Exhibit 10.1


 


EXECUTION VERSION


 


AMENDMENT NO. 2 TO THE CREDIT AGREEMENT


 


Dated as of June 30, 2008


 


AMENDMENT
NO. 2 TO THE CREDIT AGREEMENT (this “Amendment”) among Capmark Financial Group Inc., a Nevada
corporation (the “Company”), certain subsidiaries of the Company
(together with the Company, the “Borrowers” and, each a “Borrower”),
the financial institutions and other institutional lenders party hereto, and
Citibank, N.A., as administrative agent (the “Agent”) for the Lenders.


 


RECITALS:


 


(1)           The
Borrowers, the financial institutions and other institutional lenders party
thereto (the “Lenders”), the Agent and the other agents party thereto
have entered into a credit agreement dated as of March 23, 2006, as
amended by Amendment No. 1 to the Credit Agreement dated as of April 17,
2007 (as further amended, supplemented or otherwise modified, the “Credit
Agreement”).  Capitalized terms not
otherwise defined in this Amendment have the same meanings as specified in the
Credit Agreement.


 


(2)           The
Borrowers have requested that the Lenders agree to amend certain provisions of
the Credit Agreement as set forth in the Credit Agreement as attached in Annex
A hereto.  Such amendments to the
Credit Agreement are represented in Annex A with strikethrough font for
all deletions thereto and with bold, double underlined font for all additions
thereto.


 


(3)           Pursuant
to subsection 10.1(a) of the Credit Agreement, the Majority Lenders may,
or, with the written consent of the Majority Lenders, the Agent may, from time
to time, enter into with the Borrowers, written amendments, supplements or
modifications to the Credit Agreement for the purpose of adding any provisions
to the Credit Agreement or changing in any manner the rights of the Lenders or
of the Borrowers under the Credit Agreement.


 


(4)           The
Agent and the Majority Lenders have each agreed, subject to the terms and
conditions stated below, to amend the Credit Agreement as set forth in Annex
A hereto.


 


SECTION 1.           AMENDMENTS
TO CREDIT AGREEMENT


 


The Credit Agreement is
hereby amended as set forth in the Credit Agreement as attached in Annex A
hereto.  Such amendments to the Credit
Agreement are represented in Annex A with strikethrough font for all
deletions thereto and with bold, double underlined font for all additions thereto.


 


SECTION 2.           CONDITIONS
OF EFFECTIVENESS


 


This Amendment shall become effective as of the date
first above written when, and only when, the following conditions have been
satisfied:


 


(a)           the Agent shall have received
counterparts of this Amendment executed by the Company, the other Borrowers,
the Majority Lenders, and/or, as to any such Majority Lender, advice
satisfactory to the Agent that such Lender has executed this Amendment;


 


(b)           each Guarantor has executed and
delivered a consent in the form of Annex B hereto; and


 


(c)           all fees and expenses of the Agent
and the Lenders (including all reasonable fees and expenses of counsel to the
Agent), to the extent invoiced prior to the date hereof, shall have been paid.


 

















 


SECTION 3.           CONFIRMATION
OF REPRESENTATIONS AND WARRANTIES


 


(a)           Each of the Company and each Borrower
hereto hereby represents and warrants, on and as of the date hereof, that the
representations and warranties contained in the Credit Agreement (to the extent
relating to such Loan Party) are true and correct in all material respects on
and as of the date hereof, before and after giving effect to this Amendment, as
though made on and as of the date hereof, other than any such representations
or warranties that, by their terms, refer to a specific date.


 


(b)           The Company hereby represents and
warrants that, on and as of the date hereof, no event has occurred and is
continuing that constitutes a Default.


 


SECTION 4.           AFFIRMATION
OF THE COMPANY AND THE BORROWERS


 


The Company and each Borrower hereby consents to the amendments to the Credit Agreement effected
hereby, and hereby confirms and agrees that,
notwithstanding the effectiveness of this Amendment, the obligations of the
Company and each such Borrower contained in the Credit Agreement, as amended
hereby, or in any other Loan Documents to which it is a party are, and shall
remain, in full force and effect and are hereby ratified and confirmed in all
respects.


 


SECTION 5.           REFERENCE
TO AND EFFECT ON THE LOAN DOCUMENTS


 


(a)           On and after the effectiveness of this Amendment, each
reference in the Credit Agreement to “this Agreement”, “hereunder”, “hereof” or
words of like import referring to the Credit Agreement and each reference in
the Notes and each of the other Loan Documents to “the Credit Agreement”, “thereunder”,
“thereof” or words of like import referring to the Credit Agreement shall mean
and be a reference to the Credit Agreement as amended by this Amendment.


 


(b)           The Credit Agreement, the Notes and
each of the other Loan Documents, as specifically amended by this Amendment,
are and shall continue to be in full force and effect and are hereby in all
respects ratified and confirmed.


 


(c)           The execution, delivery and
effectiveness of this Amendment shall not, except as expressly provided herein,
operate as a waiver of any right, power or remedy of any Lender or the Agent
under the Credit Agreement or any other Loan Document, nor constitute a waiver
of any provision of the Credit Agreement or any other Loan Document.


 


SECTION 6.           COSTS,
EXPENSES


 


The Borrowers agree to pay
on demand all costs and expenses of the Agent in connection with the
preparation, execution, delivery and administration, modification and amendment
of this Amendment and the other instruments and documents to be delivered
hereunder (including, without limitation, the reasonable fees and expenses of
counsel for the Agent) in accordance with the terms of subsection 10.5 of
the Credit Agreement.


 


SECTION 7.           EXECUTION
IN COUNTERPARTS


 


This Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute but one and the same
agreement.  Delivery of an executed
counterpart of a signature page to this Amendment by telecopier or in “pdf”
format by electronic mail shall be effective as delivery of a manually executed
counterpart of this Amendment.


 


2

















 


SECTION 8.           GOVERNING
LAW


 


This Amendment shall be
governed by, and construed in accordance with, the laws of the State of
New York.


 


[The remainder of this page intentionally
left blank.]


 


3

















 


IN WITNESS WHEREOF, the
parties hereto have caused this Amendment to be executed by their respective
officers thereunto duly authorized, as of the date first above written.


	
   

  	
  CAPMARK FINANCIAL GROUP
  INC.,

  as the Company

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Gregory J. McManus

  
	
   

  	
   

  	
   Name:

  	
  Gregory J. McManus

  
	
   

  	
   

  	
   Title:

  	
  Executive Vice President

  and Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CAPMARK CANADA LIMITED,

  as a Borrower

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ John Lucerne

  
	
   

  	
   

  	
   Name:

  	
  John Lucerne

  
	
   

  	
   

  	
   Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CAPMARK BANK EUROPE,
  PUBLIC

  COMPANY,

  as a Borrower

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Marc A. Fox

  
	
   

  	
   

  	
   Name:

  	
  Marc A. Fox

  
	
   

  	
   

  	
   Title:

  	
  Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CAPMARK EI IRELAND
  LIMITED,

  as a Borrower

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Peter Kearney

  
	
   

  	
   

  	
   Name:

  	
  Peter Kearney

  
	
   

  	
   

  	
   Title:

  	
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CAPMARK IRELAND LIMITED,

  as a Borrower

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Peter Kearney

  
	
   

  	
   

  	
   Name:

  	
  Peter Kearney

  
	
   

  	
   

  	
   Title:

  	
  Director

  



 

















 


	
   

  	
  CAPMARK AB NO. 2 LIMITED,

  as a Borrower

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Peter Kearney

  
	
   

  	
   

  	
   Name:

  	
  Peter Kearney

  
	
   

  	
   

  	
   Title:

  	
  Senior Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CAPMARK FINANCE INC.,

  as a Borrower

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Gregory J. McManus

  
	
   

  	
   

  	
   Name:

  	
  Gregory J. McManus

  
	
   

  	
   

  	
   Title:

  	
  Executive Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SJM CAP, LLC,

  as a Borrower

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ John Lucerne

  
	
   

  	
   

  	
   Name:

  	
  John Lucerne

  
	
   

  	
   

  	
   Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CAPMARK BANK,

  as a Borrower

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Steven J. Nielsen

  
	
   

  	
   

  	
   Name:

  	
  Steven J. Nielsen

  
	
   

  	
   

  	
   Title:

  	
  Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CAPMARK FUNDING JAPAN,
  K.K.,

  as a Borrower

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ John Troutman

  
	
   

  	
   

  	
   Name:

  	
  John Troutman

  
	
   

  	
   

  	
   Title:

  	
  Vice President

  



 

















 


	
   

  	
  CAPMARK JAPAN, K.K.,

  as a Borrower

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ John Lucerne

  
	
   

  	
   

  	
   Name:

  	
  John Lucerne

  
	
   

  	
   

  	
   Title:

  	
  Vice President

  



 

















 


	
   

  	
  CITIBANK, N.A., as
  Administrative Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
     /s/
  Maureen P. Maroney

  
	
   

  	
   

  	
    Name: Maureen
  P. Maroney

  
	
   

  	
   

  	
    Title:   Vice
  President

  



 

















 


	
   

  	
  CITIBANK, N.A.,

  
	
   

  	
  as a Majority Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Maureen P.
  Maroney

  
	
   

  	
   

  	
    Name: Maureen
  P. Maroney

  
	
   

  	
   

  	
    Title:   Vice
  President

  



 

















 


	
   

  	
  JPMORGAN CHASE BANK, N.A.,

  
	
   

  	
  as a Majority Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Dmitry V.
  Yakimchuk

  
	
   

  	
   

  	
    Name:

  	
  Dmitry V. Yakimchuk

  
	
   

  	
   

  	
    Title: 

  	
  Vice President

  



 

















 


	
   

  	
  CREDIT SUISSE, CAYMAN
  ISLANDS 

  BRANCH,

  
	
   

  	
  as a Majority Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Ian Nalitt

  
	
   

  	
   

  	
    Name: 

  	
  Ian Nalitt

  
	
   

  	
   

  	
    Title: 

  	
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/
  Christopher Reo Day

  
	
   

  	
   

  	
    Name: 

  	
  Christopher Reo Day

  
	
   

  	
   

  	
    Title: 

  	
  Associate

  



 

















 


	
   

  	
  GOLDMAN SACHS CREDIT
  PARTNERS,

  L.P.,

  
	
   

  	
  as a Majority Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Andrew
  Caditz

  
	
   

  	
   

  	
    Name: 

  	
  Andrew Caditz

  
	
   

  	
   

  	
    Title: 

  	
  Authorized Signatory

  



 

















 


	
   

  	
  THE ROYAL BANK OF SCOTLAND
  PLC,

  
	
   

  	
  as a Majority Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Angela
  Reilly

  
	
   

  	
   

  	
    Name: 

  	
  Angela Reilly

  
	
   

  	
   

  	
    Title: 

  	
  Managing Director

  



 

















 


	
   

  	
  SUMITOMO MITSUI BANKING

  CORPORATION,

  
	
   

  	
  as a Majority Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Natsuhiro
  Samejima

  
	
   

  	
   

  	
    Name:  

  	
  Natsuhiro Samejima

  
	
   

  	
   

  	
    Title:
    

  	
  Senior Vice President

  



 

















 


	
   

  	
  Wachovia Bank, National
  Association,

  
	
   

  	
  as a Majority Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Karen
  Hanke

  
	
   

  	
   

  	
    Name: 

  	
  Karen Hanke

  
	
   

  	
   

  	
    Title: 

  	
  Director

  



 

















 


	
   

  	
  The Bank of
  Tokyo-Mitsubishi UFJ, Ltd.,

  
	
   

  	
  New York Branch, as a
  Majority Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ L.
  Bressler

  
	
   

  	
   

  	
    Name:  

  	
  L. Bressler

  
	
   

  	
   

  	
    Title:
    

  	
  Senior Vice President and

  Manager

  



 

















 


	
   

  	
  Bank of America,

  
	
   

  	
  as a Majority Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Stefanie
  Brown

  
	
   

  	
   

  	
    Name: 

  	
  Stefanie Brown

  
	
   

  	
   

  	
    Title: 

  	
  Vice President

  



 

















 


	
   

  	
  The Bank of Nova Scotia,

  
	
   

  	
  as a Majority Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ David
  Mahmood

  
	
   

  	
   

  	
    Name:  

  	
  David Mahmood

  
	
   

  	
   

  	
    Title:

  	
  Managing Director

  



 

















 


	
   

  	
  Royal Bank of Canada,

  
	
   

  	
  as a Majority Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Howard Lee

  
	
   

  	
   

  	
    Name: 

  	
  Howard Lee

  
	
   

  	
   

  	
    Title:  

  	
  Authorized Signatory

  



 

















 


	
   

  	
  LEHMAN BROTHERS HOLDINGS
  INC.,

  
	
   

  	
  as a Majority Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Ann Tucker
  Hackett

  
	
   

  	
   

  	
    Name: 

  	
  A. Tucker Hackett

  
	
   

  	
   

  	
    Title: 

  	
  Authorized Signatory

  



 

















 


	
   

  	
  Fifth Third Bank,

  
	
   

  	
  as a Majority Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Mike
  Mendenhall

  
	
   

  	
   

  	
    Name: 

  	
  Mike Mendenhall

  
	
   

  	
   

  	
    Title: 

  	
  Vice President

  



 

















 


	
   

  	
  Societe Generale,

  
	
   

  	
  as a Majority Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Ambrish
  Thanawala

  
	
   

  	
   

  	
    Name: 

  	
  Ambrish Thanawala

  
	
   

  	
   

  	
    Title:   

  	
  Managing Director

  



 

















 


	
   

  	
  Bear Stearns Corporate
  Lending Inc.,

  
	
   

  	
  as a Majority Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
    JPMorgan Chase
  Bank, N.A., 

  
	
   

  	
   

  	
    authorized
  signatory

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Dmitry V.
  Yakimchuk

  
	
   

  	
   

  	
    Name: 

  	
  Dmitry V. Yakimchuk

  
	
   

  	
   

  	
    Title:   

  	
  Vice President

  



 

















 


	
   

  	
  MERRILL LYNCH BANK USA,

  
	
   

  	
  as a Majority Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ David
  Millett

  
	
   

  	
   

  	
    Name: 

  	
  David Millett

  
	
   

  	
   

  	
    Title:   

  	
  Vice President

  



 

















 


	
   

  	
  CITIC KA WAH BANK LIMITED,
  NEW

  YORK BRANCH,

  
	
   

  	
  as a Majority Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Peter Zhao

  
	
   

  	
   

  	
    Name: 

  	
  Peter Zhao

  
	
   

  	
   

  	
    Title:   

  	
  Executive Vice President
  & 

  Country Head, USA

  



 

















 


	
   

  	
  Mega International
  Commercial Bank

  
	
   

  	
  Silicon Valley Branch,

  
	
   

  	
  as a Majority Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Kuang Hua
  Wei

  
	
   

  	
   

  	
    Name: 

  	
  Kuang Hua Wei

  
	
   

  	
   

  	
    Title:   

  	
  SVP & General Manager

  



 

















 


	
   

  	
  QUATTRO SPECIAL
  SITUATIONS, LLC,

  
	
   

  	
  as a Majority Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Patrick
  Criscillo

  
	
   

  	
   

  	
    Name: 

  	
  Patrick Criscillo

  
	
   

  	
   

  	
    Title:   

  	
  CFO

  



 

















 


	
   

  	
  DISTRESSED SECURITIES
  & SPECIAL

  SITUATIONS-1,

  
	
   

  	
  as a Majority Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Patrick
  Criscillo

  
	
   

  	
   

  	
    Name: 

  	
  Patrick Criscillo

  
	
   

  	
   

  	
    Title:   

  	
  CFO

  



 
















 


Annex A
to


Amendment No. 2 to the Credit Agreement


 

















 


$5,500,000,000 CREDIT AGREEMENT


 


Among


 


CAPMARK FINANCIAL GROUP INC.,


 


THE DESIGNATED BORROWERS NAMED HEREIN,


 


The Several Lenders

from Time to Time Parties Hereto,


 


CITIBANK, N.A.,

as Administrative Agent,


 


J.P. MORGAN SECURITIES INC.,

as Syndication Agent


 


CREDIT SUISSE,

DEUTSCHE BANK SECURITIES INC.,

GOLDMAN SACHS CREDIT PARTNERS L.P.,

- and -

THE ROYAL BANK OF SCOTLAND PLC,

as Documentation Agents


 


Dated as of March 23, 2006


 


CITIGROUP GLOBAL MARKETS INC.,

J.P. MORGAN SECURITIES INC.,


CREDIT SUISSE,

DEUTSCHE BANK SECURITIES INC.,

GOLDMAN SACHS CREDIT PARTNERS, L.P.,

- and -

THE ROYAL BANK OF SCOTLAND PLC,

as Joint Lead Arrangers and Joint Bookrunners


 

















 


TABLE OF CONTENTS


 


Table of Contents


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  SECTION 1.

  	
  DEFINITIONS

  	
  1

  
	
   

  	
   

  	
   

  
	
  1.1.

  	
  Defined Terms

  	
  1

  
	
   

  	
   

  	
   

  
	
  1.2.

  	
  Other Definitional Provisions

  	
  2730

  
	
   

  	
   

  	
   

  
	
  SECTION 2.

  	
  AMOUNT AND TERMS OF THE FACILITIES

  	
  2830

  
	
   

  	
   

  	
   

  
	
  2.1.

  	
  Revolving Credit Commitments

  	
  2830

  
	
   

  	
   

  	
   

  
	
  2.2.

  	
  Term Commitments

  	
  3235

  
	
   

  	
   

  	
   

  
	
  2.3.

  	
  Issuance of and Drawings and Reimbursement Under
  Letters of Credit

  	
  3235

  
	
   

  	
   

  	
   

  
	
  2.4.

  	
  Procedure for Revolving Credit Borrowing and Term
  Borrowing

  	
  3437

  
	
   

  	
   

  	
   

  
	
  2.5.

  	
  Bankers’ Acceptances

  	
  3538

  
	
   

  	
   

  	
   

  
	
  2.6.

  	
  Swing Line Commitments

  	
  3942

  
	
   

  	
   

  	
   

  
	
  2.7.

  	
  Yen Swing Line Commitments

  	
  4144

  
	
   

  	
   

  	
   

  
	
  2.8.

  	
  Designated Borrowers

  	
  4447

  
	
   

  	
   

  	
   

  
	
  2.9.

  	
  Termination or Reduction of Commitments

  	
  4548

  
	
   

  	
   

  	
   

  
	
  2.10.

  	
  Prepayments

  	
  4549

  
	
   

  	
   

  	
   

  
	
  2.11.

  	
  Conversion and Continuation Options

  	
  4650

  
	
   

  	
   

  	
   

  
	
  2.12.

  	
  Minimum Amounts of Eurocurrency Borrowings; Interest
  Periods

  	
  4650

  
	
   

  	
   

  	
   

  
	
  2.13.

  	
  Repayment of Loans and Letter of Credit Drawings;
  Evidence of Debt

  	
  4750

  
	
   

  	
   

  	
   

  
	
  2.14.

  	
  Interest Rates and Payment Dates

  	
  4953

  
	
   

  	
   

  	
   

  
	
  2.15.

  	
  Facility Fee

  	
  5055

  
	
   

  	
   

  	
   

  
	
  2.16.

  	
  Computation of Interest and Fees

  	
  5155

  
	
   

  	
   

  	
   

  
	
  2.17.

  	
  Inability to Determine Interest Rate

  	
  5256

  



 

















 


	
  2.18.

  	
  Pro Rata Treatment and Payments

  	
  5256

  
	
   

  	
   

  	
   

  
	
  2.19.

  	
  Illegality

  	
  5357

  
	
   

  	
   

  	
   

  
	
  2.20.

  	
  Increased Costs

  	
  5358

  
	
   

  	
   

  	
   

  
	
  2.21.

  	
  Taxes

  	
  5559

  
	
   

  	
   

  	
   

  
	
  2.22.

  	
  Indemnity

  	
  5863

  
	
   

  	
   

  	
   

  
	
  2.23.

  	
  Notice of Amounts Payable; Relocation of Funding
  Office; Mandatory Assignment

  	
  5963

  
	
   

  	
   

  	
   

  
	
  2.24.

  	
  Availability

  	
  5964

  
	
   

  	
   

  	
   

  
	
  SECTION 3.

  	
  REPRESENTATIONS AND WARRANTIES

  	
  6066

  
	
   

  	
   

  	
   

  
	
  3.1.

  	
  Financial Condition

  	
  6066

  
	
   

  	
   

  	
   

  
	
  3.2.

  	
  No Change

  	
  6066

  
	
   

  	
   

  	
   

  
	
  3.3.

  	
  Corporate Existence

  	
  6067

  
	
   

  	
   

  	
   

  
	
  3.4.

  	
  Corporate Power; Authorization; Enforceable
  Obligations

  	
  6067

  
	
   

  	
   

  	
   

  
	
  3.5.

  	
  No Legal Bar

  	
  6067

  
	
   

  	
   

  	
   

  
	
  3.6.

  	
  No Material Litigation

  	
  6167

  
	
   

  	
   

  	
   

  
	
  3.7.

  	
  Federal Regulations

  	
  6167

  
	
   

  	
   

  	
   

  
	
  3.8.

  	
  Investment Company Act

  	
  6167

  
	
   

  	
   

  	
   

  
	
  3.9.

  	
  ERISA

  	
  6167

  
	
   

  	
   

  	
   

  
	
  3.10.

  	
  No Material Misstatements

  	
  6168

  
	
   

  	
   

  	
   

  
	
  3.11.

  	
  Solvency

  	
  6168

  
	
   

  	
   

  	
   

  
	
  3.12.

  	
  Purpose of Loans

  	
  6168

  
	
   

  	
   

  	
   

  
	
  SECTION 4.

  	
  CONDITIONS PRECEDENT

  	
  6168

  
	
   

  	
   

  	
   

  
	
  4.1.

  	
  Conditions to Initial Loans

  	
  6168

  
	
   

  	
   

  	
   

  
	
  4.2.

  	
  Conditions to Each Credit Event

  	
  6369

  
	
   

  	
   

  	
   

  
	
  SECTION 5.

  	
  AFFIRMATIVE COVENANTS

  	
  6370

  
	
   

  	
   

  	
   

  
	
  5.1.

  	
  Financial Statements

  	
  6370

  



 


ii

















 


	
  5.2.

  	
  Certificates; Other Information

  	
  6471

  
	
   

  	
   

  	
   

  
	
  5.3.

  	
  Notices

  	
  6471

  
	
   

  	
   

  	
   

  
	
  5.4.

  	
  Conduct of Business and Maintenance of Existence

  	
  6571

  
	
   

  	
   

  	
   

  
	
  5.5.

  	
  Compliance with Laws, Etc.

  	
  6572

  
	
   

  	
   

  	
   

  
	
  5.6.

  	
  Payment of Taxes, Etc.

  	
  6572

  
	
   

  	
   

  	
   

  
	
  5.7.

  	
  Visitation Rights

  	
  6572

  
	
   

  	
   

  	
   

  
	
  5.8.

  	
  Keeping of Books

  	
  6572

  
	
   

  	
   

  	
   

  
	
  5.9.

  	
  Maintenance of Properties, Etc.

  	
  6572

  
	
   

  	
   

  	
   

  
	
  5.10.

  	
  Maintenance of Insurance

  	
  6572

  
	
   

  	
   

  	
   

  
	
  5.11.

  	
  Transactions with Affiliates

  	
  6572

  
	
   

  	
   

  	
   

  
	
  5.12.

  	
  Covenant to Guaranty Obligations

  	
  6672

  
	
   

  	
   

  	
   

  
	
  SECTION 6.

  	
  NEGATIVE COVENANTS

  	
  6673

  
	
   

  	
   

  	
   

  
	
  6.1.

  	
  Leverage Ratio

  	
  6673

  
	
   

  	
   

  	
   

  
	
  6.2.

  	
  Merger, Consolidation, etc.

  	
  6673

  
	
   

  	
   

  	
   

  
	
  6.3.

  	
  Limitation on Liens

  	
  6673

  
	
   

  	
   

  	
   

  
	
  6.4.

  	
  Indebtedness

  	
  6774

  
	
   

  	
   

  	
   

  
	
  SECTION 7.

  	
  EVENTS OF DEFAULT

  	
  6875

  
	
   

  	
   

  	
   

  
	
  7.1.

  	
  Events of Default

  	
  6875

  
	
   

  	
   

  	
   

  
	
  7.2.

  	
  Actions in Respect of the Letters of Credit upon
  Default

  	
  7076

  
	
   

  	
   

  	
   

  
	
  SECTION 8.

  	
  GUARANTEE

  	
  7077

  
	
   

  	
   

  	
   

  
	
  8.1.

  	
  Guarantee

  	
  7077

  
	
   

  	
   

  	
   

  
	
  SECTION 9.

  	
  THE AGENT

  	
  7278

  
	
   

  	
   

  	
   

  
	
  9.1.

  	
  Appointment

  	
  7278

  
	
   

  	
   

  	
   

  
	
  9.2.

  	
  Delegation of Duties

  	
  7279

  
	
   

  	
   

  	
   

  
	
  9.3.

  	
  Exculpatory Provisions

  	
  7279

  



 


iii

















 


	
  9.4.

  	
  Reliance by Agent

  	
  7279

  
	
   

  	
   

  	
   

  
	
  9.5.

  	
  Notice of Default

  	
  7379

  
	
   

  	
   

  	
   

  
	
  9.6.

  	
  Non-Reliance on Agent and Other Lenders

  	
  7380

  
	
   

  	
   

  	
   

  
	
  9.7.

  	
  Indemnification

  	
  7380

  
	
   

  	
   

  	
   

  
	
  9.8.

  	
  Agent in Its Individual Capacity

  	
  7480

  
	
   

  	
   

  	
   

  
	
  9.9.

  	
  Successor Agent

  	
  7481

  
	
   

  	
   

  	
   

  
	
  9.10.

  	
  Sub-Agent

  	
  7481

  
	
   

  	
   

  	
   

  
	
  SECTION 10.

  	
  MISCELLANEOUS

  	
  7481

  
	
   

  	
   

  	
   

  
	
  10.1.

  	
  Amendments and Waivers

  	
  7481

  
	
   

  	
   

  	
   

  
	
  10.2.

  	
  Notices

  	
  7683

  
	
   

  	
   

  	
   

  
	
  10.3.

  	
  No Waiver; Cumulative Remedies

  	
  7885

  
	
   

  	
   

  	
   

  
	
  10.4.

  	
  Survival of Representations and Warranties

  	
  7885

  
	
   

  	
   

  	
   

  
	
  10.5.

  	
  Payment of Expenses and Taxes

  	
  7885

  
	
   

  	
   

  	
   

  
	
  10.6.

  	
  No Liability of the Issuing Banks

  	
  7885

  
	
   

  	
   

  	
   

  
	
  10.7.

  	
  Successors and Assigns; Participations and
  Assignments

  	
  7986

  
	
   

  	
   

  	
   

  
	
  10.8.

  	
  Adjustments

  	
  8390

  
	
   

  	
   

  	
   

  
	
  10.9.

  	
  Counterparts

  	
  8390

  
	
   

  	
   

  	
   

  
	
  10.10.

  	
  Judgment

  	
  8491

  
	
   

  	
   

  	
   

  
	
  10.11.

  	
  Substitution of Currency

  	
  8491

  
	
   

  	
   

  	
   

  
	
  10.12.

  	
  Intentionally Omitted.

  	
  8491

  
	
   

  	
   

  	
   

  
	
  10.13.

  	
  Severability

  	
  8491

  
	
   

  	
   

  	
   

  
	
  10.14.

  	
  Governing Law

  	
  8491

  
	
   

  	
   

  	
   

  
	
  10.15.

  	
  USA PATRIOT Act

  	
  8592

  
	
   

  	
   

  	
   

  
	
  10.16.

  	
  WAIVER OF JURY TRIAL

  	
  8592

  



 


iv

















 


	
  SCHEDULES

  
	
   

  
	
  I

  	
   

  	
  Commitments

  
	
  1.1

  	
   

  	
  Mandatory
  Cost Formulae

  
	
  2.8

  	
   

  	
  Designated
  Borrowers

  
	
  II

  	
   

  	
  Addresses for Notices

  
	
  III

  	
   

  	
  Guarantors

  
	
  IV

  	
   

  	
  Administrative Schedule

  
	
  V

  	
   

  	
  Surviving Indebtedness

  
	
   

  	
   

  	
   

  
	
  EXHIBITS

  
	
   

  
	
  A

  	
   

  	
  Commitment
  Increase Supplement

  
	
  B

  	
   

  	
  Additional
  Lender Supplement

  
	
  C

  	
   

  	
  Designated
  Borrower Request and Assumption Agreement

  
	
  D

  	
   

  	
  Designated
  Borrower Notice

  
	
  E

  	
   

  	
  [Intentionally Omitted]

  
	
  F

  	
   

  	
  [Intentionally Omitted]

  
	
  G

  	
   

  	
  Assignment
  and Assumption

  
	
  H-1

  	
   

  	
  Opinion
  of Lionel Sawyer & Collins, Nevada counsel to the Company

  
	
  H-2

  	
   

  	
  Opinion
  of Simpson Thacher & Bartlett LLP, counsel to the Company

  
	
  H-3

  	
   

  	
  Opinion
  Matters – Local Counsel to Loan Parties

  
	
  H-4

  	
   

  	
  Opinions
  of Local Counsel to Designated Borrowers

  
	
  I

  	
   

  	
  Form of
  Note

  
	
  J

  	
   

  	
  Swing
  Line Loan Participation Certificate

  
	
  K

  	
   

  	
  Yen
  Swing Line Loan Participation Certificate

  
	
  L

  	
   

  	
  US
  Tax Compliance Certificate

  
	
  M

  	
   

  	
  Form of
  Subsidiary Guaranty

  
	
  N

  	
   

  	
  Irish
  Swing Line Loan Participation Certificate

  



 


v
















 


CREDIT AGREEMENT, dated as of March 23, 2006,
among:


 


(a)           CAPMARK
FINANCIAL GROUP INC., a Nevada corporation (the “Company”);


 


(b)           certain
Subsidiaries of the Company listed on Schedule 2.8 or that may hereafter become
a party hereto pursuant to subsection 2.8 (each a “Designated Borrower”
and, together with the  Company, the “Borrowers”
and, each a “Borrower”);


 


(c)           the
several banks and other financial institutions, from time to time parties to
this Agreement, including, as applicable, branches or affiliates thereof
regardless of whether or not such brand or affiliate has signed this Agreement,
(the “Lenders”);


 


(d)           J.P.
Morgan Securities Inc., as syndication agent (in such capacity, the “Syndication
Agent”);


 


(e)           Credit
Suisse, Deutsche Bank Securities Inc., Goldman Sachs Credit Partners, L.P. and
The Royal Bank of Scotland plc, as documentation agents (each, in such
capacity, a “Documentation Agent”);


 


(f)            the
Lenders from time to time parties to this Agreement in the capacities as
issuers of letters of credit; and


 


(g)           CITIBANK,
N.A., as administrative agent for the Lenders hereunder (in such capacity,
together with its affiliates and any sub-agent appointed pursuant to the terms
of this Agreement, the “Agent”).


 


The parties hereto hereby agree as follows:


 


SECTION 1.  DEFINITIONS


 


1.1.  Defined
Terms.  As used in this Agreement, the following
terms shall have the following meanings:


 


“A-Rated Specified Loans and Securities”:  Specified Loans and Securities of the type
referred to in clause (c) of the definition thereof which are not rated at
least “AA-” by S&P, “Aa3” by Moody’s or “AA-” by Fitch.


 


“Acceptance Fee”:  as defined in subsection 2.5(d).


 


“Acceptance Note”:  as defined in subsection 2.5(f)(ii).


 


“Acceptance Note Lender”:  as defined in subsection 2.5(f)(i).


 


“Acquisition”:  the acquisition by the Investors of
approximately 80.0% of the capital stock of the Company from GMAC Mortgage
Group, Inc. pursuant to the terms of the Purchase Agreement concurrently
with the initial extension of credit hereunder.


 


“Additional Lender”:  as defined in subsection 2.1(b)(ii).


 


“Additional Lender Supplement”:  as defined in subsection 2.1(b)(ii).


 

















 


“Administrative Schedule”:  Schedule IV to this Agreement, as amended
from time to time in accordance with the provisions hereof.


 


“Affiliate”:  as to any
Person, any other Person that, directly or indirectly, is in control of, is
controlled by, or is under common control with, such Person.  For purposes of this definition, “control” of
a Person means the power, directly or indirectly, either to (a) vote 10%
or more of the securities having ordinary voting power for the election of
directors (or persons performing similar functions) of such Person or (b) direct
or cause the direction of the management and policies of such Person, whether
by contract or otherwise.


 


“Agent”:  as defined in the preamble hereto.  To the extent that the Agent has appointed a
Sub-Agent to perform its obligations under this Agreement in respect of any
Facility, each reference to “the Agent” contained in this Agreement with
respect to such Facility shall be deemed to be a reference to such Sub-Agent to
the extent applicable.


 


“Agreement”:  this Agreement, as amended, supplemented or
otherwise modified from time to time.


 


“Applicable Borrowing Minimum”:  (a) in respect of Revolving Credit Loans
denominated in Dollars, $5,000,000 and (b) in respect of Loans in any
Available Foreign Currency, the amount set forth as the “Applicable Borrowing
Minimum” for such Currency on the Administrative Schedule.


 


“Applicable Borrowing Multiple”:  (a) in respect of Revolving Credit Loans
denominated in Dollars, $1,000,000 and (b) in respect of Loans denominated
in any Available Foreign Currency, the amount set forth as the “Applicable
Borrowing Multiple” for such Currency on the Administrative Schedule.


 


“Applicable Irish Swing Line Rate”: (i) in
the case of Irish Swing Line Loans that are made to Irish Revolving Credit
Borrowers that are US Borrowers and that are denominated in Dollars, the
Federal Funds Rate (as determined by the Agent from time to time) or (ii) in
the case of Irish Swing Line Loans that are made (A) to Irish Revolving
Credit Borrowers that are US Borrowers and that are denominated in Euros or
Pounds Sterling or (B) to Irish Revolving Credit Borrowers that are not US
Borrowers, the Eurocurrency Reference Rate with respect to Dollars, Euros or
Pounds Sterling, as applicable; plus, in each case, the Applicable Margin then
in effect for Eurocurrency Loans.


 


“Applicable Margin”:  as defined in subsection 2.14(h).


 


“Applicable Revolving Credit Commitment”:  as to any Lender, such Lender’s Canadian
Revolving Credit Commitment, Irish Revolving Credit Commitment, US Revolving
Credit Commitment or Japanese Revolving Credit Commitment, as the context
requires.


 


“Applicant Borrower”:  as defined in subsection 2.8(b).


 


“Approved Fund”:  as defined in subsection 10.7(b)(ii).


 


“ARB 51”:  Accounting Research Bulletin No. 51, as
amended.


 


2

















 


“Arrangers”:  Citigroup Global Markets Inc., J.P. Morgan
Securities Inc., Credit Suisse, Deutsche Bank Securities Inc., Goldman Sachs
Credit Partners, L.P. and The Royal Bank of Scotland plc, in their capacity as
joint lead arrangers and joint bookrunners under this Agreement.


 


“Assignee”:  as defined in subsection 10.7(b)(i).


 


“Attributed Capitalization”:  as of any date of determination, (a) with
respect to any Specified Subsidiary, the aggregate consolidated value of the
assets of such Specified Subsidiary, and (b) with respect to any Specified
Asset Category, the aggregate consolidated value of the assets in such
Specified Asset Category, in each case with “consolidated value” being
determined in a manner consistent with the consolidated value of assets
reflected on the Company’s financial statements delivered pursuant to
subsection 5.1.


 


“Attributed Equity”:  Attributed Capitalization minus
Attributed Indebtedness.


 


“Attributed Indebtedness”:  as of any date of determination, with respect
to any Specified Subsidiary or Specified Asset Category, an amount equal to the
amount of the Attributed Capitalization of such Specified Subsidiary or
Specified Asset Category, respectively, in each case multiplied by the
Indebtedness Factor with respect to such Specified Subsidiary or Specified
Asset Category.


 


“Availability Reduction Amount”: as of the date of any determination,
the amount by which the aggregate amount of Indebtedness secured in accordance
with the provisions of Section 6.3(g) and (without duplication) the
Indebtedness incurred pursuant to Section 6.4(h) exceeds 20% and 30%,
respectively, of the difference of consolidated shareholders’ equity of the
Company and its Subsidiaries minus Attributed Equity.  With respect to any Revolving Credit
Facility, “Availability Reduction Amount” shall mean the portion of the
aggregate Availability Reduction Amount attributable to such Revolving Credit
Facility (on a pro rata basis based on the aggregate Commitments under all
Revolving Credit Facilities (excluding any Incremental Commitments)).


 


“Available Foreign
Currencies”:  Euro, Pounds Sterling,
Yen and, in the case of the Canadian Revolving Credit Facility, Canadian
Dollars.


 


“Available Letter of Credit Amount”:  at any time, the maximum amount available to
be drawn under a Letter of Credit at such time (assuming compliance at such
time with all conditions to drawing).


 


“Available Revolving Credit Commitment”:  as to any Revolving Credit Lender under any
Revolving Credit Facility at any time, the excess, if any, of such Lender’s
Applicable Revolving Credit Commitment over such Lender’s Revolving Credit
Usage in respect of the applicable Revolving Credit Facility.


 


“BA Discount Proceeds”:  proceeds in respect of any Bankers’
Acceptance to be purchased by a Lender on any day under subsection 2.5 in an
amount (rounded to the nearest whole Canadian cent, and with one-half of one
Canadian cent being rounded up) calculated on such day by dividing:


 


(a)           the
Face Amount of such Bankers’ Acceptance; by


 


3

















 


(b)           the sum of one plus the product of:


 


(i)            the
BA Discount Rate (expressed as a decimal) applicable to such Bankers’
Acceptance; and


 


(ii)           a
fraction, the numerator of which is the number of days in the term of such
Bankers’ Acceptance commencing on the date of acceptance of the Bankers’
Acceptance and ending on, but excluding, its BA Maturity Date, and the
denominator of which is 365;


 


with
such product being rounded up or down to the fifth decimal place and .000005
being rounded up.


 


“BA
Discount Rate”:  in respect of a
Bankers’ Acceptance, the rate determined by the Agent on any date as the
average of the per annum discount rates for Canadian Dollar bankers’
acceptances having a comparable term and Face Amount appearing on the Reuters
Screen CDOR Page (or such other page as is a replacement page therefor)
at 10:00 A.M. (Toronto time) on the date of the acceptance of such Bankers’
Acceptance to be accepted by a Canadian Revolving Credit Lender that is a
Schedule I Bank or if such date is not a Business Day, then on the immediately
preceding Business Day (as adjusted by the Agent after 10:00 A.M. (Toronto
time) to reflect any error in any posted rate or in the posted average annual
rate (the “CDOR Rate”), and in the case of Bankers’ Acceptances to be accepted
by a Canadian Revolving Credit Lender that is a Schedule II Bank or a Schedule
III Bank, the lesser of (a) the  bid
rate quoted by such Lender for its own bankers’ acceptances of a comparable
term and Face Amount with effect as at or about 10:00 A.M. (Toronto time)
on the applicable date of determination and (b) the CDOR Rate  plus 10 bps. 
If per annum discount rates for Canadian Dollar bankers’ acceptances do
not appear on the Reuters Screen CDOR Page at such time, the CDOR Rate
shall be determined by the Agent at or about 10:00 A.M. (Toronto time) on
the date of acceptance of such Bankers’ Acceptance as the average of the
discount rates quoted by such Schedule I Banks as the Agent considers
reasonable at which such Schedule I Banks would, in accordance with their
normal practice, purchase on such date their own bankers’ acceptances with a
term and Face Amount comparable to the terms and Face Amount of the Bankers’
Acceptances to be issued.


 


                “BA
Maturity Date”:  with respect to any
Bankers’ Acceptance, the date that is 30, 60, 90 or 180 days, as the applicable
Canadian Revolving Credit Borrower may elect in the applicable notice of
Canadian Revolving Credit Borrowing, after the date of issuance of such Bankers’
Acceptance specified in such notice of Canadian Revolving Credit Borrowing; provided
that:


 


                (a)           any BA
Maturity Date that would otherwise fall on a day which is not a Business Day
shall be extended to the next succeeding Business Day, and


 


                (b)           no BA
Maturity Date with respect to a Bankers’ Acceptance purchased or accepted by
any Canadian Revolving Credit Lender may fall after the Termination Date of
such Canadian Revolving Credit Lender.


