommitted Advance which falls on a day for which
there is no numerically corresponding day in the relevant calendar
month shall fall on the last Business Day of such calendar month and
(z) any Maturity Date for a Loan or Uncommitted Advance which would
otherwise fall on a day after the Termination Date shall fall on the
last Business Day which is or immediately precedes the Termination
Date.
"New Company" shall have the meaning as defined in Section 7.4.
"Optional Majority Banks" shall have the meaning as defined in
Section 8.
"Purchasing Bank" shall have the meaning as defined in subsection
10.5(d).
"Reference Banks" shall mean Union Bank of Switzerland, Deutsche Bank
AG and Commerzbank AG.
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"Significant Subsidiary" shall mean a Subsidiary that meets all of the
following tests:
(a) The Company's and other Subsidiaries' investments in
and advances to, or their proportionate share of the total
assets (after intercompany eliminations) of, such Subsidiary
exceeds 15 percent (15%) of the total assets as shown by the
most recent consolidated balance sheet of the Company and
its Consolidated Subsidiaries;
(b) The total revenues (after intercompany eliminations)
of such Subsidiary reduced to the percentage of equity
interest held by the Company and its other Subsidiaries in
such Subsidiary exceeds 20 percent (20%) of the total
revenues as shown by the most recent consolidated income
statement of the Company and its Consolidated Subsidiaries;
and
(c) The Company's and other Consolidated Subsidiaries'
equity in the income before taxes and extraordinary items of
such Subsidiary exceeds 20 percent (20%) of such income of
the Company and Consolidated Subsidiaries for the most
recent fiscal year; provided that, if such income of the
Company and its Consolidated Subsidiaries for the last
fiscal year is at least 10 percent (10%) lower than the
average of such income for the last five fiscal years, such
average income may be substituted in the determination.
"Subsidiary" shall mean a corporation more than 50 percent (50%) of
the stock of which is directly or indirectly owned by the Company or
its Subsidiaries.
"Substituted Bank" shall have the meaning as defined in subsection
10.5(e).
"Termination Date" shall mean April 1, 1999, or such earlier date as
the Commitments shall terminate as provided in this Agreement.
"Uncommitted Advances" shall mean each amount which each Bank advances
to the Company pursuant to subsection 3.1.
1.2. OTHER DEFINITIONAL PROVISIONS
(a) All terms defined in this Agreement shall have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto.
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(b) As used herein and in any certificate or other document made or
delivered pursuant hereto, accounting terms relating to the Company not defined
in subsection 1.1, and accounting terms partly defined in subsection 1.1 to the
extent not defined, shall have the respective meanings given to them under
generally accepted accounting principles in the United States in effect from
time to time.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and section,
subsection, schedule and exhibit references are to this Agreement unless
otherwise specified. Unless the context otherwise requires, words denoting the
singular only shall include the plural and vice versa.
SECTION 2. AMOUNT AND TERMS OF LOANS
2.1. THE COMMITMENTS AND THE LOANS
(a) Subject to the terms and upon the conditions of this Agreement,
each Bank severally agrees to make Loans in Dollars through its Lending Office
to the Company from time to time during the period from, and including the
Effective Date, to, but excluding the Termination Date (individually, a "Loan"
and, collectively for all the Banks, the "Loans"), in an aggregate principal
amount at any one time outstanding, not to exceed, when added to the aggregate
principal amount of Uncommitted Advances made by it under this Agreement, and
Loans and Uncommitted Advances made by it under the ACONA Agreement, which are
then outstanding or to be outstanding on the Borrowing Date, the amount of its
Commitment at such time, with the Commitments of all the Banks not to exceed
$1,500,000,000.
(b) The Company may borrow, repay and reborrow hereunder subject to
the conditions and terms hereof.
(c) The Commitments shall terminate on the Termination Date, unless
terminated earlier in accordance with this Agreement.
2.2. PROCEDURE FOR BORROWING AND DISBURSEMENT
(a) The Company may request the making of Loans by giving the Agent
prior irrevocable notice of each borrowing pursuant to this subsection 2.2(a)
specifying (i) the Borrowing Date for such Loans, (ii) the aggregate amount of
the Loans requested to be made on such Borrowing Date which shall be at least
$10,000,000 and an integral multiple of $5,000,000 in excess thereof, and
which, when added to the aggregate principal amount of all Loans outstanding
hereunder and under the ACONA Agreement and the aggregate principal
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amount of the Uncommitted Advances hereunder and under the ACONA Agreement to
be outstanding on such Borrowing Date shall not exceed the Commitments on such
Borrowing Date, (iii) the Interest Rate selected by the Company and (iv) the
Maturity Date for such Loans as the Company shall select; provided that the
Company shall give the Agent such prior irrevocable notice (w) by 10:00 a.m.
(New York time) on the Borrowing Date when requesting Base Rate Loans, (x) by
11:00 a.m. (New York time) three Business Days prior to the Borrowing Date when
requesting LIBOR Loans hereunder having a duration of one, two, three or six
months, and (y) by 10:00 a.m. (New York time) four Business Days prior to the
Borrowing Date when requesting LIBOR Loans having a duration of nine or twelve
months. Upon receiving any such notice of borrowing, the Agent shall promptly
notify, and in any event on the same day, each Bank of the contents thereof and
of the principal amount of the Loan which such Bank shall be required to make
on the relevant Borrowing Date. In the event that the Company has requested a
LIBOR Loan of nine or twelve months' duration, each Bank shall notify the Agent
by facsimile or telex by 10:00 a.m. (New York time) on the date which is three
Business Days prior to the requested Borrowing Date if funds are not available
to such Bank on reasonable terms in the London interbank eurocurrency market
for such period. In the event that any Bank shall so notify the Agent, the
Company shall be deemed to have requested LIBOR Loans of six months duration
from all of the Banks and the Agent shall promptly notify the Banks thereof.
(b) Unless such Bank's Commitment on any Borrowing Date shall have
been terminated in accordance with the terms of this Agreement, each Bank shall
make available for the account of its Lending Office, on each Borrowing Date,
the amount of its Loan to be made on such Borrowing Date to the Agent not later
than 10:00 a.m. (New York time) in the case of LIBOR Loans and 12:00 noon (New
York time) in the case of Base Rate Loans to: Deutsche Bank AG, New York
Branch, ABA: 026 003 780, Account Name: Syndication Clearing Account, Account
Number: 100440240008, Ref: Associates First Capital Corporation, in Dollars
and in funds with same day value. Subject to the satisfaction of the
conditions set forth in Section 6, the Agent shall make available to the
Company on each Borrowing Date, the aggregate of the amounts so received by it
in like funds by credit not later than 12:00 noon (New York time) in the case
of LIBOR Loans and 2:00 p.m. (New York time) in the case of Base Rate Loans to:
The Account of Associates First Capital Corporation, at The First National Bank
of Chicago, Account #0000000, ABA #071 000 013, Reference: Associates, or to
such other account as the Company may direct; provided, however, that if the
Agent shall receive less than all the amounts payable by the Banks in
accordance with this Section 2.2 the Agent shall make available to the Company
as aforesaid such aggregate principal
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amount as it shall actually have received, or at its option such greater amount
in accordance with subsection 4.6(b).
2.3. INTEREST ON LOANS
(a) Each Loan shall bear interest on the unpaid principal amount
thereof from the Borrowing Date until paid in full (both before and after
judgment) at a rate per annum equal to (1) for the Base Rate Loans, the Base
Rate, and (2) for LIBOR Loans, for any Interest Period, the sum of LIBOR and
the Margin. Interest on each Loan shall be payable (i) in the case of Base
Rate Loans, on the Maturity Date, (ii) in the case of LIBOR Loans, the
applicable Maturity Date of the LIBOR Loan, or if the Maturity Date is in
excess of three months from the Borrowing Date of such LIBOR Loan, interest
shall also be payable on the expiration of each three-month period from such
Borrowing Date, provided that, if any such date is not a Business Day, such
payment shall be made on the next succeeding Business Day unless such Business
Day falls in another calendar month, in which case such payment shall be made
on the preceding Business Day.
(b) Promptly after each determination of LIBOR, the Agent shall
notify the Company and the Banks of the rate of interest applicable to, and the
amount of interest payable for, each Interest Period for each such LIBOR Loan.
For Base Rate Loans, any change in the interest rate resulting from a change in
the Base Rate shall become effective as of the opening of business on the day
on which such change in the Base Rate is announced. The Agent shall also
notify the Company and the Banks of the effective date and the Base Rate on the
occurrence of each change in the Base Rate, provided, however, that the failure
to promptly give any such notice shall not affect the effective date of such
change in the Base Rate or the obligation of the Company to pay same. Interest
on Base Rate Loans shall be computed at the Base Rate based on a 365 or 366-day
year, as the case may be, for the actual number of days each Base Rate Loan is
outstanding. Interest on LIBOR Loans shall be computed at the per annum rate
for LIBOR specified in subsection 2.3(a) based on a 360-day year for the actual
number of days in the Interest Period. The determination set forth in such
notices shall be conclusive in the absence of manifest error.
SECTION 3. TERMS OF UNCOMMITTED ADVANCES
3.1. THE UNCOMMITTED ADVANCES
(a) From time to time during the period from and including the
Effective Date to but excluding the Termination Date, and subject to the terms
and upon the conditions of this Agreement, the Company may request the Banks to
bid to make Uncommitted Advances. Each Bank which at its option submits a bid
to make an Uncommitted Advance to the Company and has received a notice
pursuant to subsection 3.2(g) agrees to make an Uncommitted
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Advance through its Lending Office to the Company (individually, an
"Uncommitted Advance" and, collectively for all the Banks, the "Uncommitted
Advances") in such amount as notified to such Bank in the notice delivered
pursuant to subsection 3.2(g), but in no event to exceed the amount requested
by the Company in its notice of borrowing pursuant to subsection 3.2(a);
provided, however, in no event may the aggregate outstanding principal amount
of Loans and Uncommitted Advances made pursuant to this Agreement and the ACONA
Agreement exceed the Commitments.
(b) The Company may borrow, repay and reborrow hereunder subject to
the conditions and terms hereof.
3.2. PROCEDURE FOR BORROWING AND DISBURSEMENT
(a) The Company may request the Banks to submit bids for the making
of Uncommitted Advances by giving the Agent prior notice of each borrowing
pursuant to this subsection 3.2(a) by 10:00 a.m. (New York time) two Business
Days before the proposed Borrowing Date, specifying (i) the Borrowing Date for
such Uncommitted Advances, (ii) the aggregate amount of the Uncommitted
Advances requested to be made on such Borrowing Date, which shall be at least
$10,000,000 and an integral multiple of $5,000,000 in excess thereof, and (iii)
the Maturity Dates for such Uncommitted Advances as the Company shall select
which shall be not less than 7 days and shall not exceed 180 days from the
Borrowing Date; provided that the Company may not request more than three
Maturity Dates in bid requests made during any one Business Day. The Agent
shall promptly notify each Bank of the contents of such notice by the Company.
(b) Each Bank may irrevocably bid to make all or a portion of the
Uncommitted Advances requested by the Company in its notice of borrowing
pursuant to subsection 3.2(a) by giving the Agent an irrevocable bid, not later
than 12:00 noon (New York time) (11:00 a.m. [New York time] in the case of a
bid by the Bank which is the Agent) one Business Day before the Borrowing Date,
specifying (i) the aggregate principal amount of the Uncommitted Advances
requested by the Company which it bids to make, which shall be at least
$1,000,000 and an integral multiple of $1,000,000 in excess thereof, and (ii)
the per annum rate of interest to be in effect for the entire term of the
Uncommitted Advance.
(c) Any bid made by a Bank pursuant to subsection 3.2(b) shall be
irrevocable and each Bank agrees that if any bid made by it is accepted in
whole or in part it will make an Uncommitted Advance on the proposed Borrowing
Date in an aggregate principal amount equal to the aggregate principal amount
of the Uncommitted
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Advances for which its bid is accepted as notified to such Bank pursuant to
subsection 3.2(g).
(d) The Agent shall give notice to the Company of bids made by the
Banks pursuant to subsection 3.2(b) no later than 1:00 p.m. (New York time)
one Business Day before the proposed Borrowing Date.
(e) No later than 3:00 p.m. (New York time) one Business Day before
the proposed Borrowing Date the Company shall notify the Agent by telephone
(confirmed by facsimile) which bids, if any, it wishes to accept in whole or in
part, in accordance with subsection 3.2(f), provided, however, that bids
accepted in part shall be in a minimum principal amount of $500,000 and greater
integral multiples of $100,000.
