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DEERE & COMPANY
JOHN DEERE CAPITAL CORPORATION
________________________________________
$2,075,000,000
FIVE-YEAR
CREDIT AGREEMENT
Dated as of February 20, 2001
________________________________________
THE CHASE MANHATTAN BANK,
as Administrative Agent and as a Managing Agent
BANK OF AMERICA, N.A.,
as a Documentation Agent and as a Managing Agent
BANK ONE, NA,
as a Documentation Agent and as a Managing Agent
DEUTSCHE BANK AG NEW YORK BRANCH,
as Syndication Agent and as a Managing Agent
________________________________________
JP MORGAN,
a division of CHASE SECURITIES INC.,
as Lead Arranger and Bookrunner
================================================================================
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
Section 1. DEFINITIONS............................................... 1
1.1 Defined Terms............................................. 1
1.2 Other Definitional Provisions............................. 11
Section 2. THE COMMITTED RATE LOANS; THE BID LOANS; THE NEGOTIATED
RATE LOANS; AMOUNT AND TERMS.............................. 12
2.1 The Committed Rate Loans.................................. 12
2.2 The Bid Loans; the Negotiated Rate Loans.................. 13
2.3 Loan Accounts............................................. 17
2.4 Fees...................................................... 17
2.5 Termination or Reduction of Commitments; Cancellation of
Capital Corporation as Borrower........................... 17
2.6 Optional Prepayments...................................... 18
2.7 Minimum Amount of Certain Loans........................... 19
2.8 Committed Rate Loan Interest Rate and Payment Dates....... 19
2.9 Conversion and Continuation Options....................... 19
2.10 Computation of Interest and Fees.......................... 20
2.11 Inability to Determine Interest Rate...................... 20
2.12 Pro Rata Treatment and Payments........................... 21
2.13 Requirements of Law....................................... 23
2.14 Indemnity................................................. 26
2.15 Non-Receipt of Funds by the Administrative Agent.......... 27
2.16 Extension of Termination Date............................. 27
2.17 Foreign Taxes............................................. 28
2.18 Confirmations............................................. 30
2.19 Replacement of Cancelled Banks............................ 30
2.20 Commitment Increases...................................... 30
Section 3. REPRESENTATIONS AND WARRANTIES............................ 32
3.1 Financial Condition....................................... 32
3.2 Corporate Existence....................................... 32
3.3 Corporate Power; Authorization; Enforceable Obligations... 33
3.4 No Legal Bar.............................................. 33
3.5 No Material Litigation.................................... 33
3.6 Taxes..................................................... 33
3.7 Margin Regulations........................................ 34
3.8 Pari Passu Ranking........................................ 34
3.9 No Defaults............................................... 34
3.10 Use of Proceeds........................................... 34
Section 4. CONDITIONS PRECEDENT...................................... 34
4.1 Conditions to Initial Loan................................ 34
4.2 Conditions to All Loans................................... 35
</TABLE>
i
<PAGE>
<TABLE>
<S> <C>
Section 5. AFFIRMATIVE COVENANTS..................................... 36
5.1 Financial Statements...................................... 36
5.2 Certificates; Other Information........................... 36
5.3 Company Indenture Documents............................... 37
5.4 Capital Corporation Indenture Documents................... 37
5.5 Notice of Default......................................... 37
5.6 Ownership of Capital Corporation Stock.................... 37
5.7 Employee Benefit Plans.................................... 37
Section 6. NEGATIVE COVENANTS OF THE COMPANY......................... 37
6.1 Company May Consolidate, etc.............................. 37
6.2 Limitation on Liens....................................... 38
6.3 Limitations on Sale and Lease-back Transactions........... 41
6.4 Consolidated Tangible Net Worth........................... 42
Section 7. NEGATIVE COVENANTS OF THE CAPITAL CORPORATION............. 42
7.1 Fixed Charges Ratio....................................... 42
7.2 Consolidated Senior Debt to Consolidated Capital Base..... 42
7.3 Limitation on Liens....................................... 42
7.4 Consolidation; Merger..................................... 43
Section 8. EVENTS OF DEFAULT......................................... 44
Section 9. THE AGENTS................................................ 46
9.1 Appointment............................................... 46
9.2 Delegation of Duties...................................... 46
9.3 Exculpatory Provisions.................................... 46
9.4 Reliance by Agents........................................ 47
9.5 Notice of Default......................................... 47
9.6 Non-Reliance on Agents and Other Banks.................... 47
9.7 Indemnification........................................... 48
9.8 Agents in their Individual Capacities..................... 48
9.9 Successor Agents.......................................... 48
Section 10. MISCELLANEOUS............................................. 48
10.1 Amendments and Waivers.................................... 48
10.2 Notices................................................... 49
10.3 No Waiver; Cumulative Remedies............................ 50
10.4 Payment of Expenses and Taxes............................. 51
10.5 Successors and Assigns; Participations; Purchasing Banks.. 52
10.6 Adjustments............................................... 56
10.7 Confidentiality........................................... 57
10.8 Counterparts.............................................. 57
10.9 GOVERNING LAW............................................. 57
10.10 Consent to Jurisdiction and Service of Process............ 58
</TABLE>
ii
<PAGE>
SCHEDULES:
Schedule I Terms of Subordination
Schedule II Commitments
Schedule III Addresses for Notices
EXHIBITS:
Exhibit A Form of Borrowing Notice
Exhibit B Form of Bid Loan Request
Exhibit C Form of Bid Loan Offer
Exhibit D Form of Bid Loan Confirmation
Exhibit E Form of Loan Assignment
Exhibit F Form of Commitment Transfer Supplement
Exhibit G Form of Opinion of General Counsel to the Company
Exhibit H Form of Opinion of Special New York Counsel to the Borrowers
Exhibit I Form of Extension Request
Exhibit J Form of Form 1001 Tax Letter
Exhibit K Form of Form 4224 Tax Letter
Exhibit L Form of Agreement
Exhibit M Form of Promissory Note
Exhibit N Form of New Bank Supplement
Exhibit O Form of Commitment Increase Supplement
iii
<PAGE>
CREDIT AGREEMENT, dated as of February 20, 2001, among (a) DEERE &
COMPANY, a Delaware corporation (the "Company"), (b) JOHN DEERE CAPITAL
-------
CORPORATION, a Delaware corporation (the "Capital Corporation"), (c) the
-------------------
several financial institutions parties hereto (collectively, the "Banks", and
-----
individually, a "Bank"), (d) THE CHASE MANHATTAN BANK, as administrative agent
----
hereunder (in such capacity, the "Administrative Agent"), (e) BANK OF AMERICA,
--------------------
N.A. and BANK ONE, NA, as documentation agents hereunder (in such capacity, the
"Documentation Agents"), (f) DEUTSCHE BANK AG NEW YORK BRANCH, as syndication
--------------------
agent hereunder (in such capacity, the "Syndication Agent"), (g) the managing
-----------------
agents identified on the signature pages hereof (collectively, the "Managing
--------
Agents") and (h) the co-agents identified on the signature pages hereof
------
(collectively, the "Co-Agents").
---------
The parties hereto hereby agree as follows:
Section 1. DEFINITIONS
-----------
1.1 Defined Terms. As used in this Agreement, the following
-------------
terms have the following meanings:
"ABR": at any particular date, the higher of (a) the rate of
---
interest per annum publicly announced by Chase for such date as its prime
rate in effect at its principal office in New York City and (b) 0.5% per
annum above the rate set forth for such date or, if such date is not a
Business Day, the next preceding Business Day, opposite the caption
"Federal Funds (Effective)" in the weekly statistical release designated as
"H.15(519)" (or any successor publication) published by the Board of
Governors of the Federal Reserve System or, if such rate is not so
published for such date, the average of the quotations for such day on such
transactions received by the Administrative Agent from three Federal Funds
dealers of recognized standing selected by it. The prime rate is not
intended to be the lowest rate of interest charged by Chase in connection
with extensions of credit to debtors.
"ABR Loans": Committed Rate Loans at such time as they are made
---------
and/or being maintained at a rate of interest based upon the ABR.
"Absolute Rate Bid Loan": any Bid Loan made pursuant to an
----------------------
Absolute Rate Bid Loan Request.
"Absolute Rate Bid Loan Request": any Bid Loan Request requesting
------------------------------
the Banks to offer to make Bid Loans at an absolute rate (as opposed to a
rate composed of the Applicable Index Rate plus (or minus) a margin).
---- -----
"Administrative Agent": as defined in the preamble hereto.
--------------------
"Agent": the Administrative Agent, the Syndication Agent or any
-----
Documentation Agent, as the context shall require; together, the "Agents".
------
<PAGE>
2
"Agreement": this Credit Agreement, as amended, supplemented or
---------
modified from time to time.
"Applicable Index Rate": in respect of any Bid Loan requested
---------------------
pursuant to an Index Rate Bid Loan Request, the Eurodollar Rate applicable
to the Interest Period for such Bid Loan.
"Applicable Margin": for each Type of Committed Rate Loan the rate
-----------------
per annum set forth below:
ABR Loans Eurodollar Loans
--------- ----------------
0% 0.175%
"Attributable Debt": as defined in subsection 6.2(b)(ii).
-----------------
"Bank" and "Banks": as defined in the preamble hereto.
---- -----
"Benefitted Bank": as defined in subsection 10.6.
----------------
"Bid Loan": each loan (other than Negotiated Rate Loans) made
--------
pursuant to subsection 2.2; the aggregate amount advanced by a Bid Loan
Bank pursuant to subsection 2.2 on each Borrowing Date shall constitute one
Bid Loan, or more than one Bid Loan if so specified by the relevant Loan
Assignee in its request for promissory notes pursuant to subsection
10.5(c).
"Bid Loan Banks": the collective reference to each Bank designated
--------------
from time to time as a Bid Loan Bank by a Borrower (for purposes of Bid
Loans to such Borrower) by written notice to the Administrative Agent and
which has not been removed as a Bid Loan Bank by such Borrower by written
notice to the Administrative Agent (each of which notices the
Administrative Agent shall transmit to each such affected Bank).
"Bid Loan Confirmation": each confirmation by the Company or the
---------------------
Capital Corporation of its acceptance of Bid Loan Offers, which Bid Loan
Confirmation shall be substantially in the form of Exhibit D and shall be
delivered to the Administrative Agent by facsimile transmission or by
telephone, immediately confirmed by facsimile transmission.
"Bid Loan Offer": each offer by a Bid Loan Bank to make Bid Loans
--------------
pursuant to a Bid Loan Request, which Bid Loan Offer shall contain the
information specified in Exhibit C and shall be delivered to the
Administrative Agent by facsimile transmission or by telephone, immediately
confirmed by facsimile transmission.
"Bid Loan Request": each request by a Borrower for Bid Loan Banks
----------------
to submit bids to make Bid Loans, which shall contain the information in
respect of such requested Bid Loans specified in Exhibit B and shall be
delivered to the Administrative Agent by facsimile transmission or by
telephone, immediately confirmed by facsimile transmission.
<PAGE>
3
"Borrower": the Company or the Capital Corporation; collectively,
--------
the "Borrowers".
----------
"Borrowing Date": in respect of any Loan, the date such Loan is
--------------
made.
"Business Day": a day other than a Saturday, Sunday or other day on
------------
which commercial banks in New York City are authorized or required by law
to close.