 


“Bankers’
Acceptance” or “BA”:  a
non-interest bearing bill of exchange (within the meaning of the Bills of
Exchange Act (Canada)) or a depository bill (within the meaning of the
Depository Bills and Notes Act (Canada)), as applicable, drawn by the
applicable Designated Borrower which is a Canadian Revolving Credit Borrower
and accepted by a Canadian Revolving Credit Lender at a Canadian Revolving
Credit Borrower’s request as a Borrowing hereunder, in such form as the Agent
may from time to time require.


 


4

















 


“Banking
and Market Destined Assets”:  all
assets that either (a) fall within any Specified Asset Category or (b) are
owned by any Specified Subsidiary.


 


“Bankruptcy
Remote Special Purpose Entity”:  a
Person that satisfies each of the following criteria:  (i) such Person is an entity that is
consolidated for accounting purposes with the Company and designed to make
remote the possibility that it would enter into bankruptcy or other
receivership; (ii) all or substantially all of such Person’s assets
consist of Receivables or securities backed by Receivables plus any rights or
other assets (including cash reserves) designed to assure the servicing or
timely distribution of proceeds to the holders of its obligations; and (iii) Receivables
or securities backed by Receivables owned by such Person satisfy the legal isolation
criteria set forth in paragraph 9(a) of FAS 140 (in relation to the
Company and any Subsidiary that is not a Bankruptcy Remote Special Purpose
Entity).


 


“Base Rate”:  a fluctuating interest rate per annum in
effect from time to time, which rate per annum shall at all times be equal to
the higher of:


 


(a)  the rate of interest announced
publicly by Citibank in New York, New York, from time to time, as Citibank’s
base rate; and


 


(b)  1/2 of one percent per annum
above the Federal Funds Rate;


 


provided that, in
the case of Base Rate Loans made to a Canadian Revolving Credit Borrower that
is domiciled in Canada, “Base Rate” shall mean a fluctuating interest rate per
annum in effect from time to time, which rate per annum shall at all times be
equal to the higher of, (a) the rate of interest established by Citibank
from time to time and in effect as its base rate at its principal office in
Toronto, Ontario for determining interest rates on U.S. Dollar-denominated
commercial loans made by it in Canada and (b) 1/2 of one percent per annum
above the Federal Funds Rate.


 


“Base
Rate Loans”:  Revolving Credit Loans
or Term Loans (in each case, denominated in Dollars) bearing interest at a rate
determined by reference to the Base Rate.


 


“Benefitted
Lender”:  as defined in subsection
10.8.


 


“Board of
Directors”:  as to the Company, its
Board of Directors or any committee thereof.


 


“Borrowers”:  as defined in the preamble hereto.


 


“Borrowing”:  a Revolving Credit Borrowing, a Term
Borrowing, a Swing Line Borrowing, an Irish Swing Line Borrowing or a Yen Swing
Line Borrowing.


 


“Bridge
Facility”:  the $5,250,000,000 Bridge
Loan Agreement dated as of March 23, 2006 among the Company, Citicorp
North America, Inc., as Bridge Agent, and the Bridge Lenders referred to
therein, as amended to the extent permitted under the Loan Documents.


 


“BTMU”:
The Bank of Tokyo-Mitsubishi UFJ, Ltd.


 


“Business
Day”:  (a) when such term is
used in respect of any amounts denominated or to be denominated in (i) any
Available Foreign Currency, a London Banking Day which is also a day other than
a Saturday or Sunday and on which banks are open for general banking business
in (w) the city which is the principal financial center of the country of
issuance of such Available 


 


5

















 


Foreign
Currency, (x) in the case of Canadian Dollars only, Toronto, Canada, (y) in
the case of Euros only, London, England and (z) New York City and (ii) Dollars,
(x) in the case of a Eurocurrency Loan, any fundings, disbursements,
payments and settlements in respect of any such Eurocurrency Loan, or any other
dealings to be carried out pursuant to any Loan Document in respect of any such
Eurocurrency Loan, a London Banking Day which is also a day other than a
Saturday or Sunday and on which banks are open for general banking business in
New York City, and (y) in the case of a Base Rate Loan, any fundings,
disbursements, payments and settlements in respect of any such Base Rate Loan,
or any other dealings to be carried out pursuant to any Loan Document in
respect of any such Base Rate Loan, a day other than a Saturday or Sunday and
on which banks are open for general banking business in New York City (and, if
such Base Rate Loan is made to a Canadian Revolving Credit Borrower that is
domiciled in Canada, Toronto, Canada) and (b) when such term is used for
the purpose of determining the date on which the Eurocurrency Rate is
determined under this Agreement for any Loan denominated in Euros for any
Interest Period therefor and for purposes of determining the first and last day
of any Interest Period, references in this Agreement to Business Days shall be
deemed to be references to Target Operating Days.


 


“Canadian
Dollars”:  the lawful money of
Canada.


 


“Canadian
Prime Rate”:  for any day, a rate per
annum equal to the higher of (a) the rate of interest per annum
established by Citibank Canada as the reference rate of interest then in effect
for determining interest rates on commercial loans denominated in Canadian
Dollars made by it in Canada and (b) the sum of 1⁄2 of 1% plus the one-month
CDOR Rate for such day.


 


“Canadian
Prime Rate Loan”:  a Revolving Credit
Loan available to a Canadian Revolving Credit Borrower, denominated in Canadian
Dollars and bearing interest based on the Canadian Prime Rate as further set
forth in subsection 2.14(b).


 


“Canadian
Revolving Credit Borrower”: (a) in the case of Eurocurrency Loans and
Base Rate Loans under the Canadian Revolving Credit Facility, each US Borrower
and each Designated Borrower listed on Part A of Schedule 2.8 and each
Subsidiary of the Company organized under the laws of Canada or a jurisdiction
thereof that becomes a Designated Borrower under the Canadian Revolving Credit
Facility pursuant to subsection 2.8 after the Closing Date and (b) in the
case of Canadian Prime Rate Loans and Bankers’ Acceptances, each Designated
Borrower listed on Part A of Schedule 2.8 and each Subsidiary of the
Company organized under the laws of Canada or a jurisdiction thereof that
becomes a Designated Borrower under the Canadian Revolving Credit Facility
pursuant to subsection 2.8 after the Closing Date.


 


“Canadian
Revolving Credit Borrowing”:  a group
of Canadian Revolving Credit Loans of a single Type and in the same Currency
made by the Canadian Revolving Credit Lenders, as the case may be, on a single
date and, if applicable, as to which a single Interest Period is in effect.


 


“Canadian
Revolving Credit Commitment”:  as to
any Canadian Revolving Credit Lender at any time, the obligation of such Lender
to make Canadian Revolving Credit Loans in an aggregate amount at any one time
outstanding not to exceed the amount set forth opposite such Lender’s name on
Schedule I under the caption “Canadian Revolving Credit Commitment”, as such
amount may be increased or reduced from time to time in accordance with the
provisions of this Agreement; provided that, except with respect to any Incremental Commitments of
Increasing Lenders under the Canadian Revolving Credit Facility, the Canadian
Revolving


 


6

















 


Credit Commitments at any time
shall be reduced pro rata by the Availability Reduction Amount attributable to
the Canadian Revolving Credit Facility at such time.


 


“Canadian
Revolving Credit Commitment Percentage”: 
as to any Canadian Revolving Credit Lender at any time, the percentage
which such Lender’s Canadian Revolving Credit Commitment then constitutes of
the aggregate Canadian Revolving Credit Commitments (or, at any time after the
Canadian Revolving Credit Commitments shall have expired or terminated, the
percentage which the aggregate principal amount of such Lender’s Canadian
Revolving Credit Loans then outstanding constitutes of the aggregate principal
amount of the Canadian Revolving Credit Loans then outstanding).


 


“Canadian
Revolving Credit Facility”:  in an
initial amount of $400,000,000 or, at any time, the aggregate amount of the
Canadian Revolving Credit Lenders’ Canadian Revolving Credit Commitments at
such time.


 


“Canadian
Revolving Credit Lender”:  a Lender that
has a Canadian Revolving Credit Commitment (with respect to which such Lender
(or its designated Affiliate for purposes of making Loans in Canadian Dollars
to Canadian Revolving Credit Borrowers domiciled in Canada) is a Schedule I
Bank, a Schedule II Bank, a Schedule III Bank or a Person otherwise established
under the laws of Canada or any province or territory thereof that is
authorized to carry on business in Canada pursuant to Part XII of the Bank
Act (Canada)) or an “authorized foreign bank” as defined in section 2 of the
Bank Act (Canada).


 


“Canadian
Revolving Credit Loan”:  a revolving
credit loan under the Canadian Revolving Credit Facility or the purchase of a
Bankers’ Acceptance under the Canadian Revolving Credit Facility and made by a
Canadian Revolving Credit Lender for the account of a Canadian Revolving Credit
Borrower as part of a Canadian Revolving Credit Borrowing.


 


“Canadian
Sub-Agent”:  has the meaning
specified in subsection 2.5(b)(i).


 


                “Cash Equivalents”:


 


(1)           securities issued or directly
and fully guaranteed or insured by the United States or any agency or
instrumentality thereof and having maturities of not more than 12 months after
the date of acquisition;


 


(2)           time deposits or
certificates of deposit of any bank of recognized standing having capital and
surplus in excess of $100 million or whose commercial paper rating is at least
A-1 by S&P or P-1 by Moody’s and having maturities of not more than 12
months after the date of acquisition;


 


(3)           commercial paper rated
at least A-1 by S&P or P-1 by Moody’s and having maturities of not more
than 12 months after the date of acquisition;


 


(4)           direct obligations (or
certificates representing an ownership interest in such obligations) of any
state of the United States (including any agency or instrumentality thereof)
the long-term debt of which is rated A-3 or higher by Moody’s or A- or higher
by S&P (or rated the equivalent by at least one nationally recognized
statistical rating organization) and having maturities of not more than 12 months
after the date of acquisition; and


 


7

















 


(5)           in the case of any
foreign Subsidiary of the Company, investments (A) in direct obligations
of the sovereign nation (or any agency or instrumentality thereof) in which
such Subsidiary is organized or is conducting a substantial amount of business
or in obligations fully and unconditionally guaranteed by such sovereign nation
(or agency or instrumentality) or (B) of the type and maturity described
in clause (1) through (4) above of foreign obligors, which
investments or obligors (or their parents) have ratings equivalent to those
described above (which may be equivalent ratings from foreign rating agencies).


 


“CCAA”:  the Companies’ Creditors Arrangement Act
(Canada).


 


“CDOR
Rate”:  has the meaning specified in
the definition of “BA Discount Rate” contained in this subsection 1.1.


 


“Change
of Control”:  (a) prior to the
consummation of a Qualifying IPO, the Equity Investors shall cease to own,
collectively, at least 35% of the Voting Stock of the Company or (b) any
Person or two or more Persons acting in concert other than the Investors shall
have acquired beneficial ownership (within the meaning of Rule 13d-3 of
the Securities and Exchange Commission under the Securities Exchange Act of
1934), directly or indirectly, of Voting Stock of the Company (or other
securities convertible into such Voting Stock) representing more than 50% of
the combined voting power of all Voting Stock of the Company or (c) prior
to the consummation of a Qualifying IPO, General Motors Corporation or any of
its Affiliates shall hold Voting Stock of the Company (or other securities
convertible into such Voting Stock) representing more than the combined voting
power of all Voting Stock of the Company held by the Equity Investors.


 


“Citibank”:  Citibank, N.A.


 


“CLO”:  as defined in subsection 10.7(b)(ii).


 


“Closing
Date”:  the date on which each of the
conditions precedent set forth in subsection 4.1 shall have been satisfied.


 


“Closing
Date Material Adverse Effect”:  a
material adverse effect on the business, condition (financial or otherwise) or
results of operations of the Company and its Subsidiaries, taken as a whole,
excluding the effects of changes to the extent caused by or resulting from (a) changes
in business or economic conditions generally or the financial services
industries in which General Motors Acceptance Corporation, GMAC Mortgage Group, Inc.,
General Motors Corporation or the Company and its Subsidiaries operate, in each
case which do not have a materially disproportionate effect on the Company and
its Subsidiaries, taken as a whole (relative to other comparable industry
participants), (b) any outbreak of major armed hostilities in which the
United States is engaged or the occurrence of any terrorist attack upon the
United States or any part thereof, (c) changes  in securities markets generally (including
any disruption thereof and any decline in the price of any security or any
market index), (d) changes after the date of this Agreement in GAAP or (e) the
performance of any obligations under the Transaction Documents (as defined in
the Purchase Agreement).


 


“Code”:  the Internal Revenue Code of 1986, as amended
from time to time.


 


“Commitment”:  a Revolving Credit Commitment, a Term
Commitment, a Letter of Credit Commitment, a Swing Line Commitment, an Irish
Swing Line Commitment or a Yen Swing Line Commitment, as applicable.


 


8

















 


“Commitment
Increase Supplement”:  as defined in
subsection 2.1(b)(ii).


 


“Commitment
Period”:  the period from and
including the date hereof to but not including the Termination Date or such
earlier date on which the Commitments shall terminate as provided herein.


 


“Company”:  as defined in the preamble hereto.


 


“Conduit Lender”:  any special purpose funding vehicle that (i) is
organized under the laws of the United States or any state thereof and (ii) is
engaged in making, purchasing or otherwise investing in commercial loans in the
ordinary course of its business.


 


“Contractual
Obligation”:  as to any Person, any
provision of any security issued by such Person or of any agreement, instrument
or other undertaking to which such Person is a party or by which it or any of
its property is bound.


 


“Currencies”:  the collective reference to Dollars and the
Available Foreign Currencies.


 


“Default”:  any of the events specified in Section 7,
whether or not any requirement for the giving of notice, the lapse of time, or
both, or any other condition, has been satisfied.


 


“Designated
Account”: each deposit account specified in subsection 2.7 or such other
deposit account as may be designated as a “Designated Account” from time to
time in accordance with subsection 2.7, in each case in respect of which a Yen
Overdraft Swing Line Lender has a Yen Overdraft Swing Line Commitment.


 


“Designated
Borrower”:  as defined in the
preamble hereto.


 


“Designated
Borrower Notice”: as defined in subsection 2.8(b).


 


“Designated
Borrower Request and Assumption Agreement”: as defined in subsection
2.8(b).


 


“Designated
Lenders”:  as defined in subsection
10.9(c).


 


“Documentation
Agent”:  as defined in the preamble
hereto.


 


“Dollars”
and “$”:  the lawful currency of
the United States of America.


 


“Environmental
Law”:  any Federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, writ, judgment,
injunction, decree or judicial or agency interpretation, policy or guidance
relating to pollution or protection of the environment, health, safety or
natural resources, including, without limitation, those relating to the use,
handling, transportation, treatment, storage, disposal, release or discharge of
hazardous materials.


 


“Environmental
Permit”:  any permit, approval,
identification number, license or other authorization required under any
Environmental Law.


 


“Equity
Investors”:  Affiliates of Kohlberg
Kravis Roberts & Co. L.P., The Goldman Sachs Group, Inc., Dune
Capital Management, L.P. and Five Mile Capital Partners LLC.


 


9

















 


“Equivalent”:  in determining any amount (a) in Dollars
of any amount in any Available Foreign Currency or other foreign currency on
any date means such amount in such Available Foreign Currency or other foreign
currency multiplied by (x) in the case of any foreign currency
other than Yen borrowed in Japan, the quoted spot rate at which the Agent’s
principal office in London offers to exchange Dollars for such Available
Foreign Currency or other foreign currency in London prior to 11:00 A.M.
(London time) on such date or (y) in the case of Yen borrowed in Japan,
the quoted spot rate at Citibank N.A. Tokyo prior to 10:00 A.M. (Tokyo)
time on such date and (b) in any Available Foreign Currency or other
foreign currency of any amount in Dollars on any date means such amount in
Dollars multiplied by (x) in the case of any foreign currency other
than Yen borrowed in Japan, the quoted spot rate at which the Agent’s principal
office in London offers to exchange such Available Foreign Currency or other
foreign currency for Dollars in London prior to 11:00 A.M. (London time)
on such date or (y) in the case of Yen borrowed in Japan, by the quoted
spot rate at Citibank N.A. Tokyo prior to 10:00 A.M. (Tokyo) time on such
date.


 


“ERISA”:  the Employee Retirement Income Security Act
of 1974, as amended from time to time.


 


“ERISA
Affiliate”:  any Person that for
purposes of Title IV of ERISA is a member of the Borrowers’ controlled group,
or under common control with the Borrowers, within the meaning of Section 414(b) or
(c) of the Code.


 


“ERISA
Event”:  (a) (i) the
occurrence of a reportable event, within the meaning of Section 4043 of
ERISA, with respect to any Plan unless the 30-day notice requirement with
respect to such event has been waived by the PBGC, or (ii) the requirements
of subsection (1) of Section 4043(b) of ERISA (without regard to
subsection (2) of such Section) are met with respect to a contributing
sponsor, as defined in Section 4001(a)(13) of ERISA, of a Plan, and an
event described in paragraph (9), (10), (11), (12) or (13) of Section 4043(c) of
ERISA is reasonably expected to occur with respect to such Plan within the
following 30 days; (b) the application for a minimum funding waiver with
respect to a Plan; (c) the provision by the administrator of any Plan of a
notice of intent to terminate such Plan pursuant to Section 4041(a)(2) of
ERISA (including any such notice with respect to a plan amendment referred to
in Section 4041(e) of ERISA); (d) the withdrawal by the Company
or any ERISA Affiliate from a Multiple Employer Plan during a plan year for
which it was a substantial employer, as defined in Section 4001(a)(2) of
ERISA; (e)  the conditions for the imposition of a lien under Section 302(f) of
ERISA shall have been met with respect to any Plan; (f) the adoption of an
amendment to a Plan requiring the provision of security to such Plan pursuant
to Section 307 of ERISA; or (g) the institution by the PBGC of
proceedings to terminate a Plan pursuant to Section 4042 of ERISA.


 


“EURIBO
Rate”:  for any Interest Period, the
rate appearing on Page 248 of the Moneyline Telerate Service (or on any
successor or substitute page of such Service or of any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Agent from time to time for purposes of providing quotations of interest rates
applicable to deposits in Euros by reference to the Banking Federation of the
European Union Settlement Rates for deposits in Euros) at approximately 10:00 A.M.,
London time, two Business Days prior to the commencement of such Interest
Period, as the rate for deposits in Euros with a maturity comparable to such
Interest Period or, if for any reason such rate is not available, the average
of the respective rates per annum at which deposits in Euros are offered by the
principal office of each of the Reference Banks in London, England to prime
banks in the London interbank market at 11:00 A.M. (London time) two
Business Days before the first day of such Interest Period in an amount 


 


10

















 


substantially
equal, in the case of a Revolving Credit Borrowing, to such Reference Bank’s
Eurocurrency Rate Loans comprising part of such Borrowing to be outstanding
during such Interest Period and for a period equal to such Interest Period.


 


“Eurocurrency
Borrowing”:  a Borrowing comprised of
Eurocurrency Loans.


 


“Eurocurrency
Loan”:  any Eurocurrency Revolving
Credit Loan or Eurocurrency Term Loan.


 


“Eurocurrency
Rate”:  with respect to each day
during each Interest Period pertaining to a Eurocurrency Loan, (a) in the
case of any Eurocurrency Loans denominated in Dollars or any Available Foreign
Currency (other than Euros), the rate of interest determined on the basis of
the rate for deposits in Dollars or such Available Foreign Currency,
respectively, for a period equal to such Interest Period commencing on the
first day of such Interest Period appearing on Page 3750 of the Telerate
screen as of 11:00 A.M., London time, two Business Days prior to the
beginning of such Interest Period or (b) in the case of any Eurocurrency
Loans denominated in Euros, the EURIBO Rate. 
In the event that such rate does not appear on Page 3750 of the
Telerate Service (or otherwise on such service), the “Eurocurrency Rate”
shall be determined by reference to such other publicly available service for
displaying eurocurrency rates as may be agreed upon by the Agent and the
Company or, in the absence of such agreement, the “Eurocurrency Rate”
shall instead be the rate per annum equal to the average of the respective
rates notified to the Agent by each of the Reference Lenders as the rate at
which such Reference Lender is offered deposits in the applicable Currency at
or about 10:00 A.M., New York City time, two Business Days prior to the
beginning of such Interest Period in the interbank eurocurrency market where
the eurodollar and foreign currency and exchange operations in respect of its
Eurocurrency Loans are then being conducted for delivery on the first day of
such Interest Period for the number of days comprised therein and in an amount
comparable to the amount of its Eurocurrency Loan to be outstanding during such
Interest Period.


 


“Eurocurrency
Reference Rate” means, for any day, (i) in the case of Irish Swing
Line Loans denominated in Euros, the rate per annum which is the average of the
rates quoted at approximately 11:00 A.M., London time, to leading banks in
the European interbank market by the Reference Lenders for the offering of
overnight deposits in Euros, (ii) in the case of Irish Swing Line Loans
denominated in Pounds Sterling, the London interbank offered rate (as reflected
on the applicable Telerate Screen) for overnight deposits of Pounds Sterling on
such day and (iii) in the case of Irish Swing Line Loans denominated in
Dollars, the London interbank offered rate (as reflected on the applicable
Telerate Screen) for overnight deposits of Dollars on such day; in each case
for an amount comparable to the amount of such Irish Swing Line Loan to be
outstanding.  In the event that the Agent
determines (which determination shall be conclusive absent manifest error) that
adequate and reasonable means do not exist for ascertaining the applicable
overnight rates described in clauses (i)-(iii) above, then, upon notice by
the Agent to the applicable Borrower and the applicable Lenders, and until the
Agent notifies the applicable Borrower and the applicable Lenders that the
circumstances giving rise to such determination no longer exist, the
Eurocurrency Reference Rate shall be the rate per annum which is the average of
the rates quoted at approximately 11:00 A.M., London time, to leading
banks in the European interbank market by the applicable Swing Line Lenders for
the offering of overnight deposits in Dollars, Pounds Sterling or Euros, as
applicable, for an amount comparable to the amount of such Swing Line Loan to
be outstanding.


 


11

















 


“Eurocurrency
Reserve Rate”:  with respect to each
day during each Interest Period pertaining to a Eurocurrency Loan, a rate per
annum determined for such day in accordance with the following formula:


 


	
   

  	
  Eurocurrency Rate

  	
   

  
	
   

  	
  1.00 – Eurocurrency Reserve Requirements

  	
   

  



 


“Eurocurrency
Reserve Requirements”:  for any day
as applied to a Eurocurrency Loan, the aggregate (without duplication) of the
maximum rates (expressed as a decimal fraction) of reserve requirements in
effect on such day (including, without limitation, 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.


 


“Eurocurrency
Revolving Credit Loan”:  any
Revolving Credit Loan bearing interest at a rate determined by reference to the
Eurocurrency Rate.


 


“Eurocurrency
Term Loan”:  any Term Loan bearing
interest at a rate determined by reference to the Eurocurrency Rate.


 


“Euros”
and “€”:  the single currency of
the participating members of the European Union.


 


“Event of
Default”:  any of the events
specified in Section 7; provided that any requirement for the
giving of notice, the lapse of time, or both, or any other condition, has been
satisfied.


 


“Excluded
Subsidiary”:  any Subsidiary of the
Company that is (a) a “controlled foreign corporation” of the Company
under Section 957 of the Code; (b) organized under the laws of a
jurisdiction other than the United States, any State thereof or the District of
Columbia; (c) a Bankruptcy Remote Special Purpose Entity; (d) prohibited
by any Requirement of Law or Contractual Obligation from providing a guaranty
of the obligations of the Company hereunder, provided that any such
Contractual Obligation (i) shall have been entered into or incurred prior
to the Closing Date (or, in the case of any Subsidiary formed or acquired by
the Company subsequent to the Closing Date, prior to such formation or
acquisition) and (ii) in any event, shall not have been entered into or
incurred in contemplation of this provision; (e) any Permitted Receivables
Subsidiary; or (f) an Immaterial Subsidiary.


 


“Existing
Indebtedness”:  Indebtedness of the
Company and its Subsidiaries existing immediately before the occurrence of the
Closing Date.


 


“Face
Amount”:  with respect of any Bankers’
Acceptance or Acceptance Note, the amount payable to the holder of such Bankers’
Acceptance or Acceptance Note on its then existing BA Maturity Date.


 


“Facility”:  any Revolving Credit Facility, any Term
Facility, the Letter of Credit Facility, the Swing Line Facility, the Irish
Swing Line Facility or the Yen Swing Line Facility, as the context shall
require; collectively, the “Facilities.”


 


12
















“FAS 66”:  Statement of Financial Accounting Standards No. 66.


 


“FAS 140”:  Statement of Financial Accounting Standards No. 140.


 


“Federal Funds Rate”:   for any day, the rate per annum equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank on the Business Day next
succeeding such day; provided that (a) if such day is not a
Business Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Business Day as so published on the next
succeeding Business Day, and (b) if no such rate is so published on such
next succeeding Business Day, the Federal Funds Rate for such day shall be the
average rate charged to Citibank on such day on such transactions as determined
by the Agent.


 


“Fee
Letter”:  that certain Fee Letter
dated as of August 2, 2005 among the Arrangers and GMACCH Investor LLC.


 


“FIN
46(R)”:  FASB Interpretation No. 46
(revised December 2003).


 


“Financial
Officer”:  with respect to any
Person, the chief financial officer, the chief accounting officer, a financial
vice president or the treasurer or assistant treasurer of such Person.


 


“Fitch”:  Fitch Investors’ Services Inc. and its
successors.


 


“Funding Office”:  for each Type of Loan and each Currency, the
Funding Office set forth in respect thereof in the Administrative Schedule.


 


“Funding Time”:  for each Type of Loan and each Currency, the
Funding Time set forth in respect thereof in the Administrative Schedule.


 


“GAAP”:  generally accepted accounting principles in
the United States of America as in effect from time to time and as applied by
the Company in the preparation of its public financial statements, except that
with respect to any Indebtedness that is determined in accordance with GAAP
contained in the definition of “Total Consolidated Indebtedness” and “Total
Capitalization” and the covenants contained in subsections 6.1 and 6.4, “GAAP”
shall mean generally accepted accounting principles in the United States of
America in effect on the date hereof and in accordance with the audited
financial statements of the Company for the fiscal year ended December 31,
2004, and without giving effect to any changes thereto or in the interpretation
or application thereof (including without limitation any changes in, or in the
interpretation or application of, FAS 140 or FIN 46(R)) after such date in the
preparation of its public financial statements.


 


“Government
Sponsored Enterprises”:  the
collective reference to (i) the Federal Home Loan Mortgage Corp. (Freddie
MAC) and (ii) the Federal National Mortgage Association (Fannie Mae).


 


13

















 


“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 government.


 


“Guarantors”:  the wholly owned, first-tier and second-tier
Subsidiaries of the Company listed on Schedule III and each other Subsidiary of
the Company that executes and delivers a guaranty pursuant to subsection 5.12
or otherwise executes and delivers a guaranty or guaranty supplement in form
and substance reasonably satisfactory to the Agent, guaranteeing the other Loan
Parties’ obligations under the Loan Documents.


 


“Guaranty”:  a subsidiary guaranty substantially in the
form of Exhibit M hereto, executed by each of the Guarantors listed on
Schedule III, together with each other guaranty and guaranty supplement
delivered by a Guarantor, in each case as amended, amended and restated,
supplemented or otherwise modified.


 


“Guarantee”:  as to any Person, any financial obligation,
contingent or otherwise, of such Person directly or indirectly guaranteeing any
Indebtedness of any other Person or in any manner providing for the payment of
any Indebtedness of any other Person, provided that the term “Guarantee”
shall not include endorsements for collection or deposit in the ordinary course
of business.  The value of any Guarantee
of any Person shall be determined by reference to the carrying value of such
Guarantee, with the “carrying value” being determined in a manner consistent
with the carrying value of Guarantees as reflected on the Company’s financial
statements delivered pursuant to subsection 5.1.


 


“Guaranteed Obligations”:
as defined in subsection 8.1(a).


 


“Hedge
Agreements”:  interest rate swap, cap
or collar agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contracts and other hedging agreements.


 


“Hybrid
Capital”:  “hybrid capital”
instruments issued to GMAC on the Closing Date on terms reasonably acceptable
to the Arrangers in an aggregate liquidation amount of $250,000,000.


 


“Immaterial
Subsidiary”:  any direct or indirect
Subsidiary of the Company (a) whose total net assets, together with the
total net assets of all of its Subsidiaries, constitute less than 5% of the
total consolidated net assets of the Company and its Subsidiaries or (b) whose
total net income, together with the total net income of all of its
Subsidiaries, constitute less than 5% of the total consolidated net income of
the Company and its Subsidiaries, all as determined in accordance with GAAP.


 


“Increasing
Lender”:  as defined in subsection
2.1(b)(ii).


 


“Incremental
Commitment”:  as defined in
subsection 2.1(b)(ii).


 


“Indebtedness”:  as to any Person at a particular time,
without duplication, all of the following, whether or not included as indebtedness
or liabilities in accordance with GAAP (but excluding any such items to the
extent accounted for under ARB 51, FAS 66 or FIN 46(R) in each case in
relation to the Company’s affordable tax credit syndication business):


 


(a)  all
obligations of such Person for borrowed money and all obligations of such
Person evidenced by bonds, debentures, notes, loan agreements, convertible
securities (to the extent that they have put provisions that are exercisable
during the term of this Agreement) or other similar instruments;


 


14

















 


(b)  all
direct or contingent obligations of such Person arising under letters of credit
(including standby and commercial), bankers’ acceptances, bank guaranties,
surety bonds and similar instruments;


 


(c)  all
obligations of such Person to pay the deferred purchase price of property or
services (other than trade accounts payable in the ordinary course of
business);


 


(d)  indebtedness
(excluding prepaid interest thereon) secured by a Lien on property owned or
being purchased by such Person (including indebtedness arising under
conditional sales or other title retention agreements), whether or not such indebtedness shall have been
assumed by such Person or is limited in recourse;


 


(e)  capitalized
leases;


 


(f)  all
Synthetic Debt (other than recourse factoring of receivables);


 


(g)  all
Guarantees of such Person in respect of any of the foregoing; and


 


(h)  all
obligations of such Person under Hedge Agreements.


 


Notwithstanding anything to the contrary herein, any obligation that is
non-recourse to any such Person other than to specified assets of such Person
shall not be deemed Indebtedness of such Person under this definition.


 


Notwithstanding
anything to the contrary contained in the foregoing, in no event shall “Indebtedness”
for any purposes of this Agreement include any “Mezzanine Equity” or more than
25% of any obligations in respect of Hybrid Capital as to which equity credit
is given by Moody’s or S&P, in each case unless and until such time as such
equity or instruments become repayable or redeemable on a mandatory basis in
accordance with the terms thereof.


 


“Indebtedness
Factor”:  for each of the Specified
Subsidiaries and Specified Asset Categories listed below, the amounts set forth
opposite thereto:


 


	
  GMAC Commercial Mortgage Bank

  	
   

  	
  0.94

  	
   

  
	
  Escrow Bank USA

  	
   

  	
  0.94

  	
   

  
	
  GMAC Commercial Mortgage Bank Europe plc

  	
   

  	
  0.90

  	
   

  
	
  Specified Mortgage Loan Interests

  	
   

  	
  0.92

  	
   

  
	
  Specified Loans and Securities (other than A-Rated
  Specified Loans and Securities)

  	
   

  	
  0.97

  	
   

  
	
  A-Rated Specified Loans and Securities

  	
   

  	
  0.90

  	
   

  
	
  Cash and Cash Equivalents

  	
   

  	
  0.97

  	
   

  



 


15

















 


“Index
Debt”:  the Company’s long-term
senior unsecured Indebtedness.


 


“Interest
Payment Date”:  (a) as to any
Base Rate Loan or Canadian Prime Rate Loan, the last day of each March, June, September and
December to occur while such Loan is outstanding and the date such Loan is
paid in full, (b) as to any Eurocurrency Loan, the last day of the
Interest Period applicable thereto and (c) as to any Eurocurrency Loan
having an Interest Period longer than three months or 90 days, as the case may
be, each day which is three months or 90 days, as the case may be, after the
first day of the Interest Period applicable thereto; provided that in
addition to the foregoing, each of (x) the date upon which the Commitments
under a Facility have been terminated and the Loans under such Facility have
been paid in full shall constitute an “Interest Payment Date” with respect to
such Facility and (y) the Termination Date shall be deemed to be an “Interest
Payment Date” with respect to any interest which is then accrued hereunder.


 


“Interest
Period”:  with respect to any
Eurocurrency Loan:


 


(a)  initially,
the period commencing on the borrowing or conversion date, as the case may be,
with respect to such Eurocurrency Loan and ending one, two, three or six months
thereafter or, to the extent available to all applicable Lenders, nine or
twelve months thereafter, as selected by any Borrower in its notice of
borrowing or notice of conversion, as the case may be, given with respect
thereto; and


 


(b)  thereafter,
each period commencing on the last day of the next preceding Interest Period
applicable to such Eurocurrency Loan and ending one, two, three or six months
thereafter or, to the extent available to all applicable Lenders, nine or
twelve months thereafter, as selected by any Borrower by irrevocable notice to
the Agent not less than three Business Days prior to the last day of the then current
Interest Period with respect thereto;


 


provided that all of the foregoing provisions relating to Interest
Periods are subject to the following:


 


(a)  if any Interest
Period would otherwise end on a day that is not a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless, in the
case of an Interest Period pertaining to a Eurocurrency Loan, 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 Business Day; and


 


(b)  any Interest Period
that begins on the last Business 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 Business Day of a calendar month.


 


Notwithstanding anything to the
contrary contained in this Agreement, no Interest Period for Revolving Credit
Loans or Term Loans shall be selected by any Borrower which ends on a date
after the Termination Date.


 


“Investors”:  the Equity Investors and the management,
officers and employees of the Company or any Subsidiary as of the Closing Date
who are or become investors in the Company.


 


“Irish Bank”: either
of (a) the holder of a license for the time being in force granted under
section 9 of the Irish Central Bank Act 1971 or (b) an authorized credit
institution under the terms of EU Council Directive 2000/12/EC of 20 March 2000
which has duly established a branch in 


 


16

















 


Ireland or has made all necessary
notifications to its home state competent authorities required thereunder in
relation to its intention to carry on banking business in Ireland.


 


“Irish
Revolving Credit Borrower”:  each US
Borrower, each Designated Borrower listed on Part B of Schedule 2.8 and
each Subsidiary of the Company incorporated under the laws of Ireland that
becomes a Designated Borrower under the Irish Revolving Credit Facility
pursuant to subsection 2.8 after the Closing Date.


 


“Irish
Revolving Credit Borrowing”:  a group
of Irish Revolving Credit Loans of a single Type and in the same Currency made
by the Irish Revolving Credit Lenders, as the case may be, on a single date
and, if applicable, as to which a single Interest Period is in effect.


 


“Irish
Revolving Credit Commitment”:  as to
any Irish Revolving Credit Lender at any time, the obligation of such Lender to
make Irish Revolving Credit Loans and of such Lender and its Affiliates to
purchase participating interests in Irish Swing Line Loans in an aggregate
amount at any one time outstanding not to exceed the amount set forth opposite
such Lender’s name on Schedule I under the caption “Irish Revolving Credit
Commitment”, as such amount may be increased or reduced from time to time in
accordance with the provisions of this Agreement; provided that, except with respect to any Incremental Commitments of
Increasing Lenders under the Irish Revolving Credit Facility, the Irish
Revolving Credit Commitments at any time shall be reduced pro rata by the
Availability Reduction Amount attributable to the Irish Revolving Credit
Facility at such time.


 


“Irish
Revolving Credit Commitment Percentage”: 
as to any Irish Revolving Credit Lender at any time, the percentage which
such Lender’s Irish Revolving Credit Commitment then constitutes of the
aggregate Irish Revolving Credit Commitments (or, at any time after the Irish
Revolving Credit Commitments shall have expired or terminated, the percentage
which the aggregate principal amount of such Lender’s Irish Revolving Credit
Loans then outstanding constitutes of the aggregate principal amount of the
Irish Revolving Credit Loans then outstanding).


 


“Irish
Revolving Credit Facility”:  in an
initial amount of $800,000,000 or, at any time, the aggregate amount of the
Irish Revolving Credit Lenders’ Irish Revolving Credit Commitments at such
time.


 


“Irish
Revolving Credit Lender”:  a Lender
that has an Irish Revolving Credit Commitment.


 


“Irish Revolving Credit
Loans”:  as defined in subsection
2.1(a)(iii).


 


“Irish Swing Line
Applicable Time”: (i) in the case of Irish Swing Line Loans made to
Irish Revolving Credit Borrowers that are US Borrowers and that are denominated
in Dollars, 1:00 P.M., New York City time, (ii) in the case of Irish
Swing Line Loans made to Irish Revolving Credit Borrowers that are US Borrowers
and that are denominated in Euros or Pounds Sterling, 11:00 A.M., London
time or (iii) in the case of Irish Swing Line Loans made to Irish
Revolving Credit Borrowers that are not US Borrowers, 11:00 A.M., London
time.


 


“Irish Swing Line
Borrowing”:  a group of Irish Swing
Line Loans made by the Irish Swing Line Lenders on a single date.


 


17

















 


“Irish Swing Line
Commitment”:  with respect to each
Irish Swing Line Lender, the obligation of such Irish Swing Line Lender to make
Irish Swing Line Loans pursuant to subsection 2.25 in the amount referred to
therein.


 


“Irish Swing Line
Facility”: an initial amount of $300,000,000 (or the Equivalent in Euros or
Pounds Sterling, as the case may be) or, at any time, the aggregate amount of
the Irish Swing Line Lenders’ Irish Swing Line Commitments at such time.


 


“Irish Swing Line Lenders”:
each Lender which has an Irish Swing Line Commitment.


 


“Irish Swing Line Loan
Participation Certificate”: a certificate, substantially in the form of Exhibit N.


 


“Irish Swing Line Loans”:  as defined in subsection 2.25(a).


 


“Irish Term Borrower”:  the Company.


 


“Irish
Term Borrowing”:  a group of Irish
Term Loans of a single Type and in the same Currency made by the Irish Term
Loan Lenders on a single date and, if applicable, as to which a single Interest
Period is in effect.


 


“Irish
Term Commitment”:  as to any Irish
Term Loan Lender at any time, the amount set forth opposite such Lender’s name
on Schedule I hereto under the caption “Irish Term Commitment”, as such amount
may be reduced at or prior to such time in accordance with the provisions of
this Agreement.


 


“Irish
Term Facility”:  an initial amount of
$400,000,000 or, at any time, the aggregate amount of the Irish Term Loan
Lenders’ Irish Term Commitments or Irish Term Loans outstanding at such time.


 


“Irish
Term Loan”:  as defined in subsection
2.2(b).


 


“Irish
Term Loan Lender”:  a Lender that has
an Irish Term Commitment or an Irish Term Loan outstanding.


 


“Issuance”:  with respect to any Letter of Credit means
the issuance, amendment, renewal or extension of such Letter of Credit.


 


                “Issuing Bank”:  each Lender which has a Letter of Credit
Commitment  or any other Lender or any Assignee to
which all or a portion of the Letter of Credit Commitment hereunder has been
assigned pursuant to subsection 10.7 so long as such Lender or Assignee
expressly agrees to perform in accordance with their terms all of the
obligations that by the terms of this Agreement are required to be performed by
it as an Issuing Bank and notifies the Agent of its applicable issuing office
(which information shall be recorded by the Agent ), for so long as such
Issuing Bank, Lender or Assignee, as the case may be, shall have a Letter of
Credit Commitment.


 


“Japanese
Borrower”:  a Japanese Revolving
Credit Borrower or a Japanese Term Borrower.