(f) The Company, in consultation with the Agent, shall accept bids
in whole or in part (which acceptance shall be irrevocable) on the following
basis:
(i) Bids shall be ranked on the basis of lowest to highest
per annum rates of interest and the Company shall accept the lowest
per annum rates of interest first and thereafter successively higher
per annum rates of interest until the aggregate principal amount of
Uncommitted Advances requested by the Company in its notice of
borrowing pursuant to subsection 3.2(a) is reached; provided that in
the event that bids are made by two or more Banks at the same per
annum rate of interest for a greater principal amount of Uncommitted
Advances than the amount in respect of which such bids are accepted at
that per annum rate of interest then the principal amount of the
Uncommitted Advances in respect of which such bids are accepted shall
be allocated between such Banks by the Agent in such amounts as it may
in its absolute discretion decide as being as nearly as may be in
proportion to the respective principal amounts of Uncommitted Advances
for which bids were made by such Banks at such per annum rates of
interest but rounded up or down as may be necessary to a multiple of
the minimum denomination of the Uncommitted Advances to be made on the
same Borrowing Date; and provided, further, that the Company shall
have the right to reject any or all bids made by the Banks in the
order of the highest to lowest per annum rates of interest; and
(ii) the Company may not accept bids for Uncommitted
Advances in an aggregate principal amount greater than that requested
by the Company in the notice of borrowing pursuant to subsection
3.2(a).
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(g) The Agent shall promptly notify (with a copy to the Company)
each Bank which has made a bid whether its bid has been accepted, and whether
in whole or in part, specifying the principal amount of the Uncommitted
Advances in respect of which its bid has been accepted, the applicable per
annum rates of interest, the aggregate amount of Uncommitted Advances from all
Banks, and the number of Banks having Uncommitted Advances accepted.
(h) Each Bank whose bid for Uncommitted Advances has been accepted
in whole or in part pursuant to subsection 3.2(g) shall make available for the
account of its Lending Office, on each applicable Borrowing Date, the amount of
its Uncommitted Advance to be made on such Borrowing Date in Dollars, not later
than 10:00 a.m. (New York time) to Deutsche Bank AG, New York Branch, ABA: 026
003 780, Account Name: Syndication Clearing Account, Account Number:
100440240008, Ref: Associates First Capital Corporation, in Dollars and in
funds with same day value. Subject to the satisfaction of the conditions set
forth in Section 6, the Agent shall make available to the Company as soon as
practical on the Borrowing Date, the aggregate of the amounts so received by it
in like funds by credit in Dollars, to The Account of Associates First Capital
Corporation, at The First National Bank of Chicago, Account #0000000, ABA #071
000 013, Reference: Associates, or to such other account as the Company may
direct.
(i) After receiving written notice from any Bank or the Company
that an Event of Default under Section 8 has occurred and is continuing, the
Agent shall notify each Bank having Uncommitted Advances outstanding of the
identity of each other Bank having Uncommitted Advances outstanding and the
respective amounts of such Banks' Uncommitted Advances.
3.3. INTEREST ON UNCOMMITTED ADVANCES
(a) Each Uncommitted Advance shall bear interest on the unpaid
principal amount thereof from the Borrowing Date until paid in full (both
before and after judgment) at a rate per annum (computed on the basis of a year
of 360 days for the actual number of days elapsed) equal to the per annum rate
of interest for the Interest Period with respect to such Uncommitted Advance.
Interest on each Uncommitted Advance shall be payable on the Maturity Date with
respect thereto in Dollars, or, if the Maturity Date is in excess of three
months from the Borrowing Date of such Uncommitted Advance, interest shall also
be payable on the expiration of each three-month period from such Borrowing
Date; provided that, if any such date is not a Business Day, such payment shall
be made on the next succeeding Business Day unless such Business Day falls in
another calendar month, in which case such payment shall be made on the next
preceding Business Day.
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(b) The Agent shall notify the Company and the relevant Banks of
the rate of interest applicable to, and the amount of interest payable for,
each Interest Period for an Uncommitted Advance promptly after determination of
the rate of interest for such Interest Period.
SECTION 4. ADDITIONAL TERMS RELATING TO LOANS AND UNCOMMITTED ADVANCES
4.1. LOAN ACCOUNTS
(a) Each Bank shall open and maintain in accordance with its usual
practice a loan account or accounts in the name of the Company in which shall
be recorded, in Dollars, the amounts in respect of Loans and Uncommitted
Advances from time to time advanced by, owing to and received or recovered by
such Bank hereunder.
(b) The Agent shall maintain a control account in the name of the
Company in which shall be recorded in Dollars, in accordance with its usual
practice (i) the amount of each Loan and Uncommitted Advance, (ii) the amount
of any other sum falling due hereunder and (iii) the amount of any sum received
or recovered by the Agent for the account of any Bank hereunder.
(c) Failure by the Agent or any Bank to make any notation with
respect to any Loan or Uncommitted Advance, or any error with respect thereto,
shall not limit or otherwise affect the obligations of the Company under this
Agreement with respect to such Loan or Uncommitted Advance. The entries made
in the account of the Agent and each Bank shall, in the absence of manifest
error, be conclusive evidence of the existence of the obligations of the
Company to pay the amounts therein recorded.
(d) Notwithstanding anything to the contrary, any Bank may request
the Company to execute one or more notes to evidence Loans and Uncommitted
Advances pursuant to the terms of this Agreement in such form as such Bank and
the Company shall agree.
4.2. CHANGE IN CIRCUMSTANCES
(a) If, with respect to proposed LIBOR Loans to be made on a
proposed Borrowing Date:
(i) the Agent, after consultation with the Reference Banks, shall
have determined (which determination shall be conclusive and binding
upon all parties hereto) that by reason of circumstances affecting the
London interbank market generally, adequate and reasonable means do
not exist for ascertaining the interest rate applicable to such LIBOR
Loans; or
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(ii) the Agent shall have received notice one Business Day prior to
the proposed Borrowing Date from each of such of the Banks as
constitute the Majority Banks that the interest rate to be applicable
to such Interest Period does not accurately reflect the cost to such
Banks (as conclusively certified by such Banks in writing to the Agent
and to the Company) of making its LIBOR Loans during such Interest
Period; or
(iii) the Agent shall have received notice one Business Day prior to
the proposed Borrowing Date from each of such of the Banks as
constitute the Majority Banks that deposits in Dollars are not
available to such Banks (as conclusively certified by such Banks in
writing to the Agent and to the Company) in the ordinary course of
business in the London interbank market in sufficient amounts to make
its LIBOR Loan;
then the Agent shall forthwith give notice by facsimile, confirmed by letter,
to the Company and to each of the Banks and, until such notice shall be
withdrawn by the Agent, no new LIBOR Loans shall be made by the Banks. During
the 30 days next succeeding the giving of such notice by the Agent to the
Company of such determination, the Company, the Agent and each Bank shall
negotiate in good faith in order to arrive at a mutually satisfactory interest
rate to be substituted for the interest rate which would otherwise have been
determined pursuant to Section 2.3 for the proposed Interest Period affected by
such circumstances as aforesaid.
(b) If within such 30 day period the Company, the Agent and all the
Banks shall agree in writing upon a substituted interest rate and the effective
date thereof, such substituted interest rate shall be applicable to a renewed
request by the Company for such proposed Loan to be made; provided that such
Loan is made prior to the determination referred to in paragraph (c) of this
Section 4.2.
(c) During any period when borrowings are suspended or when an
alternative interest rate is in force pursuant to this subsection, the Agent,
in consultation with the Banks, shall periodically, at least once a month,
determine whether circumstances are such that LIBOR may again be determined.
If such determination is made, the Agent shall forthwith give written notice to
the Company and each Bank, whereupon the Agent, the Company and the Banks shall
as promptly as possible establish a date on which to determine LIBOR.
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4.3. REPAYMENT
The Company promises to pay the principal of and interest on the Loans
and the Uncommitted Advances in Dollars on the respective interest payment
dates and Maturity Dates therefor. Interest accrued after the Maturity Date
for any Loan or Uncommitted Advance which has not been paid on such Maturity
Date shall be payable from time to time on demand from the Agent to the
Company.
4.4. TERMINATION OR REDUCTION OF COMMITMENTS
The Company shall have the right, upon not less than thirty Business
Days' irrevocable prior written notice to the Agent, to terminate the
Commitments or, from time to time, permanently reduce the amount of the
Commitments; provided that (a) any reduction of the amount of the Commitments
which does not terminate all the Commitments (i) shall be in an amount of at
least $10,000,000 and integral multiples of $5,000,000 in excess thereof, (ii)
may not reduce the amount of the Commitments to an amount less than the
aggregate principal amount of all Loans and Uncommitted Advances then
outstanding and amounts outstanding or to be outstanding on such date under the
ACONA Agreement and (iii) shall be applied ratably to reduce the amount of the
Commitment of each Bank and (b) no termination of the Commitments shall be
permitted if at such time there are any Loans or Uncommitted Advances
outstanding hereunder or under the ACONA Agreement.
4.5. FACILITY, UTILIZATION, PARTICIPATION, ARRANGEMENT AND
AGENCY FEES
(a) From and including the Effective Date, the Company agrees to
pay to the Banks a facility fee equal to 0.06 percent (0.06%) per annum on the
amount of the Commitments during the period in respect of which the facility
fee is paid. The facility fee shall (i) be computed on the basis of a year of
365 or 366 days, as the case may be, for the actual number of days elapsed,
(ii) be payable quarterly in arrears (or if any such day is not a Business Day,
on the next succeeding Business Day) from the Effective Date to and including
the Termination Date and on the Termination Date, commencing on the date which
is three months after the Effective Date, and (iii) be paid by the Company to
the Agent for the account of the Banks.
(b) From and including the Effective Date, the Company agrees to
pay to the Banks a utilization fee on the daily average outstanding principal
amount of all Loans during the period in respect of which the utilization fee
is payable, if such average outstandings during the three-month period in
respect of which such utilization fee is payable exceed fifty percent (50%) of
the Commitments. The utilization fee shall (i) be calculated at the
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rate per annum equal to 0.05% on the entire amount of such daily average
outstandings if such outstandings are equal to or greater than 50% of the
Commitments, (ii) be computed on the basis of a year of 365 or 366 days, as the
case may be, for the actual number of days elapsed, (iii) be payable quarterly
in arrears (or if any such day is not a Business Day, on the next succeeding
Business Day) from the Effective Date to and including the Termination Date and
on the Termination Date and (iv) be paid by the Company to the Agent for the
account of the Banks within 5 Business Days after each three-month anniversary
of the Effective Date hereof.
(c) The Company agrees to pay to the Syndication Agent, for its own
account, an arrangement fee in an amount heretofore agreed between the Company
and the Syndication Agent. The arrangement fee shall be payable the first
Business Day after completion of execution of this Agreement.
(d) The Company agrees to pay to the Agent, for its own account, an
agency fee in an amount and at the times heretofore agreed between the Company
and the Agent.
(e) The Company agrees to pay to the Documentation Agent, for its
own account, a documentation agent fee in an amount heretofore agreed between
the Company and the Documentation Agent. The documentation agent fee shall be
payable on the first Business Day after completion of execution of this
Agreement.
4.6. PAYMENTS
(a) Each payment by the Company on account of the principal of, or
interest on, the Loans and Uncommitted Advances and of any fees and other
amounts payable to the Banks under this Agreement shall be made without set-off
or counterclaim. Each such payment (other than amounts which are expressly
stated to be payable directly to a particular Bank) shall be made by 12:00 noon
(New York time) on the date specified for payment under this Agreement to
Deutsche Bank AG, New York Branch, ABA: 026 003 780, Account Name:
Syndication Clearing Account, Account Number: 100440240008, Ref: Associates
First Capital Corporation, in Dollars and in funds with same day value for the
account of the Banks (or, in the case of payments in respect of Uncommitted
Advances, for the account of the Bank that made such Uncommitted Advances).
Upon receipt of each such payment the Agent shall make prompt payment to each
Bank for the account of its Lending Office in like funds of all amounts
received by it for the account of such Bank in accordance with payment
instructions previously received by the Agent from such Bank.