"Cancelled Bank": any Bank that has the whole or any part of its
--------------
Commitment cancelled under subsection 2.13(a), (b) or (c), subsection
2.16(c) or subsection 2.17(b) or the Commitment of which has expired under
subsection 2.16(a).
"Capital Corporation": as defined in the preamble hereto.
-------------------
"Chase": The Chase Manhattan Bank, a New York banking corporation.
-----
"Closing Date": the date on which each of the conditions precedent
------------
specified in subsection 4.1 shall have been satisfied (or compliance
therewith shall have been waived by the Majority Banks hereunder).
"Co-Agents": as defined in the preamble hereto.
---------
"Code": the Internal Revenue Code of 1986, as amended from time to
----
time.
"Commitment": as to any Bank, the amount set opposite such Bank's
----------
name on Schedule II, as such amount may be modified as provided herein;
collectively, as to all the Banks, the "Commitments".
-----------
"Commitment Expiration Date": as defined in subsection 2.16(a).
--------------------------
"Commitment Increase Notice": as defined in subsection 2.20(a).
--------------------------
"Commitment Increase Supplement": as defined in subsection 2.20(c).
------------------------------
"Commitment Percentage": as to any Bank at any time, the percentage
---------------------
which such Bank's Commitment at such time constitutes of all the
Commitments at such time; collectively, as to all the Banks, the
"Commitment Percentages".
----------------------
"Commitment Period": the period from and including the Closing Date
-----------------
to but not including the Termination Date or such earlier date on which the
Commitments shall terminate as provided herein.
"Commitment Transfer Supplement": a Commitment Transfer Supplement,
------------------------------
substantially in the form of Exhibit F.
"Committed Rate Loans" each loan made pursuant to subsection 2.1.
--------------------
<PAGE>
4
"Commonly Controlled Entity": in relation to a Borrower, an entity,
--------------------------
whether or not incorporated, which is under common control with such
Borrower within the meaning of Section 414(b) or (c) of the Code.
"Company": as defined in the preamble hereto.
-------
"Consolidated Capital Base": at a particular time for the Capital
-------------------------
Corporation and its consolidated Subsidiaries, the sum of (a) the amount
shown opposite the item "Total stockholder's equity" on the consolidated
balance sheet of the Capital Corporation and its consolidated Subsidiaries
plus (b) the principal amounts outstanding under the 8-5/8% Subordinated
----
Debentures due 2019 of the Capital Corporation (so long as the
subordination terms thereof continue to be as favorable to the
Administrative Agent and the Banks as in existence on the Closing Date) and
all indebtedness of the Capital Corporation and its consolidated
Subsidiaries for borrowed money subordinated (on terms no less favorable to
the Administrative Agent and the Banks than the terms of subordination set
forth on Schedule I) to the indebtedness which may be incurred hereunder by
the Capital Corporation, provided that the sum of clauses (a) and (b)
--------
hereof as at the end of a fiscal quarter of the Capital Corporation and its
consolidated Subsidiaries (including the last quarter of a fiscal year of
the Capital Corporation and its consolidated Subsidiaries) shall be
determined by reference to the publicly available consolidated balance
sheet of the Capital Corporation and its consolidated Subsidiaries as at
the end of such fiscal quarter and after such adjustments, if any, as may
be required so that the sum of the amounts referred to in clauses (a) and
(b) is determined in accordance with GAAP.
"Consolidated Net Worth": as defined in subsection 6.2(b)(ii).
----------------------
"Consolidated Senior Debt": at a particular time for the Capital
------------------------
Corporation and its consolidated Subsidiaries, indebtedness for borrowed
money other than the 8-5/8% Subordinated Debentures due 2019 of the Capital
Corporation (so long as the subordination terms thereof continue to be as
favorable to the Administrative Agent and the Banks as such terms in
existence on the Closing Date) and any such indebtedness that is
subordinated, on terms no less favorable to the Administrative Agent and
the Banks than the terms of subordination set forth on Schedule I, to the
indebtedness which may be incurred hereunder by the Capital Corporation,
provided that the amount of such indebtedness for borrowed money (other
--------
than such subordinated indebtedness) as at the end of a fiscal quarter of
the Capital Corporation and its consolidated Subsidiaries (including the
last quarter of a fiscal year of the Capital Corporation and its
consolidated Subsidiaries) shall be determined by reference to the publicly
available consolidated balance sheet of the Capital Corporation and its
consolidated Subsidiaries as at the end of such fiscal quarter and after
such adjustments, if any, as may be required so that such amount is
determined in accordance with GAAP.
"Consolidated Tangible Net Worth": at a particular time for a
-------------------------------
Borrower and its consolidated Subsidiaries, the excess of the amount shown
opposite the item "Total stockholder's equity" on the consolidated balance
sheet of such Borrower and its consolidated Subsidiaries over the aggregate
amount shown on such balance sheet for any
<PAGE>
5
intangible assets, including, without limitation, goodwill, franchises,
licenses, patents, trademarks, trade-names, copyrights, service marks and
brand names, provided that such excess amount shall be determined (a) with
--------
respect to the Company and its consolidated Subsidiaries as at the end of
any of their fiscal quarters (including the last quarter of any of their
fiscal years), by reference to the publicly available consolidated balance
sheet of the Company and its consolidated Subsidiaries as at the end of
such fiscal quarter and (b) with respect to the Capital Corporation and its
consolidated Subsidiaries as at the end of any of their fiscal quarters
(including the last quarter of any of their fiscal years), by reference to
the publicly available consolidated balance sheet of the Capital
Corporation and its consolidated Subsidiaries as at the end of such fiscal
quarter, in each such case after such adjustments, if any, as may be
required so that such excess is determined in accordance with GAAP.
"Contractual Obligation": as to any Person, any provision of any
----------------------
security issued by such Person or of any agreement, instrument or
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Deal Year": as defined in subsection 2.16(c).
---------
"Debt": as defined in subsection 6.2.
----
"Default": any of the events specified in Section 8, whether or not
-------
any requirement for the giving of notice, the lapse of time, or both, or
any other condition, event or act has been satisfied.
"Documentation Agents": as defined in the preamble hereto.
--------------------
"Dollars" and "$": dollars in lawful currency of the United States
------- -
of America.
"ERISA": the Employee Retirement Income Security Act of 1974, as
-----
amended from time to time.
"Eurodollar Loans": Committed Rate Loans at such time as they are
----------------
made and/or being maintained at a rate of interest based upon a Eurodollar
Rate.
"Eurodollar Rate": with respect to each day during each Interest
---------------
Period for a Eurodollar Loan and for each Index Rate Bid Loan, (a) the rate
determined by the Administrative Agent to be the arithmetic mean of the
offered rates for deposits in Dollars for a period of such Interest Period
which appear on the Reuters Screen LIBO Page as of 11:00 a.m., London time,
on the date that is two Working Days prior to the beginning of such
Interest Period or (b) if fewer than two offered rates appear, the rate in
respect of such Interest Period will be the rate per annum equal to the
average (rounded upwards, if necessary, to the nearest whole multiple of
one sixteenth of one percent) of the respective rates notified to the
Administrative Agent by the Reference Banks as the rate at which such
Reference Bank is offered Dollar deposits two Working Days prior to the
beginning of such Interest Period in the interbank eurodollar market where
the eurodollar and foreign currency and exchange operations in respect of
its Eurodollar Loans are customarily conducted at or about 10:00 a.m., New
York City time, for
<PAGE>
6
delivery on the first day of such Interest Period for the number of days
comprised therein and in an amount (i) in the case of Eurodollar Loans,
comparable to the amount of the Eurodollar Loan of such Reference Bank to
be outstanding during such Interest Period and (ii) in the case of an Index
Rate Bid Loan by any Bank, equal to the principal amount of all Index Rate
Bid Loans to which such Interest Period applies.
"Event of Default": any of the events specified in Section 8,
----------------
provided that any requirement for the giving of notice, the lapse of time,
--------
or both, or any other condition, event or act has been satisfied.
"Extension Request": each request by the Borrowers made pursuant to
-----------------
subsection 2.16 for the Banks to extend this Agreement, which shall contain
the information in respect of such extension specified in Exhibit I and
shall be delivered to the Administrative Agent in writing.
"Facility Fee Rate": 0.075%.
-----------------
"Fixed Charges": for any particular period for the Capital
-------------
Corporation and its consolidated Subsidiaries, all of the Capital
Corporation's and its consolidated Subsidiaries' consolidated interest on
indebtedness for borrowed money, amortization of discounts of indebtedness
for borrowed money, the portion of rentals under financing leases deemed to
represent interest and rentals under operating leases, provided that such
--------
amounts for a fiscal quarter of the Capital Corporation and its
consolidated Subsidiaries (including the last quarter of a fiscal year of
the Capital Corporation and its consolidated Subsidiaries) shall be
determined by reference to the publicly available consolidated statement of
income of the Capital Corporation and its consolidated Subsidiaries for or
covering such fiscal quarter and after such adjustments, if any, as may be
required so that such amounts are determined in accordance with GAAP.
"Foreign Taxes": as defined in subsection 2.17(a).
-------------
"GAAP": generally accepted accounting principles in the United
----
States of America as applied in the preparation of financial statements of
the Company or the Capital Corporation, respectively, as of the fiscal year
ended October 31, 1998.
"Governmental Authority": any nation or government, any state or
----------------------
other political subdivision thereof, and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Important Property": (a) any manufacturing plant, including land,
------------------
all buildings and other improvements thereon, and all manufacturing
machinery and equipment located therein, owned and used by the Company or a
Restricted Subsidiary primarily for the manufacture of products to be sold
by the Company or such Restricted Subsidiary, (b) the executive office and
administrative building of the Company in Moline, Illinois, and (c)
research and development facilities, including land and buildings and other
improvements thereon and research and development machinery and equipment
located therein, in each case, owned and used by the Company or a
Restricted Subsidiary; except in any case property of which the aggregate
fair value as determined by the Board of
<PAGE>
7
Directors of the Company does not at the time exceed 1% of Consolidated Net
Worth, as shown on the audited consolidated balance sheet contained in the
latest annual report to stockholders of the Company.
"Increasing Bank": as defined in subsection 2.20(c).
---------------
"Index Rate Bid Loan": any Bid Loan made at an interest rate based
-------------------
upon the Applicable Index Rate.
"Index Rate Bid Loan Request": any Bid Loan Request requesting the
---------------------------
Banks to offer to make Index Rate Bid Loans at an interest rate equal to
the Applicable Index Rate plus (or minus) a margin.
---- -----
"Interest Payment Date": (a) as to any ABR Loan, the last Business
---------------------
Day of each March, June, September and December, commencing on the first of
such days to occur after such ABR Loan is made or a Eurodollar Loan is
converted to an ABR Loan and (b) as to any Eurodollar Loan, the last day of
each Interest Period applicable thereto, provided that as to any Eurodollar
--------
Loan in respect of which a Borrower has selected an Interest Period of six
months, interest shall also be paid on the day which is three months after
the beginning of such Interest Period.