 


“Japanese
Revolving Credit Borrower”:  each US
Borrower, each Designated Borrower listed on Part D of Schedule 2.8 and
each Subsidiary of the Company organized under the laws of 


 


18

















 


Japan
that becomes a Designated Borrower under the Japanese Revolving Credit Facility
pursuant to subsection 2.8 after the Closing Date.


 


“Japanese
Revolving Credit Borrowing”:  a group
of Japanese Revolving Credit Loans of a single Type and in the same Currency
made by the Japanese Revolving Credit Lenders, as the case may be, on a single
date and, if applicable, as to which a single Interest Period is in effect.


 


“Japanese
Revolving Credit Commitment”:  as to
any Japanese Revolving Credit Lender at any time, the obligation of such Lender
to make Japanese Revolving Credit Loans and of such Japanese Revolving Credit
Lender and its Affiliates to purchase participating interests in Yen Swing Line
Loans in an aggregate amount at any one time outstanding not to exceed the
amount set forth opposite such Lender’s name on Schedule I under the caption “Japanese
Revolving Credit Commitment”, as such amount may be increased or reduced from
time to time in accordance with the provisions of this Agreement; provided that, except
with respect to any Incremental Commitments of Increasing Lenders under the
Japanese Revolving Credit Facility, the Japanese Revolving Credit Commitments
at any time shall be reduced pro rata by the Availability Reduction Amount
attributable to the Japanese Revolving Credit Facility at such time.


 


“Japanese
Revolving Credit Commitment Percentage”: 
as to any Japanese Revolving Credit Lender at any time, the percentage
which such Lender’s Japanese Revolving Credit Commitment then constitutes of
the aggregate Japanese Revolving Credit Commitments (or, at any time after the
Japanese Revolving Credit Commitments shall have expired or terminated, the
percentage which the aggregate principal amount of such Lender’s Japanese
Revolving Credit Loans then outstanding constitutes of the aggregate principal
amount of the Japanese Revolving Credit Loans then outstanding.


 


“Japanese
Revolving Credit Facility”:  an
initial amount of $1,200,000,000 or, at any time, the aggregate amount of the
Japanese Revolving Credit Lenders’ Japanese Revolving Credit Commitments at
such time.


 


“Japanese
Revolving Credit Lender”:  a Lender
that has a Japanese Revolving Credit Commitment.


 


“Japanese Revolving
Credit Loans”:  as defined in
subsection 2.1(a)(iv).


 


“Japanese
Term Borrower”:  GMAC Commercial
Mortgage Funding Asia, K.K.


 


“Japanese
Term Borrowing”:  a group of Japanese
Term Loans of a single Type and in the same Currency made by the Japanese Term
Loan Lenders on a single date and, if applicable, as to which a single Interest
Period is in effect.


 


“Japanese
Term Commitment”:  as to any Japanese
Term Loan Lender at any time, the amount set forth opposite such Lender’s name
on Schedule I hereto under the caption “Japanese Term Commitment”, as such
amount may be reduced at or prior to such time in accordance with the
provisions of this Agreement.


 


“Japanese
Term Facility”:  an initial amount of
$300,000,000 or, at any time, the aggregate amount of the Japanese Term Loan
Lenders’ Japanese Term Commitments or Japanese Term Loans outstanding at such
time.


 


19

















 


“Japanese
Term Loan”:  as defined in subsection
2.2(c).


 


“Japanese
Term Loan Lender”:  a Lender that has
a Japanese Term Commitment or has a Japanese Term Loan outstanding.


 


“L/C
Cash Deposit Account”:  an interest
bearing cash deposit account to be established and maintained by the Agent,
over which the Agent shall have sole dominion and control, upon terms
reasonably satisfactory to the Agent.


 


“L/C
Related Documents”:  as defined in
subsection 2.13(i).


 


“Lenders”:  as defined in the preamble hereto.


 


“Letter
of Credit”:  as defined in subsection
2.1(c).


 


“Letter
of Credit Agreement”:  as defined in
subsection 2.3(a).


 


“Letter
of Credit Commitment”:  with respect
to each Issuing Bank, the obligation of such Issuing Bank to issue Letters of
Credit for the account of the Borrowers and their specified Subsidiaries in
amounts (based on the Equivalent in Dollars thereof) not to exceed in the
aggregate the Dollar amount set forth opposite the Issuing Bank’s name on the
Schedule I attached hereto and identified as such, as such amount may be
reduced from time to time pursuant to subsection 2.9, increased by designation
to the Agent and the Company from time to time or changed as a result of an
assignment pursuant to subsection 10.7.


 


“Letter
of Credit Facility”:  at any time, an
amount equal to the lesser of (a) the aggregate amount of the Issuing
Banks’ Letter of Credit Commitments at such time and (b) $350,000,000.


 


“Lien”:  any mortgage, pledge, lien, security
interest, conditional sale or other title retention agreement or other similar
encumbrance.


 


“Loan”:  a Revolving Credit Loan, a Term Loan, a Swing
Line Loan, an Irish Swing Line Loan or a Yen Swing Line Loan, as the context
shall require; collectively, the “Loans.”


 


“Loan
Documents”:  this Agreement, each
Note, the Guaranty and each Letter of Credit Agreement.


 


“Loan
Parties”:  the Company, the
Designated Borrowers and the Guarantors.


 


“London
Banking Day”:  any day on which banks
in London are open for general banking business, including dealings in foreign
currency and exchange.


 


“Majority
Lenders”:  at any time, Lenders
holding or owed at least a majority in interest of the sum of (a) the
aggregate principal amount (based on the Equivalent thereof in Dollars at such
time) of all Loans outstanding (with Swing Line Loans being deemed for purposes
of this definition to be held ratably by all US Revolving Credit Lenders, with
Irish Swing Line Loans being deemed for purposes of this definition to be held
ratably by all Irish Revolving Credit Lenders and with Yen Swing Line Loans
being deemed for purposes of this definition to be held ratably by all Japanese
Revolving Credit Lenders) and (b) the Available Revolving Credit
Commitments.


 


20

















 


“Mandatory
Cost”:  with respect to any period,
the percentage rate per annum determined in accordance with Schedule 1.1.


 


“Material
Adverse Effect”:  a material adverse
effect on (a) the financial condition of the Company and its Subsidiaries
taken as a whole or (b) the validity or enforceability of this Agreement
or the rights or remedies of the Agent and the Lenders hereunder.


 


“Mezzanine
Equity”:  “mezzanine” or “temporary”
equity issued to members of management of the Company which the Company can
become obligated to redeem only upon the death or disability of the holder
thereof.


 


“Moody’s”:  Moody’s Investors Service, Inc. and its
successors.


 


“Multiemployer Plan”:  a multiemployer plan, as defined in Section 4001(a)(3) of
ERISA, to which the Company or any ERISA Affiliate is making or accruing an
obligation to make contributions, or in respect of which the Company or any
ERISA Affiliate has liability under Section 4212 of ERISA.


 


“Multiple Employer Plan”:  a single employer plan, as defined in Section 4001(a)(15)
of ERISA, that (a) is maintained for employees of the Company or any ERISA
Affiliate and at least one Person other than the Company and the ERISA
Affiliates or (b) was so maintained and in respect of which the Company or
any ERISA Affiliate has liability under Section 4064 or 4069 of ERISA in
the event such plan has been or were to be terminated.


 


1.             “Non-Consenting Lender”:  in the event that the Majority Lenders have
agreed to any consent, waiver or amendment pursuant to subsection 10.1 that
requires the consent of the Majority Lenders, any Lender who is entitled to
agree to such consent, waiver or amendment but who does not so agree.


 


“Non-Excluded
Taxes”:  as defined in subsection
2.21(a).


 


“Non-Executing
Banks”:  as defined in subsection
10.9(b).


 


“Non-US
Lender”:  as defined in subsection
2.21(b).


 


“Note”:  as defined in subsection 10.7(d).


 


“Notice
of Issuance”:  as defined in
subsection 2.3(a).


 


“Notice of Rollover/Conversion”:  as defined in subsection 2.5(b)(ix).


 


“Other
Lender”:  as defined in subsection
2.1(b)(i).


 


“Participant”:  as defined in subsection 10.7(c)(i).


 


“Patriot
Act”:  as defined in subsection
10.15.


 


“Payment
Office”:  for each Type of Loan and
each Currency, the Payment Office set forth in respect thereof in the
Administrative Schedule.


 


2.             “PBGC”: 
the Pension Benefit Guaranty Corporation (or any successor).


 


21

















 


“Permanent
Securities”:  (a) the public
debt securities issued on the Closing Date or (b) if the Bridge Facility
shall have been funded on the Closing Date, other senior secured or unsecured
debt securities or other Indebtedness issued or incurred by the Company for the
purpose of refinancing the Bridge Facility.


 


“Permitted
Receivables Financing”:  the limited
recourse sale or financing of any real estate receivables and mortgage notes
and related security by the Company or any of its Subsidiaries in connection
with the sale, securitization or syndication thereof (including for purposes of
this definition planned sales, securitizations or syndications scheduled (in
the ordinary course of business consistent with past practice) for execution
within 60 days), which sale, securitization or syndication is (a) (i) with
recourse only to the extent usual and customary in asset securitization
transactions for companies with credit characteristics similar to those of the
Company or such Subsidiary and (ii) consistent with past practice or
prudent business practice or (b) is otherwise upon terms and conditions
reasonably satisfactory to the Agent.


 


“Permitted
Receivables Subsidiary”:  any single
purpose Subsidiary engaged principally in a Permitted Receivables Financing.


 


“Person”:  an individual, partnership, corporation,
company, business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other entity of whatever
nature.


 


3.             “Plan”:  a
Multiple Employer Plan or a single employer plan, as defined in Section 4001(a)(15)
of ERISA, that (a) is maintained for employees of any Loan Party or any
ERISA Affiliate and no Person other than the Loan Parties and the ERISA
Affiliates or (b) was so maintained and in respect of which any Loan Party
or any ERISA Affiliate could have liability under Section 4069 of ERISA in
the event such plan has been or were to be terminated.


 


“Pounds
Sterling” and “£”:  the lawful
money of the United Kingdom.


 


“Purchase
Agreement”:  that certain Stock
Purchase Agreement dated as of August 2, 2005, as amended, among General
Motors Acceptance Corporation, GMAC Mortgage Group, Inc., GMAC Commercial
Holding Corp. and GMACCH Investor LLC, as amended, supplemented or otherwise
modified from time to time.


 


“Qualifying
IPO”:  the issuance by the Company or
a direct or indirect corporate parent thereof of its common equity interests in
an underwritten primary and/or secondary public offering (other than a public
offering pursuant to a registration statement on Form S-8) pursuant to an
effective registration statement filed with the SEC in accordance with the
Securities Act of 1933.


 


“Receivable”:  any right of payment from or on behalf of any
obligor (including mortgagor), whether constituting an account, chattel paper,
instrument, general intangible or otherwise, acquired or arising from the
financing or leasing by the Company or any of its Subsidiaries of property or
services, and monies due thereunder, security interests in the property and
services financed or leased thereby and any and all other related rights.


 


“Reference
Lenders”:  Citibank or the applicable
affiliate for the applicable Currency, JPMorgan Chase Bank, N.A. and Deutsche
Bank AG New York Branch.


 


“Refunded
Irish Swing Line Loans”: as defined in subsection 2.25(c).


 


22

















 


“Refunded
Swing Line Loans”:  as defined in
subsection 2.6(c).


 


“Refunded
Yen Swing Line Loans”:  as defined in
subsection 2.7(c).


 


“Register”:  as defined in subsection 10.7(b)(iv).


 


“Requirement
of Law”:  as to any Person, 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.


 


“Revolver
Credit Borrower”:  a Borrower under
any Revolving Credit Facility.


 


“Revolving
Credit Borrowing”:  any of a Canadian
Revolving Credit Borrowing, an Irish Revolving Credit Borrowing, a US Revolving
Credit Borrowing or a Japanese Revolving Credit Borrowing.


 


“Revolving
Credit Commitment”:  any of a
Canadian Revolving Credit Commitment, an Irish Revolving Credit Commitment, a
US Revolving Credit Commitment or a Japanese Revolving Credit Commitment.


 


“Revolving
Credit Commitment Percentage”:  any
of a Canadian Revolving Credit Commitment Percentage, the Irish Revolving
Credit Commitment Percentage, the US Revolving Credit Commitment Percentage or
the Japanese Revolving Credit Commitment Percentage.


 


“Revolving
Credit Facility”:  any of the
Canadian Revolving Credit Facility, the Irish Revolving Credit Facility, the US
Revolving Credit Facility or the Japanese Revolving Credit Facility.


 


“Revolving
Credit Lender”:  a Lender that has a
Revolving Credit Commitment.


 


“Revolving
Credit Loans”:  any of a Canadian
Revolving Credit Loan, an Irish Revolving Credit Loan, a US Revolving Credit
Loan or a Japanese Revolving Credit Loan.


 


“Revolving
Credit Usage”:  as to any Lender at
any time (a) under the Canadian Revolving Credit Facility, the sum of (I) the
aggregate outstanding principal amount at such time of all Canadian Revolving
Credit Loans denominated in Dollars made by such Lender plus (II) the
Equivalent in Dollars of the aggregate outstanding principal amount of all
Canadian Revolving Credit Loans denominated in Canadian Dollars, Euros, Pounds
Sterling and Yen (as the case may be) made by such Lender, (b) under the
Irish Revolving Credit Facility, the sum of (I) the aggregate outstanding
principal amount at such time of all Irish Revolving Credit Loans denominated
in Dollars made by such Lender plus (II) the Equivalent in Dollars
of the aggregate outstanding principal amount of all Irish Revolving Credit
Loans denominated in Euros, Pounds Sterling and Yen (as the case may be) made
by such Lender plus (III) such Lender’s Irish Revolving Credit
Commitment Percentage of the aggregate principal amount (based on the
Equivalent in Dollars thereof insofar as any Letters of Credit are not
denominated in Dollars) of the Letters of Credit outstanding at such time, plus
(IV) such Lender’s Irish Revolving Credit Commitment Percentage, if any,
of the aggregate principal amount of the Irish Swing Line Loans then
outstanding, if any, (c) under the Japanese Revolving Credit Facility, the
sum of (I) the aggregate outstanding principal amount at such time of all
Japanese Revolving Credit Loans denominated in Dollars plus (II) the
Equivalent in Dollars of the aggregate outstanding principal 


 


23

















 


amount
of all Revolving Credit Loans denominated in Euros, Pounds Sterling and Yen (as
the case may be) made by such Lender under such Facility plus (III) such
Lender’s Japanese Revolving Credit Commitment Percentage, if any, of the
aggregate principal amount of the Yen Swing Line Loans then outstanding, if
any, and (d) under the US Revolving Credit Facility, the sum of (I) the
aggregate outstanding principal amount at such time of all US Revolving Credit
Loans denominated in Dollars made by such Lender plus (II) such
Lender’s US Revolving Credit Commitment Percentage, if any, of the aggregate
principal amount of the Swing Line Loans then outstanding, if any.


 


“S&P”:  Standard & Poor’s Ratings Services,
a division of The McGraw-Hill Companies, Inc., and its successors.


 


“Schedule
I Bank”:  any bank named on Schedule
I to the Bank Act (Canada).


 


“Schedule
II Bank”:  any Lender named on
Schedule II to the Bank Act (Canada).


 


4.             “Schedule III Bank”:  any Lender named on Schedule III to the Bank
Act (Canada) or any other Person established under the laws of Canada or any
province or territory thereof that is authorized to carry on business in Canada
pursuant to Part XII of the Bank Act (Canada).


 


5.             “Short Term Prime Rate”: the short term prime
rate in effect from time to time at The Bank of Tokyo-Mitsubishi UFJ, Ltd’s
principal office in Tokyo, Japan.


 


6.             “Solvent” and “Solvency”:  with respect to any Person on a particular
date, that on such date (a) the fair value of the property of such Person
is greater than the total amount of liabilities, including, without limitation,
contingent liabilities, of such Person, (b) the present fair salable value
of the assets of such Person is not less than the amount that will be required
to pay the probable liability of such Person on its debts as they become
absolute and matured, (c) such Person does not intend to, and does not
believe that it will, incur debts or liabilities beyond such Person’s ability
to pay such debts and liabilities as they mature and (d) such Person is
not engaged in business or a transaction, and is not about to engage in
business or a transaction, for which such Person’s property would constitute an
unreasonably small capital.  Unless
otherwise provided under applicable law, the amount of contingent liabilities
at any time shall be computed as the amount that, in light of all the facts and
circumstances existing at such time, represents the amount that can reasonably
be expected to become an actual or matured liability.


 


7.             “Specified Asset Categories”:  the collective reference to (i) Specified
Mortgage Loan Interests and, (ii) Specified Loans and Securities and (iii) cash and
Cash Equivalents.


 


8.             “Specified Loans and Securities”:  all fixed and floating rate
mortgage loan interests and highly-rated securities which are not
owned by any Specified Subsidiary and (a) are direct obligations of any
Government Sponsored Enterprise or the United States government or any agency thereof
and backed by the full faith and credit of the United States or (b) are
obligations that any Government Sponsored Enterprise or the United States
government or any agency thereof backed by the full faith and credit of the
United States has guaranteed or committed to purchase or (c) are rated, on
a long-term basis, at least “A-” by S&P, “A3” by Moody’s or “A-” by Fitch.


 


9.             “Specified Mortgage Loan Interests”:  all fixed and floating rate
mortgage loan interests that are not owned by any Specified Subsidiary and
either (a) have a debt service  


 


24

















 


coverage ratio (as determined in complianceaccordance with the Company’s underwritingcredit rating standards as in effect onof the date hereofCompany) of at least 1.20:  to  1.00 and
a  loan to value ratio (as
determined in complianceaccordance with the Company’s
underwriting standards as in effect on the date
hereof) of noof the Company) of not
greater than 80% according to the loan
underwriting files used by the Company to manage such assets, and/or
(b) are loan interests that have been targeted for, or are the subject of, a sale,
securitization or syndication transaction which has previously closed or which is  scheduled (in the
ordinary course of business consistent with past practice)  for
execution within 60180 days.


 


10.           “Specified Subsidiaries”:  the collective reference to (i) GMAC
Commercial Mortgage Bank, an institution chartered under the laws of the State
of Utah, (ii) Escrow Bank USA, an institution chartered under the laws of
the State of Utah, (iii) GMAC Commercial Mortgage Bank Europe plc, an
Irish licensed bank and (iv) any Subsidiary of any of the foregoing.


 


11.           “Sub-Agent”: 
any Affiliate of the Agent as may be designated in writing to the
Company and, with respect to Canadian Revolving Credit Loans, Citibank, N.A.,
Canadian branch.


 


“Subsidiary”:  as to any Person, any corporation, limited
liability company, partnership or other similar entity, of which at least a
majority of the outstanding stock or other equity interests having by the terms
thereof ordinary voting power to elect a majority of the board of directors of
such corporation, partnership or other similar entity (irrespective of whether
or not at the time stock or interests of any other class or classes of such
corporation, partnership or other similar entity shall have or might have
voting power by reason of the happening of any contingency) is at the time
owned by such Person, or by one or more Subsidiaries, or by such Person and one
or more Subsidiaries.  Unless otherwise
qualified, all references to a “Subsidiary” or to “Subsidiaries” in this
Agreement shall refer to a Subsidiary or Subsidiaries of the Company.


 


“Surviving
Indebtedness”:  Indebtedness of the
Company and each of its Subsidiaries  outstanding
immediately before and after the Closing Date and set forth on Schedule V
hereto.


 


“Swing
Line Borrowing”:  a group of Swing
Line Loans made by the Swing Line Lenders on a single date.


 


“Swing
Line Commitment”:  with respect to
each Swing Line Lender, the obligation of such Swing Line Lender to make Swing
Line Loans pursuant to subsection 2.6 in the amount referred to therein.


 


“Swing
Line Facility”: an initial amount of $200,000,000 or, at any time, the
aggregate amount of the Swing Line Lenders’ Swing Line Commitments at such
time.


 


“Swing
Line Lenders”:  each Lender which has
a Swing Line Commitment and, solely for the purposes of clause (vi) of the
proviso to subsection 10.1, each Irish Swing Line Lender.”


 


“Swing
Line Loan Participation Certificate”: 
a certificate, substantially in the form of Exhibit J.


 


“Swing
Line Loans”:  as defined in
subsection 2.6(a).


 


25
















 


“Syndication
Agent”:  as defined in the preamble
hereto.


 


“Synthetic
Debt”:  with respect to any Person,
without duplication of any clause within the definition of “Indebtedness,” all (a) obligations
of such Person under any lease that is treated as an operating lease for
financial accounting purposes and a financing lease for tax purposes (i.e., a “synthetic
lease”), (b) obligations (other than syndication proceeds in the ordinary
course) of such Person in respect of transactions entered into by such Person
(other than deposit liabilities), the proceeds from which would be reflected on
the financial statements of such Person in accordance with GAAP as cash flows
from financings at the time such transaction was entered into (other than as a
result of equity contributions or the issuance of equity interests) and (c) obligations
of such Person in respect of other transactions entered into by such Person
that are not otherwise addressed in the definition of “Indebtedness” or in
clause (a) or (b) above that are intended to function primarily as a
borrowing of funds (including, without limitation, any minority interest
transactions that function primarily as a borrowing).


 


“Target
Operating Day”:  any day that is not (a) a
Saturday or Sunday, (b) Christmas Day or New Year’s Day or (c) any
other day on which the Trans-European Real-time Gross Settlement Operating
System (or any successor settlement system) is not operating (as determined by
the Agent).


 


“Taxes”
as defined in subsection 2.21(a).


 


“Term
Borrower”:  any Borrower under a Term
Loan Facility.


 


“Term
Borrowing”:  any of a US Term
Borrowing, an Irish Term Borrowing or a Japanese Term Borrowing.


 


“Term
Commitment”:  any of a US Term
Commitment, an Irish Term Commitment or a Japanese Term Commitment.


 


“Term
Facility”:  any of the Irish Term
Facility, the US Term Facility or the Japanese Term Facility.


 


“Termination
Date”:  March 23, 2011.


 


“Term
Loan Lender”:  a Lender that has a
Term Commitment.


 


“Term
Loans”:  any of a US Term Loan, an
Irish Term Loan or a Japanese Term Loan.


 


“Total
Capitalization”:  as of any date of
determination, (a) the sum of (i) Total Consolidated Indebtedness and
(ii) consolidated shareholders’ equity of the Company and its Subsidiaries
as determined in accordance with GAAP applied on a consistent basis (it being
understood and agreed that, without limiting the generality of the foregoing, “consolidated
shareholders’ equity” as used in this definition shall include Mezzanine Equity
and 75% of the amount of any Hybrid Capital as to which equity credit is given
by Moody’s or S&P (including, for the avoidance of doubt, any back-to-back
instruments in respect thereof), in each case unless and until such time as
such equity or instruments become repayable or redeemable on a mandatory basis
in accordance with the terms thereof), less (b) the aggregate amount of
Attributed Equity of all Banking and Market Destined Assets (excluding, solely for purposes of calculating
the ratio at any time of Total Consolidated Indebtedness to Total Capitalization
and determining compliance with Sections 6.1 and 6.4(g), the Attributed Equity
of Banking  


 


26

















 


and Market Destined Assets
comprising cash and Cash Equivalents, to the extent that such assets are classified
as Banking and Market Destined Assets pursuant to clause (a) of the
definition thereof).


 


“Total
Consolidated Indebtedness”:  as of
any date of determination, (a) the sum of (i) all indebtedness for
borrowed money of the Company and its Subsidiaries on a consolidated basis as
reflected on the consolidated balance sheet of the Company as determined in
accordance with GAAP applied on a consistent basis (but in any event excluding
Mezzanine Equity and 75% of the amount of any obligations in respect of any
Hybrid Capital as to which equity credit is given by Moody’s or S&P
(including, for the avoidance of doubt, any back-to-back obligations in respect
thereof), in each case unless and until such time as such equity or instruments
become repayable or redeemable on a mandatory basis in accordance with the
terms thereof) and (ii) Indebtedness of the types described in clause (f) of
the definition thereof (but in any event excluding Mezzanine Equity and 75% of
the amount of any obligations in respect of any Hybrid Capital as to which
equity credit is given by S&P or Moody’s (including, for the avoidance of
doubt, any back-to-back obligations in respect thereof), in each case unless
and until such time as such equity or instruments become repayable or
redeemable on a mandatory basis in accordance with the terms thereof) and (g) of
the definition thereof, and provided that in the case of such clause (g), such
Guarantees shall be included for purposes of this definition only to the extent
they are guarantees of, and only in the amount of, any Indebtedness referred to
in clauses (i) and (ii) of this clause (a)) of the Company and its
Subsidiaries on a consolidated basis, as determined in accordance with GAAP
applied on a consistent basis, less (b) the aggregate amount of Attributed
Indebtedness with respect to all Banking and Market Destined Assets  (excluding, solely for
purposes of calculating the ratio at any time of Total Consolidated
Indebtedness to Total Capitalization and determining compliance with Sections
6.1 and 6.4(g), the Attributed Indebtedness with respect to Banking and Market
Destined Assets comprising cash and Cash Equivalents, to the extent that such
assets are classified as Banking and Market Destined Assets pursuant to clause (a) of
the definition thereof).


 


“Transferee”:  as defined in subsection 10.7(g).


 


“Treaty
on European Union”:  the Treaty of
Rome of March 25, 1957, as amended by the Single European Act of 1986 and
the Maastricht Treaty (which was signed at Maastricht on February 7, 1992
and came into effect on November 1, 1993), as amended from time to time.


 


“Type”:  as to any Revolving Credit Loan or Term Loan,
its nature as an Base Rate Loan (solely in the case of Loans denominated in
Dollars), Eurocurrency Loan, Canadian Prime Rate Loan or Bankers’ Acceptance.


 


“Unissued
Letter of Credit Commitment”:  with
respect to any Issuing Bank, the obligation of such Issuing Bank to issue
Letters of Credit for the account of any Borrower or its specified Subsidiaries
in an amount equal to the excess of (a) the amount of its Letter of Credit
Commitment over (b) the sum of (i) aggregate Available Letter of
Credit Amount of all Letters of Credit issued by such Issuing Bank and (ii) the
aggregate outstanding principal amount of all Revolving Credit Borrowings made
by such Issuing Bank pursuant to subsection 2.3(c) that have not been
ratably funded by the Lenders.


 


“US
Borrower”:  a US Revolving Credit
Borrower or a US Term Borrower.


 


“US
Revolving Credit Borrower”:  the
Company, each Designated Borrower listed on Part C of Schedule 2.8 and
each Subsidiary of the Company organized under the laws of a 


 


27

















 


jurisdiction
located within the United States that becomes a Designated Borrower under the
US Revolving Credit Facility pursuant to subsection 2.8 after the Closing Date.


 


“US
Revolving Credit Borrowing”:  a
group of US Revolving Credit Loans of a single Type and in the same Currency
made by the US Revolving Credit Lenders, as the case may be, on a single date and,
if applicable, as to which a single Interest Period is in effect.


 


“US
Revolving Credit Commitment”:  as to
any US Revolving Credit Lender at any time, the obligation of such Lender to
make US Revolving Credit Loans and of such Lender and its Affiliates to
purchase participating interests in Swing Line Loans in an aggregate amount at
any one time outstanding not to exceed the amount set forth opposite such
Lender’s name on Schedule I under the caption “US Revolving Credit Commitment”,
as such amount may be increased or reduced from time to time in accordance with
the provisions of this Agreement; provided that, except with respect to any Incremental Commitments of
Increasing Lenders under the US Revolving Credit Facility, the US Revolving
Credit Commitments at any time shall be reduced pro rata by the Availability
Reduction Amount attributable to the US Revolving Credit Facility at such time.


 


“US
Revolving Credit Commitment Percentage”: 
as to any US Revolving Credit Lender at any time, the percentage which
such Lender’s US Revolving Credit Commitment then constitutes of the aggregate
US Revolving Credit Commitments (or, at any time after the US Revolving Credit
Commitments shall have expired or terminated, the percentage which the
aggregate principal amount of such Lender’s US Revolving Credit Loans then
outstanding constitutes of the aggregate principal amount of the US Revolving
Credit Loans then outstanding.


 


“US
Revolving Credit Facility”:  an
initial amount of $350,000,000 or, at any time, the aggregate amount of the US
Revolving Credit Lenders’ US Revolving Credit Commitments at such time.


 


“US
Revolving Credit Lender”:  a Lender
that has a US Revolving Credit Commitment.


 


“US
Revolving Credit Loans”:  as defined
in subsection 2.1(a)(i).


 


“US
Tax Compliance Certificate”:  as
defined in subsection 2.21(b).


 


“US
Term Borrower”:  the Company.


 


“US
Term Borrowing”:  a group of US Term
Loans of a single Type and in the same Currency made by the US Term Loan
Lenders on a single date and, if applicable, as to which a single Interest
Period is in effect.


 


“US
Term Commitment”:  as to any US Term
Loan Lender at any time, the amount set forth opposite such Lender’s name on
Schedule I hereto under the caption “US Term Commitment”, as such amount may be
reduced at or prior to such time in accordance with the provisions of this
Agreement.


 


“US
Term Facility”:  in an initial amount
of $2,050,000,000 or, at any time, the aggregate amount of the US Term Loan
Lenders’ US Term Commitments or the US Term Loans outstanding at such time.


 


“US
Term Loan”:  as defined in subsection
2.2(a).


 


28

















 


“US
Term Loan Lender”:  a Lender that has
a US Term Commitment or a US Term Loan outstanding.


 


“Voting Stock”:  capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are ordinarily,
in the absence of contingencies, entitled to vote for the election of directors
(or persons performing similar functions) of such Person, even if the right so
to vote has been suspended by the happening of such a contingency.


 


“Yen” and “¥”:  the lawful money of Japan.


 


“Yen
Call Rate”: means, for any day, either (i) the unsecured overnight
call volume-weighted average rate on overnight funds announced at the close of
business on that day by the Tanshi Kyokai (Interbank Brokers’ Association) or,
if the Tanshi Kyokai has not announced such an interest rate on that day, the
average of the quotations of the overnight funds call rate of three (3) Tanshi
brokers obtained by the Agent on such day, or (ii) the appropriate rate on
Telerate Markets page 9791 or 9792, as the Agent determines.


 


“Yen Overdraft Swing Line
Commitment”: with respect to each Yen Overdraft Swing Line Lender, the
obligation of such Yen Overdraft Swing Line Lender to make Yen Overdraft Swing
Line Loans pursuant to subsection 2.7.


 


“Yen
Overdraft Swing Line Lenders”: each Yen Swing Line Lender which has a Yen
Overdraft Swing Line Commitment.


 


“Yen Overdraft Swing Line
Loans”: as defined in subsection 2.7(a).


 


“Yen
Swing Line Borrowing”: a group of Yen Swing Line Loans made by each Yen
Swing Line Lender on a single date.


 


“Yen
Swing Line Commitment”:  with respect
to each Yen Swing Line Lender, the obligation of such Yen Swing Line Lender to
make Yen Swing Line Loans (including, in the case of a Yen Swing Line Lender
that is a Yen Overdraft Swing Line Lender, any Yen Overdraft Swing Line Loans
constituting Yen Swing Line Loans as provided in subsection 2.7) pursuant to
and in the maximum aggregate amount referred to in subsection 2.7.


 


“Yen
Swing Line Facility”:  on any date,
the aggregate amount of the Yen Swing Line Lenders’ Yen Swing Line Commitments
on such date; provided, however, that a Yen Swing Lender may increase or
decrease from time to time such amount in accordance with subsection 2.7
hereof, so long as (i) such increase or decrease is set forth in a written
notification signed by such Yen Swing Line Lender, (ii) such increase does
not cause such aggregate maximum amount to exceed $300,000,000 and (iii) no
such increase or decrease shall be effective until written notice thereof is
provided to the Agent.


 


“Yen
Swing Line Lenders”: each Lender which has a Yen Swing Line Commitment.


 


“Yen
Swing Line Loan Participation Certificate”: 
a certificate, substantially in the form of Exhibit K.


 


“Yen
Swing Line Loans”:  as defined in
subsection 2.7(a) (inclusive of Yen Overdraft Swing Line Loans to the
extent provided for in subsection 2.7(b)).


 


29

















 


“Yen
Swing Line Rate”: the Yen Call Rate plus the Applicable Margin then
in effect for Eurocurrency Loans.


 


1.2.  Other Definitional
Provisions.  (a)Unless otherwise specified therein, all
terms defined in this Agreement shall have the defined meanings when used in any
certificate or other document made or delivered pursuant hereto.


 


(a)  As used herein, and in
any certificate or other document made or delivered pursuant hereto, accounting
terms relating to the Company 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.


 


(b)  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.


 


(c)  The meanings given to
terms defined herein shall be equally applicable to both the singular and
plural forms of such terms.


 


SECTION 2.  AMOUNT AND TERMS OF
THE FACILITIES


 


2.1.  Revolving Credit
Commitments.  (b)Subject to the terms and conditions
hereof:


 


(i)  Each
US Revolving Credit Lender severally agrees to make revolving credit loans (“US
Revolving Credit Loans”) denominated in Dollars to the US Revolving Credit
Borrowers from time to time during the Commitment Period in an aggregate
principal amount at any one time outstanding not to exceed such Lender’s US
Revolving Credit Commitment.  During the
Commitment Period, the US Revolving Credit Borrowers may use the US Revolving
Credit Commitments by borrowing, prepaying the US Revolving Credit Loans in
whole or in part, and reborrowing, all in accordance with the terms and
conditions hereof.  Notwithstanding
anything to the contrary contained in this Agreement, in no event (after giving
effect to the use of proceeds of any US Revolving Credit Borrowing or other concurrent
Borrowing) shall (i) any US Revolving Credit Lender’s US Revolving Credit
Commitment Percentage of a US Revolving Credit Borrowing exceed such Lender’s
Available Revolving Credit Commitment in respect of the US Revolving Credit
Facility at the time of such Borrowing or, (ii) the aggregate amount of Revolving
Credit Usage under the US Revolving Credit Facility exceed the aggregate US
Revolving Credit Commitments then in effect of all US Revolving Credit Lenders or (iii) the
aggregate amount of Revolving Credit Usage under all Revolving Credit
Facilities (excluding any Revolving Credit Usage pursuant to an Incremental
Commitment) exceed (x) the aggregate Revolving Credit Commitments then in
effect of all Revolving Credit Lenders (other than any Incremental Commitments
of Increasing Lenders) minus (y) the Availability Reduction Amount.  The US Revolving Credit Loans shall be made
in Dollars and may from time to time be (i) Eurocurrency Loans
(denominated in Dollars only) or (ii) in the case of US Revolving Credit
Loans denominated in Dollars only, Base Rate 


 


30

















 


Loans, in
each case as determined by the applicable US Revolving Credit Borrower and
notified to the Agent in accordance with subsections 2.4 and 2.102.11;
provided that no US Revolving Credit Loan shall be made as a
Eurocurrency Loan after the day that is one month prior to the Termination
Date.


 


(ii)  Each
Canadian Revolving Credit Lender severally agrees to make Canadian Revolving
Credit Loans denominated in Canadian Dollars, Dollars, Pounds Sterling, Euros
and Yen to the Canadian Revolving Credit Borrowers from time to time during the
Commitment Period in an aggregate principal amount (based in respect of any
Canadian Revolving Credit Loans to be denominated in Canadian Dollars, Pounds Sterling,
Euros or Yen on the Equivalent thereof in Dollars determined on the date of
delivery of the applicable notice of borrowing) at any one time outstanding not
to exceed such Lender’s Canadian Revolving Credit Commitment.  During the Commitment Period, the Canadian
Revolving Credit Borrowers may use the Canadian Revolving Credit Commitments by
borrowing, prepaying the Canadian Revolving Credit Loans in whole or in part,
and reborrowing, all in accordance with the terms and conditions hereof.  Notwithstanding anything to the contrary
contained in this Agreement, in no event (after giving effect to the use of
proceeds of any Canadian Revolving Credit Borrowing or other concurrent
Borrowing) shall (i) any Canadian Revolving Credit Lender’s Canadian
Revolving Credit Commitment Percentage of a Canadian Revolving Credit Borrowing
exceed such Lender’s Available Revolving Credit Commitment in respect of the
Canadian Revolving Credit Facility at the time of such Borrowing  or,
(ii) at the time of any borrowing, the aggregate amount of Revolving
Credit Usage under the Canadian Revolving Credit Facility exceed the aggregate
Canadian Revolving Credit Commitments then in effect of all Canadian Revolving
Credit Lenders  or (iii) the aggregate amount of Revolving Credit Usage under all
Revolving Credit Facilities (excluding any Revolving Credit Usage pursuant to
an Incremental Commitment) exceed (x) the aggregate Revolving Credit
Commitments then in effect of all Revolving Credit Lenders (other than any
Incremental Commitments of Increasing Lenders) minus (y) the Availability
Reduction Amount.  The
Canadian Revolving Credit Loans may be made in Dollars, Canadian Dollars,
Pounds Sterling, Euros or Yen and may from time to time be (i) in the case
of each Canadian Revolving Credit Borrower that is not domiciled in Canada, (A) Eurocurrency
Loans and (B) in the case of Canadian Revolving Credit Loans denominated
in Dollars only, Base Rate Loans and (ii) in the  case of each Canadian Revolving  Credit Borrower that is domiciled in Canada, (A) denominated
in Canadian Dollars as Canadian Prime Rate Loans or Bankers’ Acceptances (as
provided in subsection 2.5), (B) denominated in Dollars as Base Rate Loans
and (C) Eurocurrency Loans, in each case as determined by the applicable
Canadian Revolving Credit Borrower and notified to the Agent in accordance with
subsections 2.4 and 2.102.11; provided that no Canadian
Revolving Credit Loan shall be made as a Eurocurrency Loan after the day that
is one month prior to the Termination Date.


 


(iii)  Each
Irish Revolving Credit Lender severally agrees to make revolving credit loans (“Irish
Revolving Credit Loans”) denominated in Dollars, Pounds Sterling, Euros and
Yen to the Irish Revolving Credit Borrowers from time to time during the
Commitment Period in an aggregate principal amount (based in respect of any
Irish Revolving Credit Loans to be denominated in Pounds Sterling, Euros or Yen
on the Equivalent thereof in Dollars determined on the date of delivery of the
applicable notice of borrowing) at any one time outstanding not to exceed such 


 


31

















 


Lender’s
Irish Revolving Credit Commitment. 
During the Commitment Period, the Irish Revolving Credit Borrowers may
use the Irish Revolving Credit Commitments by borrowing, prepaying the Irish
Revolving Credit Loans in whole or in part, and reborrowing, all in accordance
with the terms and conditions hereof. 
Notwithstanding anything to the contrary contained in this Agreement, in
no event (after giving effect to the use of proceeds of any Irish Revolving
Credit Borrowing or other concurrent Borrowing) shall (i) any Irish
Revolving Credit Lender’s Irish Revolving Credit Commitment Percentage of an
Irish Revolving Credit Borrowing exceed such Lender’s Available Revolving
Credit Commitment in respect of the Irish Revolving Credit Facility at the time
of such Borrowing  or, (ii) the aggregate amount of Revolving
Credit Usage under the Irish Revolving Credit Facility exceed the aggregate
Irish Revolving Credit Commitments then in effect of all Irish Revolving Credit
Lenders or (iii) the
aggregate amount of Revolving Credit Usage under all Revolving Credit
Facilities (excluding any Revolving Credit Usage pursuant to an Incremental
Commitment) exceed (x) the aggregate Revolving Credit Commitments then in
effect of all Revolving Credit Lenders (other than any Incremental Commitments
of Increasing Lenders) minus (y) the Availability Reduction Amount.  The Irish Revolving Credit Loans may be made
in Dollars, Pounds Sterling, Euros or Yen and may from time to time be (i) Eurocurrency
Loans or (ii) in the case of Irish Revolving Credit Loans denominated in
Dollars only, Base Rate Loans, in each case as determined by the applicable
Borrower and notified to the Agent in accordance with subsections 2.4 and 2.102.11;
provided that no Irish Revolving Credit Loan shall be made as a
Eurocurrency Loan after the day that is one month prior to the Termination
Date.