(b) The Agent may assume that each Bank has made its Loans or
Uncommitted Advances available to the Agent on each Borrowing
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Date and the Agent may (but shall not be obligated to), in reliance upon such
assumption, make available to the Company a corresponding amount. If and to
the extent any such Bank shall not have so made any such Loan or Uncommitted
Advance available to the Agent, such Bank and the Company severally agree to
repay to the Agent forthwith on demand first, from such Bank, and if not
promptly paid, from the Company, such corresponding amount together with
interest thereon for each day from the date such amount is made available to
the Company until the date such amount is repaid to the Agent, which interest
shall be calculated (i) in the case of the Company, at the interest rate
applicable to such Loan or Uncommitted Advance at the time of such Loan or
Uncommitted Advance and (ii) in the case of such Bank, at a rate per annum
which reflects the cost of funds to the Agent as reasonably determined by the
Agent, in each case for the period from the date of such payment to the date of
such reimbursement. If such Bank shall repay to the Agent such corresponding
amount, such amount so repaid shall constitute such Bank's Loan or Uncommitted
Advance, as the case may be, for purposes of this Agreement. The parties to
this Agreement understand and agree that failure on the part of any one Bank to
perform in accordance with Section 2.2 hereunder does not relieve other Banks
of their obligations under this Agreement.
(c) Unless the Agent shall have been notified by the Company prior
to the date on which any payment to be made by the Company under this Agreement
is due that the Company does not intend to remit such payment, the Agent may
assume that the Company has remitted such payment when so due and the Agent may
(but shall not be obligated to), in reliance upon such assumption, make
available to each Bank (for the account of its Lending Office) on such payment
date an amount equal to such Bank's share of such assumed payment. If the
Company has not in fact remitted such payment to the Agent each Bank shall
forthwith on demand repay to the Agent the amount of such assumed payment made
available to such Bank, together with interest thereon, in respect of each day
from and including the date such amount was made available by the Agent to such
Bank to the date such amount is repaid to the Agent at a rate per annum which
reflects the cost of funds to the Agent for the period from the date of such
payment to the date of reimbursement as reasonably determined by the Agent.
4.7. PRO RATA TREATMENT
Each borrowing by the Company from the Banks pursuant to Section 2.2
shall be made pro rata from the Banks on the basis of their respective
Commitments on each Borrowing Date. Each payment of principal of, and interest
on, the Loans and any other amounts payable hereunder (other than payments
which are expressly provided in this Agreement to be payable only to a
particular Bank, the Agent, the Documentation Agent or the Syndication Agent)
shall be
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made to the Agent for the account of the Banks pro rata on the basis of the
respective amounts of such outstanding Loans held by them immediately prior to
such payment or, in the case of the payment of facility, participation and
utilization fees, pro rata on the basis of the respective amounts of the
Commitments in effect during the period in respect of which such fees are
payable.
4.8. ILLEGALITY
Notwithstanding any other provision herein, if a Bank determines that
for such Bank to make, maintain or fund its Commitment or its Loans or
Uncommitted Advances as contemplated by this Agreement would be in violation of
applicable law, regulation, treaty, directive or guideline, whether or not
having the force of law, such Bank shall give the Company and the Agent prompt
written notice thereof, and thereupon the Commitment of such Bank shall
forthwith terminate, and the Company shall pay the outstanding Loans or
Uncommitted Advances of such Bank, with accrued interest thereon and any
amounts owing hereunder, on the respective Maturity Dates with respect thereto,
unless such Bank (because it would be in violation of applicable law,
regulation, treaty, directive or guideline, whether or not having the force of
law) shall require its Loans or Uncommitted Advances to be paid earlier, in
which case such Bank shall so notify the Company and the Agent and such Loans
or Uncommitted Advances shall be prepaid on the date required by such Bank,
together with accrued interest and other amounts payable hereunder to the date
of such prepayment.
4.9. INCREASED COSTS
(a) If the Agent or any Bank shall determine that by reason of (i)
the introduction of, or any change in, any applicable law or regulation or in
the interpretation thereof by any governmental or other regulatory authority
charged with the administration thereof or court of competent jurisdiction
and/or (ii) compliance by the Agent or such Bank with any request or directive
from any central bank or other fiscal, monetary or other regulatory authority
(whether having the force of law or not), which introduction, change,
interpretation, or request or directive occurs after the date hereof, there
shall be any increase in the cost to the Agent or such Bank of maintaining or
giving effect to its obligations under this Agreement, or any reduction in any
amount receivable by the Agent or such Bank under this Agreement, excluding,
however, in each case, any matter covered under subsection 4.9(b) below, then
the Company shall from time to time on receipt (whenever occurring) of a
certificate from the Agent or (as the case may be) such Bank pay to the Agent
or (as the case may be) such Bank such amounts as are certified therein to be
required to indemnify the Agent or (as the case may be) such Bank against such
increased cost and/or such reduction.
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(b) If compliance by any Bank or any corporation controlling such
Bank with (i) any amendment or a change in the Capital Adequacy Guidelines (as
defined below) adopted after the date of this Agreement, (ii) any law, rule or
regulation regarding capital adequacy of general applicability to all banks
subject to such law, rule or regulation, adopted after the date of this
Agreement, (iii) any request or directive of general applicability to all banks
subject to such request or directive regarding capital adequacy (whether or not
having the force of law) from any central bank or any other financial, monetary
or other governmental authority occurring after the date of this Agreement, or
(iv) any changes therein or in the interpretation or application thereof, does
or shall have the effect of reducing the rate of return on such Bank's or such
corporation's capital as a consequence of its obligations hereunder to a level
below that which such Bank or such corporation could have achieved but for such
adoption, change or compliance, by an amount reasonably determined by such Bank
to be material, then such Bank shall promptly notify the Company of such
determination. The Company shall from time to time on subsequent receipt
(whenever occurring) of a certificate from such Bank pay to such Bank such
amounts as are certified therein (such certificate to set forth in reasonable
detail the assumptions used by the Bank in determining such amounts and the
manner in which such amounts were calculated) to be required to compensate such
Bank for such reduced rate of return; provided, however, that the Company shall
not be required to (i) compensate any Bank for any such reduced rate of return
unless such Bank determines such amounts in good faith and uses reasonable
averaging and attribution methods which cover all loans and commitments
similarly situated, whether or not the documentation therefor permits such Bank
to receive a compensation of the kind described in this subsection 4.9(b), (ii)
compensate any Bank for any reduced rate of return by such Bank which arises
from any required increase in such Bank's level of capital and which increase
is not also required of all other banks under the same regulatory jurisdiction
as such Bank and which are in the same general regulatory category as such
Bank, or (iii) pay to such Bank any amount set forth in any such certificate
which relates to any period prior to the date (x) which is 30 days after the
date on which such Bank has notified the Company pursuant to the preceding
sentence or (y) which is more than 90 days prior to the date of each such
certificate.
As used in this Section, the term "Capital Adequacy Guidelines"
means any or all of (a) Appendix A to Part 225 -Capital Adequacy Guidelines for
Bank Holding Companies: Risk-Based Measure, 54 Fed. Reg. 4209 (1989) (12
C.F.R. Part 225), (b) Appendix A - Risk-Based Capital Guidelines, 54 Fed. Reg.
4177 (1989) (12. C.F.R. Part 3), (c) Appendix A to Part 208 - Capital Adequacy
Guidelines for State Member Banks: Risk-Based Measure, 54
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Fed. Reg. 4197 (1989) (12 C.F.R. Part 208), and/or (d) any reasonably
equivalent law, governmental rule, regulation, policy, guideline or directive
(whether or not having the force of law) applied to a Bank by any government
having jurisdiction over a Bank.
(c) Without limiting the obligations of the Company under
subsection 4.9(a), if Regulation D of the Board of Governors of the Federal
Reserve System (the "Board") shall require reserves actually to be maintained
against "Eurocurrency Liabilities" of any Bank, such Bank may require the
Company to pay, contemporaneously with each payment of interest on any Loan or
Uncommitted Advance made by such Bank, additional interest on such Loan or
Uncommitted Advance at a rate per annum equal to the Adjusted Rate (as
hereinafter defined). Any Bank wishing to require payment of such interest
shall give notice thereof at least three Business Days prior to (i) the making
of any subsequent Loan or Uncommitted Advance or (ii) the Maturity Date of any
Loan or Uncommitted Advance then outstanding with respect to which such
additional interest is requested. For the purposes of the foregoing:
(A) the "Adjusted Rate" applicable to any Loan or
Uncommitted Advance, means a rate per annum equal to the excess of (X)
(1) LIBOR as calculated in respect of such Loan or Uncommitted
Advance, divided by (2) 1.00 minus the Reserve Percentage over (Y) the
rate specified in (X) (1); and
(B) "Reserve Percentage" means for any day that
percentage (expressed as a decimal) which is in effect on such day, as
prescribed by the Board (or any successor) for determining the maximum
aggregate reserve requirement for Eurocurrency Liabilities.
4.10. TAXES ON PAYMENTS
(a) All payments (including fees) in respect of the Loans and
Uncommitted Advances shall be made free and clear of and without any deduction
for or on account of any present and future taxes or similar charges imposed by
the United States of America, or any political subdivision or taxing authority
thereof or therein (all such taxes being hereinafter called "Taxes"), except as
expressly provided in this Section 4.10. If any Taxes are imposed and required
by law to be paid or withheld from any amount payable to the Agent or any Bank
or its Lending Affiliate, then the Company shall (i) increase the amount of
such payment so that the Agent or such Bank will receive a net amount (after
deduction of all Taxes) equal to the amount due hereunder, (ii) pay such Taxes
to the appropriate taxing authority for the account of the Agent or such Bank,
and (iii) as promptly as possible thereafter, send such Bank evidence showing
payment thereof, together with such additional
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documentary evidence as such Bank may from time to time require. If the
Company fails to perform its obligations under (ii) or (iii) above, the Company
shall indemnify the Agent or such Bank for any incremental taxes, interest or
penalties that may become payable as a result of any such failure; provided,
however, that the Company will not be required to make any payment to the Agent
or any Bank or Lending Affiliate under this Section 4.10 if withholding is
required in respect of such Bank by reason of such Bank's or Lending
Affiliate's inability to furnish under subparagraph (b) immediately below an
extension or renewal of a Form 1001 or Form 4224 (or successor form), as
applicable, unless such inability results from a change in any applicable law
or regulation or in the interpretation thereof by any regulatory authority
(including, without limitation, any change in an applicable tax treaty)
occurring after the date hereof.
(b) Each Bank and each Lending Affiliate agrees that it shall
deliver to the Company and the Agent at least five Business Days prior to the
first Borrowing Date or, if such date does not occur within 30 days after the
date of execution of this Agreement, by the end of such 30 day period, either
(i) a statement that it is incorporated under the laws of the United States of
America or a state thereof or (ii) if it is not so incorporated, (A) a letter
in duplicate in the form of Exhibit A or Exhibit B, as appropriate, and two
duly completed copies of United States Internal Revenue Service Form 1001 or
4224 or successor applicable form, as the case may be, certifying in each case
that the Agent or such Bank or Lending Affiliate, as the case may be, is
entitled to receive payments under this Agreement without deduction or
withholding of any United States federal income taxes and (B) an Internal
Revenue Service Form W-8 or W-9 or successor applicable form, as the case may
be, to establish an exemption from United States backup withholding tax. Each
Bank and the Agent which delivers a Form 1001 or 4224 and Form W-8 and W-9
pursuant to the next preceding sentence further undertakes to deliver to the
Company and, in the case of such Bank, to the Agent, two further copies of the
said letter and Form 1001 or 4224 and Form W-8 or W-9, or successor applicable
forms, or other manner of certification, as the case may be, on or before the
date that any such letter or form expires or becomes obsolete or after the
occurrence of any event requiring a change in the most recent letter and form
previously delivered by it, and such extensions or renewals thereof as may
reasonably be requested by the Company, certifying in the case of a Form 1001
or 4224 that such Bank or the Agent is entitled to receive payments under this
Agreement without deduction or withholding of any United States federal income
taxes, unless in any such cases an event (including, without limitation, any
change in treaty, law or regulation) has occurred prior to the date on which
any such delivery would otherwise be required which renders all such forms
inapplicable or which would prevent a Bank or the
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Agent from duly completing and delivering any such letter or form with respect
to it and such Bank or the Agent advises the Company that it is not capable of
receiving payments without any deduction or withholding of United States
federal income tax, and in the case of a Form W-8 or W-9, establishing an
exemption from United States backup withholding tax.