"Interest Period": (a) with respect to any Eurodollar Loan, the
---------------
period commencing on the Borrowing Date, the date any ABR Loan is converted
to a Eurodollar Loan or the date any Eurodollar Loan is continued as a
Eurodollar Loan, as the case may be, with respect to such Eurodollar Loan
and ending one, two, three or six months thereafter, as selected by a
Borrower in its notice of borrowing, conversion or continuance as provided
in subsection 2.1(c) or 2.9;
(b) with respect to any Bid Loan, the period commencing on the
Borrowing Date with respect to such Bid Loan and ending on the date not
less than seven days nor more than six months thereafter, as specified by a
Borrower in its Bid Loan Request as provided in subsection 2.2(b); and
(c) with respect to any Negotiated Rate Loan, the period or periods
commencing on the Borrowing Date with respect to such Negotiated Rate Loan
or the last day of any Interest Period with respect thereto and ending on
the dates as shall be mutually agreed upon between the relevant Borrower
and the relevant Bank;
provided, that all of the foregoing provisions relating to Interest Periods
--------
are subject to the following:
(i) if any Interest Period pertaining to a Eurodollar Loan or
an Index Rate Bid Loan would otherwise end on a day which is not a
Working Day, that Interest Period shall be extended to the next
succeeding Working Day unless the result of such extension would be
to carry such Interest Period into another calendar month in which
event such Interest Period shall end on the immediately preceding
Working Day;
<PAGE>
8
(ii) if any Interest Period pertaining to a Negotiated Rate
Loan or an Absolute Rate Bid Loan would otherwise end on a day which
is not a Business Day, that Interest Period shall be extended to the
next succeeding Business Day;
(iii) any Interest Period pertaining to a Eurodollar Loan
having an Interest Period of one, two, three or six months or an
Index Rate Bid Loan having an Interest Period of one, two, three,
four, five or six months, that begins on the last Working Day of a
calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Working Day of a calendar month;
(iv) Interest Periods shall be deemed available only if the
Required Banks shall not have advised the Administrative Agent that
the Eurodollar Rate determined by the Administrative Agent on the
basis of the applicable quotes will not adequately and fairly
reflect the cost to such Banks of maintaining or funding their
Committed Rate Loans bearing interest based on the Eurodollar Rate
determined for such Interest Period. The Administrative Agent shall
notify the Borrowers and each Bank promptly after having been
advised by the Required Banks that a Eurodollar Rate will not so
adequately and fairly reflect such Banks' costs as aforesaid. If a
requested Interest Period shall be unavailable in accordance with
the foregoing sentence, the proposed Borrower may (A) in accordance
with the provisions (including any requirements for notification) of
subsection 2.1 request, at its option, that the requested Committed
Rate Loans be made or maintained as ABR Loans or (B) withdraw the
request for such Committed Rate Loans for which the Interest Period
was unavailable by giving notice of such election to the
Administrative Agent in accordance with subsection 2.11; provided,
--------
that if the Administrative Agent does not receive any notice
hereunder, such Borrower shall be deemed to have requested ABR
Loans;
(v) with respect to Loans made by an Objecting Bank, no
Interest Periods with respect to such Loans shall end after such
Objecting Bank's Commitment Expiration Date; and
(vi) no Interest Period shall end after the Termination Date.
"Loan Account": as defined in subsection 2.3; collectively, the
------------
"Loan Accounts".
-------------
"Loan Assignees": as defined in subsection 10.5(c).
--------------
"Loan Assignment": a Loan Assignment, substantially in the form of
---------------
Exhibit E.
"Loans": the collective reference to the Committed Rate Loans, the
-----
Bid Loans and the Negotiated Rate Loans.
"Majority Banks": at any particular time, Banks having Commitment
--------------
Percentages aggregating more than fifty percent; provided, that at any time
--------
after the termination of all the Commitments, "Majority Banks" shall mean
Banks holding Loans aggregating more than fifty percent in principal amount
of all outstanding Loans.
<PAGE>
9
"Managing Agents": as defined in the preamble hereto.
---------------
"Margin Stock": as defined in Regulation U of the Board of
------------
Governors of the Federal Reserve System.
"Mortgage": as defined in subsection 6.2.
--------
"Negotiated Rate Loan": each Loan made to a Borrower by a Bank
--------------------
pursuant to a Negotiated Rate Loan Request in such principal amount, for
such number of Interest Periods (subject to the proviso to the definition
of "Interest Period" in this subsection 1.1) and having such interest
rate(s) and repayment terms as shall, in each case, be mutually agreed upon
between such Borrower and such Bank.
"Negotiated Rate Loan Request": each request by a Borrower for a
----------------------------
Bank to make Negotiated Rate Loans, which shall be delivered to such Bank
in writing, by facsimile transmission, or by telephone, immediately
confirmed in writing, and which shall specify the amount to be borrowed and
the proposed Borrowing Date.
"Net Earnings Available for Fixed Charges": for any particular
----------------------------------------
period for the Capital Corporation and its consolidated Subsidiaries,
consolidated net earnings of the Capital Corporation and such Subsidiaries
for such period without deduction of Fixed Charges and without deduction of
federal, state or other income taxes, provided that such net earnings for a
--------
fiscal quarter of the Capital Corporation and its consolidated Subsidiaries
(including the last quarter of a fiscal year of the Capital Corporation and
its consolidated Subsidiaries) shall be determined by reference to the
publicly available statement of income of the Capital Corporation and its
consolidated Subsidiaries for or covering such fiscal quarter and after
such adjustments, if any, as may be required so that such net earnings are
determined in accordance with GAAP, except that earned investment tax
credits may be included as revenue in the consolidated income statement of
the Capital Corporation and its consolidated Subsidiaries, rather than as
an offset against the provision for income taxes.
"New Bank": as defined in subsection 2.20(b).
--------
"New Bank Supplement": as defined in subsection 2.20(b).
-------------------
"Notes": the collective reference to any promissory note evidencing
-----
Loans.
"Objecting Banks": as defined in subsection 2.16(a).
---------------
"Offered Increase Amount": as defined in subsection 2.20(a).
-----------------------
"Participants": as defined in subsection 10.5(b).
------------
"Person": an individual, partnership, corporation, business trust,
------
joint stock company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature, provided that
--------
for purposes of Section 8(h), Person shall
<PAGE>
10
also include two or more entities acting as a syndicate or any other group
for the purpose of acquiring, holding or disposing of securities of the
Company.
"Plan": any pension plan which is covered by Title IV of ERISA and
----
in respect of which either Borrower or a Commonly Controlled Entity is an
"employer" as defined in Section 3(5) of ERISA.
"Purchasing Banks": as defined in subsection 10.5(d).
----------------
"Re-Allocation Date": as defined in subsection 2.20(e).
------------------
"Reference Banks": Chase, Bank of America, N.A., Bank One, NA and
---------------
Deutsche Bank AG New York Branch.
"Register": as defined in subsection 10.5(e).
--------
"Report Period": as defined in subsection 2.18.
-------------
"Reportable Event": any of the events set forth in Section 4043(b)
----------------
of ERISA or the regulations thereunder.
"Required Banks": at a particular time, Banks having Commitment
--------------
Percentages aggregating at least 66-2/3%; provided that (a) at any time
--------
after the termination of all the Commitments, "Required Banks" means Banks
holding Loans aggregating at least 66-2/3% in principal amount of all
outstanding Loans and (b) as used in subsection 2.16, "Required Banks"
means with respect to any Extension Request, at a particular time after the
Termination Date has been extended pursuant to such subsection, Banks (i)
which are not Objecting Banks with respect to any previous Extension
Request and (ii) which have Commitment Percentages aggregating at least 66-
2/3% of the aggregate Commitment Percentages of such non-Objecting Banks.
"Requirement of Law": as to any Person, the Certificate of
------------------
Incorporation and By-Laws or other organizational or governing documents of
such Person, and any law, treaty, rule or regulation, or determination of
an arbitrator or a court or other Governmental Authority, in each case
applicable to or binding upon such Person or any of its property or to
which such Person or any of its property is subject.
"Reserves": as defined in subsection 2.13(c).
--------
"Responsible Officer": of a Borrower, the Chairman, the President,
-------------------
any Executive, Senior or other Vice President, the Treasurer and any
Assistant Treasurer of such Borrower.
"Restricted Margin Stock": any Margin Stock, the sale, pledge or
-----------------------
other disposition of which by the Company or any of its Subsidiaries is in
any way restricted by an arrangement with any Bank or any affiliate thereof
to the extent that the value thereof (determined in accordance with
Regulation U of the Board of Governors of the Federal
<PAGE>
11
Reserve System) does not exceed 25% of the value (determined in accordance
with such Regulation U) of all the assets subject to such restriction.
"Restricted Subsidiary": any Subsidiary of the Company incorporated
---------------------
in the United States of America or Canada (a) which is engaged in, or whose
principal assets consist of property used by the Company or any Restricted
Subsidiary in, the manufacture of products within the United States of
America or Canada or in the sale of products principally to customers
located in the United States of America or Canada except any corporation
which is a retail dealer in which the Company has, directly or indirectly,
an investment, or (b) which the Company shall designate as a Restricted
Subsidiary in an officers' certificate signed by two Responsible Officers
of the Company and delivered to the Administrative Agent.
"Sale and Lease-back Transaction": as defined in subsection 6.3.
-------------------------------
"Significant Subsidiary": of a Borrower, any Subsidiary of such
----------------------
Borrower the assets, revenues or net worth of which is, at the time of
determination, equal to or greater than ten percent of the assets, revenues
or net worth, respectively, of such Borrower at such time.
"Subsidiary": of a Person, a corporation or other entity of which
----------
securities or other ownership interests having ordinary voting power (other
than securities or other ownership interests having such power only by
reason of the happening of a contingency) to elect a majority of the board
of directors or other Persons performing similar functions are at the time
directly or indirectly owned by such Person or one or more Subsidiaries of
such Person, or by such Person and one or more Subsidiaries of such Person.
"Syndication Agent": as defined in the preamble hereto.
-----------------
"Termination Date": the fifth anniversary of the Closing Date or
----------------
such later date as shall be determined pursuant to the provisions of
subsection 2.16 with respect to non-Objecting Banks.
"Transferees": as defined in subsection 10.5(g).
-----------
"Transfer Effective Date": as defined in each Commitment Transfer
-----------------------
Supplement and each Loan Assignment.
"Type": as to any Committed Rate Loan, its nature as an ABR Loan or
----
Eurodollar Loan.
"Working Day": any Business Day on which dealings in foreign
-----------
currencies and exchange between banks may be carried on in London, England
and New York, New York.
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.
<PAGE>
12
(b) As used herein and in any certificate or other document made
or delivered pursuant hereto, accounting terms relating to either Borrower and
its Subsidiaries 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 GAAP.
(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.
(d) Unless otherwise qualified, all references to a "Subsidiary"
or to "Subsidiaries" in this Agreement shall refer to a Subsidiary or
Subsidiaries of the relevant Borrower.
Section 2. THE COMMITTED RATE LOANS; THE BID LOANS; THE NEGOTIATED RATE
------------------------------------------------------------
LOANS; AMOUNT AND TERMS
-----------------------
2.1 The Committed Rate Loans. (a) During the Commitment Period,
------------------------
subject to the terms and conditions hereof, each Bank severally agrees to make
loans (individually, a "Committed Rate Loan") to either Borrower from time to
time in an aggregate principal amount for both Borrowers at any one time
outstanding not to exceed such Bank's Commitment. During the Commitment Period,
either Borrower may use the Commitments by borrowing, repaying and reborrowing,
all in accordance with the terms and conditions hereof.
(b) The Committed Rate Loans may be either (i) Eurodollar Loans,
(ii) ABR Loans or (iii) a combination thereof as determined by the relevant
Borrower.