 


(iv)  Each
Japanese Revolving Credit Lender severally agrees to make revolving credit
loans (“Japanese Revolving Credit Loans”) denominated in Dollars, Pounds
Sterling, Euros or Yen to the Japanese Revolving Credit Borrowers from time to
time during the Commitment Period in an aggregate principal amount (based in
respect of any Japanese Revolving Credit Loans to be denominated in Pounds
Sterling, Euros or Yen on the Equivalent thereof in Dollars determined on the
date of delivery of the applicable notice of borrowing) at any one time
outstanding not to exceed such Lender’s Japanese Revolving Credit
Commitment.  During the Commitment
Period, the Japanese Revolving Credit Borrowers may use the Japanese Revolving
Credit Commitments by borrowing, prepaying the Japanese Revolving Credit Loans
in whole or in part, and reborrowing, all in accordance with the terms and
conditions hereof.  Notwithstanding
anything to the contrary contained in this Agreement, in no event (after giving
effect to the use of proceeds of any Japanese Revolving Credit Borrowing or
other concurrent Borrowing) shall (i) any Japanese Revolving Credit Lender’s
Japanese Revolving Credit Commitment Percentage of a Japanese Revolving Credit
Borrowing exceed such Lender’s Available Revolving Credit Commitment in respect
of the Japanese Revolving Credit Facility at the time of such Borrowing  or, (ii) the aggregate amount of
Revolving Credit Usage under the Japanese Revolving Credit Facility exceed the
aggregate Japanese Revolving Credit Commitments then in effect of all Japanese
Revolving Credit Lenders or (iii) the aggregate amount of Revolving
Credit Usage under all Revolving Credit Facilities (excluding any Revolving
Credit Usage pursuant to an Incremental Commitment) exceed (x) the
aggregate Revolving Credit Commitments then in effect of all Revolving Credit
Lenders (other than any Incremental Commitments of Increasing Lenders) minus (y) the
Availability Reduction Amount. 
The Japanese Revolving Credit Loans may be made in Dollars, Pounds 


 


32

















 


Sterling,
Euro and Yen and may from time to time be (i) Eurocurrency Loans or (ii) in
the case of Japanese Revolving Credit Loans denominated in Dollars only, Base
Rate Loans, in each case as determined by the applicable Japanese Revolving
Credit Borrower and notified to the Agent in accordance with subsections 2.4
and 2.102.11; provided that no Japanese Revolving Credit Loan
shall be made as a Eurocurrency Loan after the day that is one month prior to
the Termination Date.


 


(b)  (A)Notwithstanding
anything to the contrary contained in this Agreement, on and after January 1,
2007, the Company may request from time to time that the aggregate Revolving
Credit Commitments under one or more Revolving Credit Facilities hereunder be
increased by an aggregate amount not to exceed $1,000,000,000.  The Company may (I) request one or more
of the Lenders (which request shall be in writing and sent to the Agent to
forward to such Lender or Lenders) to (A) in the case of existing
Revolving Credit Lenders, increase the amount of its Revolving Credit
Commitment under one or more Revolving Credit Facilities or (B) in the
case of existing Term Loan Lenders, provide a Revolving Credit Commitment under
one or more Revolving Credit Facilities and become a Revolving Credit Lender
hereunder and/or (II) arrange for one or more banks or financial
institutions not a party hereto (an “Other Lender”) to become parties to
and Revolving Credit Lenders under this Agreement, provided that the
identification and arrangement of each Other Lender to become a party hereto
and a Revolving Credit Lender under this Agreement shall be made in
consultation with the Agent.  In no event
may any Revolving Credit Lender’s Revolving Credit Commitment be increased
without the prior written consent of such Lender, nor may any Term Loan Lender
be designated a Revolving Credit Lender without the prior written consent of
such Lender, and the failure of any Lender to respond to the Company’s request
for an increase shall be deemed a rejection by such Lender of the Company’s
request.  The aggregate Revolving Credit
Commitments of all Revolving Credit Lenders hereunder may not be increased if,
at the time of any proposed increase hereunder, a Default or Event of Default
has occurred and is continuing.  Upon any
request by the Company to increase the aggregate Revolving Credit Commitments
hereunder, the Company shall be deemed to have represented and warranted on and
as of the date of such request that (i) each of the representations and
warranties made by the Company in or pursuant to this Agreement is true and
correct on and as of such date as if made on and as of such date, other than
any such representations or warranties that, by their terms, refer to a
specific date other than the date of the proposed increase, in which case as of
such specific date and (ii) that no Default or Event of Default has
occurred and is continuing. 
Notwithstanding anything contained in this Agreement to the contrary, no
Lender shall have any obligation whatsoever to increase the amount of its Revolving
Credit Commitment (or, in the case of a Term Loan Lender, to provide a
Revolving Credit Commitment pursuant to this subsection 2.1(b)), and each
Lender may at its option, unconditionally and without cause, decline to
increase its Revolving Credit Commitment (or, in the case of a Term Loan
Lender, to provide a Revolving Credit Commitment).


 


(i)  If any Lender
is willing, in its sole and absolute discretion, to increase the amount of its
Revolving Credit Commitment hereunder or, in the case of existing Term Loan
Lenders, to provide a Revolving Credit Commitment hereunder (such new or
increased Revolving Credit Commitment an “Incremental Commitment”; and
such a Lender hereinafter referred to as an “Increasing Lender”), it
shall enter into a written agreement to that effect with the Company and the
Agent, substantially in the form of Exhibit A (a “Commitment Increase
Supplement”), which agreement shall 


 


33

















 


specify, among other things, the
amount of the Incremental Commitment of such Increasing Lender and the
Revolving Credit Facility or Revolving Credit Facilities to which such increase
applies.  Upon the effectiveness of such
Increasing Lender’s Incremental Commitment, Schedule I shall, without further
action, be deemed to have been amended appropriately to reflect the Incremental
Commitment of such Increasing Lender. 
Any Other Lender which is willing to become a party hereto and a
Revolving Credit Lender hereunder (and which arrangement to become a party
hereto and a Revolving Credit Lender hereunder has been approved by the Company
and the Agent) shall enter into a written agreement with the Company and the
Agent, substantially in the form of Exhibit B (an “Additional Lender
Supplement”), which agreement shall specify, among other things, its
Revolving Credit Commitment hereunder and the Revolving Credit Facility or
Revolving Credit Facilities to which such Revolving Credit Commitment
applies.  When such Other Lender becomes
a Revolving Credit Lender hereunder as set forth in the Additional Lender
Supplement, Schedule I shall, without further action, be deemed to have been
amended as appropriate to reflect the Revolving Credit Commitment of such Other
Lender.  Upon the execution by the Agent,
the Company and such Other Lender of such Additional Lender Supplement, such
Other Lender shall become and be deemed a party hereto and a “Lender” hereunder
for all purposes hereof and shall enjoy all rights and assume all obligations
on the part of the Lenders set forth in this Agreement, and its Revolving
Credit Commitment shall be the amount, and shall relate to the Revolving Credit
Facility or Revolving Credit Facilities, specified in its Additional Lender
Supplement.  Each Other Lender which executes
and delivers an Additional Lender Supplement and becomes a party hereto and a “Lender”
hereunder pursuant to such Additional Lender Supplement is hereinafter referred
to as an “Additional Lender.”


 


(ii)  In no event
shall an existing Lender’s Incremental Commitment or the Revolving Credit
Commitment of an Other Lender become effective until the Agent shall have
received a favorable written opinion of counsel for the Company, addressed to
the Lenders, in form and substance reasonably satisfactory to the Agent and any
Increasing Lenders and Additional Lenders with respect to such Incremental
Commitments.  In no event shall an
Incremental Commitment or the Revolving Credit Commitment of an Other Lender
which results in the aggregate Revolving Credit Commitments of all Revolving
Credit Lenders hereunder exceeding the amount which is authorized at such time
in resolutions previously delivered to the Agent become effective until the
Agent shall have received a copy of the resolutions, in form and substance
satisfactory to the Agent, of the Board of Directors of the Company authorizing
the borrowings contemplated pursuant to such increase, certified by the
Secretary or an Assistant Secretary of the Company.  Upon the effectiveness of an Incremental
Commitment or the Revolving Credit Commitment of an Other Lender pursuant to
the preceding sentence and execution by an Increasing Lender of a Commitment
Increase Supplement or by an Additional Lender of an Additional Lender
Supplement, the Company shall make such borrowing from such Increasing Lender or
Additional Lender, and/or shall make such prepayment of outstanding Revolving
Credit Loans, as shall be required to cause the aggregate outstanding principal
amount of Revolving Credit Loans each under affected Revolving Credit Facility
owing to each Revolving Credit Lender thereunder (including each such
Increasing Lender and Additional Lender) to be proportional to such Lender’s
share of the aggregate Revolving Credit Commitments in respect of such
Revolving Credit Facility after giving effect to any increase thereof.  The Company agrees to indemnify each Lender
and to hold each Lender harmless from any loss or expense incurred as a result
of any such prepayment in accordance with subsection 2.22, as applicable.


 


(iii)  No Other
Lender may become an Additional Lender unless an Additional Lender Supplement
(or counterparts thereof) has been signed by such bank or financial institution
and which Additional Lender Supplement has been agreed to and acknowledged by
the Company and acknowledged by the Agent. 
No consent of any Lender or acknowledgment of any of the other Lenders
hereunder shall be required therefor.  In
no event shall the Commitment of any Lender be increased by reason of any bank
or financial institution becoming an Additional Lender, or otherwise, but the 


 


34

















 


aggregate Revolving Credit
Commitments hereunder shall be increased by the amount of each Additional
Lender’s Revolving Credit Commitment. 
Upon any Lender entering into a Commitment Increase Supplement or any
Additional Lender becoming a party hereto, the Agent shall notify each Lender
thereof and shall deliver to each such Revolving Credit Lender that has a
commitment under the relevant Revolving Credit Facility or Revolving Credit
Facilities a copy of the Additional Lender Supplement executed by such
Additional Lender, agreed to and acknowledged by the Company and acknowledged
by the Agent, and the Commitment Increase Supplement executed by such
Increasing Lender, agreed to and acknowledged by the Company and acknowledged
by the Agent.


 


(c)  Letters
of Credit.  Each Issuing Bank agrees,
on the terms and conditions hereinafter set forth, in reliance upon the
agreements of the other Lenders set forth in this Agreement, to issue letters
of credit (each, a “Letter of Credit”) for the account of any Borrower
and its specified Subsidiaries from time to time on any Business Day during the
period from the Closing Date until 30 days before the Termination Date in an
aggregate Available Letter of Credit Amount (i) for all Letters of Credit
issued by each Issuing Bank not to exceed at any time the lesser of (x) the
Letter of Credit Facility at such time and (y) such Issuing Bank’s Letter
of Credit Commitment at such time and (ii) for each such Letter of Credit
not to exceed an amount equal to the aggregate Available Revolving Credit
Commitments in respect of the Irish Revolving Credit Facility at such time; provided that,
after giving effect to the issuance of any Letter of Credit, the aggregate
amount of Revolving Credit Usage under all Revolving Credit Facilities
(excluding any Revolving Credit Usage pursuant to an Incremental Commitment)
shall not exceed (x) the aggregate Revolving Credit Commitments then in
effect of all Revolving Credit Lenders (other than any Incremental Commitments
of Increasing Lenders) minus (y) the Availability Reduction Amount.  No Letter of Credit shall have an expiration
date (including all rights of the applicable Borrower or the beneficiary to
require renewal) later than 10 Business Days before the Termination Date.  Within the limits referred to above, the
Borrowers may from time to time request the Issuance of Letters of Credit under
this subsection 2.1(c).


 


2.2.  Term Commitments.  Subject to the
terms and conditions hereof:


 


(a)  Each US Term
Loan Lender severally agrees to make a term loan (a “US Term Loan”) to
the US Term Borrower on the Closing Date in an aggregate amount not to exceed
the amount of the US Term Commitment of such Lender then in effect.  The US Term Borrowing shall consist of US
Term Loans made simultaneously by the US Term Loan Lenders ratably according to
their US Term Commitments.  Amounts
borrowed under this subsection 2.2(a) and repaid or prepaid may not be
reborrowed.  The US Term Loans shall be
made in Dollars and may  from time
to time be (i) Eurocurrency Loans or (ii) Base Rate Loans, in each
case as determined by the Company and notified to the Agent in accordance with
subsection 2.11.


 


(b)  Each Irish
Term Loan Lender severally agrees to make a term loan (an “Irish Term Loan”)
to the Irish Term Borrower on the Closing Date in an aggregate amount not to
exceed the amount of the Irish Term Commitment of such Lender then in
effect.  The Irish Term Borrowing shall
consist of Irish Term Loans made simultaneously by the Irish Term Loan Lenders
ratably according to their Irish Term Commitments.  Amounts borrowed under this subsection 2.2(b) and
repaid or prepaid may not be reborrowed. 
The Irish Term Loans shall be made in Pounds Sterling as Eurocurrency Loans.


 


(c)  Each Japanese
Term Loan Lender severally agrees to make a term loan (a “Japanese Term Loan”)
to the Japanese Term Borrower on the Business Day (in Tokyo) following the
Closing Date 


 


35

















 


in an aggregate amount not to
exceed the amount of the Japanese Term Commitment of such Lender then in
effect.  The Japanese Term Borrowing
shall consist of Japanese Term Loans made simultaneously by the Japanese Term
Loan Lenders ratably according to their Japanese Term Commitments.  Amounts borrowed under this subsection 2.2(c) and
repaid or prepaid may not be reborrowed. 
The Japanese Term Loans shall be made in Yen as Eurocurrency Loans.


 


2.3.  Issuance
of and Drawings and Reimbursement Under Letters of Credit.  (a)    Request for Issuance.  (i) Each Letter of Credit shall be
issued upon notice, given not later than 11:00 A.M. (New York City Time)
on the fifth Business Day prior to the date of the proposed Issuance of such
Letter of Credit (or on such shorter notice as the applicable Issuing Bank may
agree), by any Borrower to any Issuing Bank, with a copy to the Agent, and such
Issuing Bank shall give the Agent prompt notice thereof.  Each such notice by a Borrower of Issuance of
a Letter of Credit (a “Notice of Issuance”) shall be by telecopier,
confirmed immediately in writing, specifying therein the requested (A) date
of such Issuance (which shall be a Business Day), (B) Available Letter of
Credit Amount of such Letter of Credit, (C) expiration date of such Letter
of Credit, (D) name and address of the beneficiary of such Letter of
Credit, (E) currency in which such Letter of Credit will be denominated
(which may be Dollars, any Available Foreign Currency or any other foreign
currency (to the extent the applicable Issuing Bank is legally, and without
additional unreimbursed expense, able to provide a Letter of Credit denominated
in such other foreign currency)) and (F) form of such Letter of
Credit.  Such Letter of Credit shall be
issued pursuant to such application and agreement for letter of credit as such
Issuing Bank and the applicable Borrower shall agree for use in connection with
such requested Letter of Credit (a “Letter of Credit Agreement”).  If the requested form of such Letter of
Credit is acceptable to such Issuing Bank in its reasonable discretion (it
being understood that any such form shall have only explicit documentary
conditions to draw and shall not include discretionary conditions), unless such
Issuing Bank has received written notice from any Lender or the Agent, at least
one Business Day prior to the requested date of issuance or amendment for the
applicable Letter of Credit, that one or more of the applicable conditions set
forth in subsection 4.2 shall not then be satisfied, such Issuing Bank will,
upon satisfaction of the applicable conditions set forth in subsection 4.2,
make such Letter of Credit available to the applicable Borrower at its office
referred to in subsection 10.2 or as otherwise agreed with such Borrower in
connection with such Issuance in accordance with such Issuing Bank’s usual and
customary business practices.  In the
event and to the extent that the provisions of any Letter of Credit Agreement
shall conflict with this Agreement, the provisions of this Agreement shall
govern.


 


(b)  By
the Issuance of a Letter of Credit (or an amendment to a Letter of Credit
increasing or decreasing the amount thereof) and without any further action on
the part of the applicable Issuing Bank or the Lenders, such Issuing Bank
hereby grants to each Irish Revolving Credit Lender, and each Irish Revolving
Credit Lender hereby acquires from such Issuing Bank, a participation in such
Letter of Credit equal to such Lender’s Irish Revolving Credit Commitment
Percentage of the Available Letter of Credit Amount of such Letter of
Credit.  Each Borrower hereby agrees to
each such participation.  In
consideration and in furtherance of the foregoing, each Irish Revolving Credit
Lender hereby absolutely and unconditionally agrees to pay to the Agent, for
the account of such Issuing Bank, such Lender’s Irish Revolving Credit
Commitment Percentage of each drawing made under a Letter of Credit funded by
such Issuing Bank and not reimbursed by the applicable Borrower in accordance
with the second sentence of paragraph (c) below (which amount if not 


 


36

















 


so reimbursed will be deemed to be a
Irish Revolving Credit Borrowing to such Borrower as contemplated in such
sentence), or of any reimbursement payment required to be refunded to such
Borrower for any reason, which amount will be advanced regardless of the
satisfaction of the conditions set forth in subsection 4.2.  Each Irish Revolving Credit Lender
acknowledges and agrees that its obligation to acquire participations pursuant
to this paragraph in respect of Letters of Credit is absolute and unconditional
and shall not be affected by any circumstance whatsoever, including any
amendment, renewal or extension of any Letter of Credit or the occurrence and
continuance of a Default or reduction or termination of the Irish Revolving
Credit Commitments, and that each such payment shall be made without any
offset, abatement, withholding or reduction whatsoever.  Each Irish Revolving Credit Lender further
acknowledges and agrees that its participation in each Letter of Credit will be
automatically adjusted to reflect such Lender’s Irish Revolving Credit
Commitment Percentage of the Available Letter of Credit Amount of such Letter
of Credit at each time such Lender’s Irish Revolving Credit Commitment is
amended pursuant to an increase in accordance with subsection 2.1(b), an
assignment in accordance with subsection 10.7 or otherwise pursuant to this
Agreement.


 


(c)  Upon
receipt from the beneficiary of any Letter of Credit of any notice of a drawing
under a Letter of Credit issued by an Issuing Bank, such Issuing Bank will
notify the applicable Borrower and the Agent thereof.  The payment by an Issuing Bank of a draft
drawn under any Letter of Credit which is not reimbursed by the applicable
Borrower either (x) on the date made in the event that such notice to the
applicable Borrower shall have been given by 12:00 Noon (New York City time) on
such date or (y) otherwise, by 10:00 A.M. (New York City time) on the
following day, shall constitute for all purposes of this Agreement the making
by any such Issuing Bank of a Irish Revolving Credit Borrowing, which shall be
an Base Rate Loan, in the amount of such draft, without regard to whether the
making of such a Borrowing would exceed such Issuing Bank’s Available Revolving
Credit Commitment in respect of the Irish Revolving Credit Facility.  Upon written demand by such Issuing Bank,
with a copy of such demand to the Agent and the applicable Borrower, each Irish
Revolving Credit Lender shall pay to the Agent such Lender’s Irish Revolving
Credit Commitment Percentage of such outstanding Irish Revolving Credit
Borrowing pursuant to subsection 2.3(b). 
Each Irish Revolving Credit Lender acknowledges and agrees that its
obligation to make Irish Revolving Credit Borrowings pursuant to this paragraph
in respect of Letters of Credit is absolute and unconditional and shall not be
affected by any circumstance whatsoever, including any amendment, renewal or
extension of any Letter of Credit or the occurrence and continuance of a
Default or reduction or termination of the Irish Revolving Credit Commitments,
and that each such payment shall be made without any offset, abatement,
withholding or reduction whatsoever. 
Promptly after receipt thereof, the Agent shall transfer such funds to
such Issuing Bank.  Each Irish Revolving
Credit Lender agrees to fund its Irish Revolving Credit Commitment Percentage
of an outstanding Irish Revolving Credit Borrowing on (i) the Business Day
on which demand therefor is made, provided that notice of such demand is
given not later than 11:00 A.M. (New York City time) on such Business Day,
or (ii) the first Business Day next succeeding such demand if notice of
such demand is given after such time.  If
and to the extent that any Irish Revolving Credit Lender shall not have so made
the amount of such Irish Revolving Credit Borrowing available to the Agent,
such Lender agrees to pay to the Agent forthwith on demand such amount together
with interest thereon, for each day from the date of demand until the date such
amount is 


 


37

















 


paid to the Agent, at the Federal Funds
Rate for its account or the account of such Issuing Bank, as applicable.  To the extent that the Irish Revolving Credit
Lenders pay to the Agent such amount for the account of any such Issuing Bank
on any Business Day, the respective amounts so paid by them in respect of
principal shall constitute a Irish Revolving Credit Borrowing made by such
Lender on such Business Day for purposes of this Agreement, and the outstanding
principal amount of the associated Irish Revolving Credit Borrowing made by
such Issuing Bank pursuant to the second sentence of this paragraph shall be
reduced by such amount on such Business Day.


 


(d)  Each
Issuing Bank shall furnish (A) to the Agent and each Lender (with a copy
to the Company) on the first Business Day of each month a written report
summarizing Issuance and expiration dates of Letters of Credit issued by such
Issuing Bank during the preceding month and drawings during such month under
all Letters of Credit and (B) to the Agent and each Lender (with a copy to
the Company) on the first Business Day of each calendar quarter a written
report setting forth the average daily aggregate Available Letter of Credit
Amount during the preceding calendar quarter of all Letters of Credit issued by
such Issuing Bank.


 


(e)  The
failure of any Lender to make the Irish Revolving Credit Borrowing to be made
by it on the date specified in subsection 2.4 shall not relieve any other Irish
Revolving Credit Lender of its obligation hereunder to make its Irish Revolving
Credit Borrowing on such date, but no Lender shall be responsible for the
failure of any other Lender to make the Irish Revolving Credit Borrowing to be
made by such other Lender on such date.


 


(f)  For
the avoidance of doubt, no Issuing Bank shall be under any obligation to issue
any Letter of Credit either (i) at the request of, or for the account of,
any Borrower or any Subsidiary of a Borrower, in each case incorporated in
Ireland, or (ii) to any Person resident in Ireland, in each case to the
extent that such Issuing Bank is not duly authorized to carry on the business
of issuing contracts of suretyship in Ireland (or otherwise exempted under the
laws of Ireland from the requirement to have any such authorization) or to the
extent that the issuance by such Issuing Bank would otherwise contravene any
law of Ireland or any other applicable jurisdiction.


 


2.4.  Procedure for Revolving Credit Borrowing
and Term Borrowing.  (i) Each Revolving Credit Borrower may
borrow Revolving Credit Loans under the Revolving Credit Commitments on any
Business Day during the Commitment Period and (ii) each Term Loan Borrower
may borrow Term Loans under the Term Commitments on the Closing Date (except
the Japanese Term Borrowing which shall occur on the Business Day (in Tokyo)
following the Closing Date), in each case upon irrevocable notice to the Agent
(and, in the case of a Borrowing consisting of Eurocurrency Loans, Canadian
Prime Rate Loans or Bankers’ Acceptances, simultaneously to the applicable
Sub-Agent, in the case of any Irish Revolving Credit Borrowing, simultaneously
with a copy to the Irish Swing Line Lenders and further, in the case of any
Japanese Revolving Credit Borrowing, simultaneously with a copy to the Yen
Swing Line Lenders), given not later than (x) 12:00 Noon (New York City
time) on the third  Business Day
prior to the date of the proposed Borrowing in the case of a Borrowing
consisting of Eurocurrency Loans denominated in Dollars, (y) 12:00 Noon
(New York City time) on the fourth Business Day prior to the date of the
proposed Borrowing in the case of a Borrowing consisting of Eurocurrency Rate
Loans denominated in Euros, Pounds Sterling or Yen, or Borrowings consisting of
Banker’s Acceptances (other than (x) a Borrowing by way of Bankers’
Acceptances covered by a Notice 


 


38

















 


of Rollover/Conversion delivered in
accordance with subsection 2.5(b)(ix) or (y) the Japanese Term
Borrowing on the Closing Date, which shall be delivered by 12:00 Noon (New York
city time) on the third Business Day prior to such date), or (z) 10:00 A.M.
(New York City time) on the date of the proposed Borrowing in the case of a
Borrowing consisting of Base Rate Loans or Canadian Prime Rate Loans,
specifying, in each case, (A) the applicable Borrower, (B) the
applicable Facility, (C) the amount to be borrowed, (C) the requested
borrowing date, (D) the Type of Loans and, (E) if the borrowing is to be entirely
or partly of Eurocurrency Loans, the Currency thereof, the respective amounts
of each such Type of Loan and the respective lengths of the initial Interest
Periods therefor  and (F) in
the case of a Revolving Credit Borrowing, the amount of the Availability
Reduction Amount, if any. 
Each Revolving Credit Borrowing under the Revolving Credit Commitments
shall be in an amount equal to the Applicable Borrowing Minimum or an
Applicable Borrowing Multiple in excess thereof.  Upon receipt of any such notice from the
applicable Borrower, the Agent (or applicable Sub-Agent) shall promptly notify
each Revolving Credit Lender or Term Loan Lender, as applicable, under the
applicable Facility.  Each applicable
Lender will make the amount of its pro rata share of each Borrowing available
to the Agent (or applicable Sub-Agent) for the account of the applicable
Borrower at the Funding Office, and at or prior to the Funding Time, for the
Currency of such Loan in funds immediately available to the Agent (or
applicable Sub-Agent).  Such Borrowing
will then immediately be made available to the applicable Borrower by the Agent
(or applicable Sub-Agent) crediting the account of the applicable Borrower on
the books of such Funding Office with the aggregate of the amounts made
available to the Agent (or applicable Sub-Agent) by the Lenders and in like
funds as received by the Agent (or applicable Sub-Agent).  Notwithstanding anything to the contrary
contained in the foregoing, Bankers’ Acceptances shall be issued under the Canadian Revolving
Credit Facility in accordance with subsection 2.5 below.  Further, notwithstanding anything to the
contrary contained in this subsection 2.4, for purposes of determining the
amount of the Irish Term Borrowing and the Japanese Term Borrowing,
respectively, (x) the Equivalent in Pounds Sterling of the Irish Term
Commitment and (y) the Equivalent in Yen of the Japanese Term Commitment
shall, in each case, be determined on the date on which the applicable Borrower
submits a notice of borrowing in respect of such Facility.


 


2.5.  Bankers’ Acceptances.


 


(a)  Pursuant to any request
for a Borrowing under the Canadian Revolving Credit Facility, any Canadian
Revolving Credit Borrower may request that such Borrowing be made by way of
Bankers’ Acceptances, in which case such Canadian Revolving Credit Borrower may
issue Bankers’ Acceptances denominated in Canadian Dollars, for purchase by the
Canadian Revolving Credit Lenders hereunder, in each case in accordance with
the provisions of this subsection 2.5 and in respect of any such request for a
Borrowing, provided that:  (i) the
principal amount of Borrowing made by way of Bankers’ Acceptances shall be
deemed to be the Face Amount of the drafts to be issued and accepted; and (ii) all
other conditions to Borrowing set forth in subsection 2.1(a)(ii) and
subsection 4.2 shall be complied with as conditions to any Borrowing by way of
Bankers’ Acceptances.


 


(b)  (i)    The applicable Canadian Revolving Credit
Borrower shall notify the applicable Sub-Agent (the “Canadian Sub-Agent”)
of any Borrowing by way of Bankers’ Acceptances in accordance with subsection
2.4.


 


(ii)  To
facilitate availment of the Canadian Revolving Credit Borrowings by way of
Bankers’ Acceptances, each Canadian Revolving Credit Borrower hereby appoints
each Canadian Revolving Credit Lender as its attorney to sign and endorse on
its behalf (for the purpose of acceptance and purchase of Bankers’ Acceptances
pursuant to this Agreement), in handwriting or by facsimile or mechanical
signature


 


39
















 


as and when deemed necessary
by such Lender, blank forms of Bankers’ Acceptances.  In this respect, it is each Canadian
Revolving Credit Lender’s responsibility to maintain an adequate supply of
blank forms of Bankers’ Acceptances for acceptance under this Agreement.  Each Canadian Revolving Credit Borrower
recognizes and agrees that all Bankers’ Acceptances signed and/or endorsed on
its behalf by a Canadian Revolving Credit Lender shall bind such Borrower as
fully and effectually as if signed in the handwriting of and duly issued by the
proper signing officers of such Borrower. 
Each Canadian Revolving Credit Lender is hereby authorized (for the
purpose of acceptance and purchase of Bankers’ Acceptances pursuant to this
Agreement) to issue such Bankers’ Acceptances endorsed in blank in such Face
Amounts as may be determined by such Lender; provided that the aggregate
amount thereof is equal to the aggregate amount of Bankers’ Acceptances
required to be accepted and purchased by such Lender.  No Canadian Revolving Credit Lender shall be
liable for any damage, loss or other claim arising by reason of any loss or
improper use of any such instrument except where arising from the gross
negligence or willful misconduct of such Lender or its officers, employees, agents
or representatives.  On request by any
Canadian Revolving Credit Borrower, a Canadian Revolving Credit Lender shall
cancel all forms of Bankers’ Acceptances which have been pre-signed or
pre-endorsed by or on behalf of such Borrower and which are held by such Lender
and have not yet been issued in accordance herewith.  Each Canadian Revolving Credit Lender further
agrees to retain such records in the manner and/or for the statutory periods
provided in the various Canadian provincial or federal statutes and regulations
which apply to such Lender.  Each
Canadian Revolving Credit Lender shall maintain a record with respect to
Bankers’ Acceptances held by it in blank hereunder, voided by it for any
reason, accepted and purchased by it hereunder, and cancelled at their
respective maturities.  Each Canadian
Revolving Credit Lender agrees to provide such records to the applicable
Canadian Revolving Credit Borrower at such Borrower’s expense upon request.


 


(iii)  Bankers’
Acceptances shall be signed by a duly authorized officer or officers of the
applicable Canadian Revolving Credit Borrower or by its attorneys, including
its attorneys appointed pursuant to subsection 2.5(b)(ii) above.  Notwithstanding that any person whose
signature appears on any Bankers’ Acceptance as a signatory for such Borrower
may no longer be an authorized signatory for such Borrower at the date of
issuance of a Bankers’ Acceptance, such signature shall nevertheless be valid
and sufficient for all purposes as if such authority had remained in force at
the time of such issuance, and any such Bankers’ Acceptance so signed shall be
binding on such Borrower.


 


(iv)  Promptly
following receipt of a notice of Canadian Revolving Credit Borrowing or Notice
of Rollover/Conversion in respect of Bankers’ Acceptances, the Canadian
Sub-Agent shall advise each Canadian Revolving Credit Lender of the aggregate
Face Amount of Bankers’ Acceptances to be accepted by it, the terms thereof,
and the BA Discount Proceeds in respect thereof.  The aggregate Face Amount of Bankers’
Acceptances to be accepted by a Canadian Revolving Credit Lender in respect of
any Canadian Revolving Credit Borrowing by way of Bankers’ Acceptances shall be
equal to such Lender’s Canadian Revolving Credit Commitment Percentage of the
aggregate Face Amount of all Bankers’ Acceptances to be accepted pursuant to
such Borrowing, except that if the Face Amount of a Bankers’ Acceptance which
would otherwise be accepted by a Canadian Revolving 


 


40

















 


Credit Lender would not be
Canadian Dollars $100,000 or a larger multiple thereof, such Face Amount shall
be increased or reduced by the Canadian Sub-Agent in its discretion to the
nearest multiple of Canadian Dollars $100,000.


 


(v)  Each
Bankers’ Acceptance to be accepted by a Canadian Revolving Credit Lender shall
be accepted at its applicable Funding Office in Canada.


 


(vi)  On
the date of each issuance of Bankers’ Acceptances in accordance with this
subsection 2.5, each Canadian Revolving Credit Lender shall accept and purchase
from the applicable Canadian Revolving Credit Borrower each Bankers’ Acceptance
to be accepted by it in connection with the Canadian Revolving Credit Borrowing
for a purchase price equal to the applicable BA Discount Proceeds determined on
the basis of the BA Discount Rate, and (except to the extent such BA Discount
Proceeds are being applied to repay maturing Bankers’ Acceptances in accordance
with subsection 2.5(b)(ix)) shall remit to the Canadian Sub-Agent in accordance
with subsection 2.4 the BA Discount Proceeds so determined less the Acceptance
Fee payable by such Borrower to such Lender under subsection 2.5(d) in
respect of such Bankers’ Acceptances.


 


(vii)  Each
Canadian Revolving Credit Lender may at any time and from time to time hold,
sell, rediscount or otherwise dispose of any or all Bankers’ Acceptances
accepted and purchased by it (it being understood that no holder thereof shall
have any rights or obligations hereunder or under any of the other Loan
Documents unless any such holder is a Lender).


 


(viii)  Each
Canadian Revolving Credit Borrower waives presentment for payment and any other
defense to payment of any amounts then due to a Canadian Revolving Credit
Lender in respect of a Bankers’ Acceptance accepted and purchased by it
pursuant to this Agreement which might exist solely by reason of such Bankers’
Acceptance being held, at the maturity thereof, by such Lender in its own
right, and each Canadian Revolving Credit Borrower agrees not to claim any days
of grace if such Lender as holder sues such Borrower on the Bankers’
Acceptances for payment of the amount payable by such Borrower thereunder.


 


(ix)  At
or before 9:30 A.M. (Toronto time) two Business Days before the BA
Maturity Date of any Bankers’ Acceptances, the applicable Canadian Revolving
Credit Borrower shall give to the Sub-Agent notice (a “Notice of
Rollover/Conversion”) specifying either that such Borrower intends to repay
the maturing Bankers’ Acceptances on the applicable BA Maturity Date or that such
Borrower intends to issue new Bankers’ Acceptances on the applicable BA
Maturity Date to provide for the payment of the maturing Bankers’
Acceptances.  If the applicable Canadian
Revolving Credit Borrower fails to provide any such notice to the Canadian
Sub-Agent or fails to repay the maturing Bankers’ Acceptances on the applicable
BA Maturity Date, such failure shall be deemed a Notice of Rollover/Conversion
for the issuance of new Bankers’ Acceptances to provide for the payment of such
maturing Bankers’ Acceptances and such new Bankers’ Acceptances shall have a BA
Maturity Date that is thirty days after the date of issuance thereof.  Notwithstanding the foregoing, if an Event of
Default has occurred and is continuing on the applicable BA Maturity Date of
such maturing Bankers’ Acceptances, each Canadian Revolving Credit Borrower’s
obligations in respect of maturing Bankers’ Acceptances shall be deemed to have
been converted on the BA 


 


41

















 


Maturity Date thereof into a
Canadian Prime Rate Loan in a principal amount equal to the full Face Amount of
the maturing Bankers’ Acceptances.  On
the BA Maturity Date of any Bankers’ Acceptance being repaid by means of the
issuance of new Bankers’ Acceptances pursuant to this clause (ix) the
applicable Canadian Revolving Credit Borrower shall pay to the Sub-Agent for
the account of the applicable Canadian Revolving Credit Lender an amount equal
to the sum of (A) the Acceptance Fee payable in respect of such newly
issued Bankers’ Acceptance and (B) the excess of the Face Amount of such
maturing Bankers’ Acceptance over the BA Discount Proceeds in respect of such
newly issued Bankers’ Acceptance.


 


(c)  Each Bankers’ Acceptance
shall mature, and the Face Amount thereof shall be due and payable, on the BA
Maturity Date specified in such Bankers’ Acceptance.  Any overdue amount of any Bankers’ Acceptance
shall bear interest, payable on demand, at the rate set forth in subsection
2.14(i).  Any payment of a maturing
Bankers’ Acceptance shall, subject to subsection 2.5(b)(ix), be made as
provided in subsection 2.13(c) (notwithstanding that any Lender or any
other Person may be the holder thereof at maturity) and any such payment shall
satisfy the applicable Canadian Revolving Credit Borrower’s obligations under
the maturing Bankers’ Acceptance to which it relates, and the Lender accepting
and purchasing the applicable Bankers’ Acceptance shall thereafter be solely
responsible for the payment of such Bankers’ Acceptance.


 


(d)  A fee (an “Acceptance
Fee”) shall be payable by the applicable Canadian Revolving Credit Borrower
to each Canadian Revolving Credit Lender in advance (in the manner specified
under this Agreement) upon the issuance of a Bankers’ Acceptance to be accepted
by such Lender, or upon the purchase of an Acceptance Note by such Lender,
calculated at the rate per annum equal to the Applicable Margin then in effect
for Eurocurrency Rate Loans, such rate per annum to be calculated on the Face
Amount of such Bankers’ Acceptance or Acceptance Note, as the case may be, and
to be computed on the basis of the number of days in the term of such Bankers’
Acceptance or Acceptance Note, as the case may be.


 


(e)  Bankers’ Acceptances may
not be prepaid.  Any Canadian Revolving
Credit Borrower may, however, at its option, exercisable upon not less than two
Business Day’s notice to the Canadian Sub-Agent, elect to deposit with the
Canadian Sub-Agent Canadian Dollars in same-day funds to be held by the
Sub-Agent, pursuant to collateral arrangements reasonably satisfactory to the
Canadian Sub-Agent and such Canadian Revolving Credit Borrower, for application
to the payment of any Borrowing of Bankers’ Acceptances designated by such
Borrower in such notice.  If such a
deposit is made, then such Bankers’ Acceptances shall be deemed no longer
outstanding for purposes of this Agreement; provided that the amount of
such deposit shall be not less than the full Face Amount of such Borrowing of
Bankers’ Acceptances.  Furthermore, in
the event the maturity of the Loans is accelerated pursuant to Section 7,
each applicable Canadian Revolving Credit Borrower shall cash collateralize all
outstanding Bankers’ Acceptances issued by such Borrower.


 


(f)  (i)    It is understood that from time to time
certain Schedule II Banks and Schedule III Banks may not be authorized to or
may, as a matter of general corporate policy, elect not to accept Bankers’
Acceptances (each, an “Acceptance Note Lender”); accordingly, any
Acceptance Note Lender may instead 


 


42

















 


purchase
Acceptance Notes of a Canadian Revolving Credit Borrower in accordance with the
provisions of subsection 2.5(f)(ii) in lieu of accepting and purchasing
Bankers’ Acceptances for its account.


 


(ii)  In
connection with any request by a Canadian Revolving Credit Borrower for the
creation of Bankers’ Acceptances, such Borrower shall deliver to each
Acceptance Note Lender non-interest bearing promissory notes (each, an “Acceptance
Note”) of such Borrower having the same maturity as the Bankers’
Acceptances to be created and in an aggregate principal amount equal to the
Face Amount of the Bankers’ Acceptances that would otherwise have been required
to be accepted by such Acceptance Note Lender as a part of such Borrowing.  Each Acceptance Note Lender hereby agrees to
purchase Acceptance Notes from each Canadian Revolving Credit Borrower at a
price equal to the BA Discount Proceeds determined by reference to the BA
Discount Rate which would have been applicable if a Bankers’ Acceptance had
been accepted by it, and such Acceptance Notes shall be governed by the
provisions of this subsection 2.5 as if they were Bankers’ Acceptances.  The provisions of this subsection 2.5 shall
apply, with all necessary changes, to Acceptance Notes issued under this
subsection 2.5(f)(ii).


 


(g)  At the option of any
Canadian Revolving Credit Lender, Bankers’ Acceptances under this Agreement to
be accepted and purchased by such Lender may be issued in the form of
depository bills for deposit with The Canadian Depository for Securities
Limited pursuant to the Depository Bills and Notes Act (Canada).  All depository bills so issued shall be
governed by the provisions of this subsection 2.5.