4.11. ADDITIONAL ACTION IN CERTAIN EVENTS
(a) If an event or condition described in Sections 4.8, 4.9, or
4.10(a) has occurred or exists, or, in the case of subsection (i) below, will
occur or exist, but without prejudice to the obligations of the Company under
Sections 4.8, 4.9 or 4.10, the Bank or Banks so affected by such event or
condition will, if so requested by the Company, (i) consult with the Company
and the Agent for up to 30 days from the date of such request with a view to
agreeing to a mutually acceptable alternative arrangement which will avoid or
minimize the payment of such additional amount in the future and which is not
prejudicial to that Bank or (ii) make a good faith effort (which shall not
require the Bank to incur any loss) to make within 30 days, subject to the
consent of the Company, an assignment, in accordance with subsection 10.5(d),
of all its rights and delegation of its obligations under this Agreement,
including the Commitments and the outstanding Loans or Uncommitted Advances to
one of its subsidiaries or affiliates or to another Bank or to a Purchasing
Bank, for the purpose of causing such event or condition to cease to exist or
to reduce the liability of the Company, so long as such assignment and
delegation does not, at the time of such assignment, result in another such
event or condition specified above under Section 4.8, or cause a condition or
event in the subsections specified above which results in no reduction in the
liability of the Company under such subsection.
(b) Subject to (a) above, the Company shall have the right to
prepay, if an event or condition described in Sections 4.9 or 4.10(a) has
occurred or exists, the outstanding Loans or Uncommitted Advances, if any, as
applicable, and terminate the Commitments, of the Bank or Banks so affected by
such event or condition, upon giving the Agent and such Bank or Banks at least
five Business Days' prior irrevocable notice thereof specifying the date of
prepayment, if any, and termination. Any such prepayment hereunder shall be
made by the Company, together with interest thereon and any other amounts
payable hereunder, on the date specified in such notice and, if not made on a
Maturity Date, shall be made together with the indemnity payment referred to in
subsection 4.12 hereof.
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4.12. INDEMNITY FOR LOSSES
The Company agrees, without prejudice to any other rights of the Banks
hereunder, to indemnify each Bank and to hold each Bank harmless from any loss
or expense (excluding loss of profit) which such Bank may sustain or incur as a
consequence of (a) default by the Company in payment of the principal of, or,
to the extent permitted by law, interest on, any Loan or Uncommitted Advances
of such Bank, (b) failure by the Company to comply with any condition set forth
in Section 6 after having given a notice of borrowing in accordance with
Section 2.2 or 3.2, or failure by the Company to borrow after having given a
notice of borrowing in accordance with Section 2.2 or having accepted a bid in
accordance with subsection 3.2(f), (c) any acceleration of the Loans or
Uncommitted Advances pursuant to Section 8, or (d) the Company making any
payment on a day which is not a Maturity Date with respect thereto, including,
in each case, but not limited to, any such loss or expense arising from
interest or charges payable by such Bank to lenders of funds obtained by it in
order to maintain its Loan or Uncommitted Advance.
4.13. PURPOSE OF CREDIT FACILITY
The Company agrees that the credit facility hereunder shall be used
for its general corporate purposes, including, but not limited to the payment
of dividends.
4.14. MAXIMUM INTEREST RATE
The interest rate on the Loans and Uncommitted Advances will in no
event be higher than the maximum rate permitted by New York law as the same may
be modified by United States law of general application.
SECTION 5. REPRESENTATIONS AND WARRANTIES
The Company hereby represents and warrants to the Agent and each Bank
as follows:
5.1. The Company and each Subsidiary is a corporation duly organized
and in good standing under the laws of the jurisdiction of its incorporation,
has the power to conduct its business as now conducted and is duly qualified as
a foreign corporation and in good standing in all jurisdictions wherein the
nature of the business it transacts makes such qualification necessary.
5.2. The Company's Annual Report on Form 10-K for the year ended
December 31, 1994 and quarterly report on Form 10-Q for the nine months ended
September 30, 1995, heretofore delivered to each Bank, as of the date of each,
was true and accurate in all material
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respects and did not contain any untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
5.3. The consolidated balance sheet of the Company and its
Subsidiaries as of December 31, 1994 and the related consolidated statements of
earnings, changes in stockholders' equity and cash flows of the Company for the
fiscal year then ended certified by Coopers & Xxxxxxx and contained in the
Company's Annual Report on Form 10-K for the year ended December 31, 1994, and
the unaudited consolidated balance sheet of the Company as of September 30,
1995 and the related unaudited consolidated statements of earnings and cash
flows for the three months ended September 30, 1995 contained in the Company's
Form 10-Q Quarterly Reports for the three months ended September 30, 1995,
copies of which have been delivered to each Bank, were prepared in accordance
with generally accepted accounting principles, are complete and correct, and
fairly present the financial position of the Company and its Subsidiaries as of
said dates and the results of their operations for the periods then ended.
5.4. The execution, delivery and performance of this Agreement by
the Company and the borrowing of the Loans and the Uncommitted Advances are
within the Company's corporate authority, have been duly authorized by proper
corporate proceedings, will not contravene any provision of law or its charter
or by-laws or constitute a default under the terms of any agreement binding
upon it, and does not require the consent or approval of, or registration with,
any governmental authority, body or agency.
5.5. This Agreement constitutes a legal, valid and binding agreement
of the Company enforceable in accordance with its terms subject as to
enforcement, however, to bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally.
5.6. The obligations of the Company under the Agreement rank and
will rank at all times at least pari passu with all other unsecured and
unsubordinated Indebtedness of the Company.
5.7. Except as described in the Company's Annual Report on Form 10-K
for the year ended December 31, 1994, there is no litigation, action, suit or
proceeding pending, or to the knowledge of the Company any investigation or
litigation, action, suit or proceeding threatened, against the Company or any
of its Subsidiaries before any court, arbitrator or administrator or
governmental body which is reasonably likely to result in any material adverse
change in the business or financial position of
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the Company and its Subsidiaries taken as a whole or the Company becoming
unable to perform its obligations under this Agreement.
5.8. No employee benefit plan established or maintained by, or to
which contributions have been made by, the Company or any Subsidiary or both,
which is subject to Part 3 of Subtitle B of Title 1 of ERISA had an accumulated
funding deficiency (as such term is defined in Section 302 of ERISA) as of the
last day of the most recent fiscal year of such plan ended prior to the date
hereof and no material liability to the Pension Benefit Guaranty Corporation
has been incurred with respect to any such plan by the Company or by any
Subsidiary.
5.9. Neither the Company nor any Subsidiary is engaged principally,
or as one of its important activities, in the business of extending credit for
the purpose of purchasing or carrying margin stock within the meaning of such
term as defined in Regulations G, T, U and X of the Board and no Loan or
Uncommitted Advance hereunder will violate any provision of any of said
regulations. After application of the proceeds of any Loan or Uncommitted
Advance, the amount of margin stock (as defined in said Regulations) subject to
any restrictions contained in Sections 7.5 and 7.6 hereof will constitute less
than 25% of the total assets of the Company subject to such restrictions.
5.10. No event has occurred and is continuing which constitutes a
default under or in respect of any material agreement, undertaking or
instrument to which the Company is a party or by which the Company may be bound
and no event has occurred which, with giving of notice, lapse of time or other
condition, would constitute a default under or in respect of any such
agreement, undertaking or instrument.
SECTION 6. CONDITIONS PRECEDENT
6.1. CONDITIONS OF INITIAL BORROWINGS
The obligation of each Bank to make its initial Loan or Uncommitted
Advance hereunder is subject to the receipt by the Documentation Agent at its
offices in New York, New York, with copies to the Banks of each of the
following documents, in form and substance satisfactory to the Agent, on or
prior to the date which is at least four Business Days before the first
Borrowing Date:
(a) copies of the resolutions of the Board of Directors
or the Executive Committee of the Board of Directors of the Company
authorizing the execution, delivery and performance of this Agreement
and the borrowings hereunder, certified by the Secretary or an
Assistant Secretary of the
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Company as being true, correct and in full force and effect and as not
having been modified or rescinded;
(b) a certificate of incumbency, dated the first
Borrowing Date, with respect to the officers of the Company who are
authorized and who will execute and deliver this Agreement and any
other documents to be delivered in connection herewith;
(c) a copy of the charter and by-laws of the Company,
each certified, as of the first Borrowing Date, by the Secretary or an
Assistant Secretary of the Company as being true, complete and correct
and in full force and effect;
(d) the opinion of the General Counsel or Assistant
General Counsel to the Company, substantially in the form of Exhibit C
hereto, dated the first Borrowing Date; and
(e) such other documents as the Agent may reasonably
request.
6.2. CONDITIONS TO ALL BORROWINGS; REPETITION OF REPRESENTATIONS
(a) The obligation of each Bank to make its Loan or Uncommitted
Advance on any Borrowing Date is further subject to the conditions that (i) on
each such date, the representations and warranties of the Company contained in
this Agreement are true and correct on such date with the same effect as if
made on and as of such date and (ii) on each such date, no event has occurred,
or will result from the making of the Loans or Uncommitted Advances to be made
on such date, which constitutes an Event of Default, or which, with the giving
of notice or the lapse of time, or both, would constitute an Event of Default.
(b) By sending a notice of borrowing pursuant to Section 2.2 or
3.2, the Company shall be deemed to have made a representation that the
statements contained in subsection 6.2(a) are true and correct on the Borrowing
Date referred to in such notice.
SECTION 7. COVENANTS
So long as the Commitments remain in effect, or any Loan or
Uncommitted Advance or any other amount payable under this Agreement remains
outstanding and unpaid, the Company covenants and agrees as follows:
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7.1. The Company will deliver to each Bank:
(a) as soon as available and in any event within 60 days after the
end of the first, second and third quarterly accounting periods in each fiscal
year of the Company, beginning with the first such quarterly accounting period
ending on or after the date of this Agreement, copies of a consolidated balance
sheet of the Company and its Subsidiaries as of the end of each such accounting
period and copies of the related consolidated statements of earnings, changes
in stockholders' equity and cash flow for each such accounting period and
separate balance sheets, on a combined or consolidated basis of each Subsidiary
(except a Finance Subsidiary) that is a Significant Subsidiary, as of the end
of such accounting periods and of the related statements of earnings, changes
in stockholders' equity and cash flow for such accounting periods, all in
reasonable detail and stating in comparative form the figures for the
corresponding date and period in the previous fiscal year and all prepared in
accordance with generally accepted accounting principles, and certified by the
chief accounting officer of the Company;
(b) as soon as available and in any event within 120 days after the
end of each fiscal year of the Company beginning with the fiscal year ending
December 31, 1995, copies of a consolidated balance sheet of the Company and
its Subsidiaries as of the end of each such accounting period and copies of the
related consolidated statements of earnings, stockholders' equity and cash flow
for each such accounting period, and a separate balance sheet, on a combined or
consolidated basis in accordance with generally accepted accounting principles
of each Subsidiary, except a Finance Subsidiary, that is a Significant
Subsidiary as of the end of each such accounting period and of the related
statements of income and stockholders' equity for each such accounting period,
all in reasonable detail and stating in comparative form the figures as of the
end of and for the previous period or fiscal year and with respect to the
consolidated financial statements of the Company and its Subsidiaries, the
statements shall be certified by independent accountants of nationally
recognized standing selected by the Company. With respect to financial
statements of a Significant Subsidiary, the statements may be certified by the
chief accounting officer of the Company;
(c) concurrently with each of the financial statements furnished
pursuant to the foregoing sub-clauses (a) and (b), a certificate of the
Chairman of the Board, a Vice Chairman, the President, a Vice President, the
Comptroller or the Treasurer of the Company stating that in the opinion of the
signer, based upon a review made under his supervision, no Event of Default or
event which with the giving of notice or the lapse of time, or both, would
constitute an Event of Default exists hereunder or, if such
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an event shall exist, specifying all such events, and the nature thereof, of
which the signer of such certificate may have knowledge;
(d) as soon as practicable, copies of such further financial
statements and reports as the Company shall send to the banks with which it has
lines of credit, or all such financial statements and reports as it shall send
to its stockholders (unless all of the outstanding shares of capital stock of
the Company are held by one person), and, upon request of any Bank, of all
registration statements and all regular or periodic reports which it is or may
be required to file with the Securities and Exchange Commission or any
governmental body or agency succeeding to the functions of the Securities and
Exchange Commission; and
(e) such other information relating to the performance of the
provisions of this Agreement and the affairs of the Company and its
Subsidiaries as any of the Banks may from time to time reasonably request.