(c) Either Borrower may borrow Committed Rate Loans on any
Working Day, if the borrowing is of Eurodollar Loans, or on any Business Day, if
the borrowing is of ABR Loans; provided, however, that a Responsible Officer of
-------- -------
such Borrower shall give the Administrative Agent irrevocable notice thereof
(which notice must be received by the Administrative Agent (i) prior to 12:00
Noon, New York City time, three Working Days prior to the requested Borrowing
Date, in the case of Eurodollar Loans, (ii) except as provided in clause (iii)
hereof below, prior to 12:00 Noon, New York City time, one Business Day prior to
the requested Borrowing Date, in the case of ABR Loans and (iii) prior to 11:00
A.M., New York City time, on the requested Borrowing Date in the case of ABR
Loans up to an aggregate principal amount for both Borrowers not to exceed 25%
of the Commitments on such Borrowing Date). Each such notice shall be given in
writing or by facsimile transmission substantially in the form of Exhibit A
(with appropriate insertions) or shall be given by telephone (specifying the
information set forth in Exhibit A) promptly confirmed by notice given in
writing or by facsimile transmission substantially in the form of Exhibit A
(with appropriate insertions). On the day of receipt of any such notice from
either Borrower, the Administrative Agent shall promptly notify each Bank
thereof. Each Bank will make the amount of its share of each borrowing available
to the Administrative Agent for the account of such Borrower at the office of
the Administrative Agent set forth in subsection 10.2 at 11:00 A.M. (or 2:00
P.M., in the case of ABR Loans requested pursuant to clause (iii) above), New
York City time, on the Borrowing Date requested by such Borrower in funds
immediately available to the Administrative Agent as the
<PAGE>
13
Administrative Agent may direct. The proceeds of all such Committed Rate Loans
will be made available promptly to such Borrower by the Administrative Agent at
the office of the Administrative Agent specified in subsection 10.2 by crediting
the account of such Borrower on the books of such office of the Administrative
Agent with the aggregate of the amount made available to the Administrative
Agent by the Banks and in like funds as received by the Administrative Agent.
(d) All Committed Rate Loans made to each Borrower shall be
repaid in full by such Borrower on or before the Termination Date.
2.2 The Bid Loans; the Negotiated Rate Loans. (a) Either
----------------------------------------
Borrower may borrow Bid Loans or Negotiated Rate Loans from time to time on any
Business Day (in the case of Bid Loans made pursuant to an Absolute Rate Bid
Loan Request), any Working Day (in the case of Bid Loans made pursuant to an
Index Rate Bid Loan Request) or, in the case of Negotiated Rate Loans, on such
days as shall be mutually agreed upon between the relevant Borrower and the
applicable Bank, in each case during the Commitment Period and in the manner set
forth in this subsection 2.2 and in amounts such that the aggregate principal
amount of Loans at any time outstanding shall not exceed the aggregate amount of
the Commitments at such time. Notwithstanding any other provision of this
Agreement, the aggregate principal amount of the outstanding Bid Loans and/or
Negotiated Rate Loans made by any Bank may at any time (but shall not be
required to) exceed the Commitment of such Bank so long as the aggregate
outstanding principal amount of all Loans does not at any time exceed the
aggregate amount of the Commitments.
(b) (i) Either Borrower shall request Bid Loans or Negotiated
Rate Loans by delivering (A) in the case of an Index Rate Bid Loan, a Bid Loan
Request to the Administrative Agent, c/o The Chase Manhattan Bank, One Chase
Manhattan Plaza, 8th Floor, New York, New York 10081, Attention: Chris Consomer,
Telephone: (212) 552-7259, Facsimile: (212) 552-5627, not later than 12:00 Noon
(New York City time) four Working Days prior to the proposed Borrowing Date, (B)
in the case of an Absolute Rate Bid Loan, a Bid Loan Request to the
Administrative Agent at the address set forth in clause (A) of this subsection
2.2(b)(i) not later than 10:00 A.M. (New York City time) one Business Day prior
to the proposed Borrowing Date or (C) in the case of a Negotiated Rate Loan, a
Negotiated Rate Loan Request to any Bank at such time as the applicable Borrower
and the applicable Bank shall agree. Each Bid Loan Request may solicit bids for
Bid Loans in an aggregate principal amount of $25,000,000 or an integral
multiple of $5,000,000 in excess thereof and for not more than three alternative
Interest Periods for such Bid Loans. The Administrative Agent shall promptly
notify each Bid Loan Bank by facsimile transmission or by telephone, immediately
confirmed by facsimile transmission, of the contents of each Bid Loan Request
received by it.
(ii) In the case of an Index Rate Bid Loan Request, upon receipt
of notice from the Administrative Agent of the contents of such Bid Loan
Request, any Bid Loan Bank that elects, in its sole discretion, to do so, shall
irrevocably offer to make one or more Bid Loans at the Applicable Index Rate
plus or minus a margin for each such Bid Loan determined by such Bid Loan Bank,
in its sole discretion. Any such irrevocable offer shall be made by delivering a
Bid Loan Offer to the Administrative Agent at the address set forth in clause
(i)(A) above before 10:30 A.M. (New York City time) three Working Days before
the proposed Borrowing Date,
<PAGE>
14
setting forth the maximum amount of Bid Loans for each Interest Period, and the
aggregate maximum amount for all Interest Periods, which such Bank would be
willing to make and the margin above or below the Applicable Index Rate at which
such Bid Loan Bank is willing to make each such Bid Loan. The Administrative
Agent shall advise the relevant Borrower before 11:00 A.M. (New York City time)
three Working Days before the proposed Borrowing Date of the contents of each
such Bid Loan Offer received by it. If the Administrative Agent in its capacity
as a Bid Loan Bank shall, in its sole discretion, elect to make any such offer,
it shall advise such Borrower of the contents of its Bid Loan Offer before 10:15
A.M. (New York City time) three Working Days before the proposed Borrowing Date.
(iii) In the case of an Absolute Rate Bid Loan Request, upon
receipt of notice from the Administrative Agent of the contents of such Bid Loan
Request, any Bid Loan Bank that elects, in its sole discretion, to do so, shall
irrevocably offer to make one or more Bid Loans at a rate or rates of interest
for each such Bid Loan determined by such Bid Loan Bank in its sole discretion.
Any such irrevocable offer shall be made by delivering a Bid Loan Offer to the
Administrative Agent at the address set forth in clause (i)(A) of this
subsection 2.2(b) before 9:30 A.M. (New York City time) on the proposed
Borrowing Date, setting forth the maximum amount of Bid Loans for each Interest
Period, and the aggregate maximum amount for all Interest Periods, which such
Bid Loan Bank would be willing to make and the rate or rates of interest at
which such Bid Loan Bank is willing to make each such Bid Loan. The
Administrative Agent shall advise the relevant Borrower before 10:00 A.M. (New
York City time) on the proposed Borrowing Date of the contents of each such Bid
Loan Offer received by it. If the Administrative Agent in its capacity as a Bid
Loan Bank shall, in its sole discretion, elect to make any such offer, it shall
advise such Borrower of the contents of its Bid Loan Offer before 9:15 A.M. (New
York City time) on the proposed Borrowing Date.
(iv) The relevant Borrower shall before 11:30 A.M. (New York
City time) three Working Days before the proposed Borrowing Date (in the case of
Bid Loans requested by an Index Rate Bid Loan Request) and before 10:30 A.M.
(New York City time) on the proposed Borrowing Date (in the case of Bid Loans
requested by an Absolute Rate Bid Loan Request) either, in its absolute
discretion:
(A) cancel such Bid Loan Request by giving the Administrative
Agent telephone notice to that effect, or
(B) accept one or more of the offers made by any Bid Loan Bank
or Bid Loan Banks pursuant to clause (ii) or clause (iii) of this
subsection 2.2(b), as the case may be, by giving telephone notice to the
Administrative Agent (immediately confirmed by delivery to the
Administrative Agent at the address set forth in clause (i)(A) of this
subsection 2.2(b) of a Bid Loan Confirmation) of the amount of Bid Loans
for each relevant Interest Period to be made by each Bid Loan Bank (which
amount shall be equal to or less than the maximum amount for such Interest
Period specified in the Bid Loan Offer of such Bid Loan Bank, and for all
Interest Periods included in such Bid Loan Offer shall be equal to or less
than the aggregate maximum amount specified in such Bid Loan Offer for all
such Interest Periods) and reject any remaining offers made by Bid Loan
Banks pursuant to clause (ii) or clause (iii) above, as the case may be;
provided, however, that (x) such Borrower may not accept offers for Bid
-------- -------
Loans for any Interest
<PAGE>
15
Period in an aggregate principal amount in excess of the maximum principal
amount requested for such Interest Period in the related Bid Loan Request,
(y) if such Borrower accepts any such offers, it must accept offers
strictly based upon pricing for such relevant Interest Period and upon no
other criteria whatsoever and (z) if two or more Bid Loan Banks submit
offers for any Interest Period at identical pricing and such Borrower
accepts any of such offers but does not wish to borrow the total amount
offered by such Bid Loan Banks with such identical pricing, such Borrower
shall accept offers from all of such Bid Loan Banks in amounts allocated
among them pro rata according to the amounts offered by such Bid Loan Banks
--- ----
(or as nearly pro rata as shall be practicable, after giving effect to the
--- ----
requirement that Bid Loans made by a Bid Loan Bank on a Borrowing Date for
each relevant Interest Period shall be in a principal amount of $5,000,000
or an integral multiple of $1,000,000 in excess thereof, it being agreed
that to the extent that it is not possible to make allocations in
accordance with the provisions of this clause (z) such allocations shall be
made in accordance with the instructions of such Borrower, it being
understood that in no event shall any Bank be obligated to make any Bid
Loan in a principal amount less than $5,000,000).
(v) If such Borrower notifies the Administrative Agent that a
Bid Loan Request is cancelled pursuant to clause (iv)(A) of this subsection
2.2(b), the Administrative Agent shall give prompt telephone notice thereof to
the Bid Loan Banks, and the Bid Loans requested thereby shall not be made.
(vi) (A) If such Borrower accepts pursuant to clause (iv)(B) of
this subsection 2.2(b) one or more of the offers made by any Bid Loan Bank or
Bid Loan Banks pursuant to a Bid Loan Request, the Administrative Agent shall
promptly notify by telephone each Bid Loan Bank which has made such an offer of
the aggregate amount of such Bid Loans to be made on such Borrowing Date for
each Interest Period and of the acceptance or rejection of any offers to make
such Bid Loans made by such Bid Loan Bank. Each Bid Loan Bank which is to make a
Bid Loan pursuant to a Bid Loan Request shall, before 12:00 Noon (New York City
time) on the Borrowing Date specified in the Bid Loan Request applicable
thereto, make available to the Administrative Agent at its office set forth in
subsection 10.2 the amount of Bid Loans to be made by such Bid Loan Bank, in
immediately available funds. The Administrative Agent will make such funds
available to such Borrower as soon as practicable on such date at the
Administrative Agent's aforesaid address.
(B) If such Borrower and any Bank agree to the terms of a
Negotiated Rate Loan to be made on a Borrowing Date pursuant to a
Negotiated Rate Loan Request, such Borrower and such Bank shall promptly
notify by telephone the Administrative Agent of the aggregate amount of
Negotiated Rate Loans to be made on such Borrowing Date and the respective
Interest Periods therefor. Each Bank which is to make a Negotiated Rate
Loan shall, at such time, on such Borrowing Date and at such location as
shall be mutually agreed upon between such Borrower and such Bank, make
available to such Borrower the amount of Negotiated Rate Loans to be made
by such Bank, in immediately available funds.