 


(h)  If the Canadian
Sub-Agent or the Canadian Revolving Credit Lenders holding more than 50% of the
Canadian Revolving Credit Commitments determine in good faith, which
determination shall be final, conclusive and binding upon each Canadian
Revolving Credit Borrower, and the Canadian Sub-Agent notifies such Borrower
that, by reason of circumstances affecting the money market there is no market
for Bankers’ Acceptances or Acceptance Notes or the demand for Bankers’
Acceptances or Acceptance Notes is insufficient to allow the sale or trading of
the Bankers’ Acceptances or Acceptance Notes created hereunder, then:


 


(i)  the
right of any Canadian Revolving Credit Borrower to request the acceptance and
purchase of Bankers’ Acceptances shall be suspended until the Canadian
Sub-Agent or the Canadian Revolving Credit Lenders holding more than 50% of the
Canadian Revolving Credit Commitments determine that the circumstances causing
such suspension no longer exist and the Canadian Sub-Agent so notifies each
Canadian Revolving Credit Borrower; and


 


(ii)  any
Notice of Canadian Revolving Credit Borrowing or Notice of Rollover/Conversion
in respect of Bankers’ Acceptances which are outstanding shall be cancelled and
such notice shall (at the option of the applicable Borrower) be deemed to be a
request for a Borrowing of or conversion to Canadian Prime Rate Loans in
principal amount equal to the BA Discount Proceeds that would have been payable
in respect of the requested Bankers’ Acceptances or Acceptance Notes.


 


(i)  The
Canadian Sub-Agent shall promptly notify each Canadian Revolving Credit
Borrower of the suspension of such Borrower’s right to request 


 


43

















 


acceptance
and purchase of Bankers’ Acceptances or Acceptance Notes and of the termination
of any such suspension.


 


(j)  In the event of any
inconsistency between the provisions of this subsection 2.5 and any other
provision of Section 2 or 3 with respect to Bankers’ Acceptances or
Acceptance Notes, the provisions of this subsection 2.5 shall prevail.


 


2.6.  Swing
Line Commitments.  (c)Subject to the terms and conditions
hereof, each Swing Line Lender severally agrees to make swing line loans (“Swing
Line Loans”) to any US Revolving Credit Borrower on any Business Day from
time to time during the Commitment Period in an aggregate principal amount at
any one time outstanding for all Swing Line Lenders not to exceed $200,000,000;
provided that in no event may the amount of any Swing Line Borrowing
cause the aggregate amount of US Revolving Credit Loans  and
Swing Line Loans (after giving effect to the use of proceeds of such Swing Line
Loans and any other concurrent Borrowing) to exceed the aggregate US Revolving
Credit Commitments then in effect of all US Revolving Credit Lenders.  Amounts borrowed by the US Revolving Credit
Borrowers under this subsection 2.6 may be repaid and, to but excluding the
Termination Date, reborrowed.


 


(a)  All
Swing Line Loans shall be made in Dollars and shall bear interest as set forth
in Schedule 2.13(a) and, notwithstanding subsection 2.11(a), shall not be
entitled to be converted into Eurocurrency Loans.  The applicable US Revolving Credit Borrower
shall give the Agent irrevocable notice (which notice must be received by the
Agent prior to 1:00 P.M., New York City time), on the requested borrowing
date (which shall be a Business Day) specifying the amount of each requested
Swing Line Loan, which shall be in a minimum amount of $5,000,000 or a multiple
of $1,000,000 in excess thereof, and the amount of the Availability Reduction Amount,
if any.  Upon receipt of
any such notice from the applicable US Revolving Credit Borrower, the Agent
shall promptly notify each Swing Line Lender thereof.  Each Swing Line Lender will make the amount
of its equal share of each Swing Line Loan available to the Agent for the
account of the applicable US Revolving Credit Borrower at the office of the
Agent specified in subsection 10.2 prior to 3:00 P.M., New York City time,
on the borrowing date requested by the applicable US Revolving Credit Borrower
in funds immediately available to the Agent. 
The proceeds of each Swing Line Loan will then be made immediately
available to the applicable US Revolving Credit Borrower by the Agent crediting
the account of the applicable US Revolving Credit Borrower on the books of such
office with the aggregate of the amounts made available to the Agent by the
Swing Line Lenders and in like funds as received by the Agent.


 


(b)  The
Agent, at any time in its sole and absolute discretion, may (or, upon the
request of the majority of the Swing Line Lenders, shall) on behalf of the
applicable US Revolving Credit Borrower (which hereby irrevocably directs the
Agent to act on its behalf) request each US Revolving Credit Lender (including
each Swing Line Lender) to make a US Revolving Credit Loan in an amount equal
to such Lender’s US Revolving Credit Commitment Percentage of the principal
amount of the Swing Line Loans of all Swing Line Lenders (the “Refunded
Swing Line Loans”) outstanding on the date such notice is given; provided
that (i) at any time as there shall be a Swing Line Loan outstanding for
more than seven Business Days, the Agent shall, on behalf of the applicable US
Revolving Credit Borrower (which hereby irrevocably directs the Agent to act on
its behalf), promptly request each US Revolving Credit Lender (including each
Swing Line Lender) to make a US 


 


44

















 


Revolving
Credit Loan in an amount equal to such Lender’s US Revolving Credit Commitment
Percentage of the principal amount of such outstanding Swing Line Loan and (ii) the
Swing Line Loans shall be prepaid by the applicable US Revolving Credit
Borrower in accordance with the provisions of subsection 2.10(b)(i).  Unless any of the events described in
paragraph (f) of Section 7 shall have occurred (in which event the
procedures of paragraph (d) of this subsection 2.6 shall apply) and
regardless of whether the conditions precedent set forth in this Agreement to
the making of a US Revolving Credit Loan are then satisfied, each US Revolving
Credit Lender shall make the proceeds of its US Revolving Credit Loan available
to the Agent for the ratable benefit of the Swing Line Lenders at the office of
the Agent specified in subsection 10.2 prior to 11:00 A.M., New York City
time, in funds immediately available on the Business Day next succeeding the
date such notice is given.  The proceeds
of such US Revolving Credit Loans shall be immediately applied to repay the
Refunded Swing Line Loans.


 


(c)  If,
prior to the making of a US Revolving Credit Loan pursuant to paragraph (c) of
this subsection 2.6, one of the events described in paragraph (f) of Section 7
shall have occurred, each US Revolving Credit Lender will, on the date such US
Revolving Credit Loan was to have been made, purchase from the Swing Line
Lenders an undivided participating interest in the Refunded Swing Line Loans in
an amount equal to its US Revolving Credit Commitment Percentage of such
Refunded Swing Line Loans.  Each US
Revolving Credit Lender will immediately transfer to the Agent, in immediately
available funds, the amount of its participation and upon receipt thereof the
Agent will deliver to such Lender a Swing Line Loan Participation Certificate
dated the date of receipt of such funds and in such amount.


 


(d)  Each
US Revolving Credit Lender’s obligation to make US Revolving Credit Loans and
to purchase participating interests in accordance with paragraphs (c) and (d) above
shall be absolute and unconditional and shall not be affected by any
circumstance, including, without limitation, (i) any set-off,
counterclaim, recoupment, defense or other right which such Lender may have
against any Swing Line Lender, any US Revolving Credit Borrower or any other
Person for any reason whatsoever; (ii) the occurrence or continuance of
any Default or Event of Default; (iii) any adverse change in the condition
(financial or otherwise) of the Company or any other Person; (iv) any
breach of this Agreement by the applicable US Revolving Credit Borrower or any
other Person; (v) any inability of any US Revolving Credit Borrower to
satisfy the conditions precedent to borrowing set forth in this Agreement on
the date upon which such participating interest is to be purchased or (vi) any
other circumstance, happening or event whatsoever, whether or not similar to
any of the foregoing.  If any US
Revolving Credit Lender does not make available to the Agent the amount
required pursuant to paragraph (c) or (d) above, as the case may be,
the Agent shall be entitled to recover such amount on demand from such Lender,
together with interest thereon for each day from the date of non-payment until
such amount is paid in full at the Federal Funds Rate for the first two
Business Days and at the Base Rate thereafter. 
Notwithstanding the foregoing provisions of this subsection 2.6(e), no
US Revolving Credit Lender shall be required to make a US Revolving Credit Loan
to any US Revolving Credit Borrower for the purpose of refunding Swing Line
Loans pursuant to paragraph (c) above or to purchase a participating interest
in Swing Line Loans pursuant to paragraph (d) above if a Default or Event
of Default has occurred and is continuing and prior to the making by the Swing
Line Lenders of such Swing Line Loans, each 


 


45

















 


Swing Line
Lender has received written notice from such Lender specifying that such
Default or Event of Default has occurred and is continuing, describing the
nature thereof and stating that, as a result thereof, such Lender shall cease
to make such US Revolving Credit Loans and purchase such participating
interests, as the case may be; provided that the obligation of such
Lender to make such US Revolving Credit Loans and to purchase such
participating interests shall be reinstated upon the earlier to occur of (i) the
date upon which such Lender notifies the Swing Line Lenders that its prior
notice has been withdrawn and (ii) the date upon which the Default or
Event of Default specified in such notice no longer is continuing.


 


2.7.  Yen
Swing Line Commitments.  (d)Subject to the terms and conditions
hereof, each Yen Swing Line Lender agrees to make Yen swing line loans (“Yen
Swing Line Loans”) and each Yen Overdraft Swing Line Lender agrees to make
Yen overdraft swing line loans to the extent provided in subsection (b) (such
overdraft swing line loans, which form a part of, and not in addition to the
Yen Swing Line Loans hereunder, being “Yen Overdraft Swing Line Loans”)
to any Japanese Borrower domiciled in Japan on any Business Day from time to
time during the Commitment Period in an aggregate principal amount at any one
time outstanding not to exceed the maximum amount of the Yen Swing Line
Facility then in effect; provided that in no event may the amount of any
Yen Swing Line Loan cause the aggregate amount of Japanese Revolving Credit
Loans  and Yen Swing Line Loans (after giving
effect to the use of proceeds of such Yen Swing Line Loans and any other
concurrent Borrowing) to exceed the aggregate Japanese Revolving Credit
Commitments then in effect of all Japanese Revolving Credit Lenders.  The Agent shall provide written notice to the
applicable Yen Swing Line Lender (i) no later than 1:00 P.M. (Tokyo
time) of the day in question of any Borrowing to the extent that such Borrowing
will cause the Japanese Revolving Credit Loans to be in an aggregate amount in
excess of $1,000,000,000 on any day and (ii) no later than 5:00 P.M.
(Tokyo time) of the day in question of any notice of Default or Event of
Default on the day the Agent receives such notice; provided that the
Agent shall not have any liability to such Yen Swing Line Lender in the event
that it fails to provide such notice. 
Amounts borrowed by any Japanese Borrower under this subsection 2.7 may
be repaid and, to but excluding the Termination Date, reborrowed.


 


(b)           Each
Yen Overdraft Swing Line Loan shall only be made as follows with respect to the
applicable Japanese Borrower’s Designated Account and the occurrence of any of
the following events shall constitute an automatic request by the applicable
Japanese Borrower for a Yen Overdraft Swing Line Loan:  (i) presentation of any checks, drafts
or other items against a Designated Account in excess of the available balance
in such account; (ii) the accrual of any charges against a Designated
Account in excess of the balance in such account; or (iii) electronic or
automatic or other funds transfers from a Designated Account or receipt or
creation by the applicable Yen Overdraft Swing Line Lender of a debit entry
against a Designated Account, in each case in excess of the available balance
in such account.  In each case, the
amount of the Yen Overdraft Swing Line Loan requested shall be equal to the
amount by which the respective item, charge, debit or transfer drawn against or
chargeable to the Designated Account exceeds the available balance in such
account.  Each Yen Overdraft Swing Line
Loan shall be made by automatic transfer of funds by the applicable Yen
Overdraft Swing Line Lender directly into the Designated Account in question on
the Business Day on which the request is made. 
The applicable Yen Overdraft Swing Line Lender may, in its sole
discretion, consider a request made after its customary “cut-off time” on a
Business Day to have occurred on the next Business Day.  Each Japanese Borrower agrees that each Yen
Overdraft Swing Line Loan made to it shall be repaid, together with accrued
interest thereon, within two Business Days of having been incurred and that the
applicable Yen Overdraft Swing Line Lender may (but shall not be required to)
automatically debit such Japanese Borrower’s Designated Account on any Business
Day to repay any outstanding Yen Overdraft Swing Line Loan, together with 


 


46

















 


any interest thereon, even
if such debit causes another Yen Overdraft Swing Line Loan to be incurred by
such Japanese Borrower.  For purposes of
calculating the outstanding amount of any Yen Overdraft Swing Line Loan(s) and/or
any accrued interest thereon, the books and records of the applicable Yen
Overdraft Swing Line Lender shall be conclusive, absent manifest error.  The “Designated Accounts” shall be as
follows:


 


	
   

  	
  Japanese
  Borrower

  	
  Designated
  Account

  
	
   

  	
   

  	
   

  
	
   

  	
  Capmark
  Funding Japan, K.K.

  	
  Principal
  Transaction Account

  
	
   

  	
  Capmark
  Japan, K.K.

  	
  Principal
  Transaction Account

  



 


each
such Designated Account being a deposit account held by the principal office of
BTMU in Tokyo, provided that any such Designated Account may be changed
or deleted or additional Designated Accounts may be added if agreed to in
writing by the applicable Yen Overdraft Swing Line Lender and the relevant
Japanese Borrower and upon receipt of written notice of such change by the
Agent and the Sub-Agent.  Only such
portion of such Yen Overdraft Swing Line Loan as does not exceed the lesser of (i) the
Yen Swing Line Commitment minus the aggregate amount of Yen Swing Line Loans
(other than such Yen Overdraft Swing Line Loan) and (ii) the aggregate
Available Revolving Credit Commitments shall be deemed to be Yen Swing Line
Loans.


 


(c)           All Yen Swing Line Loans shall be
made in Yen and shall bear interest as set forth in subsection 2.14(d) and
shall not be entitled to be converted into Eurocurrency Loans.  Other than in the case of any Yen Overdraft
Swing Line Loan, the applicable Japanese Borrower shall give each of the
applicable Sub-Agent and Yen Swing Line Lender (and, in the case where a
Japanese Borrower requests a Yen Swing Line Loan from BTMU as Yen Swing Line
Lender, the Agent) irrevocable notice (which notice must be received by such
Sub-Agent and the Yen Swing Line Lender (and Agent, if applicable) prior to
1:00 P.M., Tokyo time), on the requested borrowing date (which shall be a
Business Day) specifying the amount of each requested Yen Swing Line Loan,
which shall be in a minimum amount of ¥100,000,000 or a multiple thereof, and the amount of
the Availability Reduction Amount, if any; provided that,
where the Sub-Agent is not acting as Yen Swing Line Lender in respect of such
Yen Swing Line Loan request, the Sub-Agent shall have no liability with respect
to crediting the proceeds of any Yen Swing Line Loan to the applicable Japanese
Borrower’s account or to monitor the movement of such Yen Swing Line Loans from
the Yen Swing Line Lender; and provided  further that, where a Yen
Swing Line Loan is requested from a Yen Swing Line Lender other than BTMU, the
Sub-Agent shall promptly notify the Agent upon notice of such Yen Swing Line
Loan request.  In the case where a
Japanese Borrower requests a Yen Swing Line Loan from BTMU as Yen Swing Line
Lender, upon receipt of any such notice from such Japanese Borrower, the Agent
shall notify BTMU of its receipt of any such notice, accompanied, if
applicable, by any notice of Default or Event of Default which the Agent may
have received, by 2:00 P.M., Tokyo time, on the requested borrowing
date.  Other than in the case of any Yen
Overdraft Swing Line Loan, the Yen Swing Line Lender will make the entire
amount of each Yen Swing Line Loan requested from such Lender available directly
to the applicable Japanese Borrower prior to 3:00 P.M., Tokyo time, on the
borrowing date requested by such Japanese Borrower in funds immediately
available to such Japanese Borrower by crediting (i) in the case where a
Japanese Borrower requests a Yen Swing Line Loan from BTMU as Yen Swing Line
Lender, such Japanese Borrower’s main transaction account at the principal
office of BTMU in Tokyo or (ii) in the case where a Japanese Borrower
requests a Yen Swing Line Loan from a Yen Swing Line Lender other than BTMU, an
account in Japan designated by such Japanese Borrower in its discretion in the
notice given to the Sub-Agent and the Yen Swing Line Lender with respect to
such Yen Swing Line Loan.  In the case of
any Yen Overdraft Swing Line Loan, the Yen Overdraft Swing Line Lender shall
provide notice to the Agent of the amount 


 


47

















 


of such Yen Overdraft Swing Line
Loan by 10:00 A.M., Tokyo time on the immediately succeeding Business Day.


 


(d)           The Agent, at any time in its sole
and absolute discretion, may (or, upon the request of a Yen Swing Line Lender,
shall) on behalf of the applicable Japanese Borrower (which hereby irrevocably
directs the Agent to act on its behalf) request each Japanese Revolving Credit
Lender (including the Yen Swing Line Lenders) to make a Japanese Revolving
Credit Loan in an amount equal to such Lender’s Japanese Revolving Credit
Commitment Percentage of the principal amount of the Yen Swing Line Loans of
such Yen Swing Line Lender (the “Refunded Yen Swing Line Loans”) outstanding
on the date such notice is given; provided that (i) at any time as
there shall be a Yen Swing Line Loan outstanding for more than seven Business
Days (or two Business Days in the case of Yen Overdraft Swing Line Loans), the
Agent shall, on behalf of the applicable Japanese Borrower (which hereby
irrevocably directs the Agent to act on its behalf), promptly request each
Japanese Revolving Credit Lender (including the Yen Swing Line Lenders) to make
a Japanese Revolving Credit Loan in an amount equal to such Lender’s Japanese
Revolving Credit Commitment Percentage of the principal amount of such
outstanding Yen Swing Line Loans and (ii) the Yen Swing Line Loans shall
be prepaid by the applicable Japanese Borrower in accordance with the
provisions of subsection 2.10(c)(i). 
Unless any of the events described in paragraph (f) of Section 7
shall have occurred (in which event the procedures of paragraph (d) of
this subsection 2.7 shall apply) and regardless of whether the conditions
precedent set forth in this Agreement to the making of a Japanese Revolving
Credit Loan are then satisfied, each Japanese Revolving Credit Lender shall
make the proceeds of its Japanese Revolving Credit Loan available to the Agent
for the ratable benefit of such Yen Swing Line Lender at the office of the
Agent specified in subsection 10.2 prior to 1:00 P.M., Tokyo time, in
funds immediately available on the Business Day next succeeding the date such
notice is given.  The proceeds of such
Japanese Revolving Credit Loans shall be immediately applied to repay the
Refunded Yen Swing Line Loans.


 


(e)           If, prior to the making of a Japanese
Revolving Credit Loan pursuant to paragraph (d) of this subsection 2.7,
one of the events described in paragraph (f) of Section 7 shall have
occurred, each Japanese Revolving Credit Lender will, on the date such Japanese
Revolving Credit Loan was to have been made, purchase from the applicable Yen
Swing Line Lender an undivided participating interest in the Refunded Yen Swing
Line Loans in an amount equal to its Japanese Revolving Credit Commitment
Percentage of such Refunded Yen Swing Line Loans.  Each Japanese Revolving Credit Lender will
immediately transfer to the Agent, in immediately available funds, the amount
of its participation and upon receipt thereof the Agent will deliver to such
Japanese Revolving Credit Lender a Yen Swing Line Loan Participation
Certificate dated the date of receipt of such funds and in such amount.


 


(f)            Each Japanese Revolving Credit
Lender’s obligation to make Japanese Revolving Credit Loans and to purchase
participating interests in accordance with paragraphs (d) and (e) above
shall be absolute and unconditional and shall not be affected by any
circumstance, including, without limitation, (i) any set-off,
counterclaim, recoupment, defense or other right which such Japanese Revolving
Credit Lender may have against any Yen Swing Line Lender, any Japanese Borrower
or any other Person for any reason whatsoever; (ii) the occurrence or
continuance of any Default or Event of Default; (iii) any adverse change
in the condition (financial or otherwise) of any Japanese Borrower or any other
Person; (iv) any breach of this Agreement by a Japanese Borrower or any
other Person; (v) any inability of a Japanese Borrower to satisfy the
conditions precedent to borrowing set forth in this Agreement on the date upon
which such participating interest is to be purchased or (vi) any other
circumstance, happening or event whatsoever, whether or not similar to any of
the foregoing.  If any Japanese Revolving
Credit Lender does not make available to the Agent the amount required pursuant
to paragraph (d) or (e) above, as the case may be, the Agent shall be
entitled to recover such amount on demand from such Japanese Revolving Credit
Lender, together with interest thereon for each day from the date of
non-payment until such amount is paid in full at the “uncollateralized
overnight call rate” as  


 


48

















 


determined by The Bank of Japan
for the first two Business Days and at the Base Rate thereafter.  Notwithstanding the foregoing provisions of
this subsection 2.7(f), no Japanese Revolving Credit Lender shall be required
to make a Japanese Revolving Credit Loan to a Japanese Borrower for the purpose
of refunding Yen Swing Line Loans pursuant to paragraph (d) above or to
purchase a participating interest in Yen Swing Line Loans pursuant to paragraph
(e) above if a Default or Event of Default has occurred and is continuing
and prior to the making by the Yen Swing Line Lender of such Yen Swing Line
Loans, the Yen Swing Line Lender has received written notice from such Japanese
Revolving Credit Lender specifying that such Default or Event of Default has
occurred and is continuing, describing the nature thereof and stating that, as
a result thereof, such Japanese Revolving Credit Lender shall cease to make
such Japanese Revolving Credit Loans and purchase such participating interests,
as the case may be; provided that the obligation of such Japanese
Revolving Credit Lender to make such Japanese Revolving Credit Loans and to
purchase such participating interests shall be reinstated upon the earlier to
occur of (i) the date upon which such Japanese Revolving Credit Lender
notifies the Yen Swing Line Lender that its prior notice has been withdrawn and
(ii) the date upon which the Default or Event of Default specified in such
notice no longer is continuing.


 


(g)           With
regard to any assignment by any Yen Swing Line Lender of any portion of its
interest in Yen Swing Line Loans and/or its Commitments to make such Loans, the
assigning Yen Swing Line Lender and the relevant assignee may supplement the
provisions of any Assignment and Assumption Agreement by which such assignment
is to be made in order to clarify the post-assignment responsibilities of the
assignor and assignee and the capacities in which they may act with respect to
their Commitments to make Yen Swing Line Loans and otherwise carry out the
provisions of this Agreement relating to Yen Swing Line Loans, so long as such
supplemental provisions do not have an adverse impact on the Agent or any other
Lender (unless the Agent or such other Lender shall have consented to such
supplemental provisions in writing).


 


2.8.  Designated Borrowers. 
(e)The Subsidiaries listed on Schedule 2.8 (effective as of the date
hereof), and such other Subsidiaries as may be reasonably acceptable to the
Agent and the Lenders under the applicable Facility or Facilities (subject to
the provisions of this subsection 2.8), shall be “Designated Borrowers”
hereunder and may receive Loans for their respective accounts on the terms and
conditions set forth in this Agreement.


 


(a)  The
Company may at any time, upon not less than 15 Business Days’ notice from the
Company to the Agent (or such shorter period as may be agreed by the Agent in
its sole discretion), designate any additional Subsidiary of the Company (an “Applicant
Borrower”) to receive Loans hereunder by delivering to the Agent (which
shall promptly deliver counterparts thereof to each Lender) a duly executed
notice and agreement in substantially the form of Exhibit C (a “Designated
Borrower Request and Assumption Agreement”).  The parties hereto acknowledge and agree that
prior to any Applicant Borrower becoming entitled to utilize the credit facilities
provided for herein the Agent and the Lenders under the applicable Facility or
Facilities shall have received such supporting resolutions, incumbency
certificates, opinions of counsel and other documents or information
(including, without limitation, all such documents or information required to
comply with the Patriot Act), in each case consistent with the documents and
information required to be delivered hereunder with respect to the Company on
the Closing Date (but with such differences as may be appropriate in light of
applicable local law), and Notes signed by such new Borrowers to the extent any
Lenders under the applicable Facility or Facilities so require.  If the Agent and the Lenders under the applicable
Facility or Facilities agree that an Applicant Borrower shall be entitled to
receive Loans 


 


49

















 


hereunder,
then promptly following receipt of all such requested resolutions, incumbency
certificates, opinions of counsel and other documents or information, the Agent
shall send a notice in substantially the form of Exhibit D (a “Designated
Borrower Notice”) to the Company and the Lenders under the applicable
Facility or Facilities specifying the effective date upon which the Applicant
Borrower shall constitute a Designated Borrower for purposes hereof, whereupon
each of such Lenders agrees to permit such Designated Borrower to receive Loans
hereunder under the Applicable Facility or Facilities, on the terms and
conditions set forth herein, and each of the parties agrees that such
Designated Borrower otherwise shall be a Borrower for all purposes of this
Agreement.


 


(b)  Each
Subsidiary of the Company that is or becomes a “Designated Borrower” pursuant
to this subsection 2.8 hereby irrevocably appoints the Company as its agent for
all purposes relevant to this Agreement and each of the other Loan Documents,
including (i) the giving and receipt of notices and (ii) the
execution and delivery of all documents, instruments and certificates
contemplated herein and all modifications hereto.  Any acknowledgment, consent, direction,
certification or other action which might otherwise be valid or effective if
given or taken only by the Company on behalf of any Designated Borrower shall
also be valid and effective if given or taken by the Designated Borrower
whether or not the Company joins thereto. 
Any notice, demand, consent, acknowledgment, direction, certification or
other communication delivered to the Company in accordance with the terms of
this Agreement shall be deemed to have been delivered to each Designated
Borrower.


 


(c)  The
Company may from time to time, upon not less than 15 Business Days’ notice from
the Company to the Agent (or such shorter period as may be agreed by the Agent
in its sole discretion), terminate a Designated Borrower’s status as such,
provided that there are no outstanding Loans or Letters of Credit payable by
such Designated Borrower, or other amounts payable by such Designated Borrower
on account of any Loans made to it, in each case as of the effective date of
such termination; provided  further that, if such Designated
Borrower is also a Guarantor, such termination will not affect such Designated
Borrower’s obligations as a Guarantor under the Guaranty.  The Agent will promptly notify the Lenders of
any such termination of Designated Borrower’s status.


 


2.9.  Termination
or Reduction of Commitments.  (f)Optional.  The Company shall have the right, upon not
less than one Business Day’s notice to the Agent (or applicable Sub-Agent), to
terminate the Commitments under any Facility when no Loans or Letters of Credit
are then outstanding under such Facility (after giving effect to any repayments
made at the time such notice is given or such termination is to take effect)
or, from time to time, to reduce the unutilized portion of the Commitments
under any Facility.  Any such reduction
shall be in an amount equal to $5,000,000 or a multiple of $1,000,000 in excess
thereof and shall reduce permanently the Commitments then in effect.  On the date on which any such reduction or
termination takes place with respect to the Japanese Revolving Credit Facility
or the Yen Swing Line Facility, the Agent shall notify the Yen Swing Line
Lenders in writing on such date; provided that the Agent shall have no
liability for any failure to provide such notice.  On the date on which any such reduction or
termination takes place with respect to the Irish Revolving Credit Facility or
the Irish Swing Line Facility, the Agent shall notify the Irish Swing Line Lenders
in writing on such date; provided that the Agent shall have no liability
for any failure to provide such notice.


 


50
















 


(a)  Mandatory.  The aggregate Term Commitments under each
Term Facility shall be automatically and permanently reduced to zero on the
date of the Borrowings in respect of such Term Facility.


 


2.10.  Prepayments. 
(g)Each Borrower may, at any time and from time to time, prepay the
Revolving Credit Loans and the Term Loans, in whole or in part, without premium
or penalty (but subject to the provisions of subsection 2.22), (i) in the
case of Base Rate Loans or Canadian Prime Rate Loans, upon irrevocable notice
to the Agent not later than 11:00 A.M. on the date of such prepayment and (ii) in
the case of Eurocurrency Loans, upon at least two Business Days’ irrevocable
notice to the Agent, in each case specifying the date and amount of prepayment,
the Currency of the Loans to be prepaid, the Facility under which such Loans
are outstanding and the Type or Types of the Loans being prepaid, and, if of a
combination of Types, the amount allocable to each.  Upon receipt of any such notice the Agent
shall promptly notify each relevant Lender thereof.  If any such notice is given, the amount
specified in such notice shall be due and payable on the date specified
therein, together with any amounts payable pursuant to subsection 2.22 and, in
the case of prepayments of the Term Loans only, accrued interest to such date
on the amount prepaid.  Term Loans shall
be prepaid in the currency in which such Loans were borrowed.  Amounts prepaid on account of the Term Loans
may not be reborrowed.  Partial
prepayments shall be in an aggregate principal amount equal to the Applicable
Borrowing Minimum or an Applicable Borrowing Multiple in excess thereof.


 


(a)  The
Company (i) shall prepay all Swing Line Loans then outstanding
simultaneously with any US Revolving Credit Borrowing and (ii) may prepay
(without premium or penalty) any Swing Line Loans then outstanding upon notice
prior to 1:00 P.M. (New York City time) on the date of such payment.


 


(b)  Each
Japanese Revolving Credit Borrower (i) shall prepay all Yen Swing Line
Loans made to it that are then outstanding simultaneously with any Japanese
Revolving Credit Borrowing by it and (ii) may prepay (without premium or
penalty) any Yen Swing Line Loans then outstanding upon notice (if required by
the applicable Yen Swing Line Lender) prior to 10:00 A.M. (Tokyo time) on
the date of such payment.


 


(c)  If,
as a result of any negative fluctuations in the Equivalent in Dollars of
Available Foreign Currencies (or other foreign currencies in which outstanding
Letters of Credit may be denominated), including, without limitation, with
respect to Letters of Credit, from the date of any Borrowing (as determined on
the last day of each fiscal quarter of the Company), the aggregate amount of
outstanding Loans (plus, in the case of the Irish Revolving Credit Facility,
the aggregate Available Letter of Credit Amount of all Letters of Credit then
outstanding) under any Facility exceeds 105% of the aggregate amount of the
Commitments under such Facility as then in effect, the relevant Borrowers
shall, if requested (through the Agent) by the Lenders holding a majority in
interest of the outstanding Loans (plus, in the case of the Irish Revolving
Credit Facility, the aggregate Available Letter of Credit Amount of all Letters
of Credit then outstanding) and Commitments under such Facility prepay the
Loans within five Business Days following such Borrowers’ receipt of such
request in such amounts as shall be necessary so that after giving effect
thereto the aggregate outstanding amount of the Loans does not exceed the
Commitments, in each case under such Facility.


 


(d)  Each
Irish Revolving Credit Borrower (i) shall prepay all Irish Swing Line
Loans made to it that are then outstanding simultaneously with any Irish 


 


51

















 


Revolving
Credit Borrowing by it and (ii) may prepay (without premium or penalty)
any Irish Swing Line Loans then outstanding upon notice prior to the Irish
Swing Line Applicable Time on the date of such payment.


 


(e)  The Borrowers shall, on each Business Day, if applicable,
prepay (with no corresponding commitment reduction) an aggregate principal
amount of the Revolving Credit Loans or cash collateralize Letters of Credit in
an amount equal to the amount by which the aggregate amount of Revolving Credit
Usage in respect of a Revolving Credit Facility (excluding any Revolving Credit
Usage pursuant to an Incremental Commitment) exceeds (x) the Revolving
Credit Commitments then in effect of all Revolving Credit Lenders in respect of
such Facility (other than any Incremental Commitments of Increasing Lenders)
minus (y) the Availability Reduction Amount attributable to such Facility.


 


2.11.  Conversion
and Continuation Options.  (h)Each Borrower may elect from time to time
to convert Eurocurrency Loans denominated in Dollars to Base Rate Loans by
giving the Agent at least one Business Day’s prior irrevocable notice of such
election; provided that any such conversion of Eurocurrency Loans may
only be made on the last day of an Interest Period with respect thereto.  Each Borrower may elect from time to time to
convert Base Rate Loans to Eurocurrency Loans denominated in Dollars by giving
the Agent at least three Business Days’ prior irrevocable notice of such
election.  Any such notice of conversion
to Eurocurrency Loans shall specify the length of the initial Interest Period
or Interest Periods therefor.  Upon
receipt of any such notice the Agent shall promptly notify each relevant Lender
thereof.  All or any part of outstanding
Eurocurrency Loans denominated in Dollars and Base Rate Loans may be converted
as provided herein; provided that (i) no Loan may be converted into
a Eurocurrency Loan when any Event of Default has occurred and is continuing
and the Agent has or the Majority Lenders have determined that such conversion
is not appropriate and (ii) no Loan may be converted into a Eurocurrency
Loan after the date that is one month prior to the Termination Date.


 


(a)  Any
Eurocurrency Loans may be continued as Eurocurrency Loans in the same Currency
upon the expiration of the then current Interest Period with respect thereto by
the applicable Borrower giving notice to the Agent, in accordance with the
applicable provisions of the term “Interest Period” set forth in subsection
1.1, of the length of the next Interest Period to be applicable to such Loans; provided
that (i) no Eurocurrency Loan may be continued as such when any Event of
Default has occurred and is continuing and the Agent has or the Majority
Lenders have determined that such continuation is not appropriate and (ii) no
Eurocurrency Loan may be continued as such after the date that is one month
prior to the Termination Date and provided, further, that if (A) the
applicable Borrower shall fail to give any required notice as described above
in this paragraph, such Eurocurrency Loans shall be continued on the last day
of the then current Interest Period as Eurocurrency Loans with an Interest
Period of one month and (B) if such continuation is not permitted pursuant
to the preceding proviso (I) any such Eurocurrency Loans denominated in
Dollars shall be automatically converted to Base Rate Loans and (II) any
such Eurocurrency Loans denominated in an Available Foreign Currency shall be
deemed to be exchanged for the Equivalent amount thereof in Dollars and
automatically converted to Base Rate Loans, in each case on the last day of
such then expiring Interest Period.


 


2.12.  Minimum
Amounts of Eurocurrency Borrowings; Interest Periods.  All
Revolving Credit Borrowings and conversions and continuations of Revolving
Credit Loans hereunder and all selections of Interest Periods for Revolving
Credit Loans hereunder shall be in such amounts and be made pursuant to such
elections so that, after giving effect thereto, the aggregate principal amount
of 


 


52

















 


the Revolving Credit Loans
comprising each Eurocurrency Borrowing of Revolving Credit Loans shall be equal
to the Applicable Borrowing Minimum or an Applicable Borrowing Multiple in
excess thereof and so that there shall not be more than an aggregate of 35
Eurocurrency Borrowings outstanding at any one time in respect of the Revolving
Credit Facilities.  All Term Borrowings
and conversions and continuations of Term Loans hereunder and all selections of
Interest Periods for Term Loans hereunder shall be in such amounts and be made
pursuant to such elections so that, after giving effect thereto, there shall
not be more than an aggregate of 35  Eurocurrency
Borrowings outstanding at any one time in respect of the Term Facilities.


 


2.13.  Repayment of Loans and Letter of
Credit Drawings; Evidence of Debt.  (i)Each Borrower shall repay
the aggregate outstanding principal amount of the Term Loans made to such
Borrower to the Agent (or applicable Sub-Agent) for the ratable account of the
Term Loan Lenders on the Termination Date (or such earlier date as the Term
Loans become due and payable pursuant to Section 7) in the currency in
which such Loans were borrowed.


 


(a)  Each
Borrower hereby unconditionally promises to pay to the applicable Agent (or
applicable Sub-Agent) for the ratable account of the Revolving Credit Lenders
under each Facility on the Termination Date (or such earlier date as the
Revolving Credit Loans under such Facility become due and payable pursuant to Section 7),
the unpaid principal amount of each Revolving Credit Loan (including, without
limitation, each Swing Line Loan, Irish Swing Line Loan and Yen Swing Line
Loan, if any) made to such Borrower under such Facility; provided that
Yen Swing Line Loans (including Yen Overdraft Swing Line Loans) and any
interest thereon may be repaid directly to the Yen Swing Line Lender and Irish
Swing Line Loans and any interest thereon may be repaid directly to the Irish
Swing Line Lender.


 


(b)  Each Canadian Revolving
Credit Borrower agrees to repay to the Canadian Sub-Agent for the ratable
account of each Canadian Revolving Credit Lender on the Termination Date (or
such earlier date as the Canadian Revolving Credit Loans become due and payable
pursuant to Section 7), the unpaid principal amount of the Canadian
Revolving Credit Loans made to it and then outstanding.  If, notwithstanding subsection 2.5, a Bankers’
Acceptance remains outstanding on the Termination Date (or such earlier date as
the Canadian Revolving Credit Loans become due and payable pursuant to Section 7),
the applicable Canadian Revolving Credit Borrower shall, on the Termination
Date or such earlier date, post cash collateral with the Sub-Agent in an amount
sufficient to enable such Bankers’ Acceptance to be paid at maturity thereof.


 


(c)  Each
Borrower hereby further agrees to pay interest in immediately available funds
at the office of the Agent on the unpaid principal amount of each Loan made to
such Borrower from time to time from the date hereof until payment in full
thereof at the rates per annum, and on the dates, set forth in subsection 2.14.


 


(d)  Each
Lender shall maintain in accordance with its usual practice an account or
accounts evidencing the indebtedness of the applicable Borrower to the appropriate
Funding Office of such Lender resulting from each Loan made by such Funding
Office of such Lender from time to time, including the amounts of principal and
interest payable and paid to such Funding Office of such Lender from time to
time under this Agreement.


 


53

















 


(e)  The
Agent shall maintain the Register pursuant to subsection 10.7(b), and a
subaccount for each Lender, in which Register and subaccounts (taken together)
shall be recorded (i) the amount of each Revolving Credit Loan and Term
Loan made hereunder, the Type of each Loan made and the Interest Period
applicable thereto, (ii) the amount of any principal or interest due and
payable or to become due and payable from the applicable Borrower to each
Lender hereunder and (iii) the amount of any sum received by the Agent
hereunder from the Borrowers and each Lender’s share thereof.


 


(f)  The
entries made in the Register and accounts maintained pursuant to paragraphs (e) and
(f) of this subsection 2.13 shall, to the extent permitted by applicable
law, be prima facie evidence of the existence and amounts of the obligations of
the Borrowers therein recorded; provided, however, that the
failure of any Lender or the Agent to maintain such account, such Register or
such subaccount, as applicable, or any error therein, shall not in any manner
affect the obligation of the Borrowers to repay (with applicable interest) the
Loans made to the Borrowers in accordance with the terms of this Agreement.


 


(g)  Each
Revolving Loan and Term Loan of a Lender (other than Banker’s Acceptances) may
be evidenced (if requested by such Lender) by a Note issued by the applicable
Borrower in accordance with subsection 10.7(d).


 


(h)  The payment obligations
of each Borrower under any Letter of Credit Agreement relating to any Letter of
Credit issued for the account of such Borrower shall be absolute and
unconditional and irrevocable and shall be paid strictly in accordance with the
terms of this Agreement and such Letter of Credit Agreement (it being
understood that in the event of any conflict between this Agreement and any
Letter of Credit Agreement, the provisions of this Agreement shall govern)
under all circumstances, including, without limitation, the following circumstances
(it being understood that any such payment by such Borrower is without
prejudice to, and does not constitute a waiver of, any rights (including,
without limitation, the right to assert any claim by separate suit or
compulsory counterclaim) such Borrower might have or might acquire as a result
of the payment by any Issuing Bank of any draft or the reimbursement by such
Borrower thereof), provided that notwithstanding the following, no
Borrower shall in any event be obligated to reimburse such Issuing Bank for any
wrongful payment made by such Issuing Bank under any Letter of Credit as a
result of acts or omission constituting willful misconduct or gross negligence:


 


(i)  any
lack of validity or enforceability of this Agreement, any Note, any Letter of
Credit Agreement, any Letter of Credit or any other agreement or instrument
relating thereto (all of the foregoing being, collectively, the “L/C Related
Documents”);


 


(ii)  any
change in the time, manner or place of payment of, or in any other term of, all
or any of the obligations of such Borrower in respect of any L/C Related
Document or any other amendment or waiver of or any consent to departure from
all or any of the L/C Related Documents;


 


(iii)  the
existence of any claim, set-off, defense or other right that such Borrower may
have at any time against any beneficiary or any transferee of a Letter 


 


54

















 


of Credit (or any Persons
for which any such beneficiary or any such transferee may be acting), any
Issuing Bank, the Agent, any Lender or any other Person, whether in connection
with the transactions contemplated by the L/C Related Documents or any
unrelated transaction;


 


(iv)  any
statement or any other document presented under a Letter of Credit proving to be
forged, fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect;


 


(v)  payment
by any Issuing Bank under a Letter of Credit against presentation of a draft or
certificate that does not strictly comply with the terms of such Letter of
Credit;


 


(vi)  any
release or amendment or waiver of or consent to departure from any guarantee
for all or any of the obligations of such Borrower in respect of the L/C
Related Documents; or


 


(vii)  any
other circumstance or happening whatsoever, whether or not similar to any of
the foregoing, including, without limitation, any other circumstance that might
otherwise constitute a defense available to, or a discharge of, such Borrower
or a guarantor.