7.2. The Company will and will cause each Significant Subsidiary to:
(a) pay and discharge or cause to be paid and discharged promptly
any tax, assessment or governmental charge as well as any claim of any kind
(including claims for labor, materials and supplies) which, if unpaid, might by
law become a lien or charge upon its property; provided, however, that neither
the Company nor any Subsidiary shall be required to pay and discharge or to
cause to be paid and discharged any such tax, assessment or governmental charge
or claim of any kind (including claims for labor, materials and supplies) if
the amount, applicability or validity thereof shall currently be contested in
good faith by appropriate proceedings and if the Company or such Subsidiary, as
the case may be, shall have set aside on its books reserves (segregated to the
extent required by sound accounting practice) deemed by it to be adequate with
respect thereto; and
(b) do all things necessary to preserve and keep in full force and
effect its corporate existence, licenses, rights and franchises; provided,
however, that nothing in this subsection 7.2(b) shall prevent (i) any merger or
consolidation permitted by section 7.5, (ii) the abandonment or termination of
the corporate existence, rights and franchises of any Subsidiary of the Company
if such abandonment or termination is in the interest of the Company and not
disadvantageous in any material respect to any of the Banks, or (iii) the
withdrawal by the Company or any Subsidiary from any jurisdiction of its
qualification as a foreign corporation and the relinquishment of its
authorization to do business in such jurisdiction if such withdrawal and
relinquishment
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is in the interest of the Company and not disadvantageous in any material
respect to any of the Banks.
7.3. The Company will, and will cause each Subsidiary to, maintain
and keep proper corporate books and financial records, in which full, true and
correct entries will be made of transactions in accordance with generally
accepted accounting principles and practices. The Company will permit
representatives of the Agent or any Bank to visit and inspect any of the
properties of, or examine the corporate books and financial records of, the
Company and its Subsidiaries at the Agent's or such Bank's expense, at such
reasonable times and as often as the Agent or any Bank may reasonably request.
7.4. The Company will not lease, sell, transfer or otherwise dispose
of all or substantially all of its assets to, or consolidate with, or merge
into any other person, or permit any other person to merge into the Company
unless the person to which such assets have been leased, sold, transferred or
otherwise disposed of or the corporation formed by such consolidation or the
corporation into which the Company shall have been merged, as the case may be
(any such person, other than the Company, being herein called the "New
Company"), shall be a solvent corporation incorporated within the United
States of America, and the New Company shall expressly assume in writing the
due and punctual payment of the principal of and interest on the Loans and the
Uncommitted Advances and the due and punctual performance of all of the
covenants and conditions of this Agreement and immediately after such
transaction, no Event of Default shall occur or exist under the covenants and
conditions of this Agreement.
7.5. In the case of any such consolidation, merger, sale or
conveyance and upon any such assumption by the New Company, such assumption
shall be to the same extent as if the New Company had been named herein as the
Company. No sale, lease, transfer or other disposition of assets permitted by
this sub-clause shall have the effect of releasing the Company (or any New
Company which shall at any time have assumed the liabilities or obligations of
the Company hereunder) from any liability or obligations hereunder.
7.6. The Company will, and will cause all its Subsidiaries to, use
their respective best efforts to be in substantial compliance with Applicable
Laws relating to equal employment opportunities and environmental standards and
controls, and be in substantial compliance (to the best knowledge of the
Company), in all respects material to the Company and its Subsidiaries on a
consolidated basis, with other Applicable Laws, in each case except such as are
being contested in good faith by proceedings being diligently pursued and
against which the Company or such Subsidiary has established adequate reserves
under generally accepted
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accounting principles. "Applicable Laws" means all applicable statutes,
regulations, orders and restrictions of the United States of America, foreign
countries, states and municipalities, and agencies and instrumentalities of the
foregoing, in respect of the conduct of the respective businesses of the
Company and its Subsidiaries and the ownership of their respective properties.
7.7 The Company's obligations hereunder, will be unconditional
and general obligations ranking pari passu with all other present and future
outstanding unsubordinated and unsecured Indebtedness issued, created or
assumed by it.
SECTION 8. EVENTS OF DEFAULT
Upon the occurrence of any of the following events ("Events of
Default"):
(a) The Company shall (i) fail to pay any principal of any Loan or
Uncommitted Advance when due; or (ii) fail to pay any interest on any Loan or
Uncommitted Advance or any other amount payable hereunder when due and such
failure shall continue for a period of five Business Days; or
(b) Any representation or warranty made or deemed to be made by the
Company under this Agreement or in any certificate, document or financial or
other statement furnished at any time under or in connection with this
Agreement shall prove to have been incorrect or misleading in any material
respect when made or deemed to be made; or
(c) The Company shall default in the performance or observance of
any agreement or covenant contained in Sections 7.4 or 7.7; or the Company
shall default in the performance or observance of any other agreement or
covenant contained in this Agreement and such default shall continue for a
period of 30 days; or
(d) The Company or any of its Significant Subsidiaries shall (i)
default in any payment of principal of or interest on any Indebtedness (other
than the Loans or Uncommitted Advances) in respect of money borrowed or
capitalized leases or incurred for the deferred purchase price of property or
services or evidenced by a note, debenture or other similar written obligation
to pay money, or in the payment of any guarantee thereof beyond the period of
grace (not to exceed 30 days), if any, provided in the instrument or agreement
under which such Indebtedness was created; or (ii) default in the observance or
performance of any other agreement or condition relating to any such
Indebtedness or guarantee or contained in any instrument or agreement
evidencing, securing or relating thereto, the effect of which is to cause, or
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to permit the holder or holders of such Indebtedness or beneficiary or
beneficiaries of such guarantee (or trustee or agent on behalf of such holder
or holders or beneficiary or beneficiaries) to cause, with the giving of notice
if required, such Indebtedness to become due prior to its stated maturity or
such guarantee to become payable and any such default shall continue for more
than the applicable period of grace (not to exceed 60 days), if any, provided
in the instrument or agreement under which such Indebtedness was created; or
(e) (i) The Company or any of its Significant Subsidiaries
shall commence any case, proceeding or other action under any existing or
future law of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or other relief of debtors, seeking to have an order
for relief entered on its behalf as debtor, or seeking to adjudicate it a
bankrupt or insolvent, or seeking reorganization, arrangement, winding-up,
liquidation, dissolution, composition, readjustment of debt or other relief
with respect to it or its debts, or seeking appointment of a receiver, trustee,
custodian, liquidator, conservator, sequestrator or other similar official for
it or for all or any substantial part of its assets; or
(ii) the Company or any of its Significant Subsidiaries
shall make a general assignment for the benefit of its creditors; or
(iii) there shall be commenced against the Company or any
of its Significant Subsidiaries any case, proceeding or other action of a
nature referred to in clause (i) or (ii) above which (A) results in the entry
of an order for relief or any such adjudication or appointment with respect to
the Company or such Subsidiary or all or any substantial part of its assets or
(B) remains undismissed, unstayed, undischarged or unbonded for a period of 60
days; or
(iv) there shall be commenced against the Company or any
of its Significant Subsidiaries any case, proceeding or other action seeking
issuance of a warrant of attachment, execution, distraint or similar process
against all or any substantial part of its assets which results in the entry of
an order for any such relief which shall not have been vacated, discharged, or
stayed or bonded pending appeal within 60 days from the entry thereof; or
(v) the Company or any of its Significant Subsidiaries
shall take any action in furtherance of, or indicating its consent to, approval
of, or acquiescence in, any of the acts set forth in clauses (i), (ii), (iii)
or (iv) above; or
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(vi) the Company or any of its Significant Subsidiaries
shall be unable to, or shall admit in writing its inability to, pay its debts
as they become due; or
(f) a moratorium is declared on the payment of Indebtedness,
which Indebtedness includes some or all of the Indebtedness of the Company; or
(g) any governmental authority or agency condemns, seizes,
compulsorily purchases, nationalizes or expropriates all or a material part of
the property, assets, revenues or capital of the Company; or
(h) a final judgment for the payment of money in excess of
$10,000,000 is rendered by a court of record against the Company or any
Significant Subsidiary and the Company or any such Significant Subsidiary, as
the case may be, shall not discharge the same or provide for its discharge in
accordance with its terms, or procure a stay of execution thereof within 60
days from the date of entry thereof and within said period of 60 days, or such
longer period during which execution of such judgment shall have been stayed,
appeal therefrom and cause the execution thereof to be stayed during such
appeal; or
(i) except as permitted by subsections 7.2(b), 7.4 and 7.5, the
Company or any of its Significant Subsidiaries shall without the consent of the
Banks sell, lend, transfer or otherwise dispose of (otherwise than in the
ordinary course of trading or by the transfer or sale to the Company or any
Significant Subsidiary from, as the case may be, any Significant Subsidiary or
the Company) all or substantially all of its assets whether by one or a series
of transactions related or not; or
(j) an Event of Default shall occur and be continuing under the
ACONA Agreement; then, and in any event, (a) if such event is an Event of
Default specified in clause (i), (ii), (iii) or (iv) of paragraph (e) above,
automatically and without any further act the Commitments shall immediately
terminate and the Loans and Uncommitted Advances hereunder (with accrued
interest thereon) and all other amounts owing under this Agreement shall
immediately become due and payable, and (b) if such event is any other Event of
Default, or if it becomes unlawful for the Company to perform any of its
obligations under this Agreement or in respect of the Loans or Uncommitted
Advances, or this Agreement shall cease to be in full force and effect then any
or all of the following actions may be taken: (i) upon the request of the
Majority Banks, the Agent shall, by notice to the Company, declare the
Commitments to be terminated forthwith, whereupon the Commitments shall
immediately
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terminate; (ii) with the consent of the Majority Banks, the Agent may, or upon
the request of the Majority Banks, the Agent shall, by notice of default to the
Company, declare the Loans (with accrued interest thereon) and all other
amounts owing under this Agreement to be due and payable forthwith, and (iii)
with the consent of Banks to which at least 66 2/3% of the aggregate unpaid
principal amount of the Uncommitted Advances are owing (the "Optional Majority
Banks"), the Agent may, or upon the request of the Optional Majority Banks, the
Agent shall, by notice of default to the Company declare the Uncommitted
Advances hereunder (with accrued interest thereon) to be due and payable
forthwith, whereupon in each case the same shall immediately become due and
payable. Except as expressly provided above in this Section 8, presentment,
demand, protest and all other notices of any kind are hereby expressly waived.
SECTION 9. THE AGENT; THE SYNDICATION AGENT
9.1. AUTHORIZATION
Each Bank hereby irrevocably authorizes and designates Deutsche Bank
AG, as the Agent of such Bank under this Agreement and each such Bank hereby
irrevocably authorizes the Agent to take such action on its behalf under the
provisions of this Agreement and to exercise such powers and perform such
duties as are expressly delegated to the Agent and by the terms of this
Agreement, together with such other powers as are reasonably incidental
thereto. Neither the Agent, the Documentation Agent nor the Syndication Agent
shall have any duties or responsibilities, except those expressly set forth
herein (it being understood that the Syndication Agent and the Documentation
Agent shall have no duties or responsibilities subsequent to the execution and
delivery hereof except that the Documentation Agent will be responsible for
handling further documentation that may arise out of any amendment, waiver or
modification) or any fiduciary relationship with any Bank, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities
shall be read into this Agreement or otherwise exist against the Agent, the
Documentation Agent or the Syndication Agent.
9.2. DELEGATION OF DUTIES
Each of the Agent, the Documentation Agent and the Syndication Agent
may execute any of its duties under this Agreement by or through agents or
attorneys-in-fact and shall be entitled to rely upon the advice of counsel
concerning all matters pertaining to such duties. Neither the Agent, the
Documentation Agent nor the Syndication Agent shall be responsible for the
negligence or misconduct of any agents or attorneys-in-fact selected with
reasonable care.