(C) As soon as practicable after each Borrowing Date for Bid
Loans and Negotiated Rate Loans, the Administrative Agent shall notify each
Bank of the aggregate
<PAGE>
16
amount of Bid Loans or Negotiated Rate Loans advanced pursuant to a Bid
Loan Request or Negotiated Rate Loan Request on such Borrowing Date and the
respective Interest Periods therefor.
(c) Within the limits and on the conditions set forth in this
subsection 2.2, each Borrower may from time to time borrow under this subsection
2.2, repay pursuant to paragraph (d) below, and reborrow under this subsection
2.2.
(d) Each Borrower shall repay to the Administrative Agent for
the account of each Bid Loan Bank (or the Loan Assignee in respect thereof, as
the case may be) which has made a Bid Loan to such Borrower on the last day of
the Interest Period for each Bid Loan (such Interest Period being that specified
by such Borrower for repayment of such Bid Loan in the related Bid Loan Request)
the then unpaid principal amount of such Bid Loan. Each Borrower shall repay to
each Bank which has made a Negotiated Rate Loan to such Borrower (or the Loan
Assignee in respect thereof, as the case may be) the principal thereof as agreed
by such Borrower and such Bank.
(e) Each Borrower shall pay interest on the unpaid principal
amount of each Bid Loan and each Negotiated Rate Loan borrowed by such Borrower
from the applicable Borrowing Date to the stated maturity date thereof, in the
case of a Bid Loan, at the rate of interest determined pursuant to paragraph (b)
of this subsection 2.2, and, in the case of a Negotiated Rate Loan, as agreed by
such Borrower and the relevant Bank (calculated on the basis of a 360 day year
for actual days elapsed), payable on the interest payment date or dates (i)
specified by such Borrower for such Bid Loan in the related Bid Loan Request and
(ii) mutually agreed upon between such Borrower and such Bank in the case of
Negotiated Rate Loans, provided that as to any Bid Loan in respect of which the
--------
stated maturity date is more than three months after such Borrowing Date,
interest shall also be paid on the day which occurs three months after such
Borrowing Date. If all or a portion of the principal amount of any Bid Loan
shall not be paid when due (whether at the stated maturity, by acceleration or
otherwise), such overdue principal amount shall, without limiting any rights of
any Bank under this Agreement, bear interest from the date on which such payment
was due at a rate per annum which is 1% above the rate which would otherwise be
applicable to such Bid Loan until the scheduled maturity date with respect
thereto and for each day thereafter at a rate per annum which is 1% above the
ABR until paid in full (as well after as before judgment). If all or any portion
of the principal amount of any Negotiated Rate Loan shall not be paid when due
(whether at the stated maturity, by acceleration or otherwise), such overdue
principal amount shall, without limiting any rights of any Bank under this
Agreement, bear interest from the date on which such payment was due at a rate
per annum as shall be mutually agreed upon between the relevant Borrower and the
relevant Bank.
(f) After the first Bid Loan Request has been given hereunder,
no Bid Loan Request or Negotiated Rate Loan Request shall be given until at
least one Business Day, in the case of an Absolute Rate Bid Loan Request, or one
Working Day, in the case of an Index Rate Bid Loan Request, after the earliest
to occur of (i) the Borrowing Dates with respect to all prior Bid Loan Requests
made pursuant to subsection 2.2(b)(i), (ii) the date on which all Bid Loan Banks
have failed to submit Bid Loan Offers with respect to any Bid Loan Requests
within the
<PAGE>
17
time specified in subsection 2.2(b)(ii) or iii), as the case may be, and (iii)
the date on which the relevant Borrower has cancelled all prior Bid Loan
Requests pursuant to subsection 2.2(b)(iv).
2.3 Loan Accounts. Each Bank, with respect to its Committed
-------------
Rate Loans, Bid Loans and Negotiated Rate Loans, and the Administrative Agent,
with respect to all Committed Rate Loans and Bid Loans, shall open and maintain
in the name of each Borrower loan accounts (as to each Bank, its "Loan Account"
applicable to such Borrower) on its books and records setting forth the amounts
of principal, interest and other sums paid and payable by such Borrower from
time to time hereunder in respect of such Loans, and the obligation of such
Borrower to pay or repay, as the case may be, such amounts to such Bank shall be
evidenced by such Bank's Loan Account. In case of any dispute, action or
proceeding relating to any Committed Rate Loan, Bid Loan or Negotiated Rate
Loan, the entries in such records shall constitute prima facie evidence of the
accuracy of the information set forth therein. In case of discrepancy between
the entries in the Administrative Agent's books and records and any Bank's, the
entries in the Administrative Agent"s books and records shall constitute prima
facie evidence of the accuracy of the information set forth therein.
2.4 Fees. (a) The Company and the Capital Corporation jointly
----
and severally agree to pay to the Administrative Agent for the account of each
Bank a facility fee from and including the Closing Date to but excluding the
last day of the Commitment Period, computed at a per annum rate equal to the
Facility Fee Rate on the average daily amount of the Commitment of such Bank in
effect during the period for which payment is made, payable quarterly in arrears
on the first Business Day of each January, April, July and October of each year
and on the Termination Date or such earlier date on which the Commitments shall
terminate as provided herein, commencing in April, 2001.
(b) The Company and the Capital Corporation jointly and
severally agree to pay to the Administrative Agent for its own account all fees
set forth in the letter agreement dated January 23, 2001 from JP Morgan, a
division of Chase Securities Inc., and Chase to the Borrowers.
(c) The Company and the Capital Corporation jointly and
severally agree to pay to the Administrative Agent for its own account all other
fees payable to the Administrative Agent as the Borrowers and the Administrative
Agent shall mutually agree from time to time.
2.5 Termination or Reduction of Commitments; Cancellation of
--------------------------------------------------------
Capital Corporation as Borrower. (a) The Borrowers, acting jointly, shall have
-------------------------------
the right, upon not less than five Business Days' notice to the Administrative
Agent, to terminate the Commitments or, from time to time, reduce the amount of
the Commitments, provided that (i) any such reduction shall be accompanied by
prepayment of Committed Rate Loans hereunder, together with accrued interest on
the amount so prepaid to the date of such prepayment, to the extent, if any,
that the aggregate outstanding principal amount of all Loans exceeds the amount
of the Commitments as then reduced and (ii) any such termination of the
Commitments shall be accompanied by prepayment in full of the Loans then
outstanding hereunder in accordance with subsection 2.6, and any termination of
a Bank"s Commitment pursuant to subsection 2.13, 2.16 or 2.17 shall, with
respect to each affected Loan, on the last day of the applicable Interest Period
therefor or, if earlier, on such earlier date as shall be notified by the
Borrowers, be accompanied
<PAGE>
18
by prepayment in full of such Loan, together with, in each case, accrued
interest thereon to the date of such prepayment, the payment of any unpaid
facility fee then accrued hereunder, and the payment of any amounts then payable
pursuant to subsections 2.13, 2.14, 2.15 and 2.17. Upon receipt of such notice
from the Borrowers the Administrative Agent shall promptly notify each Bank
thereof. Any reduction of the Commitments pursuant to this subsection 2.5 shall
be in an amount not less than $25,000,000, and shall be an amount which is a
whole multiple of $5,000,000, and shall reduce permanently the amount of the
Commitments then in effect.
(b) The Company may cancel the ability of the Capital
Corporation to borrow hereunder upon not less than five Business Days"'notice to
the Administrative Agent. Upon receipt of such notice from the Company the
Administrative Agent shall promptly notify each Bank thereof. On the first day
following receipt of such notice, on which all Loans to the Capital Corporation
and all interest thereon shall have been paid in full, and notwithstanding any
other provision of this Agreement, (i) the Capital Corporation shall cease to be
a party hereto or to have any right or obligation hereunder, (ii) rights and
obligations expressed herein to be, in effect, of either the Company or the
Capital Corporation or of both of them, but not any such rights and obligations
expressed herein to be of the Capital Corporation only, shall be deemed to be
rights and obligations of the Company only and (iii) the Banks shall cease to
have any right or obligation hereunder which depends or is contingent upon any
action, condition or performance, or the absence thereof, whether past or
present, of the Capital Corporation other than any action, condition or
performance, or the absence thereof, of the Capital Corporation in its capacity
as a Subsidiary, Significant Subsidiary or Restricted Subsidiary hereunder;
provided, however, that the obligation of the Capital Corporation to make any
-------- -------
payment pursuant to subsection 2.13, 2.14, 2.15 or 2.17 which arises prior to
the cancellation of the ability of the Capital Corporation to borrow hereunder
shall survive the cancellation of the ability of the Capital Corporation to
borrow hereunder.
2.6 Optional Prepayments. Either Borrower may at any time and
---------------------
from time to time prepay its Committed Rate Loans in whole or in part, without
premium or penalty, but subject to the provisions of subsection 2.14, upon at
least three Working Days' irrevocable notice, in the case of Eurodollar Loans,
or one Business Day"s irrevocable notice in the case of ABR Loans, in each case
to the Administrative Agent, specifying the date and amount of prepayment and
whether the prepayment is of its Eurodollar Loans, ABR Loans, or a combination
thereof, and if of a combination thereof, the amount of prepayment allocable to
each. Upon receipt of such notice the Administrative Agent shall promptly notify
each Bank thereof. If such notice is given, the Borrower delivering such notice
shall make such prepayment, and the payment of the amount specified in such
notice shall be due and payable, on the date specified therein, together with
accrued interest to such date on the amount prepaid and any amounts payable
pursuant to subsections 2.14 and 2.15. Except as provided in the immediately
following sentence, partial prepayments shall be in an aggregate principal
amount of $5,000,000, or a whole multiple thereof; provided, however, that after
giving effect thereto, the aggregate principal amount of all Committed Rate
Loans made on the same Borrowing Date shall not be less than $25,000,000.
Anything contained in this subsection 2.6 to the contrary notwithstanding,
partial prepayments of a Cancelled Bank"s Loans in connection with the
termination under subsection 2.13(a), (b) or (c), 2.16(c) or 2.17(b) of such
Cancelled Bank's Commitment (in whole or in part) shall be in an amount equal to
the principal amount of the Loans of such Bank being prepaid, notwithstanding
the amount thereof, and shall be permitted
<PAGE>
19
notwithstanding the provisions of the foregoing proviso. Either Borrower may
prepay Negotiated Rate Loans or Bid Loans on such terms as shall be mutually
agreed upon between the relevant Borrower and the relevant Bank.
2.7 Minimum Amount of Certain Loans. All borrowings,
-------------------------------
conversions, continuations, payments and, except as set forth in the penultimate
sentence of subsection 2.6(a), prepayments in respect of Committed Rate Loans
shall be in such amounts and be made pursuant to such elections that, after
giving effect thereto, (a) the aggregate principal amount of Committed Rate
Loans made on any Borrowing Date shall not be less than $25,000,000 or a whole
multiple of $5,000,000 in excess thereof and (b) the aggregate principal amount
of Committed Rate Loans of any Type with the same Interest Period shall not be
less than $10,000,000 or a whole multiple of $1,000,000 in excess thereof.