 


Notwithstanding anything to the contrary in this
Agreement or any other Loan Document, it is understood and agreed that the
obligations of the Borrowers in their respective capacities as such under this
Agreement or any other Loan Document are several and not joint (it being
understood that this subsection 2.13(i) shall in no way limit the
obligations of the Company under Section 8 of this Agreement or the
obligations of any Guarantor in its capacity as such under the Guaranty).


 


2.14.  Interest
Rates and Payment Dates.  (j)Each Base Rate Loan shall bear interest at
a rate per annum equal at all times to the Base Rate.


 


(a)  Each
Canadian Prime Rate Loan shall bear interest at a rate per annum equal at all
times to the Canadian Prime Rate.


 


(b)  Each
Swing Line Loan shall bear interest at a rate equal to the Federal Funds Rate
(as determined by the Agent from time to time) plus the Applicable
Margin then in effect for Eurocurrency Loans.


 


(c)  Each
Yen Swing Line Loan (other than Yen Overdraft Swing Line Loans) shall bear interest
at a rate equal to (i) in the case of Yen Swing Line Loans made by BTMU as
Yen Swing Line Lender, the Short Term Prime Rate minus 0.60% per annum or (ii) in
the case of Yen Swing Line Loans made by Yen Swing Line Lenders other than
BTMU, the Yen Swing Line Rate.  In the
case of Yen Swing Line Loans made available by BTMU, in the event (an “Adjustment
Event”) that, on the first day of any calendar month, the Short Term Prime
Rate (as of such date) minus 0.60% per annum either (i) exceeds the rate
(the “Formula Rate”) equal to the sum of (A) the average one-month
Eurocurrency Rate for yen-denominated borrowings (the “Average Eurocurrency
Rate”) for the immediately preceding full calendar month, (B) the
Applicable Margin (as of such date) and (C) 0.10% per 


 


55

















 


annum or (ii) is
less than such Formula Rate minus 0.20% per annum, then, in either such case,
BTMU may, and upon receipt of written request from any of the Japanese
Borrowers shall (in each case without the consent of any other party to this
Agreement), change the rate per annum applicable to Yen Swing Line Loans
pursuant to this Section 2.14(d) (with such change taking effect on
the tenth Business Day following the receipt of such request or the decision by
BTMU to make such change) to a rate per annum equal to such Formula Rate minus
0.10% per annum; provided that, if no Adjustment Event exists on the
first day of any calendar month, the rate per annum applicable to Yen Swing
Line Loans made by BTMU pursuant to this Section 2.14(d) shall remain
equal to (or shall revert to, as applicable) the Formula Rate minus 0.10% per
annum.  At the end of each calendar
month, any one of the Japanese Borrowers shall calculate the Average
Eurocurrency Rate for the immediately preceding full calendar month for the
purpose of computing the interest rate for the immediately following month and
shall provide such calculations to the Agent and BTMU for use in setting the
interest rate for Yen Swing Line Loans made available by BTMU for the following
calendar month (subject to the approval of such calculation by BTMU).


 


(d)  Each
Yen Overdraft Swing Line Loan shall bear interest at a rate equal to (i) in
the case of Yen Overdraft Swing Line Loans made by BTMU as Yen Overdraft Swing
Line Lender, the Short Term Prime Rate plus 0.00% per annum or (ii) in
the case of Yen Overdraft Swing Line Loans made by Yen Overdraft Swing Line
Lenders other than BTMU, the Yen Swing Line Rate.


 


(e)  Subject
to subsection 2.20(c), the Loans comprising each Eurocurrency Borrowing shall
bear interest at a rate per annum equal to, in the case of each Eurocurrency
Revolving Credit Loan and each Eurocurrency Term Loan, the Eurocurrency Rate
for the Interest Period in effect for such Eurocurrency Borrowing plus
the Applicable Margin plus (in the case of a Eurocurrency Rate Loan of
any Lender which is made from a Funding Office in the United Kingdom or a
participating member of the European Union) the Mandatory Cost, if any.


 


(f)  Interest
shall be payable (other than in respect of Borrowings by way of Bankers’
Acceptances) in arrears on each Interest Payment Date; provided that
interest accruing pursuant to paragraph (i) of this subsection 2.14 shall
be payable from time to time on demand and accrued interest on any Irish Swing
Line Loan [or] Yen Swing Line Loan shall be payable at the time
such Loan is repaid.


 


(g)  The
“Applicable Margin” with respect to each Eurocurrency Revolving Credit
Loan, each Eurocurrency Term Loan, each Irish Swing Line Loan, each Yen Swing
Line Loan and each Swing Line Loan, at any date shall be the applicable
percentage amount set forth in the table below based upon the applicable rating
of the Index Debt on such date:


 


56

















 


	
   

  	
   

  	
  Level 1

  Index Debt

  rated:

  	
   

  	
  Level 2

  Index Debt

  rated:

  	
   

  	
  Level 3

  Index Debt

  rated:

  	
   

  	
  Level 4

  Index Debt

  rated:

  
	
  S&P

  	
   

  	
  BBB+ or better

  	
   

  	
  BBB

  	
   

  	
  BBB-

  	
   

  	
  Lower than Level 3

  
	
  Fitch

  	
   

  	
  BBB+ or better

  	
   

  	
  BBB

  	
   

  	
  BBB-

  	
   

  	
  Lower than Level 3

  
	
  Moody’s

  	
   

  	
  Baa1 or better

  	
   

  	
  Baa2

  	
   

  	
  Baa3

  	
   

  	
  Lower than Level 3

  
	
  Applicable Margin

  	
   

  	
  0.600%

  	
   

  	
  0.675%

  	
   

  	
  0.750%

  	
   

  	
  0.925%

  



 


In the event that, and from and after the time and
for so long as (but only for so long as), the ratings established by S&P,
Fitch and Moody’s are split, the applicable Level shall be determined
exclusively by reference to the highest of the available ratings except that,
in the event that the lowest of such ratings is more than one level below the
highest of such ratings, then pricing will be determined based on the lower of
the two highest ratings.  If S& P,
Fitch or Moody’s shall cease to issue ratings of debt securities generally,
then the Agent and the Company shall negotiate in good faith to agree upon a
substitute rating agency (and to correlate the system of ratings of such
substitute rating agency with that of the rating agency for which it is
substituting) and (i) until such substitute rating agency is agreed upon,
the foregoing test may be satisfied on the basis of the rating assigned by the
other such rating agencies and (ii) after such substitute rating agency is
agreed upon, the foregoing test may be satisfied on the basis of the rating
assigned by the other rating agencies and such substitute rating agency.


 


(h)  If
all or a portion of (i) the principal amount of any Loan, (ii) any
interest payable thereon or (iii) any facility fee or other amount payable
hereunder shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise), such overdue amount shall bear interest at a rate
per annum which is the rate that would otherwise be applicable thereto
(including any Mandatory Cost) pursuant to the foregoing provisions of this
subsection 2.14 plus 2.00% from the date of such non-payment until such amount
is paid in full (as well after as before judgment).  For purposes of this Agreement, principal
shall be “overdue” only if not paid in accordance with the provisions of
subsection 2.13.


 


(i)  Each
Irish Swing Line Loan shall bear interest at a rate per annum equal at all
times to the Applicable Irish Swing Line Rate.


 


2.15.  Facility
Fee.  (a) The Company shall pay to the Agent,
for the account of each Lender, a facility fee at the rate per annum equal to (a) for
each day that the applicable level of the Company is Level 1, 0.100%, (b) for
each day that the applicable Level of the Company is Level 2, 0.125%, (c) for
each day that the applicable Level of the Company is Level 3, 0.150% and (d) for
each day that the applicable Level of the Company is Level 4, 0.175%, in each
case of the sum of (x) the aggregate Revolving Credit Commitments of (or
if the Revolving Credit Commitments have been terminated, the aggregate
principal amount of the Revolving Credit Loans made by) such Lender, plus
(y) the aggregate Term Commitments of (or if the Term Commitments have
been terminated, the aggregate outstanding principal of the Term Loans made by)
such Lender, in each case in effect or outstanding, as applicable, on such
day.  On the first Business Day following
the last day of each fiscal quarter of the Company and on the Termination Date
(or, if earlier, on the date upon which both the Commitments are terminated and
the Loans are paid in full), the Company shall pay to the Agent, for the
ratable benefit of each Lender, the portion of such facility fee which accrued
during the fiscal quarter most recently ended (or, in the case of the payment
due on the Termination Date, the portion thereof ending on such date).


 


(b)           Each
Borrower shall pay to the Agent for the account of each Irish Revolving Credit
Lender a commission on such Lender’s Irish Revolving Credit Commitment
Percentage of the 


 


57

















 


average daily aggregate
Available Letter of Credit Amount of all Letters of Credit issued for the
account of such Borrower and outstanding from time to time at a rate per annum
equal to the Eurocurrency Margin in effect from time to time during such
calendar quarter, payable quarterly in arrears on each March 31, June 30,
September 30 and December 31 and on the Termination Date.


 


(c)           Each
Borrower shall pay to each Issuing Bank, for its own account, a fronting fee
and such other commissions, issuance fees, transfer fees and other fees and
charges as such Borrower and such Issuing Bank shall agree in connection with
the Issuance or administration of each Letter of Credit issued by such Issuing
Bank for the account of such Borrower.


 


2.16.  Computation
of Interest and Fees.  (k)Interest on all Loans shall be computed on
the basis of the actual number of days elapsed over a year of 360 days or, in
the case of Base Rate Loans and Canadian Prime Rate Loans, a year of 365 or 366
days as appropriate (in each case including the first day but excluding the
last day).  Each determination of an
interest rate by the Agent pursuant to any provision of this Agreement shall be
conclusive and binding on each Borrower and the Lenders in the absence of
manifest error.  All fees shall be
computed on the basis of a year composed of twelve 30-day months.  The Agent shall, at any time and from time to
time upon request of the Company, deliver to the Company a statement showing
the quotations used by the Agent in determining any interest rate applicable to
Revolving Credit Loans or Term Loans pursuant to this Agreement.


 


(a)  If
any Reference Lender shall for any reason no longer have a Commitment, such
Reference Lender shall thereupon cease to be a Reference Lender, and if, as a
result thereof, there shall only be one Reference Lender remaining, the Company
and the Agent (after consultation with the Lenders) shall, by notice to the
Lenders, designate another Lender as a Reference Lender so that there shall at
all times be at least two Reference Lenders.


 


(b)  Each
Reference Lender shall use its best efforts to furnish quotations of rates to
the Agent as contemplated hereby.  If any
of the Reference Lenders shall be unable or shall otherwise fail to supply such
rates to the Agent upon its request, the rate of interest shall, subject to the
provisions of subsection 2.17, be determined on the basis of the quotations of
the remaining Reference Lenders.


 


(c)  With respect to Loans
made to a Canadian Revolving Credit Borrower, whenever a rate of interest
hereunder is calculated on the basis of a year (the “deemed year”) which
contains fewer days than the actual number of days in the calendar year of
calculation, such rate of interest shall be expressed as a yearly rate for
purposes of the Interest Act (Canada) by multiplying such rate of interest by
the actual number of days in the calendar year of calculation and dividing it
by the number of days in the deemed year.


 


(d)  With respect to Loans
made to a Canadian Revolving Credit Borrower, the principle of deemed
reinvestment of interest shall not apply to any interest calculation under this
Agreement; all interest payments to be made hereunder shall be paid without
allowance or deduction for reinvestment or otherwise, before and after
maturity, default and judgment.  The
rates of interest specified in this Agreement are intended to be nominal rates
and not effective rates.  Interest calculated
hereunder shall be calculated using the nominal rate method and not the
effective rate method of calculation.


 


58

















 


(e)  Notwithstanding any
provision of this Agreement, in no event shall the aggregate “interest” (as
defined in Section 347 of the Criminal Code (Canada)) payable by a
Canadian Revolving Credit Borrower under this Agreement exceed the effective
annual rate of interest on the “credit advanced” (as defined in the Section)
under this Agreement lawfully permitted by that Section and, if any
payment, collection or demand pursuant to this Agreement in respect of “interest”
(as defined in that Section) is determined to be contrary to the provisions of
that Section, such payment, collection or demand shall be deemed to have been
made by mutual mistake of such Canadian Revolving Credit Borrower, the Canadian
Sub-Agent and the Canadian Revolving Credit Lenders and the amount of such
payment or collection shall be refunded to such Canadian Revolving Credit
Borrower.  For the purposes of this
Agreement, the effective annual rate of interest shall be determined in
accordance with generally accepted actuarial practices and principles over the
relevant term and, in the event of a dispute, a certificate of a Fellow of the
Canadian Institute of Actuaries appointed by the Canadian Sub-Agent will be
prima facie evidence of such rate.


 


2.17.  Inability
to Determine Interest Rate.  If the Eurocurrency Rate cannot be determined
by the Agent in the manner specified in the definition of the term “Eurocurrency
Rate” contained in subsection 1.1 of this Agreement, the Agent shall give
telecopy or telephonic notice thereof to the Borrowers and the Lenders as soon
as practicable thereafter.  Until such
time as the Eurocurrency Rate can be determined by the Agent in the manner
specified in the definition of such term contained in said subsection 1.1, no
further Eurocurrency Loans shall be continued as such at the end of the then
current Interest Period or (other than any Eurocurrency Loans previously
requested and with respect to which the Eurocurrency Rate previously was
determined) shall be made, nor shall the Borrowers have the right to convert
Base Rate Loans to Eurocurrency Loans.


 


2.18.  Pro
Rata Treatment and Payments.  (l)Each Revolving Credit Borrowing from the
Lenders hereunder, each payment by the Company on account of any facility fee
hereunder and (except as provided in subsection 2.23(c)) any reduction of the
Revolving Credit Commitments of the Revolving Credit Lenders shall be made pro
rata according to the relevant respective Revolving Credit Commitment
Percentages of the Revolving Credit Lenders under the relevant Revolving Credit
Facility.  Each Term Borrowing from the Term
Loan Lenders hereunder and (except as provided in subsection 2.23(c)) any
reduction of the Term Commitments of the Term Loan Lenders shall be made pro
rata according to the respective Term Commitments of the Term Loan Lenders
under the relevant Term Loan Facility. 
Each payment (including each prepayment) by any Borrower on account of
principal of and interest on the Revolving Credit Loans or Term Loans under any
Facility shall be made pro rata according to the respective outstanding
principal amounts of the Revolving Credit Loans or Term Loans made to such
Borrower then held by the Lenders under such Facility.  Each payment by the Company on account of
principal of or interest on the Swing Line Loans shall be made pro rata
according to the respective outstanding principal amounts of the Swing Line
Loans then held by the Swing Line Lenders. 
Each payment by a Japanese Borrower on account of principal of or
interest on the Yen Swing Line Loans shall be made pro rata according to the
respective outstanding principal amounts of the Yen Swing Line Loans then held
by the Yen Swing Line Lenders.  Each
payment by the Company on account of principal of or interest on the Irish
Swing Line Loans shall be made pro rata according to the respective outstanding
principal amounts of the Irish Swing Line Loans then held by the Irish Swing
Line Lenders.


 


(a)  All
payments (including prepayments) to be made by the Borrowers hereunder, whether
on account of principal, interest, fees or otherwise, shall be made without
set-off or counterclaim.  All payments
(including prepayments) in respect of Loans in any Currency shall be made in
such Currency 


 


59

















 


and in
immediately available funds at the Payment Office, and at or prior to 12:00
Noon (local time at the applicable Payment Office), on the due date
thereof.  The Agent shall distribute such
payments to the relevant Lenders promptly upon receipt in like funds as
received.  If any payment hereunder
(other than payments on the Eurocurrency Loans) becomes due and payable on a
day other than a Business Day, such payment shall be extended to the next
succeeding Business Day, and, with respect to payments of principal, interest
thereon shall be payable at the then applicable rate during such extension.  If any payment on a Eurocurrency Loan becomes
due and payable on a day other than a Business Day, the maturity thereof shall
be extended to the next succeeding Business Day unless the result of such
extension would be to extend such payment into another calendar month, in which
event such payment shall be made on the immediately preceding Business Day.


 


(b)  Unless
the Agent (or applicable Sub-Agent) shall have been notified in writing by any
Lender prior to the deadline for funding a Borrowing that such Lender will not
make the amount that would constitute its pro rata share of such Borrowing
available to the Agent (or applicable Sub-Agent), the Agent (or applicable
Sub-Agent) may assume that such Lender is making such amount available to the
Agent (or applicable Sub-Agent), and the Agent (or applicable Sub-Agent) may,
in reliance upon such assumption, make available to the applicable Borrower a
corresponding amount.  If such amount is
not made available to the Agent (or applicable Sub-Agent) by the required time
on the borrowing date therefor, such Lender shall pay to the Agent (or
applicable Sub-Agent), on demand, such amount with interest thereon at a rate
equal to the daily average Federal Funds Rate for the period until such Lender
makes such amount immediately available to the Agent (or applicable
Sub-Agent).  A certificate of the Agent
(or applicable Sub-Agent) submitted to any Lender with respect to any amounts
owing under this subsection 2.18 shall be conclusive in the absence of manifest
error.  If such Lender’s pro rata share
of such Borrowing is not made available to the Agent (or applicable Sub-Agent)
by such Lender within three Business Days of such borrowing date, the Agent (or
applicable Sub-Agent) shall be entitled to recover such amount with interest
thereon (such interest being in lieu of and not in addition to any interest
otherwise payable pursuant to subsection 2.13) at the Federal Funds Rate, on
demand, from the applicable Borrower.


 


2.19.  Illegality.  Notwithstanding any other
provision herein, if the adoption of or any change in any Requirement of Law or
in the interpretation or application thereof shall make it unlawful for any
Lender to make or maintain Eurocurrency Loans as contemplated by this
Agreement, such Lender shall give notice thereof to the Agent and the Company
describing the relevant provisions of such Requirement of Law (and, if the
Company shall so request, provide the Company with a memorandum or opinion of
counsel of recognized standing (as selected by such Lender) as to such
illegality), following which (a) the commitment of such Lender hereunder
to make Eurocurrency Loans, continue Eurocurrency Loans as such and convert
Base Rate Loans to Eurocurrency Loans shall forthwith be canceled and (b) such
Lender’s Loans then outstanding as Eurocurrency Loans, if any, shall (i) if
such Eurocurrency Loans are denominated in Dollars, be converted automatically
to Base Rate Loans and (ii) if such Eurocurrency Loans are denominated in
an Available Foreign Currency, be deemed to be exchanged for the Equivalent
amount in Dollars of such Loans and converted automatically to Base Rate Loans,
in each case, (A) on the respective last days of the then current Interest
Periods with respect to such 


 


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Loans or (B) within
such earlier period as required by law. 
If any such conversion of a Eurocurrency Loan occurs on a day which is
not the last day of the then current Interest Period with respect thereto, the
applicable Borrower shall pay to such Lender such amounts, if any, as may be
required pursuant to subsection 2.22.


 


2.20.  Increased
Costs.  Except with respect to Taxes, which are
governed exclusively by subsection 2.21 of this Agreement, (m)if there shall be
(i) any increase in the cost to any Lender of agreeing to make or making,
funding or maintaining any Loans, (ii) any reduction in any amount
receivable in respect thereof or (iii) in the case of any Eurocurrency
Borrowing, without duplication, any failure of the Mandatory Cost (as
calculated hereunder) to cover the cost to any Lender of complying with the
requirements of the Bank of England and/or the Financial Services Authority or
the European Central Bank in relation to its making, funding or maintaining
Eurocurrency Rate Loans, and, in each case, such increased cost or reduced
amount receivable is due to either:


 


(x)  the introduction of or any change
in or in the interpretation of any law or regulation after the date hereof; or


 


(y)  the compliance with any guideline
or request made after the date hereof from any central bank or other
Governmental Authority (whether or not having the force of law),


 


then (subject to the provisions of subsection
2.23) the applicable Borrower shall from time to time, upon written demand by
such Lender pay such Lender additional amounts sufficient to compensate such
Lender for such increased cost or reduced amount receivable.  The foregoing provisions of this clause (a) shall
not apply to the extent that any increase in cost or reduction in amount
receivable is compensated for by the payment of the Mandatory Cost.


 


(a)  If
any Lender shall have reasonably determined that (i) the applicability of
any law, rule, regulation or guideline adopted after the date hereof pursuant
to or arising out of the July 1988 paper of the Basle Committee on Banking
Regulations and Supervisory Practices entitled “International Convergence of
Capital Measurement and Capital Standards,” or (ii) the adoption after the
date hereof of any other law, rule, regulation or guideline regarding capital
adequacy affecting such Lender, or (iii) any change arising after the date
hereof in the foregoing or in the interpretation or administration of any of
the foregoing by any Governmental Authority, central bank or comparable agency
charged with the interpretation or administration thereof, or (iv) compliance
by such Lender (or any Funding Office of such Lender), or any holding company
for such Lender which is subject to any of the capital requirements described
above, with any request or directive of general application issued after the
date hereof regarding capital adequacy (whether or not having the force of law)
of any such authority, central bank or comparable agency, has or would have the
effect of reducing the rate of return on such Lender’s capital or on the capital
of any such holding company as a direct consequence of such Lender’s
obligations hereunder to a level below that which such Lender or any such
holding company could have achieved but for such adoption, change or compliance
(taking into consideration such Lender’s policies and the policies of such
holding company with respect to capital adequacy) by an amount deemed by such
Lender to be material, then (subject to the provisions of subsection 2.23) from
time to time such Lender may request the applicable Borrower to pay to such
Lender such additional amounts as will compensate such Lender or any such
holding company for any such reduction suffered, net of the savings (if any)
which may be reasonably projected to be associated with such increased capital requirement.  Any certificate as to such 


 


61

















 


amounts which
is delivered pursuant to subsection 2.23(a) shall, in addition to any
items required by subsection 2.23(a), include the calculation of the savings (if
any) which may be reasonably projected to be associated with such increased
capital requirement; provided that in no event shall any Lender be
obligated to pay or refund any amounts to the Borrowers on account of such
savings.


 


(b)  In
the event that any Governmental Authority shall impose any Eurocurrency Reserve
Requirements which increase the cost to any Lender of making or maintaining
Eurocurrency Loans, then (subject to the provisions of subsection 2.23) the
applicable Borrower shall thereafter pay in respect of the Eurocurrency Loans
of such Lender a rate of interest based upon the Eurocurrency Reserve Rate
(rather than upon the Eurocurrency Rate). 
From and after the delivery to the applicable Borrower of the
certificate required by subsection 2.23(a), all references contained in this
Agreement to the Eurocurrency Rate shall be deemed to be references to the
Eurocurrency Reserve Rate with respect to each such affected Lender.


 


2.21.  Taxes. 
(n)All payments made by each Borrower under this Agreement and any other
Loan Document shall be made free and clear of, and without deduction or
withholding for or on account of, any present or future income, stamp or other
taxes, levies, imposts, duties, charges, fees, deductions or withholdings
(collectively, “Taxes”), now or hereafter imposed, levied, collected,
withheld or assessed by any Governmental Authority, excluding net income taxes
and franchise taxes or any other tax based upon net income imposed on the Agent
or any Lender as a result of a present or former connection between the Agent
or such Lender and the jurisdiction of the Governmental Authority imposing such
tax or any political subdivision or taxing authority thereof or therein (other
than any such connection arising solely from the Agent or such Lender having
executed, delivered or performed its obligations or received a payment under,
or enforced, this Agreement or any other Loan Document).  If any such non-excluded taxes, levies,
imposts, duties, charges, fees deductions or withholdings (“Non-Excluded
Taxes”) are required to be withheld from any amounts payable to the Agent
or any Lender hereunder, the amounts so payable to the Agent or such Lender
shall be increased to the extent necessary to yield to the Agent or such Lender
(after payment of all Non-Excluded Taxes) a net amount equal to the amount it
would have received had no such deduction or withholding been made.  Notwithstanding the foregoing, no Borrower
shall be required to increase any such amounts payable to any Lender with
respect to any Non-Excluded Taxes (i) that are attributable to such Lender’s
failure to comply with the requirements of paragraph (b) of this
subsection 2.21, (ii) that are withholding taxes applicable to such Lender
at the time such Lender becomes a party to this Agreement, except to the extent
that such Lender’s assignor (if any) was entitled, at the time of assignment,
to receive additional amounts from such Borrower with respect to such
Non-Excluded Taxes pursuant to this paragraph, (iii) that are imposed by
Canada on any amount paid or credited under the Canadian Revolving Credit
Facility to any Lender that is a non-resident for purposes of the Income Tax
Act (Canada) in respect of such amount or (iv) that are imposed by Ireland
on any amount paid or credited to any Lender where the  confirmations given in accordance with
paragraphs 2.21(f)(Y) or 2.21(f)(Z) on the date hereof, or on the
date on which a Lender becomes a party to this Agreement, prove to be
incorrect.  Whenever any Non-Excluded
Taxes are payable by any Borrower, as promptly as possible thereafter, the
applicable Borrower shall send to the Agent for its own account or for the
account of such Lender, as the case may be, a certified copy of an original
official receipt received by the applicable Borrower showing payment
thereof.  If any Borrower fails to pay
any Non-Excluded Taxes when due to the appropriate taxing authority or fails to
remit to the Agent the required receipts or other required documentary evidence,
such Borrower shall indemnify the Agent, each Sub-Agent and the Lenders for any
incremental taxes, interest or penalties that may become payable by the Agent
or any Lender as a result of any such failure. 
The agreements in this subsection


 


62
















 


2.21 shall survive the
termination of this Agreement and the payment of all other amounts payable
hereunder.


 


(a)  Each
Lender that is not a “U.S. Person” as defined in Section 7701(a)(30) of
the Code (“Non-US Lender”) shall:


 


(X)(i)  on or before the date such Non-US Lender becomes a Lender
or a Participant under this Agreement, deliver to the Borrowers and the Agent
two duly completed copies of United States Internal Revenue Service Form W-8BEN
or W-8ECI, or successor applicable form, as the case may be, certifying that it
is entitled to receive payments under this Agreement without deduction,
withholding or backup withholding of any United States federal income taxes;


 


(ii)  if, and to the extent, such Lender is legally entitled to do
so, deliver to the Borrowers and the Agent two further copies of any such form
or certification on or before the date that any such form or certification
expires or becomes obsolete and after the occurrence of any event requiring a
change in the most recent form previously delivered by it to the Borrowers; and


 


(iii)  if, and to the extent, such Lender is legally entitled to
do so, obtain such extensions of time for filing and completing such forms or
certifications as may reasonably be requested by the any Borrower or the Agent;


 


(Y)  in the case of any such Non-US Lender
claiming exception from U.S. federal withholding tax under Section 871(h) or
881(c) of the Code with respect to payment of “portfolio interest”,
deliver on or before the date such Non-US Lender becomes a Lender or a
Participant under this Agreement,  (A) a
certificate substantially in the form of Exhibit L (any such certificate a
“US Tax Compliance Certificate”), (B) two accurate and complete
original signed copies of Internal Revenue Service Form W-8BEN, or successor
applicable form, certifying to such Lender’s legal entitlement at the date of
such certificate to a complete exemption from US withholding tax, (C) two
further copies of such form and certification (I) on or before the date it
expires or becomes obsolete and (II) if and to the extent such Non-US
Lender is then legally able to provide such form or certification, after the
occurrence of any event requiring a change in the most recent form previously
delivered by it to the Borrowers, and, (D) if and to the extent such
Non-US Lender is then legally able to do so, if necessary, obtain any
extensions of time reasonably requested by a Borrower or the Agent for filing
and completing such forms, and (iii) agree, if and to the extent such
Non-US Lender is then legally entitled to do so, upon reasonable request by a
Borrower, to provide to such Borrower (for the benefit of such Borrower and the
Agent) such other forms as may be reasonably required in order to establish the
legal entitlement of such Lender to a complete exemption from or reduced rate
of withholding with respect to payments under this Agreement and any Notes; or


 


(Z)  in the case of any Lender that is entitled
to an exemption from or reduction of non-U.S. withholding tax under the law of
the jurisdiction in which the Company is located, or any treaty to which such
jurisdiction is a party, with respect to payments under this Agreement, deliver
to the Company, at the time or times prescribed by applicable law or reasonably
requested by the Company, such properly completed and executed documentation
prescribed by applicable law as will permit such payments to be made without
withholding or at a reduced rate, provided that such Lender is legally
entitled to complete, execute and deliver such documentation and in such Lender’s
judgment such completion, execution or submission would not materially
prejudice the legal position of such Lender.


 


63

















 


unless in any such case an event (including,
without limitation, any change in treaty, law or regulation) has occurred prior
to the date on which any such delivery would otherwise be required which
renders all such forms inapplicable or which would prevent such Lender from
duly completing and delivering any such form with respect to it and such Lender
so advises the Company, any other applicable Borrower and the Agent.  Each Non-U.S. Lender that is an Assignee or
Participant hereunder pursuant to subsection 10.7 shall, upon the effectiveness
of the related transfer, be required to provide all of the forms and statements
required pursuant to this subsection 2.21; provided that in the case of
a Participant such Participant shall furnish all such required forms and
statements, documentation or certifications to the Lender from which the
related participation shall have been purchased, and such Lender shall in turn
furnish all such required forms (including, without limitation, Internal
Revenue Service Form W-8IMY), documentation and certifications to the
Company, any other applicable Borrower and the Agent.  Any Lender or Participant that is a “United
States person” (within the meaning of Code section 7701(a)(30)) but is not
incorporated  under the laws of the
United States or a state thereof shall furnish the Company, any other
applicable Borrower and the Agent with a Form W-9 or successor form
thereto, certifying an exemption from backup withholding in respect of payments
hereunder, if it is legally entitled to do so.


 


(b)  If
and to the extent that a Lender, in its sole discretion (exercised in good
faith), determines that it has received or been granted a credit against, a
relief from, a remission of, or a repayment of, any Non-Excluded Tax, in
respect of which it has received additional payment under subsection 2.21(a) of
this Agreement, then such Lender shall pay to the applicable Borrower the
amount of such credit, relief, remission or repayment so determined by such
Lender, in its sole discretion (exercised in good faith), attributable to such
deduction or withholding of Non-Excluded Tax; provided that the Lender
shall not be obligated to make any payment under this paragraph in respect of
such credit, relief, refund, remission or repayment until the Lender, in its
sole judgment (exercised in good faith), is satisfied that its tax affairs for
the tax year in respect of which such credit, relief, remission or repayment
was obtained have been finally settled.


 


(c)  Each Canadian Revolving
Credit Lender confirms to the Agent and the Canadian Revolving Credit Borrowers
that it is not a non-resident of Canada for purposes of Part XIII of the
Income Tax Act (Canada) in respect of any amount paid or credited to it
pursuant to this Agreement and agrees to notify the Agent and the Canadian
Revolving Credit Borrowers immediately in writing should it become a
non-resident of Canada for such purposes. 
Each Loan made to a Canadian Revolving Credit Borrower that is not
domiciled in Canada shall be made from a Funding Office of such Lender (or
branch or affiliate of such Lender) located in an appropriate jurisdiction for
the purposes of making such Loans that is outside of Canada.


 


(d)  If
a Lender that is not a Japanese corporation and that extends Loans to a
Borrower that is qualified to claim an exemption from Japanese withholding tax
or to claim a decreased rate of withholding tax, as the case may be, on
interest to be paid to such Lender with respect to such Loans (i) by
obtaining a withholding tax exemption certificate from the director of the
competent national regional tax office pursuant to Article 180, paragraph
1 of the Japanese Income Tax Law (Law No. 33 of 1965, as amended) (or any
successor provisions thereto) or any other tax law and regulation then
effective and presenting such certificate to such Borrower or (ii) by submitting,
through such Borrower, any required forms and other documents to the relevant
Japanese tax office or other relevant authorities pursuant to any tax law and
regulation then effective or any applicable tax treaty, then such Lender shall
timely present such certificate to the relevant Borrower or shall timely 


 


64

















 


submit, as
the case may be, through such Borrower, any such required forms and other
documents to the relevant Japanese tax office or other relevant
authorities.  Any provision in this
Agreement to the contrary notwithstanding, no Borrower shall be required to pay
additional amounts on account of, or reimburse for, a Japanese withholding tax
to the extent attributable to such Lender’s failure to comply with the
requirements of this subsection (e).


 


(e)  (X) With regard to
any borrowings by an Irish Bank other than borrowings under the Irish Revolving
Credit Facility, such Irish Bank confirms that it is carrying on a bona fide
banking business in Ireland with which all interest payments made pursuant to
this Agreement are connected and that such interest is paid in the ordinary
course of its business.


 


(Y)       In the case of interest paid to an Irish
Revolving Credit Lender by an Irish Revolving Credit Borrower which is not an
Irish Bank or which is an Irish Bank but the interest is paid otherwise than in
the ordinary course of its banking business, each Irish Revolving Credit Lender
hereby confirms that it is:


 


(i)  an Irish Bank
which is carrying on a bona fide banking business in Ireland with which
interest payments made pursuant to this Agreement are connected;


 


(ii)  (a) a
person that is resident for the purposes of tax in a member state of the
European Communities (other than Ireland) or in a territory with which Ireland
has concluded a double taxation treaty that is in effect (residence for such
purposes being determined in accordance with the laws of the territory of which
the Lender claims to be resident); or


 


(b) a corporation organized under the laws of a jurisdiction
located within the United States and subject to taxation in the United States
on its worldwide income; or


 


(c) a limited liability company organized under the laws of a
jurisdiction located within the United States, provided that the
ultimate recipients of the interest are resident in and under the laws of a
country with which Ireland has a double taxation treaty or resident in and
under the laws of a member state of the European Communities (other than
Ireland) and the business conducted through such limited liability company is
so structured for commercial reasons and not for purposes of tax avoidance;


provided,
that in each case of sub-clause (a), (b) or (c) above, such  Person is not carrying on a trade or business
in Ireland through any agency or branch with which interest payments made
pursuant to this Agreement are connected; or


 


(iii)  a Person
that is treated, under the terms of a treaty, as a resident of a jurisdiction
which has a double taxation treaty with Ireland, which treaty provides for full
exemption from tax imposed by Ireland on interest received or receivable by
such Person, for the purposes of that treaty, and which Person is entitled to
the benefits of such exemption and provided that the required procedural
formalities have been completed; or


 


(iv)  a body
corporate which is resident in Ireland for the purposes of Irish tax or which
carries on a trade in Ireland through a branch or agency:


 


65

















 


(a)  which advances money pursuant to this Agreement in the
ordinary course of a trade which includes the lending of money;


 


(b)  in whose hands any interest payable in respect of this
Agreement is taken into account in computing the trading income of the Company;
and


 


(c)  that has complied with all of the provisions of Section 246(5)(a) of
the Taxes Consolidation Act, 1997, as amended, of Ireland (the “Taxes Act”)
including the making of appropriate notifications thereunder to the Irish
Revenue Commissioners; or


 


(v)  a qualifying
company within the meaning of Section 110 of the Taxes Act.


 


(Z) In the case of any Irish Revolving Credit
Borrower that is an Irish Bank, each Irish Revolving Credit Lender confirms
that it is an Irish Bank or that it will file with such Irish Revolving Credit
Borrower prior to any interest payment being made a declaration in accordance
with Section 263 of the Taxes Act confirming that it is not a resident of
Ireland.


 


2.22.  Indemnity(a)  .  If (a) any payment of principal of any
Eurocurrency Loan is made by a Borrower to or for the account of a Lender other
than on the last day of the Interest Period for such Eurocurrency Loan as a
result of a payment or conversion pursuant to subsection 2.10, 2.11, 2.13, or
2.20, as a result of acceleration of the maturity of the Loans pursuant to Section 7
or for any other reason, (b) any Borrowing of Eurocurrency Loans is not
made as a result of a withdrawn notice of borrowing, (c) any Base Rate
Loan is not converted into a Eurocurrency Loan as a result of a withdrawn
notice of conversion or continuation, (d) any Eurocurrency Loan is not
continued as a Eurocurrency Loan as a result of a withdrawn notice of
conversion or continuation or (f) any prepayment of principal of any
Eurocurrency Loan is not made as a result of a withdrawn notice of prepayment
pursuant to subsection 2.10, the applicable Borrower shall, after receipt of a
written request by such Lender (which request shall set forth in reasonable
detail the basis for requesting such amount), pay to the Agent for the account
of such Lender any amounts required to compensate such Lender for any
additional losses, costs or expenses that such Lender may reasonably incur as a
result of such payment, failure to convert, failure to continue or failure to
prepay, including any loss, cost or expense (excluding loss of anticipated
profits) actually incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by any Lender to fund or maintain such
Eurocurrency Loan.


 


2.23.  Notice
of Amounts Payable; Relocation of Funding Office; Mandatory Assignment. 
(o)In the event that any Lender becomes aware that any amounts are or
will be owed to it pursuant to subsection 2.19, 2.20, 2.21(a) or 2.22,
then it shall promptly notify the applicable Borrower (and the Company if not
the same) thereof and, as soon as possible thereafter, such Lender shall submit
to such Borrower (and the Company if not the same) a certificate indicating the
amount owing to it, the calculation thereof and a description in reasonable
detail of the circumstances giving rise to such amount.  The amounts set forth in such certificate
shall be prima facie evidence of the obligations of the Borrower hereunder; provided,
however, that the failure of a Borrower to pay any amount owing to any
Lender pursuant to subsection 2.19, 2.20, 2.21(a) or 2.22 shall not be
deemed to constitute a Default or an Event 


 


66

















 


of Default hereunder to the
extent that such Borrower is contesting in good faith its obligation to pay
such amount by ongoing discussions diligently pursued with such Lender or by
appropriate proceedings.


 


(a)  If
a Lender claims any additional amounts payable pursuant to subsection 2.19 or
2.20, it shall use its reasonable efforts (consistent with legal and regulatory
restrictions) to avoid the need for paying such additional amounts, including
changing the jurisdiction of its applicable Funding Office, provided
that the taking of any such action would not, in the reasonable judgment of
such Lender, be disadvantageous to such Lender.


 


(b)  In
the event that any Lender delivers to a Borrower a certificate in accordance
with subsection 2.23(a) (other than a certificate as to amounts payable
pursuant to subsection 2.22), or such Borrower is required to pay any
additional amounts or other payments in accordance with subsection 2.19, 2.20
or 2.21(a), such Borrower may, at its own expense and in its sole discretion, (i) require
such Lender to transfer or assign, in whole or in part, without recourse (in
accordance with subsection 10.7), all or part of its interests, rights and
obligations under this Agreement to another Person (provided that such
Borrower, with the full cooperation of such Lender, can identify a Person who
is ready, willing and able to be an Assignee with respect to thereto) which
shall assume such assigned obligations (which Assignee may be another Lender,
if such Assignee Lender accepts such assignment) or (ii) during such time
as no Default or Event of Default has occurred and is continuing, terminate the
Commitment of such Lender and prepay all outstanding Loans of such Lender; provided
that (x) such Borrower or the Assignee, as the case may be, shall have
paid to such Lender in immediately available funds the principal of and
interest accrued to the date of such payment on the Loans made by it hereunder
and (subject to subsection 2.22) all other amounts owed to it hereunder and (y) such
assignment or termination of the Commitment of such Lender and the prepayment
of Loans is not prohibited by any law, rule or regulation or order of any
court or Governmental Authority.


 


2.24.  Availability.  Notwithstanding any provision
to the contrary contained in this Agreement, (i) Base Rate Loans
denominated in Dollars shall only be available to US Borrowers domiciled in the
United States and Canadian Revolving Credit Borrowers domiciled in Canada, (ii) Bankers’
Acceptances and Canadian Prime Rate Loans shall only be available to Canadian
Revolving Credit Borrowers domiciled in Canada and (iii) Yen Swing Line
Loans (unless otherwise consented to by the Yen Swing Line Lenders) and Loans
made from Funding Offices located in Japan shall only be available to Japanese
Borrowers domiciled in Japan (it being understood that such restriction shall
not affect the obligation of any Japanese Lender to make Loans to Japanese
Borrowers that are not domiciled in Japan).