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9.3. EXCULPATORY PROVISIONS
Neither the Agent, the Documentation Agent, the Syndication Agent nor
any of their officers, directors, employees, agents, attorneys-in-fact or
affiliates shall be (a) liable for any action lawfully taken or omitted to be
taken by it or such person under or in connection with this Agreement (except
for its or such person's own gross negligence or willful misconduct) or (b)
responsible in any manner to any of the Banks for any recitals, statements,
representations or warranties made by the Company or any officer thereof
contained in this Agreement or in any certificate, report, statement or other
document referred to or provided for in, or received by the Agent, the
Documentation Agent or the Syndication Agent under or in connection with, this
Agreement, or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or for any failure of the
Company to perform its obligations hereunder. Neither the Agent, the
Documentation Agent nor the Syndication Agent shall be under any obligation to
any Bank to ascertain or to inquire as to the observance or performance of any
of the agreements contained in, or conditions of, this Agreement, or to inspect
the properties, books or records of the Company.
9.4. RELIANCE BY AGENT, SYNDICATION AGENT
Each of the Agent, the Documentation Agent and the Syndication Agent
shall be entitled to rely, and shall be fully protected in relying, upon any
writing, resolution, notice, consent, certificate, affidavit, letter,
cablegram, telegram, facsimile, telex or teletype message, telephone message,
statement, order or other document or conversation reasonably believed by it to
be genuine and correct and to have been signed, sent or made by the proper
person or persons and upon advice and statements of legal counsel (including,
without limitation, counsel to the Company), independent accountants and other
experts selected by the Agent, the Documentation Agent or the Syndication
Agent. The Agent may deem and treat each Bank listed in Schedule 1 as the
owner of the Loans and Uncommitted Advances made by such Bank for all purposes
unless a written notice of assignment thereof as permitted by this Agreement
shall have been filed with the Agent. The Agent shall be fully justified in
failing or refusing to exercise any right or remedy under this Agreement unless
it shall first receive such notice, advice and agreement of the Majority Banks,
the Optional Majority Banks, or all Banks, as applicable, as provided for in
this Agreement or as it may deem appropriate including, without limitation,
indemnification to its satisfaction by the Banks against any and all liability
and expense which may be incurred by the Agent by reason of taking or
continuing to take any such action. The Agent shall in all cases be fully
protected in acting or in refraining from acting in accordance with a request
from the
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Majority Banks, the Optional Majority Banks, or all Banks, as applicable, and
such request and any action taken or failure to act pursuant thereto shall be
binding upon all the Banks, their successors and their permitted assignees.
9.5. NOTICE OF DEFAULT
The Agent shall not be deemed to have knowledge or notice of the
occurrence of any Event of Default hereunder unless the Agent has received
written notice from a Bank or the Company referring to this Agreement,
describing such Event of Default and stating that such notice is a "notice of
default." In the event that the Agent receives such a notice, it shall give
notice thereof to the other Banks. The Agent shall take such lawful action
with respect to such Event of Default as shall be reasonably directed by the
Majority Banks, the Optional Majority Banks, or all Banks, as applicable;
provided that, unless the Agent shall have received such directions, the Agent
may (but shall not be obligated to) take such action, or refrain from taking
such action, with respect to such Event of Default as it shall deem advisable
in the best interests of the Banks, except as otherwise provided herein.
9.6. NON-RELIANCE ON AGENT OR SYNDICATION AGENT AND OTHER BANKS
Each Bank expressly acknowledges that neither the Agent, the
Documentation Agent, the Syndication Agent nor any of their officers,
directors, employees, agents, attorneys-in-fact or affiliates has made any
representations or warranties to it and that no act by the Agent, the
Documentation Agent or the Syndication Agent taken hereunder, including any
review of the affairs of the Company, shall be deemed to constitute any
representation or warranty by the Agent, the Documentation Agent or the
Syndication Agent to any Bank. Each Bank represents to the Agent, the
Documentation Agent and the Syndication Agent that it has, independently and
without reliance upon the Agent, the Documentation Agent or the Syndication
Agent, or any other Bank, and based upon such documents and information as it
has deemed appropriate, made its own appraisal of and investigation into the
status, business, operations, property, financial and other condition and
credit-worthiness of the Company and made its own decisions to enter into this
Agreement and to make Loans or Uncommitted Advances, as the case may be,
hereunder. Each Bank also represents that it shall, independently and without
reliance upon the Agent or any other Bank, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement, and to make such investigation as it deems necessary to inform
itself as to the status, business, operations, property, financial and other
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condition and credit-worthiness of the Company. Except for notices, reports
and other documents expressly required to be furnished to the Banks by the
Company, the Agent shall not have any duty or responsibility to provide any
Bank with any credit or other information concerning the status, business,
operations, property, financial and other condition or credit-worthiness of the
Company which may come into the possession of the Agent or any of its officers,
directors, employees, agents, attorneys-in-fact or affiliates.
9.7. INDEMNIFICATION
The Banks agree to indemnify the Agent, the Documentation Agent and
the Syndication Agent in its capacity as such (to the extent not reimbursed by
the Company and without limiting the obligation of the Company to do so),
ratably according to the respective amounts of their Commitments (unless any of
the following relate solely (in the opinion of the Agent) to an identifiable
Uncommitted Advance or identifiable group of Uncommitted Advances, in which
case such indemnification shall be made by the Bank which has made such
Uncommitted Advance or, in the case of such a group of Uncommitted Advances,
pro rata by the Banks which have made such Uncommitted Advances), from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind
whatsoever which may at any time (including without limitation at any time
following the payment of the Loans and Uncommitted Advances) be imposed on,
incurred by or asserted against it in any way relating to or arising out of
this Agreement, or any documents contemplated by or referred to herein or the
transactions contemplated hereby or any action taken or omitted by it under or
in connection with any of the foregoing; provided that no Bank shall be liable
to indemnify the Agent, the Documentation Agent or the Syndication Agent for
any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs expenses or disbursements resulting directly
from the Agent's, the Documentation Agent's or the Syndication Agent's, as the
case may be, gross negligence or willful misconduct. The agreements in this
subsection 9.7 shall survive the payment of the Loans and Uncommitted Advances
and all other amounts payable hereunder.
9.8. AGENT IN ITS INDIVIDUAL CAPACITY
The Agent and its affiliates may make loans to, accept deposits from
and generally engage in any kind of business with the Company as though the
Agent were not Agent hereunder. With respect to Loans or Uncommitted Advances
made by it, the Agent shall have the same rights and powers under this
Agreement as any Bank and may exercise the same as though it were not the Agent
and the terms
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"Bank" or "Banks" shall include the Agent in its individual capacity.
9.9. SUCCESSOR AGENT
The Agent may resign as such upon 30 days' notice to the Company and
the Banks. The Agent may be removed as such with the written consent of the
Majority Banks. If the Agent shall resign or be removed as such under this
Agreement, then the Majority Banks shall appoint from among the Banks a
successor agent for the Banks which successor agent shall be approved by the
Company (or, if the Majority Banks and the Company are unable to select such
successor agent within such 30-day period, a successor agent (which shall be a
reputable financial institution) shall be selected by the then Agent),
whereupon such successor agent shall succeed to the rights, powers and duties
of the Agent and the term "Agent" shall mean such successor agent effective
upon its appointment, and the former Agent's rights, powers and duties as such
shall be terminated, without any other or further act or deed on the part of
such former agent or any of the parties to this Agreement or any creditor of
the Loans or Uncommitted Advances. After any retiring agent's resignation or
removal hereunder, the provisions of this Section 9 shall inure to its benefit
as to any actions taken or omitted to be taken by it while it was agent under
this Agreement.
SECTION 10. MISCELLANEOUS
10.1. NOTICES
All notices, requests and demands to or upon the respective parties
hereto to be effective shall be in writing (including by telegraph or
facsimile) and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered in writing by hand, or by mail, air
postage prepaid, or, in the case of telegraphic notice, when delivered to the
telegraph company, or, in the case of notice by facsimile, when received,
addressed as follows or to such other address as shall be hereafter notified by
any party in writing to the other parties hereto:
(a) if to the Company, to it at:
For mail delivery:
Associates First Capital Corporation
P. O. Xxx 000000
Xxxxxx, XX 00000-0000
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For delivery by courier:
Associates First Capital Corporation
000 Xxxx Xxxxxxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000-0000
U.S.A.
In each case,
Attention: Xxxx X. Xxxxxx
Executive Vice President and Treasurer
Telephone: 000-000-0000
Facsimile: 000-000-0000
(b) if to the Agent, to it at:
Deutsche Bank AG
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
(c) if to a Bank, to it at its address set forth in Schedule 1;
provided that notices to the Agent shall not be effective until actually
received.
10.2. EXPENSES; STAMP TAXES
The Company agrees (a) to pay costs and expenses of any amendment,
supplement or modification to, or waiver or consent under or in respect of this
Agreement, (b) to pay or reimburse the Agent, the Documentation Agent, the
Syndication Agent and each Bank for its costs and expenses incurred in
connection with the enforcement or preservation of any rights under this
Agreement, including, without limitation, fees and disbursements of counsel to
the Agent, the Documentation Agent, the Syndication Agent, and to the several
Banks, and (c) to pay, indemnify, and hold each Bank, the Agent, the
Documentation Agent and the Syndication Agent harmless from, any and all
recording and filing fees and all liabilities with respect to, or resulting
from any omission to pay or delay in paying, any and all stamp, excise and
other taxes or charges imposed by the United States of America or any taxing
authority or political sub-division thereof or therein which may be payable or
determined to be payable in connection with the execution, delivery of, or
consummation of any of the transactions contemplated by, or any amendment,
supplement or modification of, or any waiver or consent under or in respect of,
this Agreement,
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the Loans, the Uncommitted Advances and any such other documents, and (d) to
pay, indemnify, and hold each Bank, the Agent, the Documentation Agent and the
Syndication Agent harmless from and against any and all other liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever with respect to the
execution, delivery, enforcement, performance and administration of this
Agreement, the Loans, the Uncommitted Advances and any such other documents
(all the foregoing, collectively, the "indemnified liabilities") provided, that
the Company shall have no obligation hereunder with respect to indemnified
liabilities arising from (i) the gross negligence or willful misconduct of any
such Bank, (ii) legal proceedings commenced against any such Bank by any
security holder or creditor thereof arising out of and based upon rights
afforded any such security holder or creditor solely in its capacity as such,
or (iii) legal proceedings commenced against any such Bank by any other Bank.
The agreements in this subsection shall survive repayment of the Loans, the
Uncommitted Advances and all other amounts payable hereunder.
10.3. AMENDMENTS
With the prior written consent of the Majority Banks, the Agent and
the Company may, from time to time, enter into written amendments, supplements
or modifications hereto for the purpose of adding any provisions to this
Agreement or changing in any manner the rights of the Banks or of the Company
hereunder or thereunder, and with the prior written consent of the Majority
Banks, the Agent on behalf of the Banks may execute and deliver to the Company
a written instrument waiving or consenting to the departure from, on such terms
and conditions as the Agent may specify in such instrument, any of the
requirements of this Agreement or any Event of Default and its consequences;
provided, however, that no such waiver or consent and no such amendment,
supplement or modification shall (i) (A) extend the Termination Date, (B)
reduce the principal amount of, or extend the Maturity Date of, any Loan or
extend the date for payment of any fees or interest hereunder, (C) reduce the
rate of interest on any Loan or reduce any other amount, including fees (other
than amounts referred to in subsection (ii) below), owing to the Banks under
this Agreement, (D) amend, modify or waive or consent to the departure from any
provision of Sections 4.7, 4.8, 4.9, 4.10, 10.6 or of this Section 10.3, (E)
increase the Commitment of any Bank, or (F) change the percentage specified in
the definition of Majority Banks, in each case without the written consent of
all the Banks, (ii) (A) reduce the principal amount of, or extend the Maturity
Date of, any Uncommitted Advance, or (B) reduce the rate of interest on any
Uncommitted Advance, or change the definition of Optional Majority Banks in
each case without the written consent of each Bank whose Uncommitted Advances
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would be affected thereby or (iii) amend, modify or waive any provision of
Section 9 without the written consent of the Agent.
10.4. NO WAIVER
The rights and remedies of the Agent and the Banks under this
Agreement shall be cumulative and not exclusive of any rights or remedies
provided by law, and no failure or delay by the Agent or the Banks or any of
them in exercising any right, remedy, power or privilege hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder preclude its other or further
exercise or the exercise of any other right, remedy, power or privilege.
10.5. SUCCESSORS AND ASSIGNS; LENDING OFFICES; LENDING
AFFILIATES; ADDITIONAL BANKS
(a) This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns,
except that the Company may not transfer or assign any of its rights or
obligations under this Agreement without the prior written consent of all the
Banks and no Bank may assign or transfer any of its rights or obligations under
this Agreement except in accordance with this Section 10.5.