2.8 Committed Rate Loan Interest Rate and Payment Dates. (a)
---------------------------------------------------
The Eurodollar Loans shall bear interest for the period from the date thereof
until the stated maturity thereof on the unpaid principal amount thereof at a
rate per annum equal to the Eurodollar Rate determined for the Interest Period
therefor plus the Applicable Margin.
(b) The ABR Loans shall bear interest for each day during the
period from the date thereof until the payment in full thereof on the unpaid
principal amount thereof at a fluctuating rate per annum equal to the ABR for
such day plus the Applicable Margin.
(c) If all or a portion of the principal amount of any of the
Committed Rate Loans shall not be paid when due (whether at the stated maturity,
by acceleration or otherwise) such overdue principal amount of such Committed
Rate Loan (i) shall bear interest at a rate per annum which is 1% above the rate
which would otherwise be applicable pursuant to subsection 2.8(a) or (b) as the
case may be, from the date when such principal amount is due until the date on
which such amount is paid in full and (ii) shall, if such Committed Rate Loan is
a Eurodollar Loan, be converted to an ABR Loan at the end of the Interest Period
applicable thereto.
(d) Interest shall be payable in arrears on each Interest
Payment Date.
2.9 Conversion and Continuation Options. (a) The relevant
-----------------------------------
Borrower may elect from time to time to convert Committed Rate Loans of one Type
into Committed Rate Loans of another Type by giving to the Administrative Agent
irrevocable notice of such conversion by the earliest time that they would have
been required to give notice under subsection 2.1(c) if they had been borrowing
Committed Rate Loans of each such Type on the conversion date specified in such
notice, provided that any such conversion of Eurodollar Loans may only be made
on the last day of an Interest Period with respect thereto. Any such notice of
conversion to Eurodollar Loans shall specify the length of the initial Interest
Period or Interest Periods therefor. Upon receipt of any such notice the
Administrative Agent shall promptly notify each Bank thereof. All or any part of
outstanding Eurodollar Loans and ABR Loans may be converted as provided herein,
provided that no Loan may be converted into a Eurodollar Loan after the date
that is one month prior to (i) in the case of a Loan made by an Objecting Bank,
such Objecting Bank"s Commitment Expiration Date, and (ii) in the case of all
Loans, the Termination Date.
<PAGE>
20
(b) Any Eurodollar Loans may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
relevant Borrower giving notice to the Administrative Agent, such notice to be
given by the time it would have been required to give notice under subsection
2.1(c) if it had been borrowing Eurodollar Loans on the last day of the then
expiring Interest Period therefor, of the length of the next Interest Period to
be applicable to such Loans, provided that no Eurodollar Loan may be continued
--------
as such after the date that is one month prior to (i) in the case of a Loan made
by an Objecting Bank, such Objecting Bank"s Commitment Expiration Date, and (ii)
in the case of all Loans, the Termination Date. Upon receipt of any such notice,
the Administrative Agent shall promptly notify each Bank thereof.
2.10 Computation of Interest and Fees. (a) Facility fees and
--------------------------------
interest in respect of ABR Loans based upon clause (a) of the definition of ABR
shall be calculated on the basis of a 365- (or 366-as the case may be) day year
for the actual days elapsed (including the first day and excluding the last
day). Interest in respect of Eurodollar Loans, Bid Loans and ABR Loans based
upon clause (b) of the definition of ABR shall be calculated on the basis of a
360-day year for the actual days elapsed (including the first day and excluding
the last day). The Administrative Agent shall promptly notify the Borrowers and
the Banks of each determination of a Eurodollar Rate. Any change in the interest
rate on a Committed Rate Loan resulting from a change in the ABR shall become
effective as of the opening of business on the day on which such change in the
ABR shall become effective. The Administrative Agent shall promptly notify the
Borrowers and the Banks of the effective date and the amount of each such
change.
(b) Each determination of an interest rate by the Administrative
Agent pursuant to any provision of this Agreement shall be conclusive and
binding on the Borrowers and the Banks in the absence of manifest error. The
Administrative Agent shall, at the request of a Borrower, deliver to such
Borrower a statement showing the quotations given by the Reference Banks and the
computations used by the Administrative Agent in determining any interest rate.
(c) If any Reference Bank"s Commitment shall terminate
(otherwise than on termination of all the Commitments) or, as the case may be,
its Loans are assigned, prepaid or repaid for any reason whatsoever, such
Reference Bank shall thereupon cease to be a Reference Bank, and the
Administrative Agent (after consultation with the Banks and with the consent of
the Borrowers) shall, by notice to the Borrowers and the Banks, designate a
sufficient number of other Banks as Reference Banks so that there shall at all
times be at least three Reference Banks.
(d) Each Reference Bank shall use its best efforts to furnish
quotations of rates to the Administrative Agent as contemplated hereby. If any
of the Reference Banks shall be unable or otherwise fails to supply such rates
to the Administrative Agent upon its request, the rate of interest shall be
determined on the basis of the quotations of the remaining Reference Banks or
Reference Bank.
2.11 Inability to Determine Interest Rate. (a) In the event
------------------------------------
that the Administrative Agent shall have determined (which determination shall
be conclusive and binding upon the Borrowers) that by reason of circumstances
affecting the interbank eurodollar market generally, adequate and reasonable
means do not exist for ascertaining the Eurodollar Rate for any requested
Interest Period with respect to Committed Rate Loans that a Borrower has
requested be made as, continued as or converted into Eurodollar Loans, the
Administrative
<PAGE>
21
Agent shall promptly give notice of such determination to such Borrower and the
Banks prior to the first day of the requested Interest Period for such
Eurodollar Loans. If such notice is given, such Borrower may (i) in accordance
with the provisions of subsection 2.1 or 2.9, as the case may be (including any
requirements for notification), request that the affected Loans be made as,
continued as or converted into, as the case may be, ABR Loans, or (ii) in the
case of Loans requested to be made on the first day of such Interest Period,
withdraw the notice given under subsections 2.1 or 2.9, as the case may be, by
giving telephonic notice to the Administrative Agent, no later than 10:00 A.M.
(New York City time) on the applicable Borrowing Date, confirmed in writing no
later than one Business Day after such telephonic notice is given; provided that
if the Administrative Agent does not receive any notice permitted from the
relevant Borrower hereunder, such Borrower shall be deemed to have requested
that the affected Loans be made as, continued as or converted into, as the case
may be, ABR Loans. Until the notice given pursuant to the first sentence of this
paragraph has been withdrawn by the Administrative Agent, no further Loans shall
be made as, continued as or converted into, as the case may be, Eurodollar
Loans.
(b) In the event that the Administrative Agent shall have determined
(which determination shall be conclusive and binding upon the Borrowers) that by
reason of circumstances affecting the interbank eurodollar market, adequate and
reasonable means do not exist for ascertaining the Eurodollar Rate for any
Interest Period with respect to a proposed Bid Loan to be made pursuant to an
Index Rate Bid Loan Request, the Administrative Agent shall forthwith give
notice of such determination to the relevant Borrower and the Bid Loan Banks at
least two Business Days prior to the proposed Borrowing Date, and such Bid Loans
shall not be made on such Borrowing Date. Until any such notice has been
withdrawn by the Administrative Agent, no further Index Rate Bid Loan Requests
shall be submitted by either Borrower.
2.12 Pro Rata Treatment and Payments. (a) All payments (including
-------------------------------
prepayments), to be made by the Borrowers on account of principal, interest and
fees shall be made without defense, set-off or counterclaim and shall be made,
in the case of fees and principal of, and interest on, Loans (other than
Negotiated Rate Loans) at the Administrative Agent's office specified in
subsection 10.2, in each case in lawful money of the United States of America
and in immediately available funds not later than 11:00 A.M. (New York City
time) on the date due. The Administrative Agent shall distribute such payments
to the Banks entitled thereto on the day of receipt in like funds as received,
provided that the Administrative Agent shall have received such payments not
later than 11:00 A.M. (New York City time). If the Administrative Agent shall
distribute such payments to the Banks entitled thereto on a date after the date
on which such payments were received prior to 11:00 A.M. (New York City time),
the Administrative Agent shall pay to each such Bank on demand an amount equal
to the product of (i) the daily average Federal funds rate during such period as
quoted by the Administrative Agent, times (ii the amount of such Bank's share
of such payment, times (iii) a fraction, the numerator of which is the number of
days that elapse from and including such date of receipt of payment by the
Administrative Agent to but excluding the date on which such Bank's share of
such payment shall have become immediately available to such Bank and the
denominator of which is 360. All payments (including prepayments) to be made by
the Borrowers on account of principal, interest and fees relating to Negotiated
Rate Loans shall be made to the Bank with respect thereto on such terms, at such
address and at such time as shall be mutually agreed upon
<PAGE>
22
between the relevant Borrower and the relevant Bank in lawful money of the
United States of America on the date due.
(b) (i) Each borrowing by the Borrowers of Committed Rate Loans and
each payment of principal in respect of Committed Rate Loans (subject to
the provisions of subsection 2.20(e)) shall be made in accordance with the
following requirements:
(A) All borrowings of Committed Rate Loans and all principal payments
in respect of such Loans, shall be made pro rata according to the
--- ----
respective Commitments of the Banks.
(B) As provided in clause (b)(ii) below, if any principal payment is
made in respect of any Loans (other than Negotiated Rate Loans) on any day
on which principal amounts are due and owing in respect of any Loans (other
than Negotiated Rate Loans), such principal payment shall be applied to the
Banks pro rata according to the respective amounts of principal due and
--- ----
owing to the Banks in respect of Loans (other than Negotiated Rate Loans)
under this Agreement.
(ii) Except as provided in subsections 2.13, 2.16 and 2.17, each
reduction of the Commitments shall be made pro rata among the Banks according to
--- ----
their respective Commitment Percentages. Each payment by the Borrowers under
this Agreement or of any Loan (other than Negotiated Rate Loans) shall be
applied, first, to any fees then due and owing pursuant to subsection 2.4,
-----
second, to interest then due and owing in respect of the Loans (other than
------
Negotiated Rate Loans) and third, to principal then due and owing hereunder
-----
(other than principal due and owing under Negotiated Rate Loans) and under the
Loans (other than Negotiated Rate Loans). Each payment made by the Borrowers
under this Agreement relating to a Negotiated Rate Loan to the Bank with respect
thereto shall be applied, first, to interest then due and owing in respect of
-----
such Negotiated Rate Loan and second, to principal then due and owing hereunder
------
with respect to such Negotiated Rate Loan and under such Negotiated Rate Loan.
Each payment (other than voluntary prepayments made when no principal payments
are due and owing hereunder) by either Borrower on account of principal of and
interest on the Loans (other than Negotiated Rate Loans) shall be made for the
account of each Bank pro rata according to the respective amounts of principal
--- ----
and interest due and owing to such Bank under this Agreement. Subject to the
requirements of clause (i) of this paragraph (b), each payment by a Borrower on
account of principal of the Loans (other than Negotiated Rate Loans) shall be
applied, first, to such of its Committed Rate Loan borrowings as such Borrower
-----
may designate, and, second, after all Committed Rate Loans shall have been paid
------
in full, to all of its Absolute Rate Bid Loans or Index Rate Bid Loans made on
the same Borrowing Date with the same Interest Period as such Borrower may
designate, pro rata according to the respective amounts outstanding; provided,
--- ---- --------
however, that prepayments made pursuant to subsection 2.13(a), (b) or (c),
-------
2.16(c) or 2.17(b) shall be applied in accordance with such subsection .