 


2.25.  Irish
Swing Line Commitments.  (a)  Subject to the terms and conditions
hereof, each Irish Swing Line Lender severally agrees to make swing line loans
(“Irish Swing Line Loans”) to any Irish Revolving Credit Borrower on any
Business Day from time to time during the Commitment Period in an aggregate
principal amount at any one time outstanding for all Irish Swing Line Lenders
not to exceed $300,000,000  (or the
Equivalent in Euros or Pounds Sterling, as the case may be); provided
that in no event may the amount of any Irish Swing Line Borrowing cause the
aggregate amount of Irish Revolving Credit Loans and Irish Swing Line Loans
(after giving effect to the use of proceeds of such Irish Swing Line Loans and
any other concurrent Borrowing) to exceed the aggregate Irish Revolving Credit
Commitments then in effect of all Irish Revolving Credit Lenders.  Amounts borrowed by the Irish 


 


67

















 


Revolving Credit Borrowers
under this subsection 2.25 may be repaid and, to but excluding the Termination
Date, reborrowed.


 


(b)           The Irish Swing Line Loans may be
made in Dollars, Pounds Sterling or Euros; provided that,
notwithstanding subsection 2.11(a), Irish Swing Line Loans that are denominated
in Dollars shall not be entitled to be converted into Eurocurrency Loans.  The applicable Irish Revolving Credit
Borrower shall give the Agent and Irish Swing Line Lender irrevocable notice
(which notice must be received by the Agent and the Irish Swing Line Lender
prior to the Irish Swing Line Applicable Time, on the requested borrowing date
(which shall be a Business Day) specifying the amount of each requested Irish
Swing Line Loan, which shall be in a minimum amount of $5,000,000  (or the Equivalent in Euros or Pounds
Sterling, as the case may be) or a multiple of $1,000,000  (or the Equivalent in Euros or Pounds
Sterling, as the case may be) in excess thereof,
and the amount of the Availability Reduction
Amount, if any.  Each
Irish Swing Line Lender will make the amount of its ratable share of each Irish
Swing Line Loan available directly to the applicable Irish Revolving Credit
Borrower prior to, (i) in the case of Irish Swing Line Loans made to Irish
Revolving Credit Borrowers that are US Borrowers and that are denominated in
Dollars, 3:00 P.M., New York City time, (ii) in the case of Irish
Swing Line Loans made (A) to Irish Revolving Credit Borrowers that are US
Borrowers and that are denominated in Euros or Pounds Sterling or (B) to
Irish Revolving Credit Borrowers that are not US Borrowers, 2:00 P.M.,
London time, on the borrowing date requested by such Irish Revolving Credit
Borrower in funds immediately available to the Irish Revolving Credit Borrower (i) in
the case of Irish Swing Line Loans made to Irish Revolving Credit Borrowers
that are US Borrowers and that are denominated in Dollars, by crediting an
account of the Irish Revolving Credit Borrower in the United States of America
designated by such applicable Irish Revolving Credit Borrower in its discretion
in the notice given to the Agent and the Irish Swing Line Lender with respect
to the Irish Swing Line Loan or (ii) in the case of Irish Swing Line Loans
made (A) to Irish Revolving Credit Borrowers that are US Borrowers and
that are denominated in Euros or Pounds Sterling or (B) made to Irish
Revolving Credit Borrowers that are not US Borrowers, by crediting an account
of the Irish Revolving Credit Borrower in London or Dublin designated by such
applicable Irish Revolving Credit Borrower in its discretion in the notice
given to the Agent and the Irish Swing Line Lender with respect to the Irish
Swing Line Loan.


 


(c)           The Agent, (i) at any time in
its sole and absolute discretion, may, or (ii) (A) with respect to
the outstanding Irish Swing Line Loans of any Irish Swing Line Lender, upon the
request of such Irish Swing Line Lender and, subject to clause (i) of the
proviso below, no earlier than the third Business Day following such request of
such Irish Swing Line Lender, or (B) upon the request of the majority of
the Irish Swing Line Lenders, shall, on behalf of the applicable Irish
Revolving Credit Borrower (which hereby irrevocably directs the Agent to act on
its behalf) request each Irish Revolving Credit Lender (including each Irish
Swing Line Lender) to make an Irish Revolving Credit Loan in an amount equal to
such Lender’s Irish Revolving Credit Commitment Percentage of the principal
amount of the Irish Swing Line Loans of any or all Irish Swing Line Lenders
(the “Irish Refunded Swing Line Loans”) outstanding on the date such
notice is given; provided that (i) at any time as there shall be an
Irish Swing Line Loan outstanding for more than seven Business Days, the Agent
shall, on behalf of the applicable Irish Revolving Credit Borrower (which
hereby irrevocably directs the Agent to act on its behalf), promptly request
each Irish Revolving Credit Lender (including each Irish Swing Line Lender) to
make an Irish Revolving Credit Loan in an amount equal to such Lender’s Irish
Revolving Credit Commitment Percentage of the principal amount of such
outstanding Irish Swing Line Loan and (ii) the Irish Swing Line Loans
shall be prepaid by the applicable Irish Revolving Credit Borrower in
accordance with the provisions of subsection 2.10(e)(i).  Unless any of the events described in
paragraph (f) of Section 7 shall have occurred (in which event the
procedures of paragraph (d) of this subsection 2.25 shall apply) and regardless
of whether the conditions precedent set forth in this Agreement to the making
of an 


 


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Irish Revolving Credit Loan are
then satisfied, each Irish Revolving Credit Lender shall make the proceeds of its
Irish Revolving Credit Loan available to the Agent for the ratable benefit of
the Irish Swing Line Lenders at the office of the Agent specified in subsection
10.2 prior to 11:00 A.M., New York City time, in funds immediately
available on the Business Day next succeeding the date such notice is
given.  The proceeds of such Irish
Revolving Credit Loans shall be immediately applied to repay the Irish Refunded
Swing Line Loans.


 


(d)           If, prior to the making of an Irish
Revolving Credit Loan pursuant to paragraph (c) of this subsection 2.25,
one of the events described in paragraph (f) of Section 7  shall have occurred, each Irish Revolving
Credit Lender will, on the date such Irish Revolving Credit Loan was to have
been made, purchase from the Irish Swing Line Lenders an undivided
participating interest in the Irish Refunded Swing Line Loans in an amount
equal to its Irish Revolving Credit Commitment Percentage of such Irish
Refunded Swing Line Loans.  Each Irish
Revolving Credit Lender will immediately transfer to the Agent, in immediately
available funds, the amount of its participation and upon receipt thereof the
Agent will deliver to such Lender an Irish Swing Line Loan Participation
Certificate dated the date of receipt of such funds and in such amount.


 


(e)           Each Irish Revolving Credit Lender’s
obligation to make Irish Revolving Credit Loans and to purchase participating
interests in accordance with paragraphs (c) and (d) above shall be
absolute and unconditional and shall not be affected by any circumstance,
including, without limitation, (i) any set-off, counterclaim, recoupment,
defense or other right which such Lender may have against any Irish Swing Line
Lender, any Irish Revolving Credit Borrower or any other Person for any reason
whatsoever; (ii) the occurrence or continuance of any Default or Event of
Default; (iii) any adverse change in the condition (financial or
otherwise) of the Company or any other Person; (iv) any breach of this
Agreement by the applicable Irish Revolving Credit Borrower or any other
Person; (v) any inability of any Irish Revolving Credit Borrower to
satisfy the conditions precedent to borrowing set forth in this Agreement on
the date upon which such participating interest is to be purchased or (vi) any
other circumstance, happening or event whatsoever, whether or not similar to
any of the foregoing.  If any Irish
Revolving Credit Lender does not make available to the Agent the amount
required pursuant to paragraph (c) or (d) above, as the case may be,
the Agent shall be entitled to recover such amount on demand from such Lender,
together with interest thereon for each day from the date of non-payment until
such amount is paid in full at (i) in the case of Irish Swing Line Loans
made to Irish Revolving Credit Borrowers that are US Borrowers and that are
denominated in Dollars, the Federal Funds Rate for the first two Business Days
and at the Base Rate thereafter and (ii) in the case of Irish Swing Line
Loans that are made (A) to Irish Revolving Credit Borrowers that are US
Borrowers and that are denominated in Euros or Pounds Sterling or (B) to
Irish Revolving Credit Borrowers that are not US Borrowers, the Eurocurrency
Reference Rate for Dollars, Euros or Pounds Sterling, as applicable.  Notwithstanding the foregoing provisions of
this subsection 2.25(e), no Irish Revolving Credit Lender shall be required to
make a Irish Revolving Credit Loan to any Irish Revolving Credit Borrower for
the purpose of refunding Irish Swing Line Loans pursuant to paragraph (c) above
or to purchase a participating interest in Irish Swing Line Loans pursuant to
paragraph (d) above if a Default or Event of Default has occurred and is
continuing and prior to the making by the Irish Swing Line Lenders of such
Irish Swing Line Loans, each Irish Swing Line Lender has received written
notice from such Lender specifying that such Default or Event of Default has
occurred and is continuing, describing the nature thereof and stating that, as
a result thereof, such Lender shall cease to make such Irish Revolving Credit
Loans and purchase such participating interests, as the case may be; provided
that the obligation of such Lender to make such Irish Revolving Credit Loans
and to purchase such participating interests shall be reinstated upon the
earlier to occur of (i) the date upon which such Lender notifies the Irish
Swing Line Lenders that its prior notice has been withdrawn and (ii) the
date upon which the Default or Event of Default specified in such notice no
longer is continuing.


 


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(f)            With
regard to any assignment by the Irish Swing Line Lender of any portion of its
interest in Irish Swing Line Loans and/or its Commitments to make such Loans,
the assigning Irish Swing Line Lender and the relevant assignee may supplement
the provisions of any Assignment and Assumption Agreement by which such
assignment is to be made in order to clarify the post-assignment
responsibilities of the assignor and assignee and the capacities in which they
may act with respect to their Commitments to make Irish Swing Line Loans and
otherwise carry out the provisions of this Agreement relating to Irish Swing
Line Loans, so long as such supplemental provisions do not have an adverse
impact on the Agent or any other Lender (unless the Agent or such other Lender
shall have consented to such supplemental provisions in writing).


 


SECTION 3.  REPRESENTATIONS
AND WARRANTIES


 


To induce the Agent and the Lenders to enter into
this Agreement and to make the Loans and to issue Letters of Credit, each of the
Company and, except in the case of subsections 3.1, 3.2 and 3.11 below, each
other Borrower hereby represents and warrants to the Agent and each Lender
that:


 


3.1.  Financial
Condition.  The Company has heretofore furnished to each
Lender a copy of its consolidated financial statements for its fiscal year
ended December 31, 2004 and for its fiscal quarters ended March 31,
2005, June 30, 2005 and September 30, 2005.  Such financial statements present fairly the
financial condition and results of operations of the Company and its
Subsidiaries as of such dates in accordance with GAAP.


 


3.2.  No Change.  As of the date hereof, since March 31,
2005, there has been no development or event which has had a Closing Date
Material Adverse Effect.


 


3.3.  Corporate
Existence.  Such Borrower (a) is duly organized,
validly existing and in good standing (to the extent applicable under the laws
of such Borrower’s jurisdiction of organization) under the laws of its
jurisdiction of organization, (b) has the power and authority under its
constituent documents, and the legal right, to own and operate its property, to
lease the property it operates as lessee and to conduct the business in which
it is currently engaged and (c) is duly qualified as a foreign corporation
(or other entity, as applicable) and in good standing under the laws of each
jurisdiction where its ownership, lease or operation of property or the conduct
of its business requires such qualification, except to the extent that all
failures to be duly qualified and in good standing could not, in the aggregate,
have a Material Adverse Effect.


 


3.4.  Corporate
Power; Authorization; Enforceable Obligations.  Such
Borrower has the corporate (or other organizational) power and authority, and
the legal right, to make, deliver and perform its obligations under this
Agreement and to borrow hereunder and has taken all necessary corporate (or
other organizational) action to authorize its Borrowings on the terms and
conditions of this Agreement and to authorize the execution, delivery and
performance of this Agreement.  No
consent or authorization of any Governmental Authority or any other Person is
required in connection with its Borrowings hereunder or with its execution,
delivery and performance of this Agreement, or the validity or enforceability
of this Agreement against it.  This
Agreement has been duly executed and delivered on behalf of such Borrower.  This Agreement constitutes a legal, valid and
binding obligation of such Borrower enforceable against such Borrower in accordance
with its terms, except as enforceability may 


 


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be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
the enforcement of creditors’ rights generally and by general equitable
principles (whether enforcement is sought by proceedings in equity or at law).


 


3.5.  No
Legal Bar.  The execution, delivery and performance of
this Agreement, its Borrowings hereunder and the use of the proceeds thereof
will not violate any Requirement of Law or Contractual Obligation of such
Borrower and will not result in, or require, the creation or imposition of any
Lien on any of its properties or revenues pursuant to any such Requirement of
Law or Contractual Obligation, except to the extent that all such violations
and creation or imposition of Liens could not, in the aggregate, have a
Material Adverse Effect.


 


3.6.  No
Material Litigation.  No litigation, investigation or proceeding of
or before any arbitrator or Governmental Authority is pending or, to the
knowledge of such Borrower, threatened by or against such Borrower or any of
its Subsidiaries or against any of its or their respective properties or
revenues as of the Closing Date (a) with respect to this Agreement or any
of the actions contemplated hereby, or (b) which involves a probable risk
of an adverse decision which would materially restrict the ability of such
Borrower to comply with its obligations under this Agreement.


 


3.7.  Federal
Regulations.  The proceeds of any Loans will not be used
for “buying,” “purchasing” or “carrying” any “margin stock” in violation of
(within the respective meanings of each of the quoted terms under) Regulation U
of the Board of Governors of the Federal Reserve System as now and from time to
time hereafter in effect or for any purpose which violates the provisions of
the Regulations of such Board of Governors.


 


3.8.  Investment
Company Act.  Such Borrower is not an “investment company”,
or a company “controlled” by an “investment company”, within the meaning of the
Investment Company Act of 1940, as amended.


 


3.9.  ERISA.  Such
Borrower and its Subsidiaries are in compliance with all material provisions of
ERISA (to the extent applicable to it), except to the extent that all failures
to be in compliance could not, in the aggregate, reasonably be expected to have
a Material Adverse Effect.


 


3.10.  No
Material Misstatements.  No report, financial statement or other
written information furnished by or on behalf of such Borrower to the Agent or
any Lender pursuant to subsection 3.1 or subsection 5.1(a) contains or
will contain any material misstatement of fact or omits or will omit to state
any material fact necessary to make the statements therein, in light of the
circumstances under which they were, are or will be made, not misleading,
except to the extent that the facts (whether misstated or omitted) do not
result in a Material Adverse Effect.


 


3.11.  Solvency.  As of the date hereof, the
Company is, individually and together with its Subsidiaries, Solvent.


 


3.12.  Purpose
of Loans.  The proceeds of the Loans shall be used by
such Borrower (a) to retire the Company’s Existing Indebtedness (other
than Surviving Indebtedness), (b) to pay costs and expenses incurred in
connection therewith and with the Acquisition and (c) for its general
corporate purposes.  Notwithstanding the
foregoing, and for the avoidance of doubt, no Loan made to any Borrower
incorporated under the laws of Ireland may be used by such Borrower (whether
directly or indirectly) for the purpose of, or in connection with, a purchase
or subscription made or to be made by any Person of or for any shares of such
Borrower or of its direct or indirect holding company, or for any other purpose


 


71

















 


whatsoever that would
constitute “unlawful financial assistance” within the meaning of Section 60
(as amended) of the Companies Act, 1963 of Ireland.


 


SECTION 4.  CONDITIONS
PRECEDENT


 


4.1.  Conditions
to Initial Loans.  The agreement of each Lender to make the
initial Loan or Loans and the obligation of each Issuing Bank to issue a Letter
of Credit requested to be made or issued by it is subject to the satisfaction,
prior to or concurrently with the making of such Loan or Loans or the issuance
of such Letter of Credit, of the following conditions precedent:


 


(a)  Credit
Agreement.  The Agent shall have
received this Agreement, executed and delivered (including, without limitation,
by way of a telecopied signature page or a signature page in electronic
format acceptable to the Agent) by a duly authorized officer of the Company,
each other Borrower as of the Closing Date and each Lender.


 


(b)  Guaranty.  The Agent shall have received the Guaranty,
executed and delivered (including, without limitation, by way of a telecopied
signature page) by each Guarantor listed on Schedule III.


 


(c)  Secretary’s
Certificate.  The Agent shall have
received a certificate of the Secretary or Assistant Secretary (or equivalent
officer) of each Borrower, in form and substance satisfactory to the Agent,
which certificate shall (i) certify as to the incumbency and signature of
the officers of such Borrower executing this Agreement (with the President, a
Vice President, the Secretary or Assistant Secretary (or equivalent officer) of
such Borrower attesting to the incumbency and signature of the Secretary or
Assistant Secretary providing such certificate), (ii) have attached to it
a true, complete and correct copy of each of the certificate of incorporation
or formation (or equivalent document, if any, in the case of any foreign
Designated Borrower) and by-laws or limited liability company agreement (or
equivalent document, if any, in the case of any foreign Designated Borrower) of
such Borrower, (iii) have attached to it a true and correct copy of the
resolutions of the Board of Directors (or other governing body or Person(s) as
appropriate) of such Borrower, which resolutions shall authorize the execution,
delivery and performance of this Agreement and the Borrowings by such Borrower
hereunder and (iv) certify that, as of the date of such certificate (which
shall not be earlier than the date hereof), none of such certificate of
incorporation or formation (or equivalent document, if any, in the case of any
foreign Designated Borrower), by-laws or limited liability company agreement
(or equivalent document, if any, in the case of any foreign Designated
Borrower) or resolutions shall have been amended, supplemented, modified,
revoked or rescinded.


 


(d)  Fees.  The Company shall have paid all fees required
to be paid pursuant to the terms of the Fee Letter.


 


(e)  Legal
Opinions.  The Agent shall have
received (i) the executed legal opinion of Lionel Sawyer &
Collins, Nevada counsel to the Company, substantially in the form of Exhibit H-1,
(ii) the executed legal opinion of Simpson, Thacher & Bartlett
LLP, counsel to the Company, substantially in the form of Exhibit H-2, (iii) executed
legal opinions of local counsel in each of Canada, Ireland and Japan as to the
matters set forth on Exhibit H-3 and such other matters concerning the
Company or Designated Borrowers and the Loan Documents as the Agent or Lenders
may reasonably request and (iv) such other executed legal opinions of
local counsel in the jurisdiction of organization of each Designated Borrower
as the Arrangers may reasonably request, substantially in the form of Exhibit H-4.  The Company hereby instructs Lionel Sawyer 


 


72

















 


& Collins and Simpson, Thacher &
Bartlett LLP to deliver their opinions for the benefit of the Agent and each of
the Lenders.


 


(f)  Debt
Ratings.  The Company shall have
received long-term senior unsecured debt ratings for the Facilities and the
Bridge Facility of not less than BBB- from S&P, Baa3 from Moody’s and BBB-
from Fitch, in each case with at least stable outlook.


 


(g)  Consummation
of Acquisition.  The Acquisition
shall have been consummated in accordance with the terms of the Purchase
Agreement, without any amendment or modification that is material to the
interests of the Lenders and to which any two Arrangers have reasonably
objected.


 


(h)  Bridge
Facility.  The Bridge Facility shall
have been consummated.


 


(i)  Issuance
of Hybrid Capital.  The Hybrid
Capital shall have been issued to GMAC.


 


(j)  Payment of
Existing Indebtedness.  The Agent
shall be satisfied that all Existing Indebtedness, other than Surviving
Indebtedness, has been prepaid, redeemed or defeased in full or otherwise
satisfied and extinguished and all commitments relating thereto terminated.


 


The Agent shall notify the Company and each Lender
promptly after the satisfaction of the foregoing conditions.


 


4.2.  Conditions
to Each Credit Event.  The agreement of each Lender to make any Loan
requested to be made by it on any date (including, without limitation, its
initial Loan) or of any Issuing Bank to issue a Letter of Credit is subject to
the satisfaction of the following conditions:


 


(a)  Notice of
Borrowing.  The Agent shall have
received a notice of borrowing or request for issuance, as the case may be, as
required by subsection 2.3, 2.4, 2.5 or 2.6, as the case may be, the Irish
Swing Line Lender shall have received a notice of borrowing or request for a
Loan, as the case may be, as required by subsection 2.25, if applicable and the
Yen Swing Line Lender shall have received a notice of borrowing or request for
a Loan, as the case may be, as required by subsection 2.7, if applicable.


 


(b)  Representations
and Warranties.  Each of the
representations and warranties made by the Borrowers in or pursuant to this
Agreement, excluding, for each Loan made after the Closing Date, the
representations and warranties in subsection 3.2 herein, shall be true and
correct on and as of such date as if made on and as of such date, other than
any such representations or warranties that, by their terms, refer to a
specific date other than the date of the proposed Borrowing or issuance of a
Letter of Credit, as the case may be, in which case as of such specific date.


 


(c)  No Default.  No Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to the Loans or
Letter of Credit requested to be made or issued on such date.


 


(d)  Designated
Borrowers.  If the applicable
Borrower or applicant is a Designated Borrower so designated after the Closing
Date, then the conditions of subsection 2.8 to the designation of such Borrower
as a Designated Borrower shall have been met to the satisfaction of the Agent.


 


73
















 


Each Borrowing by any
Borrower hereunder and each request for the issuance of a Letter of Credit
hereunder shall, in each case, constitute a representation and warranty by the
Borrowers as of the date of such Loan that the conditions contained in this subsection
4.2 have been satisfied.


 


SECTION 5.  AFFIRMATIVE
COVENANTS


 


The Borrowers hereby agree that, so long as the
Commitments remain in effect, or any amount is owing to any Lender or the Agent
hereunder or any Letter of Credit is outstanding, the Company and, except in
the case of subsections 5.1, 5.2, and 5.12 below, each other Borrower shall:


 


5.1.  Financial
Statements.  Furnish to each Lender:


 


(a)  as soon as
available, but in any event within 110 days after the end of each fiscal year
of the Company  (or such earlier date on which the Company has filed such financial
statements with the Securities and Exchange Commission), a copy
of the audited consolidated balance sheet of the Company and its consolidated
Subsidiaries as at the end of such year and the related audited consolidated
statements of income and retained earnings and of cash flows for such year,
setting forth in each case in comparative form the figures for the previous
year; and


 


(b)  as soon as
available, but in any event not later than 60 days after the end of each of the
first three quarterly periods of each fiscal year of the Company (or such earlier
date on which the Company has filed such financial statements with the
Securities and Exchange Commission), the unaudited consolidated
balance sheet of the Company and its consolidated Subsidiaries as at the end of
such quarter and the related unaudited consolidated statements of income and
retained earnings and of cash flows of the Company and its consolidated
Subsidiaries for such quarter and the portion of the fiscal year through the
end of such quarter, setting forth in each case in comparative form the figures
for the previous year;


 


all such financial
statements shall be complete and correct in all material respects and shall be
prepared in accordance with GAAP (it being understood that in the event of any
change in GAAP or in the interpretation or application thereof, any financial
statement delivered hereunder prior to such change shall be deemed to have been
prepared in accordance with GAAP for purposes of and in accordance with the
requirements of this Agreement so long as such financial statements were
prepared in accordance with GAAP as in effect on the date such financial
statements were delivered and in accordance with the historical application
thereof by the Company, without giving effect to any changes thereto or in the
interpretation or application thereof after such date) applied consistently
throughout the periods reflected therein and with prior periods (except as
approved by such accountants or officer, as the case may be, and disclosed
therein).


 


5.2.  Certificates;
Other Information.  Furnish to:


 


(a)  each Lender,
concurrently with the delivery of the financial statements referred to in
subsection 5.1(a), a certificate of PricewaterhouseCoopers LLP or other
independent certified public accountants of nationally recognized standing
stating that, in making the examination necessary therefor, nothing came to
their attention that caused them to believe that the Company was, as at the
date at which such financial statements were made, in breach of subsection 6.1;


 


(b)  each
Lender, concurrently with the delivery of the financial statements referred to
in subsections 5.1(a) and 5.1(b), a certificate of the chief financial
officer of the Company (i) stating that, to the best of the chief
financial officer’s knowledge, (A) such financial statements present
fairly the financial condition and results of operations of the Company and its
Subsidiaries for the 


 


74

















 


period referred to therein
(subject, in the case of interim statements, to normal year-end audit
adjustments), and (B) during such period each Borrower has performed all
of its covenants and other agreements contained in this Agreement to be
performed by it, and that no Default or Event of Default has occurred, except
as specified in such certificate and (ii) setting forth in reasonable detail
the calculations required to establish whether the Company was in compliance
with the provisions of subsection 6.1 on the date of such financial statements;
and


 


(c)  each Lender,
within 30 days after the same become public, copies of all financial statements
and reports which the Company may make to, or file with, the Securities and Exchange
Commission or any successor or analogous Governmental Authority; provided,
that such financial statements and reports shall be deemed delivered to each
Lender upon filing with the Securities and Exchange Commission.


 


5.3.  Notices. 
Promptly give notice to the Agent and each Lender (it being understood
that such a notice given by any Borrower under this subsection 5.3 shall
satisfy the requirements of this subsection as to all Borrowers) of the
occurrence of any Default or Event of Default, accompanied by a statement of a
Financial Officer setting forth details of the occurrence referred to therein
and stating what action the Company or such other Borrower proposes to take
with respect thereto.


 


5.4.  Conduct
of Business and Maintenance of Existence.  Continue to engage in its
principal line of business as now conducted by it and preserve, renew and keep
in full force and effect its corporate existence and take all reasonable action
to maintain all rights, privileges and franchises necessary or desirable in the
normal conduct of its principal line of business except as otherwise permitted
pursuant to subsection 6.2 or to the extent that failure to do so would not
have a Material Adverse Effect.


 


5.5.  Compliance with Laws, Etc. 
Comply, and cause each of its Subsidiaries to comply with all applicable
laws, rules, regulations and orders (including as to environmental matters),
such compliance to include, without limitation, compliance with ERISA, except
in each case to the extent that failure to do so would not have a Material
Adverse Effect.


 


5.6.  Payment
of Taxes, Etc.  Except to the extent that failure to do so
would not have a Material Adverse Effect, pay and discharge, and cause each of
its Subsidiaries to pay and discharge, before the same shall become delinquent,
all taxes, assessments and governmental charges or levies imposed upon it or
upon its property; provided, however, that neither the Company
nor any of its Subsidiaries shall be required to pay or discharge any such tax,
assessment, charge or claim that is being contested in good faith and by proper
proceedings and as to which appropriate reserves are being maintained.


 


5.7.  Visitation Rights.  Once
per calendar year (or, during the continuance of an Event of Default, at any
reasonable time and from time to time), permit the Agent or any agents or
representatives thereof to examine and make copies of and abstracts from the
records and books of account of, and visit the properties of, the Company and
any of its Subsidiaries, and to discuss the affairs, finances and accounts of
the Company and any of its Subsidiaries with any of their officers or directors
and with their independent certified public accountants.


 


5.8.  Keeping of Books. 
Keep, and cause each of its Subsidiaries to keep, proper books of record
and account, in which full and correct entries shall be made of all financial
transactions and the assets and business of such Borrower and each such
Subsidiary in 


 


75

















 


accordance with generally
accepted accounting principles in effect from time to time, except to the
extent that failure to do so would not have a Material Adverse Effect.


 


5.9.  Maintenance of Properties, Etc. 
Except to the extent that failure to do so would not have a Material Adverse
Effect, maintain and preserve, and cause each of its 


 


Subsidiaries to maintain and
preserve, all of its properties that are used or useful in the conduct of its
business in good working order and condition, ordinary wear and tear excepted.


 


5.10.  Maintenance of Insurance. 
Except to the extent that failure to do so would not have a Material
Adverse Effect, maintain, and cause each of its Subsidiaries to maintain,
insurance with responsible and reputable insurance companies or associations in
such amounts and covering such risks as is usually carried by companies engaged
in similar businesses and owning similar properties in the same general areas
in which such Borrower or such Subsidiary operates.


 


5.11.  Transactions with Affiliates. 
Conduct, and cause each of its Subsidiaries to conduct, all transactions
otherwise permitted under this Agreement with any of their Affiliates (other
than the Company or any Subsidiary of the Company) on terms that are fair and
reasonable and no less favorable to such Borrower or such Subsidiary than it
would obtain in a comparable arm’s-length transaction with a Person not an
Affiliate; provided that the foregoing restrictions shall not apply to (a) the
payment of customary annual fees to any Equity Investor and/or its Affiliates
for management, consulting and financial services rendered to the Company and
its Subsidiaries; (b) customary investment banking fees paid to any Equity
Investor and/or its Affiliates for services rendered to the Company and its
Subsidiaries in connection with divestitures, acquisitions, financings and
other transactions; (c) customary fees paid to members of the board of
directors of the Company and its Subsidiaries and (d) dividends and
restricted payments not prohibited by this Agreement.


 


5.12.  Covenant to Guaranty Obligations.  Upon
the formation or acquisition of any new wholly owned, first-tier or second-tier
Subsidiaries (other than any Excluded Subsidiary or Permitted Receivables
Subsidiary) by the Company, then in each case the Company shall (at the Company’s
expense), within 30 days after such formation or acquisition (or, if an Event
of Default shall have occurred and be continuing, as promptly as practicable
after such formation or acquisition), cause each such Subsidiary to duly execute
and deliver to the Agent a guaranty or guaranty supplement, in form and
substance reasonably satisfactory to the Agent, guaranteeing the Company’s
obligations under the Loan Documents.


 


SECTION 6.  NEGATIVE
COVENANTS


 


The Borrowers hereby agree that, so long as the
Commitments remain in effect or any amount is owing to any Lender or the Agent
hereunder or any Letter of Credit is outstanding, the Company shall not,
directly or indirectly:


 


6.1.  Leverage
Ratio.  Permit the ratio of Total Consolidated Indebtedness
at the last day of any fiscal quarter of the Company to Total Capitalization at
such date to be greater than 0.87 to 1.0, in each case without giving effect to
ARB51, FIN 46(R) or FAS 66 in each case in relation to the Company’s
affordable tax credit syndication business.


 


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6.2.  Merger, Consolidation, etc.  Merge
or consolidate with any other Person or sell or convey all or substantially all
of its assets to any Person unless, (a) in the case of sales or
conveyances of all or substantially all of the assets of any Designated
Borrower, either prior to or after giving effect to such sale or conveyance,
and the use of proceeds thereof, such Designated Borrower shall (x) not
owe any amounts to any Lender or the Agent hereunder, (y) not have any
Letter of Credit for its account outstanding hereunder and (z) have ceased
to be a Designated Borrower pursuant to subsection 2.8(d) and (b) in
the case of mergers and consolidations, (x) the Company shall be the
continuing corporation and (y) immediately before and immediately after
giving effect to such merger or consolidation, no Default or Event of Default
shall have occurred and be continuing; provided, however, that
nothing contained in this Agreement shall be deemed to prevent or prohibit the
conversion of the Company into a Delaware or Nevada limited liability company,
by means of merger or otherwise, so long as (x) no Default or Event of
Default shall have occurred and be continuing and (y) the surviving
limited liability company shall expressly assume the obligations of the Company
under this Agreement and the other Loan Documents to which it is a party and
agree to be bound by all other provisions applicable to the Company under this
Agreement and such other Loan Documents.


 


6.3.  Limitation on Liens.  Pledge
or otherwise subject to any Lien any of its property or assets, or permit any
Designated Borrower or Guarantor to pledge or otherwise subject to any Lien any
of its property or assets, unless all principal, interest, fees and other
obligations owing under or in connection with this Agreement are secured by
such pledge or Lien equally and ratably with any and all other obligations and
indebtedness secured thereby so long as any such other obligations and
indebtedness shall be so secured; provided, however, that this
covenant shall not apply in the case of:


 


(a)  Liens in
favor of any Borrower or Guarantor;


 


(b)  any deposit
of assets of any Borrower or Guarantor with any surety company or clerk of any
court, or escrow, as collateral in connection with, or in lieu of, any bond on
appeal by such Borrower or Guarantor from any judgment or decree against it, or
in connection with other proceedings in actions at law or in equity by or
against such Borrower or Guarantor;


 


(c)  any Lien or
charge on any property, tangible or intangible, real or personal, existing at
the time of acquisition of such property (including acquisition through merger
or consolidation) or given to secure the payment of all or any part of the
purchase price thereof or to secure any indebtedness incurred prior to, at the
time of, or within 60120 days after, the acquisition thereof
for the purpose of financing all or any part of the purchase price thereof;


 


(d)  Liens on
property or assets financed through tax exempt municipal obligations in
connection with municipal mortgage trusts;


 


(e)  any
extension, renewal or replacement (or successive extensions, renewals or
replacements), in whole or in part, of any Lien, charge or pledge referred to
in clauses (a) to (d) of this subsection 6.3; provided that
the amount of any and all obligations and indebtedness secured thereby
shall not exceed the amount thereof so secured immediately prior to the time of
such extension, renewal or replacement;


 


(f)  Liens (i) evidencing the sale, securitization,
syndication or financing of (i) any real estate receivables and
mortgage notes and related security in connection with Permitted Receivables
Financings, in each case so long as such Liens extend solely to the assets
being sold, securitized or syndicated thereunder or (ii) on  any assets that (A) fall within any
Specified Asset Category or (B) are owned by any Specified Subsidiary; and



 


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(g)  Liens
securing Indebtedness of the Borrowers and the Guarantors in an aggregate
amount not to exceed  the greater of (i) 20% of the difference of
consolidated shareholders’ equity of the Company and its Subsidiaries minus
Attributed Equity and (ii) $750 million.


 


To
the extent that the creation, incurrence or assumption of any Lien could be
attributable to more than one of the foregoing exceptions, the applicable
Borrower may allocate such Lien to any one or more of such subsections.


 


6.4.  Indebtedness. 
Permit any of its Subsidiaries (other than any Specified Subsidiary and
any Designated Borrower) that are not Guarantors to create, incur, assume or
suffer to exist, any Indebtedness, except:


 


(a)  Indebtedness
secured by Liens permitted by subsections 6.3(c), 6.3(d) and 6.3(e),


 


(b)  capitalized
leases,


 


(c)  the
Surviving Indebtedness, and any Indebtedness extending the maturity of, or
refunding, replacing or refinancing, in whole or in part, any Surviving
Indebtedness; provided that the terms of any such extending, refunding
or refinancing Indebtedness, and of any agreement entered into and of any
instrument issued in connection therewith, are otherwise permitted by the Loan
Documents; provided  further that the principal amount of such
Surviving Indebtedness shall not be increased above the principal amount
thereof outstanding immediately prior to such extension, refunding or
refinancing, and the direct and contingent obligors therefor shall not be
changed, as a result of or in connection with such extension, refunding or refinancing,


 


(d)  Indebtedness
in respect of Hedge Agreements designed to hedge against fluctuations in
interest rates or foreign exchange rates incurred in the ordinary course of
business and consistent with prudent business practice,


 


(e)  Indebtedness
owed to the Company or a wholly-owned Subsidiary of the Company, which
Indebtedness, if secured, shall be otherwise permitted under the provisions of
subsection 6.3,


 


(f)  Indebtedness
of any Person that becomes a Subsidiary of the Company after the Closing Date,
which Indebtedness is existing at the time such Person becomes a Subsidiary of
the Company (other than Indebtedness incurred solely in contemplation of such
Person becoming a Subsidiary of the Company),


 


(g)  (i) 
Indebtedness in an amount not to exceed the aggregate  amount of Attributed Indebtedness deducted in determining Total
Consolidated Indebtedness to the extent of any corresponding deduction of
Attributed Capitalization from Total Capitalization, in each caseEquity of all Banking and Market Destined Assets,
computed for purposes of determining compliance with subsection 6.1 and
(ii) any other Indebtedness secured by Liens permitted by subsection
6.3(f), and


 


(h)    other Indebtedness in an aggregate amount
not to exceed the
greater of (i) an amount
equal to 30% of the difference of consolidated shareholders’ 


 


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equity of the Company and its
Subsidiaries minus Attributed Equity and (ii) $750 million.


 


To
the extent that the creation, incurrence or assumption of any Indebtedness
could be attributable to more than one of the foregoing exceptions, the
applicable Borrower may allocate such Indebtedness to any one or more of such
subsections and in no event shall the same portion of such Indebtedness be
deemed to utilize or be attributable to more than one such subsection.


 


SECTION 7.  EVENTS
OF DEFAULT


 


7.1.  Events
of Default.  If any of the following
events shall occur and be continuing:


 


(a)  Any Borrower
shall (i) fail to pay any principal of any Loan made to it when due in
accordance with the terms hereof or (ii) fail to pay any interest on any
Loan made to it or any other amount which is payable hereunder and (in the case
of this clause (ii) only) such failure shall continue unremedied for more
than five Business Days after written notice thereof has been given to the
Company by the Agent or the Majority Lenders; or


 


(b)  Any
representation or warranty made or deemed made by the Company in Section 3
or any certified statement furnished pursuant to subsection 5.2(b) shall
prove to have been materially incorrect on or as of the date made or deemed
made or certified; or


 


(c)  The Company
shall default in the observance of the agreement contained in subsection 6.1;
or


 


(d)  Any Borrower
shall default in the observance or performance of any other agreement
applicable to it contained in this Agreement (other than as provided in
paragraphs (a), (b) and (c) of this Section 7), and such default
shall continue unremedied for a period of 30 days after written notice thereof
shall have been given to the Company by the Agent or the Majority Lenders; or


 


(e)  The Company
or any of its Subsidiaries (other than any Bankruptcy Remote Special Purpose
Entity) shall default in any payment of $50,000,000 or more (in the case of any
single payment) or $100,000,000 or more (in the case of all such defaulted
payments in the aggregate) of principal of or interest on any Indebtedness or
in the payment of $50,000,000 or more (in the case of any single payment) or
$100,000,000 or more (in the case of all such defaulted payments in the
aggregate)  on account of any Guarantee
in respect of Indebtedness, and such default shall be continuing beyond the
period of grace, if any, provided in the instrument or agreement under which
such Indebtedness or Guarantee was created; or


 


(f)  (A)Any
Borrower or any Guarantor shall commence any case, proceeding or other action (A) under
any existing or future law of any jurisdiction, domestic or foreign, relating
to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have
an order for relief entered with respect to it, or seeking to adjudicate it a
bankrupt or insolvent, or seeking reorganization, arrangement, adjustment,
winding-up, liquidation, dissolution, composition or other relief with respect
to it or its debts, or (B) seeking appointment of a receiver, trustee,
custodian, conservator or other similar official for it or for all or any
substantial part of its assets, or any Borrower or any Guarantor shall make a
general assignment for the benefit of its creditors; or (ii) there shall
be commenced against any Borrower or any Guarantor any case, proceeding or
other action of a nature referred to in clause (i) above which (A) results
in the entry of an order for relief or any such adjudication or appointment or (B) remains
undismissed, undischarged or 


 


79

















 


unbonded for a period of 90
days; or (iii) there shall be commenced against any Borrower or any
Guarantor any case, proceeding or other action seeking issuance of a warrant of
attachment, execution, distraint or similar process against all or any
substantial part of its assets which results in the entry of an order for any
such relief which shall not have been vacated, discharged, or stayed or bonded
pending appeal within 90 days from the entry thereof; or


 


(g)  One or more
judgments or decrees shall (i) be entered against the Company or any of
its Subsidiaries (other than any Bankruptcy Remote Special Purpose Entity), (ii) not
have been vacated, discharged, satisfied, stayed or bonded pending appeal
within 60 days from the entry thereof and (iii) involve a liability (not
paid or fully covered by insurance) of either (A) $50,000,000 or more, in
the case of any single judgment or decree or (B) $100,000,000 or more in
the aggregate, in the case of all such judgments and decrees;


 


(h)  a Change of
Control shall occur; or


 


(i)  the
occurrence of any ERISA Event, the partial or complete withdrawal of the
Company or any of its ERISA Affiliates from a Multiemployer Plan and/or the
reorganization or termination of a Multiemployer Plan which could, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect;


 


then, and in any such event,
(A) if such event is an Event of Default specified in clause (i) or (ii) of
paragraph (f) above with respect to the Company, automatically the
Commitments shall immediately terminate and the Loans hereunder (with accrued
interest thereon) and all other amounts owing under this Agreement shall
immediately become due and payable, and (B) if such event is any other
Event of Default, either or both of the following actions may be taken:  (i) with the consent of the Majority
Lenders, the Agent may, or upon the request of the Majority Lenders, the Agent
shall, by notice to the Company declare the Commitments to be terminated
forthwith, whereupon the Commitments shall immediately terminate; and (ii) with
the consent of the Majority Lenders, the Agent may, or upon the request of the
Majority Lenders, the Agent shall, by notice to the Company, declare the Loans
hereunder (with accrued interest thereon) and all other amounts owing under
this Agreement to be due and payable forthwith, whereupon the same shall
immediately become due and payable. 
Except as expressly provided above in this Section 7, presentment,
demand, protest and all other notices of any kind are hereby expressly waived.