(b) Each Bank shall have the right at any time and from time to
time to change its Lending Office to a different office of itself and such
office shall thereupon become a Lending Office. Each Bank shall give notice to
the Company and the Agent of the address of each Lending Office other than its
initial Lending Office, but the failure to give notice of the address of an
office which has become a Lending Office shall not affect the status of that
office as a Lending Office hereunder. No such transfer shall result in any
liability on the part of the Company for increased costs or expenses resulting
solely from such transfer. Increased costs or expenses of the kind referred to
in subsection 4.9 occurring subsequent to any such transfer shall be deemed not
to result "solely from such transfer." The Company's liability for any such
increased costs and expenses of the kind referred to in subsection 4.9
occurring subsequent to such transfer shall in no event exceed that which would
have resulted had such transfer not occurred.
(c) Each Bank shall have a one time option to designate as a
Lending Office in respect of its Loans or Uncommitted Advances an office of one
of its subsidiaries or affiliates (a "Lending Affiliate") by causing such
Lending Affiliate to execute a counterpart of this Agreement concurrently with
the execution and delivery hereof by all the parties hereto. Such Lending
Affiliate shall thereupon be deemed to be a "Bank" hereunder solely for the
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purpose of the making of, and other matters relating to, Loans or Uncommitted
Advances, as the case may be, (as designated on the signature pages hereof);
and the Bank which has so transferred a portion of its obligations shall be a
"Bank" hereunder for all other purposes of this Agreement, including, without
limitation, for the purposes of determining the "Majority Banks" and "Optional
Majority Banks" and for the purpose of the calculation and payment of
utilization, participation and facility fees (the Loans made by a Bank to be
added to the Loans by its Lending Affiliate to make such determination and
calculation). Notwithstanding the foregoing, no Bank may make any such
transfer if such transfer will result in any liability on the part of the
Company for increased costs or expenses which would not have been imposed had
such transfer not been made. Increased costs or expenses of the kind referred
to in Section 4.9 occurring subsequent to any such transfer shall be deemed not
to result "solely from such transfer." The Company's liability for any such
increased costs and expenses of the kind referred to in Section 4.9 subsequent
to such transfer shall in no event exceed that which would have resulted had
such transfer not occurred.
(d) Any Bank may, in the ordinary course of its commercial
banking business and in accordance with applicable law, at any time sell and
transfer to (i) any of its subsidiaries or affiliates, (ii) any other Bank or
any subsidiary or affiliate thereof or (iii) any Federal Reserve Bank, and,
with the consent of the Company and the Agent, such consent not to be
unreasonably withheld, to one or more additional banks or financial
institutions (any such other Bank, subsidiary, affiliate, or bank or financial
institution, a "Purchasing Bank") all or any part of its rights and obligations
(including its Commitment and any and all outstanding Loans and Uncommitted
Advances) under this Agreement; provided that assignments in part shall be in
minimum amounts of $10,000,000 and integral multiples of $5,000,000 in excess
thereof. Upon the execution by the Company, the Agent, the transferor Bank and
the Purchasing Bank of an agreement satisfactory to the Agent and the Company,
setting forth the amount of the Commitment of the Purchasing Bank, the
effective date of such transfer and containing the agreement of the Purchasing
Bank that it will be bound by this Agreement with all the rights and
obligations of a Bank hereunder and upon recordation by the Agent of the
information contained in such agreement pursuant to subsection 10.5(f), (x) the
Purchasing Bank thereunder shall be a party hereto and, to the extent provided
in such agreement, have the rights and obligations of a Bank hereunder with a
Commitment as set forth therein, and (y) the transferor Bank thereunder shall,
to the extent provided in such agreement, be released from its obligations
under this Agreement (and, in the case of an assignment covering all or the
remaining portion of a transferor Bank's rights and obligations under this
Agreement, such transferor Bank shall cease to be a party hereto).
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Such agreement shall be deemed to amend this Agreement to the extent, and only
to the extent, necessary to reflect the addition of such Purchasing Bank and
the resulting adjustment of the percentages of the Commitments arising from the
purchase by such Purchasing Bank of all or a portion of the rights and
obligations of such transferor Bank under this Agreement. If, pursuant to this
subsection 10.5(d), any interest under this Agreement is transferred to any
Purchasing Bank, the transferor Bank shall cause such Purchasing Bank,
concurrently with the effectiveness of such transfer, to comply with subsection
4.10(b) to the same extent as required of the Banks parties to this Agreement
on the date hereof except that any statements or forms required to be furnished
thereunder shall be furnished within 5 Business Days of such transfer.
Notwithstanding the foregoing, no Bank may make any assignment or transfer
pursuant to this subsection 10.5(d) if such transfer will result in any
additional liability for increased costs or expenses resulting solely from such
transfer. Increased costs or expenses of the kind referred to in Section 4.9
occurring subsequent to any such transfer shall be deemed not resulting "solely
from such transfer."
(e) If the Commitment of any Bank is terminated pursuant to
Section 4.8 or Section 4.11, the Company may add another bank or banks (a
"Substituted Bank") in substitution for the Bank or Banks whose Commitment has
been terminated, in each case without the necessity of any approval by the
Banks, provided that the aggregate amount of the Commitments of such
Substituted Bank or Banks does not exceed the amount of the Commitment of the
terminated Bank. Upon (i) the execution of an agreement reasonably
satisfactory to the Agent by the Company, the Agent and each such Substituted
Bank setting forth the Commitment of each such Substituted Bank and stating
that it shall be bound by this Agreement with all the benefits and obligations
of a Bank hereunder, (ii) recordation by the Agent of the information contained
in said agreement pursuant to subsection 10.5(f) and (iii) compliance by such
Substituted Bank with the requirements of subsection 4.10(b) to the same extent
as required of the Banks parties to this Agreement on the date hereof except
that any statements or forms required to be furnished thereunder shall be
furnished prior to the effectiveness of the addition of such Substituted Bank,
each such substituted Bank shall be deemed to be a "Bank" for all purposes of
this Agreement and the Agent shall notify each other Bank accordingly.
(f) The Agent shall maintain at its address referred to in
subsection 10.1 a copy of each agreement delivered to it pursuant to
subsections 10.5(d) and (e) and a register (the "Commitment Register") for the
recordation of the names and addresses of the Banks and the Commitment of each
Bank from time to time. The entries in the Commitment Register shall be
conclusive, in the absence of manifest error. The Commitment Register shall be
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available for inspection by the Company or any Bank at any reasonable time and
from time to time upon reasonable prior notice. Upon its receipt of an
agreement pursuant to subsection 10.5(d) or (e), together with payment to the
Agent of a registration and processing fee of $3,000 for each Purchasing Bank
or Substituted Bank, as the case may be, named therein, the Agent shall (i)
promptly accept such agreement, (ii) on the effective date of the transfer or
substitution determined pursuant thereto record the information contained
therein in the Commitment Register and (iii) give notice of such acceptance and
recordation to the Banks and the Company.
(g) Notwithstanding anything hereinabove contained in this
section 10.5, (i) no Bank may make any assignment, pledge, conveyance or
transfer hereunder other than to a commercial bank or financial institution
whose ordinary business is or includes making loans to corporate borrowers and
(ii) this section 10.5 shall not affect the Banks' right to grant
participations in their rights and obligations under the Agreement.
(h) Nothing herein shall prohibit any Bank from pledging or
assigning its Loans or Uncommitted Advances to any Federal Reserve Bank in
accordance with applicable laws.
10.6. PRORATION OF PAYMENTS
Each Bank agrees that if any Bank (a "benefited Bank") shall at any
time receive any payment of all or part of its Loans and Uncommitted Advances
or interest thereon (except for regularly scheduled payments of principal and
interest), or receive any collateral in respect thereof (whether voluntarily or
involuntarily, by set-off, pursuant to events or proceedings of the nature
referred to in clause (e) of Section 8, or otherwise) in a greater proportion
than any such payment to and collateral received by any other Bank, if any, in
respect of such other Bank's Loans or interest thereon, such benefited Bank
shall purchase for cash from other Banks such portion of each such other Bank's
Loans, or shall provide such other Banks with the benefits of any such
collateral, or the proceeds thereof, as shall be necessary to cause such
benefited Bank to share the excess payment or benefits of such collateral or
proceeds ratably with each of the Banks; provided, however, that if all or any
portion of such excess payment or benefits is thereafter recovered from such
benefited Bank, such purchase shall be rescinded, and the purchase price and
benefits returned, to the extent of such recovery, but without interest. The
Company agrees that each Bank so purchasing a portion of another Bank's Loans
and Uncommitted Advances may exercise all rights of payment (including without
limitation rights of set-off) with respect to such portion as fully as if such
Bank were the direct holder of such portion. Any Bank which receives any
amount
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by set-off shall promptly notify the Agent and the Company thereof and the
Agent shall promptly so notify the other Banks.
10.7. COUNTERPARTS
This Agreement may be executed by one or more of the parties to this
Agreement on any number of separate counterparts and all of said counterparts
taken together shall be deemed to constitute one and the same instrument. A
set of the copies of this Agreement signed by all the parties shall be lodged
with the Company and the Agent.
10.8. SURVIVAL OF REPRESENTATIONS AND WARRANTIES
All representations and warranties made under this Agreement shall
survive, and not be waived by, the execution and delivery of this Agreement,
any investigation by the Agent or any Bank or the making of any Loan or
Uncommitted Advance.
10.9. SURVIVAL OF OBLIGATIONS
The obligation of the Company to make payments or to provide
indemnities to the Agent or any Bank as provided for in this Agreement shall
survive the payment in full of the Loans and Uncommitted Advances and the
termination of this Agreement.
10.10. NO THIRD PARTY RIGHTS
Nothing expressed in or to be implied from this Agreement is intended
or shall be construed to give any person, other than the parties hereto, any
legal or equitable right, remedy or claim under or by virtue of this Agreement
or under or by virtue of any agreement or provision herein.
10.11. GOVERNING LAW
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAW
OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
10.12. JURISDICTION; PROCESS
THE COMPANY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF
ANY NEW YORK STATE OR UNITED STATES FEDERAL COURT SITTING IN NEW YORK CITY OVER
ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT,
THE LOANS OR THE UNCOMMITTED ADVANCES.
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The Company consents to process being served in any such suit, action
or proceeding either by mailing a copy thereof to the Company or, if
applicable, by serving a copy thereof upon the agent for service of process
referred to below; provided that to the extent lawful and possible, written
notice of such service shall also be mailed to the Company as aforesaid. The
Company agrees that such service shall be deemed in every respect effective
service of process upon the Company in any such suit, action or proceeding and
shall, to the full extent permitted by law, be taken and held to be valid
personal service upon and personal delivery to the Company. Nothing in this
paragraph shall affect or limit any right to serve process in any manner
permitted by law, to bring proceedings in the courts of any jurisdiction or to
enforce in any lawful manner a judgment obtained in one jurisdiction in any
other jurisdiction.
The Company irrevocably waives, to the full extent permitted by law,
any objection which it may have to the laying of venue of any such suit, action
or proceeding brought in any such court and any claim that any such suit,
action or proceeding has been brought in an inconvenient forum. So long as any
of the Commitments remains in effect or any Loans, Uncommitted Advances or
other amounts remain outstanding hereunder and if and so long as the Company no
longer has a place of business in New York, the Company will at all times have
an authorized agent in New York upon whom process may be served in any action
or proceeding arising out of or relating to this Agreement, the Loans or the
Uncommitted Advances which at the date hereof is The Xxxxxxxx-Xxxx Corporation
System, Inc., 00 Xxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000. The Company
will notify the Agent of any change in its authorized agent.
10.13. WAIVER OF TRIAL BY JURY
THE COMPANY, THE AGENT AND EACH BANK EACH HEREBY IRREVOCABLY WAIVE ALL
RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
10.14. ENTIRE AGREEMENT
This Agreement, the ACONA Agreement and the agreements concerning the
fees of the Agent and Syndication Agent constitute the entire understanding
among the parties hereto with respect to the subject matter hereof and
supersedes any prior agreements, written or oral, with respect thereto.
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10.15. HEADINGS
The headings in this Agreement are for convenience of reference only
and shall not limit or otherwise affect any of the terms hereof.