(c) If any payment hereunder (other than payments on the Eurodollar Loans
and Index Rate Bid Loans) becomes due and payable on a day other than a Business
Day, such payment shall be extended to the next succeeding Business Day. If any
payment on a Eurodollar Loan or Index Rate Bid Loan becomes due and payable on a
day other than a Working Day, the maturity thereof shall be extended to the next
succeeding Working Day unless the result of such
<PAGE>
23
extension would be to extend such payment into another calendar month in which
event such payment shall be made on the immediately preceding Working Day. With
respect to any extension of the payment of principal pursuant to this subsection
2.12(c), interest thereon shall be payable at the then applicable rate during
such extension.
(d) Unless the Administrative Agent shall have been notified in writing by
any Bank prior to the date of the Committed Rate Loan, Committed Rate Loans, Bid
Loan or Bid Loans to be made by such Bank (which notice shall be effective upon
receipt) that such Bank will not make its pro rata share of the amount of the
--- ----
requested borrowing on such date available to the Administrative Agent, the
Administrative Agent may assume that such Bank has made such amount available to
it on such date and the Administrative Agent may, in reliance upon such
assumption, make available to the relevant Borrower a corresponding amount. If a
Bank shall make such amount available to the Administrative Agent on a date
after such Borrowing Date, such Bank shall pay to the Administrative Agent on
demand an amount equal to the product of (i) the daily average Federal funds
rate during such period as quoted by the Administrative Agent, times (ii) the
-----
amount of such Bank's pro rata share of such borrowing, times (iii) a fraction,
--- ---- -----
the numerator of which is the number of days that elapse from and including such
Borrowing Date to but excluding the date on which such Bank's pro rata share of
--- ----
such borrowing shall have become immediately available to the Administrative
Agent and the denominator of which is 360. A certificate of the Administrative
Agent submitted to any Bank with respect to any amounts owing under this
subsection 2.12(d) shall be conclusive, absent manifest error. If such Bank's
pro rata share is not in fact made available to the Administrative Agent by such
--- ----
Bank within three Business Days of such Borrowing Date, the Administrative Agent
shall be entitled to recover such amount, on demand, from the relevant Borrower
with interest thereon at the rate equal to the product of (i) during the period
from and including such Borrowing Date to the Business Day next following the
date of such demand, the daily average Federal funds rate as quoted by the
Administrative Agent, times a fraction, the numerator of which is the number of
-----
days that elapse from and including such Borrowing Date to but excluding the
Business Day next following the date of such demand and the denominator of which
is 360 and (ii) thereafter, the interest rate or rates applicable to the Loan or
Loans funded by the Administrative Agent on behalf of such Bank on such
Borrowing Date, times a fraction, the numerator of which is the number of days
-----
which elapse from and including the Business Day next following the date of such
demand to but excluding the date such amount is recovered by the Administrative
Agent from such Borrower and the denominator of which is 360. In the event any
Bank's pro rata share of a borrowing is not made available to the Administrative
--- ----
Agent in accordance with this paragraph within three Business Days of the
applicable Borrowing Date (i) such Bank shall, during the period from such
Borrowing Date to the date such Bank makes its pro rata share of the applicable
--- ----
borrowing available, not accrue and shall not be entitled to receive any
facility fee under subsection 2.4 and (ii) either Borrower may exercise or
pursue any other rights, remedies, powers and privileges against such Bank as
are provided by law or by contract.
2.13 Requirements of Law. (a) If any Bank shall determine that by
-------------------
reason of (i) the introduction after the date hereof of any applicable law,
regulation or guideline or any change after the date hereof in any applicable
law, regulation or guideline (including the phasing-in of a provision of any
applicable law, regulation or guideline) or in the interpretation thereof by any
governmental or other regulatory authority charged with the administration
<PAGE>
24
thereof or any court of competent jurisdiction and/or (ii) compliance by such
Bank with any requirement adopted after the date hereof of or directive adopted
after the date hereof from any central bank or other fiscal, monetary or other
regulatory authority (whether or not having the force of law), there shall be
any increase in the cost of such Bank of maintaining or giving effect to its
obligations with respect to Committed Rate Loans under this Agreement or
maintaining its Commitment with respect to Committed Rate Loans or making or
maintaining any Eurodollar Loans or any reduction in any amount receivable by
such Bank in respect of Eurodollar Loans under this Agreement, notwithstanding
the reasonable efforts (such reasonable efforts not to result in the incurrence
of additional costs or expenses) of such Bank to mitigate such increase or
reduction, then the relevant Borrower shall from time to time on receipt
(whenever occurring) of a certificate from such Bank (which shall be executed by
an officer thereof and a copy of which shall be delivered to the Administrative
Agent) pay to such Bank such amounts as are stated therein to be required to
indemnify such Bank against such increased costs or reduction; provided,
however, that if such Borrower becomes obligated to pay any Bank any additional
amount pursuant to this subsection 2.13(a), such Borrower shall have the right,
so long as no Event of Default has occurred and is then continuing, upon giving
notice to the Administrative Agent and such Bank in accordance with subsection
2.6, to prepay in full the Loans of such Bank, together with accrued interest
thereon, any amounts payable to such Bank pursuant to subsections 2.13, 2.14,
2.15 and 2.17 and any accrued and unpaid facility fee or other amount payable to
such Bank hereunder and/or, upon giving not less than three Business Days'
notice to any such Bank and the Administrative Agent, to cancel the whole or
part of the Commitment of any such Bank; provided, further, that such Borrower
shall not be obligated to pay any Bank any additional amount pursuant to this
subsection 2.13(a) (A) which constitutes a present or future income, stamp or
other tax, levy, impost, duty, charge, fee, deduction or withholding referred to
in subsection 2.17(a) or (B) as a result of any law, rule, guideline,
regulation, request or directive regarding capital adequacy referred to in
subsection 2.13(b). A certificate of such Bank as to the amount of such
increased costs or reduction shall set forth in reasonable detail the
computation of such increased costs or reduction, and shall be binding and
conclusive in the absence of manifest error. A Bank which demands
indemnification hereunder as a result of an increased cost or reduction referred
to herein shall deliver the certificate referred to above to the relevant
Borrower demanding indemnification no later than the later of (y) the thirtieth
day immediately following each payment or realization by such Bank of such
increased cost or reduction (and such certificate shall certify that the amounts
set forth therein were paid or realized within such thirty-day period) and (z)
the thirtieth day immediately following such Bank's knowledge of the incurrence
or realization by such Bank of such increased cost or reduction (and such
certificate shall so certify).
(b) In the event that any Bank shall have determined that the
adoption after the date hereof of any law, rule, guideline or regulation
regarding capital adequacy, or any change after the date hereof in any existing
or future law, rule, guideline or regulation regarding capital adequacy
(excluding, however, the phasing-in of any existing law, rule, regulation or
guideline regarding capital adequacy) or in the interpretation or application
thereof or compliance by such Bank or any corporation controlling such Bank with
any request or directive made or adopted after the date hereof regarding capital
adequacy (whether or not having the force of law) from any central bank or
Governmental Authority, 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
<PAGE>
25
achieved but for such adoption, change or compliance (taking into consideration
such Bank's or such corporation's policies with respect to capital adequacy) by
an amount deemed by such Bank to be material, then from time to time, within 30
days after receipt (whenever occurring) of a certificate from such Bank (which
shall be executed by an officer thereof and a copy of which shall be delivered
to the Administrative Agent), the Borrowers jointly and severally agree to pay
to such Bank such additional amounts as are stated therein to be required to
compensate it for such reduction; provided, however, that if such Borrower
-------- -------
becomes obligated to pay any Bank any additional amount pursuant to this
subsection 2.13(b), such Borrower shall have the right, so long as no Event of
Default has occurred and is then continuing, upon giving notice to the
Administrative Agent and such Bank in accordance with subsection 2.6, to prepay
in full the Loans of such Bank, together with accrued interest thereon, any
amounts payable pursuant to subsections 2.13, 2.14, 2.15 and 2.17 and any
accrued and unpaid facility fee or other amounts payable to it hereunder and/or,
upon giving not less than three Business Days' notice to any such Bank and the
Administrative Agent, to cancel the whole or part of the Commitment of any such
Bank. A certificate of such Bank as to the amount of such reduction shall set
forth in reasonable detail the computation of such reduction, and shall be
binding and conclusive in the absence of manifest error. A Bank which demands
indemnification hereunder as a result of a reduction referred to herein shall
deliver the certificate referred to above to the relevant Borrower demanding
indemnification no later than the later of (i) the thirtieth day immediately
following each realization by such Bank of such reduction (and such certificate
shall certify that the amounts set forth therein were realized within such
thirty-day period) and (ii) the thirtieth day immediately following such Bank's
knowledge of the realization by such Bank of such reduction (and such
certificate shall so certify).
(c) Each Borrower shall pay to each Bank that delivers a certificate
to such Borrower in accordance with the second and third following sentences
such amounts as shall be necessary to reimburse such Bank for the costs
(determined in accordance with the immediately following sentence), if any,
incurred by such Bank, as a result of the application to such Bank during any
period on which there are outstanding Eurodollar Loans advanced by such Bank to
such Borrower of basic, supplemental, marginal and emergency reserves under any
regulations of the Board of Governors of the Federal Reserve System or other
Governmental Authority having jurisdiction with respect thereto dealing with
reserve requirements prescribed for eurocurrency funding (currently referred to
as "Eurocurrency liabilities" in Regulation D of such Board) maintained by a
member bank of such System (any such reserves dealing with reserve requirements
prescribed for eurocurrency funding being referred to as "Reserves"), such
--------
amount to be set forth in a certificate of such Bank delivered to the relevant
Borrower; provided, however, that if a Bank gives to a Borrower the written
-------- -------
notice contemplated by the proviso set forth in the second following sentence,
such Borrower shall have the right, so long as no Event of Default has occurred
and is then continuing, upon giving notice to the Administrative Agent and such
Bank in accordance with subsection 2.6, to prepay in full the Loans of such
Bank, together with accrued interest thereon, any amounts payable pursuant to
subsections 2.13, 2.14, 2.15 and 2.17 and any accrued and unpaid facility fee or
other amounts payable to it hereunder and/or upon giving not less than three
Working Days' notice to such Bank and the Administrative Agent, to cancel the
whole or part of the Commitment of any such Bank. Amounts certified by a Bank
hereunder for any period shall represent such Bank's calculation or, if an
accurate calculation is impracticable, reasonable estimate (using such
reasonable means of allocation as such Bank shall determine) of the actual
costs, if any, theretofore incurred by such
<PAGE>
26
Bank as a result of the application of Reserves to Eurocurrency liabilities (as
referred to in Regulation D referred to above) of such Bank in an amount equal
to such Bank's Eurodollar Loans during such period and in any event shall not
exceed the amount obtainable utilizing the maximum Reserves prescribed by the
Board of Governors of the Federal Reserve System or other Governmental Authority
having jurisdiction with respect thereto for such period. Such payment shall be
made within fifteen days after receipt by the relevant Borrower of a
certificate, signed by an officer of the Bank delivering such certificate, which
certificate shall be binding and conclusive in the absence of demonstrable
error, specifying the period (prior to the date of such certificate) during
which the cost set forth therein was incurred by such Bank and stating (i) that
such amount represents the actual cost, or, if an accurate calculation of such
cost is impracticable stating that such amount represents such Bank's reasonable
estimate of the actual cost, incurred by such Bank during such period as a
result of the application of Reserves to Eurocurrency liabilities of such Bank
in an amount equal to such Bank's Eurodollar Loans during such period and
specified in such certificate and (ii) that the amount set forth therein does
not in any event exceed the amount obtainable utilizing the maximum Reserves
prescribed for such period by the Board of Governors of the Federal Reserve
System or such other Governmental Authority having jurisdiction with respect
thereto; provided that the obligation of the Borrowers to pay any amounts
--------
pursuant to this subsection 2.13(c) shall apply only in the case of those Banks
that give to the relevant Borrower and the Administrative Agent, no later than
3:00 P.M. (New York City time) on the day that is two Working Days prior to the
applicable Borrowing Date therefor, a written notice stating that such Bank
intends to demand reimbursement pursuant hereto. A Bank which demands
reimbursement of Reserve costs hereunder on account of a Eurodollar Loan made by
such Bank shall deliver the certificate referred to in the preceding sentence to
the relevant Borrower setting forth the items specified in clauses (i) and (ii)
of the preceding sentence no later than the thirtieth day immediately following
the last day of the Interest Period applicable to such Eurodollar Loan.
(d) The obligations of the parties under this subsection 2.13 shall
survive termination of this Agreement and payment of the Loans.
2.14 Indemnity. Each Borrower agrees to indemnify each Bank and to
---------
hold each Bank harmless from any loss or expense which such Bank may sustain or
incur as a consequence of (a) default by such Borrower in payment of the
principal amount of or interest on any Loan by such Bank, including, but not
limited to, any such loss or expense arising from interest or fees payable by
such Bank to lenders of funds obtained by it in order to maintain its Loans
hereunder, (b) default by such Borrower in making a borrowing, conversion or
continuance after such Borrower has given a notice in accordance with subsection
2.1, 2.2 or 2.9, (c) default by such Borrower in making any prepayment after
such Borrower has given a notice in accordance with subsection 2.5 or 2.6 or (d)
the making by such Borrower of a prepayment of a Committed Rate Loan (other than
an ABR Loan), a Bid Loan or, to the extent agreed to by the relevant Borrower
and the relevant Bank with respect to a Negotiated Rate Loan, a Negotiated Rate
Loan on a day which is not the last day of an Interest Period with respect
thereto (with respect to Committed Rate Loans) or the maturity date therefor
(with respect to Bid Loans) or any agreed date (with respect to Negotiated Rate
Loans), including, but not limited to, any such loss or expense arising from
interest or fees payable by such Bank to lenders of funds obtained by it in
order to maintain its Loans hereunder. This covenant shall survive termination
of this Agreement and payment of the outstanding Loans. A certificate as to
<PAGE>
27
any amount payable pursuant to the foregoing shall be submitted by such Bank
(and executed by an officer thereof) to the relevant Borrower, setting forth the
computation of such amounts in reasonable detail, and shall be conclusive in the
absence of manifest error.
2.15 Non-Receipt of Funds by the Administrative Agent. With respect
------------------------------------------------
to all Loans except Negotiated Rate Loans, unless the Administrative Agent shall
have been notified by the relevant Borrower prior to the date on which any
payment is due from it hereunder (which notice shall be effective upon receipt)
that such Borrower does not intend to make such payment, the Administrative
Agent may assume that such Borrower has made such payment when due, and the
Administrative Agent may in reliance upon such assumption (but shall not be
required to) make available to each Bank on such payment date an amount equal to
the portion of such assumed payment to which such Bank is entitled hereunder,
and if such Borrower has not in fact made such payment to the Administrative
Agent, such Bank shall, on demand, repay to the Administrative Agent the amount
made available to such Bank together with interest thereon in respect of each
day during the period commencing on the date such amount was made available to
such Bank and ending on (but excluding) the date such Bank repays such amount to
the Administrative Agent, at a rate per annum equal to the Administrative
Agent's cost of obtaining overnight funds in the federal funds market in New
York on each such day. A certificate of the Administrative Agent submitted to
the relevant Bank with respect to any amount owing under this subsection 2.15
shall be conclusive absent manifest error.
2.16 Extension of Termination Date. (a) No later than one year prior
-----------------------------
to the Termination Date then in effect, provided that no Event of Default shall
have occurred and be continuing, the Borrowers may request an extension of such
Termination Date by submitting to the Administrative Agent an Extension Request
containing the information in respect of such extension specified in Exhibit I,
which the Administrative Agent shall promptly furnish to each Bank. If, within
30 days of their receipt of an Extension Request, the Required Banks shall
approve in writing the extension of the Termination Date requested in such
Extension Request, the Termination Date shall automatically and without any
further action by any Person be extended for the period specified in such
Extension Request; provided that (i) each extension pursuant to this subsection
2.16 shall be for a maximum of one year, (ii) after giving effect to any
extension, the Termination Date shall not be more than five years after the date
such extension is approved by the Required Banks and (iii) the Commitment of any
Bank which does not consent in writing to such extension within 30 days of its
receipt of such Extension Request (an "Objecting Bank") shall, unless earlier
terminated in accordance with this Agreement, expire on the Termination Date in
effect on the date of such Extension Request (such Termination Date, if any,
referred to as the "Commitment Expiration Date" with respect to such Objecting
Bank). If, within 30 days of their receipt of an Extension Request, the Required
Banks shall not approve in writing the extension of the Termination Date
requested in an Extension Request, the Termination Date shall not be extended
pursuant to such Extension Request. The Administrative Agent shall promptly
notify (y) the Banks and the Borrowers of any extension of the Termination Date
pursuant to this subsection 2.16 and (z) the Borrowers and any other Bank of any
Bank which becomes an Objecting Bank.
(b) Any Objecting Bank the Commitment of which shall expire prior to
any extended Termination Date shall, subject to subsection 2.16(c), have its
Committed Rate Loans prepaid in full by the applicable Borrower(s) on such
expiration date, together with accrued
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interest thereon, and shall have any accrued and unpaid facility fee or other
amount payable to it hereunder paid on the first date to occur following such
expiration date on which the fees referred to in subsection 2.4(a) are payable
to the non-Objecting Banks or, if such fees shall be so payable on such
expiration date, such unpaid facility fee and other amount shall be paid on such
expiration date.
(c) The Borrowers shall have the right, so long as no Event of
Default has occurred and is then continuing, upon giving notice to the
Administrative Agent and the Objecting Banks in accordance with subsection 2.6,
to prepay in full the Committed Rate Loans of the Objecting Banks, together with
accrued interest thereon, any amounts payable pursuant to subsections 2.13,
2.14, 2.15 and 2.17 and any accrued and unpaid facility fee or other amounts
payable to it hereunder and/or, upon giving not less than three Working Days'
notice to the Objecting Banks and the Administrative Agent, to cancel the whole
or part of the Commitments of the Objecting Banks, provided that during the
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period from the Closing Date through February 19, 2002 and, commencing February
20, 2002, during each one-year period thereafter to and including the
Termination Date (each, a "Deal Year"), the aggregate Commitments of Banks which
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are terminated pursuant to this subsection 2.16(c) and are not replaced during
such Deal Year pursuant to subsection 2.19 shall not exceed 33-1/3% of the
aggregate Commitments in effect on the first day of such Deal Year of Banks
which were not Objecting Banks on such first day.
2.17 Foreign Taxes. (a) All payments made under this Agreement shall
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be made without set-off or counterclaim and free and clear of, and without
reduction for or on account of, any present or future income, stamp or other
taxes, levies, imposts, duties, charges, fees, deductions, withholdings or
restrictions or conditions of any nature whatsoever, now or hereafter imposed,
levied, collected, withheld or assessed by any country (or by any political
subdivision or taxing authority thereof or therein) from or through which any
amount is paid under this Agreement excluding, in the case of each Bank, (i)
income and franchise taxes (including, without limitation, branch taxes imposed
by the United States or similar taxes imposed by a political subdivision or
taxing authority thereof or therein but excluding, in the case of any Bank not
organized under the laws of the United States, any taxes imposed by the United
States by means of withholding at the source), (ii) in the case of any Bank not
organized under the laws of the United States, any taxes imposed by the United
States by means of withholding at the source unless such Bank has provided the
Company, the Capital Corporation and the Administrative Agent with the documents
it is required to provide to them under subsection 2.17(c) and (iii) taxes that
would not have been imposed on such Bank but for the existence of a connection
between such Bank and the jurisdiction imposing such taxes (other than a
connection arising principally by virtue of this Agreement) (such non-excluded
taxes being called "Foreign Taxes"). If any Foreign Taxes are required to be
withheld from any amounts so payable to any Bank hereunder, the amounts so
payable to such Bank shall be increased to the extent necessary to yield to such
Bank (after payment of all Foreign Taxes) interest or any such other amounts
payable hereunder at the rates or in the amounts specified in this Agreement.
Whenever any Foreign Taxes are payable by the Company or the Capital
Corporation, as the case may be, as promptly as possible thereafter the Company
or the Capital Corporation, as the case may be, shall send to the Administrative
Agent, for the account of the affected Bank, a certified copy of the original
official receipt, if any, received by the Company or the Capital Corporation, as
the case may be, showing payment thereof. If the Company or
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29
the Capital Corporation, as the case may be, fails to pay any Foreign Taxes when
due to the appropriate taxing authority or fails to remit to the Administrative
Agent, for the account of the affected Banks, the required receipts or other
required documentary evidence, the Company or the Capital Corporation, as the
case may be, shall indemnify such Banks for any incremental taxes, interest or
penalties that may become payable by such Banks as a result of any such failure.
(b) If a Borrower is required by this subsection 2.17 to make a
payment to or in respect of any Bank, such Borrower shall have the right, so
long as no Event of Default has occurred and is then continuing, upon giving
notice to the Administrative Agent and such Bank in accordance with subsection
2.6, to prepay in full the Loans of such Bank, together with accrued interest
thereon, any amounts payable pursuant to subsections 2.13, 2.14, 2.15 and 2.17
and any accrued and unpaid facility fee or other amounts payable to it hereunder
and/or on giving not less than three Business Days' notice to any such Bank and
the Administrative Agent, to cancel the whole or part of the Commitment of such
Bank.
(c) At least two Business Days prior to the first Borrowing Date or,
if such date does not occur within thirty days after the Closing Date, by the
end of such thirty-day period, each Bank agrees that it will deliver to each
Borrower and the Administrative Agent (i) either (A) a statement that it is
incorporated under the laws of the United States or a state thereof or (B) if it
is not so incorporated, a letter in duplicate in the form of Exhibit J or
Exhibit K, as appropriate, and two duly completed copies of United States
Internal Revenue Service Form 4224 or 1001 or successor applicable form, as the
case may be, certifying in each case that such Bank is entitled to receive
payment under this Agreement without deduction or withholding of any United
States Federal income taxes, and (ii) 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 agrees (for the benefit of the
Administrative Agent and the Borrowers) to provide the Administrative Agent and
the Borrowers a new letter and Form 4224 or 1001 and Form W-8 or W-9, or
successor applicable form or other manner of certification, 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 or form
previously delivered by it, certifying in the case of a Form 1001 or 4224 that
such Bank is entitled to receive payments under this Agreement without deduction
or withholding of any United States Federal income tax, and in the case of a
Form W-8 or W-9 establishing exemption from United States backup withholding
tax. The Administrative Agent shall not be responsible for obtaining such
documentation from any Bank other than Chase.
(d) The Company and the Capital