10.16. SEVERABILITY
Every provision of this Agreement is intended to be severable; if any
term or provision hereof shall be invalid, illegal or unenforceable for any
reason whatsoever, the validity, legality and enforceability of the remaining
provisions hereof shall not in any way be affected or impaired thereby and any
invalidity, illegality or unenforceability in any jurisdiction shall not affect
the validity, legality or enforceability of any such term or provision in any
other jurisdiction.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their duly authorized officer or
attorneys-in-fact, in several counterparts, all as of the day and year first
above written.
ASSOCIATES FIRST CAPITAL CORPORATION
By:______________________________________
Xxxx X. Xxxxxx
Executive Vice President
and Treasurer
DEUTSCHE BANK AG
as Administrative Agent
By:______________________________________
Printed Name:
Title:
By:______________________________________
Printed Name:
Title:
UNION BANK OF SWITZERLAND
as Syndication Agent
By:______________________________________
Printed Name:
Title:
By:______________________________________
Printed Name:
Title:
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COMMERZBANK AG
as Documentation Agent
By:______________________________________
Printed Name:
Title:
By:______________________________________
Printed Name:
Title:
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Commitment Banks and Lending Affiliates
$300,000,000 DEUTSCHE BANK AG
By:______________________________________
Printed Name:
Title:
By:______________________________________
Printed Name:
Title:
$300,000,000 UNION BANK OF SWITZERLAND
By:______________________________________
Printed Name:
Title:
By:______________________________________
Printed Name:
Title:
$200,000,000 COMMERZBANK AG
By:______________________________________
Printed Name:
Title:
By:______________________________________
Printed Name:
Title:
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$100,000,000 ABN AMRO BANK, N.V.
By:______________________________________
Printed Name:
Title:
By:______________________________________
Printed Name:
Title:
$100,000,000 BANK OF MONTREAL
By:______________________________________
Printed Name:
Title:
By:______________________________________
Printed Name:
Title:
$100,000,000 BANQUE NATIONAL DE PARIS
By:______________________________________
Printed Name:
Title:
By:______________________________________
Printed Name:
Title:
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$100,000,000 CANADIAN IMPERIAL BANK OF COMMERCE
By:______________________________________
Printed Name:
Title:
By:______________________________________
Printed Name:
Title:
$100,000,000 CITIBANK, N.A.
By:______________________________________
Printed Name:
Title:
$100,000,000 THE FIRST NATIONAL BANK OF CHICAGO
By:______________________________________
Printed Name:
Title:
$100,000,000 THE BANK OF NOVA SCOTIA
By:______________________________________
Printed Name:
Title:
By:______________________________________
Printed Name:
Title:
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SCHEDULE I
Loan and Uncommitted Advances Lending
Office and Address for Notices
DEUTSCHE BANK AG
Xx. Xxxxxx-Xxx Xxxxx-Xxx
Managing Director
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
(000) 000-0000
(000) 000-0000 (fax)
UNION BANK OF SWITZERLAND
Xx. Xxxxx Xxxxxxx
Assistant Treasurer
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
(000) 000-0000
(000) 000-0000 (fax)
COMMERZBANK AG
Xx. Xxxxx X. Xxxxxx
Vice President
0000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
(000) 000-0000
(000) 000-0000 (fax)
ABN AMRO BANK, N.V.
Xx. Xxxx X. Xxxxxxxxx
Group Vice President
000 X. XxXxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
(312) 443-2735
(000) 000-0000 (fax)
BANK OF MONTREAL
Xx. Xxxxxxx X. Xxxxx
Director
000 X. XxXxxxx Xxxxxx, 00xx Xxxxx Xxxx
Xxxxxxx, XX 00000
(000) 000-0000
(000) 000-0000 (fax)
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00
XXX XXXX XX XXXX XXXXXX
Xx. Xxxxxx Xxxxxxxx
Relationship Manager
0000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
(000) 000-0000
(000) 000-0000 (fax)
BANQUE NATIONAL DE PARIS, HOUSTON AGENCY
Xx. Xxxxx X. Xxxxxx
Vice President
000 Xxxxx Xxxxxxx Xx., Xxxxx 0000
Xxxxxx, XX 00000
(000) 000-0000
(000) 000-0000 (fax)
CANADIAN IMPERIAL BANK OF COMMERCE
Xx. Xx Xxx Xxxxxx
Director
000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
(000) 000-0000
(000) 000-0000 (fax)
CITIBANK, N.A.
Xx. Xxxxxx X. Xxxxxxx
Vice President
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxxx 00
Xxx Xxxx, XX 00000
(000) 000-0000
(000) 000-0000 (fax)
THE FIRST NATIONAL BANK OF CHICAGO
Xx. Xxxxxxx X. Xxxxxxxxx, Xx.
Managing Director
Xxx Xxxxx Xxxxxxxx Xxxxx #0000
Xxxxxxx, XX 00000-0000
(000) 000-0000
(000) 000-0000 (fax)
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EXHIBIT A
(To be sent in DUPLICATE to each addressee
and accompanied by TWO executed copies
of Form 1001 of the U.S. Internal
Revenue Service)
(Bank's Letterhead)
________, 199_
Associates First Capital Corporation
000 Xxxx Xxxxxxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000-0000
X.X.X.
Attention: Executive Vice President and Treasurer
,
as Agent
-------------------------
-------------------------
Dear Sirs,
Credit Agreement dated as of March 31, 1996
Providing a U.S. $1.5 Billion Facility for
Associates First Capital Corporation, as Borrower
with Deutsche Bank AG, as Administrative Agent
In connection with the above Agreement, we hereby certify that
[name of Bank] is a [name of country] corporation and is currently exempt from
any U.S. federal withholding tax on interest paid to it from U.S. sources by
virtue of compliance with the provisions of the Income Tax Convention between
the United States and [name of country] signed [date], [as amended]. Our
fiscal year is the twelve months ending [ ].
The undersigned (a) is a corporation organized under the laws of
[ ] whose business is managed or controlled in [ ]
(b) [does not have a permanent establishment in the United States] [does have a
permanent establishment in the United States but the above Agreement is not
effectively connected with such permanent establishment], (c) is not exempt
from tax on the income in [ ] and (d) is the actual owner of the
income.
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We enclose herewith two copies of Form 1001 of the U.S. Internal Revenue
Service.
Yours faithfully,
(Name of Bank)
By:
--------------------------
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EXHIBIT B
(To be sent in DUPLICATE to each addressee
and accompanied by TWO executed copies
of Form 4224 of the U.S. Internal
Revenue Service)
(Bank's Letterhead)
________, 199_
Associates First Capital Corporation
000 Xxxx Xxxxxxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000-0000
X.X.X.
Attention: Executive Vice President and Treasurer
,
as Agent
-------------------------
-------------------------
Dear Sirs,
Credit Agreement dated as of March 31, 1996
Providing a U.S. $1.5 Billion Facility for
Associates First Capital Corporation,as Borrower
with Deutsche Bank AG, as Administrative Agent
In connection with the above Agreement we hereby certify that [name of
Bank] is currently entitled to exemption from U.S. federal withholding tax on
payments to it under the above Agreement by virtue of Section 1441(c) of the
Internal Revenue Code of the United States of America.
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We enclose herewith two copies of Form 4224 of the U.S. Internal Revenue
Service.
Yours faithfully,
(Name of Bank)
By:
---------------------
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EXHIBIT C
[Letterhead of Associates First Capital Corporation]
To: the Administrative Agent,
the Syndication Agent,
the Documentation Agent,
and the Banks parties to
the Credit Agreement referred to below.
x/x Xxxxxxxx Xxxx XX
Xxx Xxxx, XX
__________, 199_
Dear Sirs,
I am Vice President and Assistant General Counsel of Associates
First Capital Corporation, (the "Company"), and have acted as such in
connection with the preparation, execution and delivery of the Credit
Agreement, dated as of March 31, 1996 (the "Agreement"), among the Company,
Deutsche Bank AG as Administrative Agent (the "Agent"), the several banks
parties thereto (the "Banks"), Union Bank of Switzerland as Syndication Agent
for the Banks (in such capacity, the "Syndication Agent"), and Commerzbank AG
as Documentation Agent for the Banks (in such capacity, the "Documentation
Agent"), which Agreement provides for the making of Loans in the maximum
aggregate principal amount of $1,500,000,000 at any one time outstanding and
for the making of Uncommitted Advances.
For the purpose of giving this opinion, I have examined:
(a) a copy of the Agreement;
(b) certified copies of each of the documents referred to in
subsections 6.1(a) and (c) of the Agreement;
(c) the specimen signatures and certificates referred to in
subsection 6.1(b) of the Agreement; and
(d) such other documents and such laws, regulations, decrees
and judicial decisions as I have considered necessary or
desirable for the purpose of giving this opinion and,
except as to item (v) below, I have made such other legal
inquiries as I deemed advisable.
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Based upon the foregoing and subject to the qualifications and
limitations set forth herein, I am of the opinion that:
(i) the Company and each Subsidiary is a corporation duly
organized and in good standing under the laws of the jurisdiction of its
incorporation, has the power to conduct its business as now conducted and is
duly qualified as a foreign corporation and in good standing in all
jurisdictions wherein the nature of the business it transacts makes such
qualification necessary, except when the failure to so qualify would not result
in a material adverse effect on the financial condition, results of operations
or businesses of the Company and its Subsidiaries taken as a whole. The
Company is duly qualified as a foreign corporation in good standing under the
law of the State of New York;
(ii) the execution, delivery and performance of the Agreement
by the Company are within the Company's corporate authority, have been duly
authorized by proper corporate proceedings, will not contravene any provision
of law or its Restated Certificate of Incorporation or By-laws or constitute a
default under the terms of any agreement binding upon it, and does not require
the consent or approval of, or registration with, any governmental authority,
body or agency;
(iii) the Agreement constitutes a legal, valid and binding
agreement of the Company enforceable in accordance with its terms;
(iv) the obligations of the Company under the Agreement rank
and will rank at least pari passu with all other unsecured and unsubordinated
indebtedness of the Company;
(v) based solely upon my review of a certification of Coopers
& Xxxxxxx, it being understood that I have made no independent investigation
into the financial condition of such plans, no employee benefit plan
established or maintained by, or to which contributions have been made by, the
Company or any Subsidiary or both, which is subject to Part 3 of Subtitle B of
Title 1 of ERISA had an accumulated funding deficiency (as such term is defined
in Section 302 or ERISA) as of the last day of the most recent fiscal year of
such plan ended prior to the date hereof and no material liability to the
Pension Benefit Guaranty Corporation has been incurred with respect to any such
plan by the Company or by any Subsidiary;
(vii) the statements as to matters of law or legal conclusions
contained in the Company's Annual Report on Form 10-K for the year ended
December 31, 1994 were correct as of the date such report was filed with the
United States Securities and Exchange Commission, and such statements fairly
present such matters or conclusions; and I have no reason to believe that such
Form 10-K, or any supplement or amendment thereto, as of their respective
dates, furnished to the Banks, contains any untrue statement of a material fact
or omitted to state a material fact
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necessary in order to make the statements therein, in the light of the
circumstances in which they were made, not misleading, except that I express no
opinion as to the financial statements or other financial or statistical data
contained therein;
(ix) the Company is not an "investment company" or a company
"controlled" by an "investment company", within the meaning of the Investment
Company Act of 1940, as amended; and
(x) assuming the accuracy and correctness of the
representations and warranties of the Company in Section 5.9 of the Agreement,
the making of the Loans and Uncommitted Advances will not violate Regulations
G, T, U and X of the Board of Governors of the Federal Reserve System.
I confirm that, as of the date hereof, there is no legal
proceeding pending, or overtly threatened in writing, before any court,
governmental agency, or arbitrator which would be required to be disclosed in
an Annual Report on Form 10-K or a quarterly report on Form 10-Q.
Except for the matters stated in paragraph (i) as to qualification
as a foreign corporation, this opinion is limited to the law of the State of
New York, the corporate law of the State of Delaware and the law of the United
States of America.
This opinion is qualified by and incorporates by reference the
General Qualifications, as defined in the Legal Opinion Accord of the ABA
Section of Business Law (1991).
This opinion is given as of the date hereof. I undertake no
obligation to advise you subsequently with respect to any change in law or
regulation or any factual matters on which such opinion is based.
This opinion is provided solely for the benefit of the Agent, the
Syndication Agent, the Banks, including such Banks and other financial
institutions which lawfully acquire an interest in any Loans or Uncommitted
Advances through a Bank, and their permitted successors and assigns and may not
be relied upon by any other person.
Very truly yours,
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