 


7.2.  Actions in Respect of the Letters of
Credit upon Default.  If the Commitments have been terminated and
the Loans hereunder have been accelerated pursuant to subsection 7.1, an amount
equal to the aggregate Available Letter of Credit Amount of all outstanding
Letters of Credit issued for the account or at the request of each Borrower
shall be immediately due and payable to the Agent for the account of the
Lenders without notice to or demand upon the Borrowers, which are expressly
waived by each Borrower, to be held in the L/C Cash Deposit Account, and the
Borrowers shall forthwith pay to the Agent on behalf of the Lenders in same day
funds at the Agent’s office designated in such demand, for deposit in the L/C
Cash Deposit Account, an amount equal to the aggregate Available Letter of
Credit Amount of all Letters of Credit issued for the account or at the request
of such Borrower then outstanding.  Upon
the drawing of any Letter of Credit, to the extent funds are on deposit in the
L/C Cash Deposit Account, such funds shall be applied to reimburse the Issuing
Banks to the extent permitted by applicable law.  After all such Letters of Credit shall have
expired or been fully drawn upon and all other obligations of the applicable
Borrowers hereunder and under the Notes shall have been paid in full, the
balance, if any, in such L/C Cash Deposit Account shall be returned to such
Borrowers.


 


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SECTION 8.  GUARANTEE


 


8.1.  Guarantee.  (a)    Guarantee.  The Company hereby guarantees, as primary
obligor and not merely as surety, to each Lender and the Agent and their respective
successors and assigns the prompt payment in full when due (whether at stated
maturity, by acceleration or otherwise) of the principal of and interest on the
Borrowings made by the Lenders to, and the Notes (if any) held by each Lender
of, any Designated Borrower and all other amounts from time to time owing to
the Lenders or the Agent by any Designated Borrower under this Agreement, the
Notes or any of the other Loan Documents, in each case strictly in accordance
with the terms thereof (such obligations being herein collectively called the “Guaranteed
Obligations”).  The Company hereby
further agrees that if any Designated Borrower shall fail to pay in full when
due (whether at stated maturity, by acceleration or otherwise) any of the
Guaranteed Obligations, the Company will promptly pay the same, without any
demand or notice whatsoever, and that in the case of any extension of time of
payment or renewal of any of the Guaranteed Obligations, the same will be
promptly paid in full when due (whether at extended maturity, by acceleration
or otherwise) in accordance with the terms of such extension or renewal.


 


(b)  Obligations
Unconditional.  The obligations of
the Company under paragraph (a) of this subsection 8.1 are absolute,
unconditional and irrevocable, irrespective of the value, genuineness,
validity, regularity or enforceability of the obligations of any Designated
Borrower under this Agreement, the Notes or of the Loan Documents or any other
agreement or instrument referred to herein or therein, or any substitution,
release or exchange of any other guarantee of or security for any of the
Guaranteed Obligations, and, to the fullest extent permitted by applicable law,
irrespective of any other circumstance whatsoever which might otherwise
constitute a legal or equitable discharge or defense (other than a defense of
payment) of a surety or guarantor, it being the intent of this subsection 8.1(b) that
the obligations of the Company hereunder shall be absolute and unconditional
under any and all circumstances.  Without
limiting the generality of the foregoing, it is agreed that the occurrence of
any one or more of the following shall not alter or impair the liability of the
Company hereunder which shall remain absolute and unconditional as described
above:


 


(a)  at
any time or from time to time, without notice to the Company, the time for any
performance of or compliance with any of the Guaranteed Obligations shall be
extended, or such performance or compliance shall be waived;


 


(b)  any
of the acts mentioned in any of the provisions of this Agreement or the Notes
or any Loan Document or any other agreement or instrument referred to herein or
therein shall be done or omitted;


 


(c)  the
maturity of any of the Guaranteed Obligations shall be accelerated, or any of
the Guaranteed Obligations shall be increased or shall be modified,
supplemented or amended in any respect, or any right under this Agreement or
the Notes or any Loan Document or any other agreement or instrument referred to
herein or therein shall be waived or any other guarantee of any of the
Guaranteed Obligations or any security therefore shall be released or exchanged
in whole or in part or otherwise dealt with;


 


81

















 


(d)  any
beneficiary of the Guaranteed Obligations proceeding against the Company
without proceeding against any Designated Borrower or any other party.


 


Subject
to paragraph (a) of this subsection 8.1, the Company hereby expressly
waives diligence, presentment, demand of payment, protest and all notices
whatsoever, and any requirement that the Agent or any Lender exhaust any right,
power or remedy or proceed against any Designated Borrower under this Agreement
or the Notes or any other Loan Documents or any other agreement or instrument referred
to herein or therein, or against any other Person under any other guarantee of,
or security for, any of the Guaranteed Obligations.


 


(c)  Reinstatement.  The obligations of the Company under this
subsection 8.1 shall be automatically reinstated if and to the extent that for
any reason any payment by or on behalf of any Designated Borrower in respect of
the Guaranteed Obligations is rescinded or must be otherwise restored by any
holder of any of the Guaranteed Obligations, whether as a result of any
proceedings in bankruptcy or reorganization or otherwise, and each Designated
Borrower agrees that it will indemnify the Agent, each Sub-Agent and each
Lender on demand for all reasonable costs and expenses (including, without
limitation, fees of counsel) incurred by the Agent or such Lender in connection
with such rescission or restoration, including any such costs and expenses
incurred in defending against any claim alleging that such payment constituted
a preference, fraudulent transfer or similar payment under any bankruptcy,
insolvency or similar law.


 


(d)  Subrogation.  The Company hereby agrees that until the
payment and satisfaction in full of all Guaranteed Obligations and the
expiration and termination of the Commitments of the Lenders under this Agreement
it shall not exercise any right or remedy arising by reason of any performance
by it of its guarantee in subsection 8.1(a) hereof, whether by subrogation
or otherwise, against the Designated Borrower, any other guarantor of any of
the Guaranteed Obligations or any security for any of the Guaranteed
Obligations.


 


(e)  Remedies.  The Company agrees that, as between the
Company and the Lenders, the obligations of the Designated Borrowers under this
Agreement, the Notes and any other Loan Document may be declared to be
forthwith due and payable (or may become automatically due and payable as
provided in Article VII hereof for purposes of subsection 8.1(a) hereof)
notwithstanding any stay, injunction or other prohibition preventing such
declaration (or such obligations from becoming automatically due and payable)
as against the Designated Borrowers and that, in the event of such declaration
(or such obligations being deemed to have become automatically due and
payable), such obligations (whether or not due and payable by the Designated
Borrower) shall forthwith become due and payable by the Company for purposes of
said subsection 8.1(a).


 


(f)  Continuing
Guarantee.  The guarantee in this
subsection 8.1 is a continuing guarantee and shall apply to all Guaranteed
Obligations whenever arising.


 


SECTION 9.  THE
AGENT


 


9.1.  Appointment.  Each
Lender hereby irrevocably designates and appoints Citibank as the Agent of such
Lender under this Agreement and the other Loan Documents, and each such Lender
irrevocably authorizes Citibank, as the Agent for such Lender, to take such
action on its behalf under the 


 


82

















 


provisions of this Agreement
and the other Loan Documents and to exercise such powers and perform such duties
as are expressly delegated to the Agent by the terms of this Agreement and the
other Loan Documents, together with such other powers as are reasonably
incidental thereto.  Notwithstanding any
provision to the contrary elsewhere in this Agreement, (a) the Agent shall
not have any duties or responsibilities, except those expressly set forth
herein and in the other Loan Documents, (b) the Syndication Agent, the
Documentation Agents and the Arrangers shall not have any duties or
responsibilities in their capacities as such to the Lenders and (c) none
of the Agent, the Syndication Agent, any Documentation Agent or any Arranger
shall have any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities
shall be read into this Agreement or any other Loan Document or otherwise exist
against the Agent, the Syndication Agent, any Documentation Agent or any
Arranger.


 


9.2.  Delegation
of Duties.  The Agent may execute any of its duties under
this Agreement and the other Loan Documents by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties.  The
Agent shall not be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care.


 


9.3.  Exculpatory
Provisions.  Neither the Agent nor any of its officers,
directors, employees or Affiliates shall be (i) liable for any action
lawfully taken or omitted to be taken by it or such Person under or in
connection with this Agreement (except for its or such Person’s own gross
negligence or willful misconduct) or (ii) responsible in any manner to any
of the Lenders for any recitals, statements, representations or warranties made
by any Borrower or any officer thereof contained in this Agreement or in any
certificate, report, statement or other document referred to or provided for
in, or received by the Agent under or in connection with, this Agreement or for
the value, validity, effectiveness, genuineness, enforceability or sufficiency
of this Agreement or any Loan Document or for any failure of any Borrower to
perform its obligations hereunder or thereunder.  The Agent shall not be under any obligation
to any Lender to ascertain or to inquire as to the observance or performance of
any of the agreements contained in, or conditions of, this Agreement or any
other Loan Document, or to inspect the properties, books or records of any
Borrower.


 


9.4.  Reliance
by Agent.  The Agent shall be entitled to rely, and
shall be fully protected in relying, upon any writing, resolution, notice,
consent, certificate, affidavit, letter, telecopy, telex or teletype message,
statement, order or other document or conversation believed by it in good faith
to be genuine and correct and to have been signed, sent or made by the proper
Person or Persons and upon advice and statements of legal counsel (including,
without limitation, counsel to the Company), independent accountants and other
experts selected by the Agent.  The Agent
may deem and treat the Lender specified in the Register with respect to any
amount owing hereunder as the owner thereof for all purposes unless a written
notice of assignment, negotiation or transfer thereof shall have been filed
with the Agent.  The Agent shall be fully
justified in failing or refusing to take any action under this Agreement unless
it shall first receive such advice or concurrence of the Majority Lenders as it
deems appropriate or it shall first be indemnified to its satisfaction by the
Lenders against any and all liability and expense which may be incurred by it
by reason of taking or continuing to take any such action.  The Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement in
accordance with a request of the Majority Lenders (or, to the extent that this
Agreement expressly requires a higher percentage of Lenders, such higher
percentage), and such request and any action taken or failure to act pursuant
thereto shall be binding upon all the Lenders and all future holders of the
obligations owing by any Borrower hereunder.


 


9.5.  Notice
of Default.  The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Agent has received written notice from a Lender or any
Borrower referring to this Agreement, describing such Default or Event of
Default 


 


83

















 


and stating that such notice
is a “notice of default”.  In the event
that the Agent receives such a notice, the Agent shall promptly notify the
Borrowers (unless the Company or applicable Borrower shall have delivered such
notice to the Agent) and then give notice thereof to the Lenders (provided
that the failure to notify the Borrowers shall not impair any of the rights of
the Agent and the Lenders with respect to the events and circumstances
specified in such notice).  The Agent
shall take such action with respect to such Default or Event of Default as
shall be reasonably directed by the Majority Lenders; provided that
unless and until the Agent shall have received such directions, the Agent may
(but shall not be obligated to) take such action, or refrain from taking such
action, with respect to such Default or Event of Default as it shall deem
advisable in the best interests of the Lenders.


 


9.6.  Non-Reliance
on Agent and Other Lenders.  Each Lender expressly acknowledges that
neither the Agent nor any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates has made any representations or warranties to
it and that no act by the Agent hereinafter taken, including any review of the
affairs of any Borrower, shall be deemed to constitute any representation or
warranty by the Agent to any Lender.  Each Lender represents to the Agent that it
has, independently and without reliance upon the Agent or any other Lender, and
based on such documents and information as it has deemed appropriate, made its
own appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of the Borrowers and made
its own decision to make its Loans hereunder and enter into this
Agreement.  Each Lender also represents
that it will, independently and without reliance upon the Agent or any other
Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit analysis, appraisals
and decisions in taking or not taking action under this Agreement, and to make
such investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of the
Borrowers.  Except for notices, reports
and other documents expressly required to be furnished to the Lenders by the
Agent hereunder, the Agent shall not have any duty or responsibility to provide
any Lender with any credit or other information concerning the business,
operations, property, condition (financial or otherwise), prospects or
creditworthiness of the Borrowers which may come into the possession of the
Agent or any of its officers, directors, employees, agents, attorneys-in-fact
or Affiliates.


 


9.7.  Indemnification.  The
Lenders agree to indemnify the Agent and each Sub-Agent (in their respective
capacities as such, but only to the extent not reimbursed by the Borrowers and
without limiting the obligation of the Borrowers to do so), ratably according
to their respective Commitments in effect on the date on which indemnification
is sought under this subsection 9.7 (or, if indemnification is sought after the
date upon which the Commitments shall have terminated and the Loans shall have
been paid in full, ratably in accordance with their Commitments immediately
prior to such date of payment in full) but giving effect to any subsequent
assignments in accordance with subsection 10.7, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind whatsoever which may at any
time (including, without limitation, at any time following the payment of the
amounts owing hereunder) be imposed on, incurred by or asserted against the
Agent or such Sub-Agent (as the case may be) in any way relating to or arising
out of this Agreement or any documents contemplated by or referred to herein or
therein or the transactions contemplated hereby or thereby or any action taken
or omitted by the Agent or any Sub-Agent under or in connection with any of the
foregoing; provided that no Lender shall be liable for the payment of
any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from the
gross negligence or willful misconduct of the Agent or the relevant Sub-Agent
(as the case may be).  The agreements in
this subsection 9.7 shall survive the payment of the Loans and all other
amounts payable hereunder.


 


9.8.  Agent
in Its Individual Capacity.  The Agent and its Affiliates may make loans
to, accept deposits from and generally engage in any kind of business with the
Borrowers as though the 


 


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Agent were not the Agent
hereunder.  With respect to Loans made or
renewed by it, the Agent shall have the same rights and powers under this
Agreement as any Lender and may exercise the same as though it were not the
Agent, and the terms “Lender” and “Lenders” shall include the Agent in its
individual capacity.


 


9.9.  Successor
Agent.  The Agent may resign as Agent upon 30 days’
notice to the Lenders and the Borrowers and following the appointment of a
successor Agent in accordance with the provisions of this subsection 9.9.  If the Agent shall resign as Agent under this
Agreement, then the Majority Lenders shall appoint from among the Lenders
willing to serve as Agent a successor agent for the Lenders, which successor
agent shall be approved by the Company (which approval shall not be
unreasonably withheld and shall not be required if an Event of Default under
subsection 7.1(a) or (f) has occurred and is continuing), whereupon
such successor agent shall succeed to the rights, powers and duties of the
Agent, and the term “Agent” shall mean such successor agent effective upon such
appointment and approval, and the former Agent’s rights, powers and duties as
Agent shall be terminated, without any other or further act or deed on the part
of such former Agent or any of the parties to this Agreement or any holders of
the obligations owing hereunder.  After
any retiring Agent’s resignation as Agent, the provisions of this Section 9
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Agent under this Agreement.


 


9.10.  Sub-Agent.  Each
Sub-Agent has been designated under this Agreement to carry out the duties of
the Agent.  Each Sub-Agent shall be
subject to each of the obligations in this Agreement to be performed by such
Sub-Agent, and each of the Borrowers and the Lenders agrees that each Sub-Agent
shall be entitled to exercise each of the rights and shall be entitled to each
of the benefits of the Agent under this Agreement as they related to the
performance of its obligations hereunder. 
None of the Lenders or other Persons identified on the facing page or
signature pages of this Agreement as a “syndication agent,” “documentation
agent,” “bookrunner,” or “lead arranger” shall have any right, power,
obligation, liability, responsibility or duty under this Agreement other than
to the extent expressly set forth herein and, in the case of such Lenders,
those applicable to all Lenders as such. 
Without limiting the foregoing, none of the Lenders or other Persons so
identified shall have or be deemed to have any fiduciary relationship with any
Lender.  Each Lender acknowledges that it
has not relied, and will not rely, on any of the Lenders or other Persons so
identified in deciding to enter into this Agreement or in taking or not taking
action hereunder.


 


SECTION 10.  MISCELLANEOUS


 


10.1.  Amendments
and Waivers.  Neither this Agreement nor the Guaranty nor
any terms hereof or thereof may be amended, supplemented or modified except in
accordance with the provisions of this subsection 10.1.  The Majority Lenders may, or, with the
written consent of the Majority Lenders, the Agent may, from time to time, (a) enter
into with the Borrowers and, in the case of the Guaranty, the Guarantors,
written amendments, supplements or modifications hereto or to the Guaranty, as
the case may be, for the purpose of adding any provisions to this Agreement or
the Guaranty or changing in any manner the rights of the Lenders or of the
Borrowers or Guarantors, as the case may be, hereunder or thereunder or (b) waive,
on such terms and conditions as the Majority Lenders or the Agent, as the case
may be, may specify in such instrument, any of the requirements of this
Agreement or any Default or Event of Default and its consequences; provided,
however, that (x) no such waiver and no such amendment, supplement
or modification shall, unless in writing and signed by all of the Lenders
(other than any Lender that is, at such time, a defaulting Lender):


 


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(i)  amend, modify
or waive the voting requirements of this subsection 10.1 or reduce the
percentage specified in the definition of Majority Lenders, or consent to the
assignment or transfer by any Borrower of any of its rights and obligations
under this Agreement, or


 


(ii)   release one
or more Guarantors (or otherwise limit the liability of one or more Guarantors
with respect to the obligations owing to the Agent and the Lenders under the
Guaranty) if such release or limitation is in respect of substantially all of
the value provided by all Guarantors under the Guaranty, or


 


(iii)  permit the
sale of all or substantially all of the assets of the Company and its
Subsidiaries, taken as a whole, outside of the ordinary course of its business;


 


and (y) no such waiver and no such amendment,
supplement or modification shall, unless in writing and signed by the Lender or
Lenders specified below for such waiver, amendment, supplement or modification:


 


(i)  reduce the principal amount of any
Loan, or reduce the stated rate of any interest or fee payable hereunder, or
extend the scheduled date of any payment thereof, or increase the amount or
extend the expiration date of any Lender’s Commitment, in each case without the
consent of each Lender directly affected thereby, or


 


(ii)  amend,
modify or waive any provision of this Agreement, in each case governing the
rights of the Lenders under any Facility in respect of the Guaranty, the
guarantee in Section 8 of this Agreement or any collateral that may secure
the obligations owing to such Lenders under this Agreement or the Guaranty
(including, for the avoidance of doubt, any amendment that would provide for
the addition of any such collateral), without the written consent of Lenders
holding a majority in interest of the obligations under such Facility, if such
amendment, modification or waiver materially adversely affects the Lenders
under such Facility in a manner that is disproportionate to the effect of such
amendment, modification or waiver on the Lenders under the other Facilities, or


 


(iii)  amend,
modify or waive any provision of this Agreement, in each case governing the
application of payments to the Lenders under any Facility, without the written
consent of Lenders holding a majority in interest of the obligations under such
Facility, if such amendment, modification or waiver materially adversely
affects the Lenders under such Facility in a manner that is disproportionate to
the effect of such amendment, modification or waiver on the Lenders under the
other Facilities, or


 


(iv)  amend,
modify or waive any provision of this Agreement, in each case governing the
rights of the Lenders under any Facility, without the written consent of
Lenders holding a majority in interest of the obligations under such Facility,
if such amendment, modification or waiver, or such provision, by its express
terms applies only to such Facility (or only to the Lenders thereunder) and if
such amendment, modification or waiver adversely affects the Lenders under such
Facility, or


 


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(v)  amend,
modify or waive any provision of subsection 2.3 or any other provision of this
Agreement governing the rights or obligations of any Issuing Bank, without the
written consent of such Issuing Bank, or


 


(vi)  amend,
modify or waive any provision of subsection 2.6 or any other provision of this
Agreement governing the rights or obligations of any Swing Line Lender, without
the written consent of such Swing Line Lender, or


 


(vii) amend, modify or waive any provision of
subsection 2.7 or any other provision of this Agreement governing the rights or
obligations of each Yen Swing Line Lender, without the written consent of such
Yen Swing Line Lender, or


 


(viii)  permit
any Borrower to request Borrowings in additional foreign currencies without the
consent of each Lender directly affected thereby, or


 


(ix)  amend,
modify or waive any provision of Section 9 or any other provision of this
Agreement governing the rights or obligations of the Agent without the written
consent of the then Agent, or


 


(x)  amend,
modify or waive any provision of subsection 2.25 or any other provision of this
Agreement governing the rights or obligations of any Irish Swing Line Lender,
without the written consent of such Irish Swing Line Lender.


 


Any such waiver and any such amendment, supplement
or modification shall apply equally to each of the Lenders and shall be binding
upon the Borrowers, the Lenders, the Agent and all future holders of the
obligations owing hereunder.  In the case
of any waiver, the Borrowers, the Lenders and the Agent shall be restored to
their former position and rights hereunder, and any Default or Event of Default
waived shall be deemed to be cured and not continuing; but no such waiver shall
extend to any subsequent or other Default or Event of Default, or impair any
right consequent thereon.


 


Notwithstanding anything to the contrary contained
in this subsection 10.1, with respect to any provision contained in this
Agreement relating to any Facility, the Agent, the Borrowers and a majority in
interest of the Applicable Lenders under such Facility shall be permitted to
amend such provision, without the consent of any other Lender, solely to the
extent reasonably necessary or advisable to (x) comply with applicable
laws relating to such Facility or (y) better implement the intentions of
this Agreement with respect to such Facility, and, in the case of any amendment
made pursuant to this clause (y), solely to the extent that such amendment does
not impair the rights, obligations or interests of any other Lender under this
Agreement in any material respect.


 


10.2.  Notices.  (p) 
All notices, requests and demands to or upon the respective parties hereto to
be effective shall be in writing (including by telecopy), and, unless otherwise
expressly provided herein, shall be deemed to have been duly given or made when
delivered by hand, or four days after being deposited in the mail, postage
prepaid, or, in the case of telecopy notice, when received, addressed as
follows in the case of the Company or any Borrower and the Agent, and as set
forth in Schedule I or II in the case of the other parties hereto, or to such
other address as may be hereafter notified by the respective parties hereto and
any future holders of the obligations owing hereunder:


 


	
  The Company:

  	
   

  	
  Capmark Financial Group
  Inc.

  
	
   

  	
   

  	
  200 Witmer Road

  
	
   

  	
   

  	
  Horsham, PA 19044

  
	
   

  	
   

  	
  Attention: 

  	
  Marc Fox

  
	
   

  	
   

  	
   

  	
  Wayne Hoch

  
	
   

  	
   

  	
  Telecopy: 

  	
  215-328-1515

  



 


87

















 


	
   

  	
   

  	
  With a copy to:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Capmark Financial Group
  Inc.

  
	
   

  	
   

  	
  200 Witmer Road

  
	
   

  	
   

  	
  Horsham, PA 19044

  
	
   

  	
   

  	
  Attention:  General Counsel

  	
   

  
	
   

  	
   

  	
  Telecopy:  215-328-3620

  	
   

  
	
   

  	
   

  	
   

  
	
  The
  Agent:

  	
   

  	
  Citibank,
  N.A.

  
	
   

  	
   

  	
  2
  Penns Way, Suite 200

  
	
   

  	
   

  	
  New
  Castle, DE  19720

  
	
   

  	
   

  	
  Attention:
   Dawayne Sims

  	
   

  
	
   

  	
   

  	
  Telecopy:
   212-994-0961

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  With
  a copy to:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Citibank, N.A.

  
	
   

  	
   

  	
  388 Greenwich Street

  
	
   

  	
   

  	
  New York, NY 10013

  
	
   

  	
   

  	
  Attention:  Yoko Otani

  	
   

  
	
   

  	
   

  	
  Telecopy:  646-291-1727

  	
   

  



 


provided that any notice, request or demand to or
upon the Agent, any Issuing Bank or the Lenders pursuant to subsections 2.3,
2.4, 2.5, 2.6, 2.7, 2.8, 2.9, 2.10, 2.11 or 2.25 shall not be effective until
received.


 


(a)  So
long as Citibank or any of its Affiliates is the Agent, materials required to
be delivered pursuant to subsections 5.1, 5.2 and 5.3 may be delivered to the
Agent in an electronic medium in a format acceptable to the Agent and the
Lenders by e-mail at oploanswebadmin@citigroup.com (and delivery in such format
shall fully satisfy the delivery requirements of such subsections in respect thereof).  The Borrowers agree that the Agent may make
such materials, as well as any other written information, documents,
instruments and other material relating to the Borrowers, any of their
Subsidiaries or any other materials or matters relating to this Agreement, the
Notes, the Guaranty or any of the transactions contemplated hereby
(collectively, the “Communications”) available to the Lenders by posting
such notices on Intralinks or a substantially similar electronic system (the “Platform”).  The Borrowers acknowledges that (i) the
distribution of material through an electronic medium is not necessarily secure
and that there are confidentiality and other risks associated with such
distribution, (ii) the Platform is provided “as is” and “as available” and
(iii) neither the Agent nor any of its Affiliates warrants the accuracy,
adequacy or completeness of the Communications or the Platform and each
expressly disclaims liability for errors or omissions in the Communications or
the Platform.  No warranty of any kind,
express, implied or statutory, including, without limitation, any warranty of
merchantability, fitness for a particular purpose, non-infringement of third
party rights or freedom from viruses or other code defects, is made by the
Agent or any of its Affiliates in connection with the Platform.


 


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(b)  Each
Lender agrees that notice to it (as provided in the next sentence) (a “Notice”)
specifying that any Communications have been posted to the Platform shall
constitute effective delivery of such information, documents or other materials
to such Lender for purposes of this Agreement; provided that if
requested by any Lender the Agent shall deliver a copy of the Communications to
such Lender by email or telecopier.  Each
Lender agrees (i) to notify the Agent in writing of such Lender’s e-mail
addresses to which a Notice may be sent by electronic transmission (including
by electronic communication) on or before the date such Lender becomes a party
to this Agreement (and from time to time thereafter to ensure that the Agent
has on record at least one effective e-mail address for such Lender) and (ii) that
any Notice may be sent to such e-mail address.


 


10.3.  No
Waiver; Cumulative Remedies.  No failure to exercise and no delay in
exercising, on the part of the Agent or any Lender, any right, remedy, power or
privilege hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or privilege hereunder preclude
any other or further exercise thereof or the exercise of any other right,
remedy, power or privilege.  The rights,
remedies, powers and privileges herein provided are cumulative and not
exclusive of any rights, remedies, powers and privileges provided by law.


 


10.4.  Survival
of Representations and Warranties.  All representations and
warranties made hereunder and in any document, certificate or statement
delivered pursuant hereto or in connection herewith shall survive the execution
and delivery of this Agreement and the making of the Loans and issuances of
Letters of Credit hereunder.


 


10.5.  Payment
of Expenses and Taxes.  The Company agrees (a) to pay or
reimburse the Agent for all its reasonable out-of-pocket costs and expenses
reasonably incurred in connection with the development, preparation and
execution of, and any amendment, supplement or modification to, this Agreement
or any other Loan Document and any other documents prepared in connection
herewith or therewith, and the consummation and administration of the
transactions contemplated hereby and thereby, including, without limitation,
the reasonable fees and disbursements of counsel to the Agent, (b) to pay
or reimburse each Lender and the Agent for all its reasonable costs and
expenses reasonably incurred in connection with the enforcement of any rights
under this Agreement, including, without limitation, the reasonable fees and
disbursements of counsel to the Agent and to the several Lenders (other than
those incurred in connection with the compliance by the relevant Lender with
the provisions of subsection 2.23(a)), and (c) to pay, indemnify, and hold
each Lender and the Agent harmless from, any and all recording and filing fees
and any and all liabilities with respect to, or resulting from any delay by any
Borrower in paying, stamp, excise and other taxes, if any, which may be payable
or determined to be payable in connection with the execution and delivery of,
or consummation or administration of any of the transactions contemplated by, or
any amendment, supplement or modification of, or any waiver or consent under or
in respect of, this Agreement or any other Loan Document, and (d) to pay,
indemnify, and hold each Lender, each Arranger, the Syndication Agent, each
Documentation Agent, the Agent and each Sub-Agent harmless from and against any
and all other liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, reasonable expenses or disbursements of any kind or
nature whatsoever with respect to the execution, delivery, enforcement,
performance and administration of this Agreement and the other Loan Documents
(all the foregoing in this clause (d), collectively, the “indemnified
liabilities”); provided that the Company shall have no obligation
hereunder to the Agent, the Syndication Agent, such Documentation Agent, such
Sub-Agent, such Arranger, or any Lender with respect to indemnified liabilities
arising from the gross negligence or willful misconduct of the Agent, such
Sub-Agent, the Syndication Agent, such Documentation Agent, such Arranger, or
any such Lender.  The agreements in this
subsection 10.5 shall survive repayment of the Loans, expiration or other
termination of the Letters of Credit and payment of all other amounts payable
hereunder.


 


89

















 


10.6.  No
Liability of the Issuing Banks.  The Borrowers assume all risks
of the acts or omissions of any beneficiary or transferee of any Letter of
Credit with respect to its use of such Letter of Credit.  Neither an Issuing Bank nor any of its
officers or directors nor the Agent or any Lender shall be liable or
responsible for:  (a) the use that
may be made of any Letter of Credit or any acts or omissions of any beneficiary
or transferee in connection therewith; (b) the validity, sufficiency or
genuineness of documents, or of any endorsement thereon, even if such documents
should prove to be in any or all respects invalid, insufficient, fraudulent or
forged; (c) payment by such Issuing Bank against presentation of documents
that do not comply with the terms of a Letter of Credit, including failure of
any documents to bear any reference or adequate reference to the Letter of
Credit; or (d) any other circumstances whatsoever in making or failing to
make payment under any Letter of Credit, except that the applicable Borrower
shall have a claim against such Issuing Bank, and such Issuing Bank shall be
liable to such Borrower, to the extent of any direct, but not consequential,
damages suffered by such Borrower that were caused by such Issuing Bank’s
willful misconduct or gross negligence. 
In furtherance and not in limitation of the foregoing, such Issuing Bank
may accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or
information to the contrary; provided that nothing herein shall be
deemed to excuse such Issuing Bank if it acts with gross negligence or willful
misconduct in accepting such documents.


 


10.7.  Successors and Assigns;
Participations and Assignments. 
(a)  The provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that (i) the Borrowers may not assign or
otherwise transfer any of their rights or obligations hereunder without the
prior written consent of each Lender (and any attempted assignment or transfer
by any Borrower without such consent shall be null and void) and (ii) no
Lender may assign or otherwise transfer its rights or obligations hereunder
except in accordance with this subsection.


 


(b) (A)Subject to the conditions
set forth in paragraph (b)(ii) below, any Lender may assign to one or more
assignees (each, an “Assignee”) all or a portion of its rights and
obligations under this Agreement (including all or a portion of its
Commitments, its Unissued Letter of Credit Commitment and the Loans at the time
owing to it under one or more Facilities) with the prior written consent (such
consent not to be unreasonably withheld) of:


 


(A)  the
Company, provided that no consent of the Company  shall
be required for an assignment to a Lender, an affiliate of a Lender, an
Approved Fund (as defined below) or, if an Event of Default under subsection
7.1(a) or (f) has occurred and is continuing, any other Person;


 


(B)  the
Agent, provided that no consent of the Agent shall be required for an
assignment to an Assignee that is an affiliate of such assigning Lender; and


 


(C)  solely
in the case of any assignment under the Letter of Credit Facility, each Issuing
Bank (such consent not to be unreasonably withheld or delayed), provided
that no consent of any Issuing Bank shall be required for an assignment to an
Assignee that is an affiliate of such assigning Lender.


 


(ii)  Assignments
shall be subject to the following additional conditions:


 


(A)  except
in the case of an assignment to a Lender, an affiliate of a Lender or an
Approved Fund or an assignment of the entire remaining amount of the assigning
Lender’s Commitments or Loans, the amount of the Commitments or Loans of the
assigning Lender subject to each such assignment (determined as of the date the
Assignment and Assumption with respect to such assignment is delivered to the
Agent) shall be an amount equal to $5,000,000 or a


 


90

















 


multiple
of $1,000,000 in excess thereof unless each of the Company and the Agent
otherwise consent, provided that (1) no such consent of the Company
shall be required if an Event of Default under subsection 7.1(a) or (f) has
occurred and is continuing and (2) such amounts shall be aggregated in
respect of each Lender and its affiliates or Approved Funds, if any;


 


(B)  the
parties to each assignment shall execute and deliver to the Agent an Assignment
and Assumption substantially in the form of Exhibit G, together with a
processing and recordation fee of $3,500;


 


(C)  the
Assignee, if it shall not be a Lender, shall deliver to the Agent an
administrative questionnaire; and


 


(D)  in
the case of an assignment by any Lender to a CLO (as defined below)
administered or managed by such Lender or an affiliate of such Lender, the
assigning Lender shall retain the sole right to approve any amendment,
modification or waiver of any provision of this Agreement, provided that
the Assignment and Assumption between such Lender and such CLO may provide that
such Lender will not, without the consent of such CLO, agree to any amendment,
modification or waiver that (1) requires the consent of each Lender
directly affected thereby pursuant to the proviso to the second sentence of
subsection 10.1 and (2) directly affects such CLO.


 


For the
purposes of this subsection 10.7, the terms “Approved Fund” and “CLO” have the
following meanings:


 


“Approved
Fund”:  (a) a CLO and (b) with
respect to any Lender that is a fund which invests in bank loans and similar
extensions of credit, any other fund that invests in bank loans and similar
extensions of credit and is managed by the same investment advisor as such
Lender or by an affiliate of such investment advisor.


 


“CLO”:  any entity (whether a corporation,
partnership, trust or otherwise) that is engaged in making, purchasing, holding
or otherwise investing in bank loans and similar extensions of credit in the
ordinary course of its business and is administered or managed by a Lender or
an affiliate of such Lender.


 


(iii)          Subject to acceptance and recording thereof pursuant to
paragraph (b)(iv) below, from and after the effective date specified in
each Assignment and Assumption, the Assignee thereunder shall be a party hereto
and, to the extent of the interest assigned by such Assignment and Assumption,
have the rights and obligations of a Lender under this Agreement, and the
assigning Lender thereunder shall, to the extent of the interest assigned by such
Assignment and Assumption, be released from its obligations under this
Agreement (and, in the case of an Assignment and Assumption covering all of the
assigning Lender’s rights and obligations under this Agreement, such Lender
shall cease to be a party hereto but shall continue to be entitled to the
benefits of subsections 2.20, 2.21, 2.22 and 9.7); provided that no
Assignee shall then be entitled to receive any greater amount pursuant to
subsections 2.19, 2.20, 2.21 or 2.22 than the assigning Lender would have been
entitled to receive thereunder in respect of the rights and obligations
assigned by such assigning Lender to such Assignee had no such assignment
occurred.  Any assignment or transfer by
a Lender of rights or obligations under this Agreement that does not comply
with this subsection 10.7 shall be treated for purposes of this Agreement as a
sale by such Lender of a participation in such rights and obligations in
accordance with paragraph (c) of this subsection.


 


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(iv)  The Agent,
acting for this purpose as an agent of the Borrowers, shall maintain at one of
its offices a copy of each Assignment and Assumption delivered to it and a
register for the recordation of the names and addresses of the Lenders, and the
Commitments of, and principal amount of the Loans owing to, each Lender
pursuant to the terms hereof from time to time (the “Register”).  The entries in the Register shall be prima
facie evidence of the existence and amounts of the obligations of the Borrowers
therein recorded, and the Borrowers, the Agent and the Lenders may treat each
Person whose name is recorded in the Register pursuant to the terms hereof as a
Lender hereunder for all purposes of this Agreement, notwithstanding notice to
the contrary.  The Register shall be
available for inspection by the Borrowers and any Lender, at any reasonable
time and from time to time upon reasonable prior notice.  The Agent shall provide a copy of the
Register to the Borrowers on a monthly basis.


 


(v)  Upon its
receipt of a duly completed Assignment and Assumption executed by an assigning
Lender and an Assignee, the Assignee’s completed administrative questionnaire
(unless the Assignee shall already be a Lender hereunder), the processing and
recordation fee referred to in paragraph (b) of this subsection and any
written consent to such assignment required by paragraph (b) of this
subsection, the Agent shall accept such Assignment and Assumption and record
the information contained therein in the Register.


 


(c) (i) Any Lender may,
without the consent of the Borrowers or the Agent, sell participations to one
or more banks or other entities (a “Participant”) in all or a portion of
such Lender’s rights and obligations under this Agreement (including all or a
portion of its Commitments and the Loans owing to it); provided that (A) such
Lender’s obligations under this Agreement shall remain unchanged, (B) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, (C) the Borrowers, the Agent, any
Sub-Agent and the other Lenders shall continue to deal solely and directly with
such Lender in connection with such Lender’s rights and obligations under this
Agreement and (D) such Lender shall have given prior written notice to the
Company and any other applicable Borrower of the identity of such
Participant.  Any agreement pursuant to
which a Lender sells such a participation shall provide that such Lender shall
retain the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; provided that
such agreement may provide that such Lender will not, without the consent of
the Participant, agree to any amendment, modification or waiver that (1) requires
the consent of each Lender directly affected thereby pursuant to the proviso to
the second sentence of subsection 10.1 and (2) directly affects such
Participant.  Subject to paragraph (c)(ii) of
this subsection, the Borrowers agree that each Participant shall be entitled to
the benefits of subsections 2.19, 2.20, 2.21, 2.22 and 9.7 to the same extent
as if it were a Lender and had acquired its interest by assignment pursuant to
paragraph (b) of this subsection.


 


(ii) 
A Participant shall not be entitled to receive any greater payment under
subsection 2.19, 2.20, 2.21, 2.22 or 9.7 than the applicable Lender would have
been entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is made
with the Company’s prior written consent. 
Any Participant shall not be entitled to the benefits of subsection 2.21
except to the extent that it has complied with any applicable requirements of
such subsection.


 


(d)           Nothing
herein shall prohibit any Lender from pledging or assigning all or any portion
of its Loans to any Federal Reserve Bank in accordance with applicable
law.  In order to facilitate such pledge
or assignment, the Borrowers hereby agree that, upon request of any Lender at
any time and from time to time after such Borrower has made its initial
Borrowing hereunder, such Borrower shall provide to such Lender, at such
Borrower’s own expense, a promissory note, substantially in the form of Exhibit I
evidencing the Revolving Credit Loans, Term Loans and/or Canadian Revolving
Credit Borrowings (other than BAs) owing by such Borrower to such Lender (a “Note”).  Each Lender agrees that any Note requested
from a Borrower incorporated in Ireland shall not be valid and binding on such 


 


92

















 


Borrower
unless it is properly stamped with the appropriate rate of stamp duty, and such
stamp is duly cancelled, prior to execution by such Borrower.


 


(e)           On
or prior to the effective date of an assignment, the assigning Lender shall
surrender any outstanding Notes held by it all or a portion of which are being
assigned, and the applicable Borrower shall, upon the request to the Agent made
at the time of such assignment by the assigning Lender or the Assignee, as
applicable, execute and deliver to the Agent (in exchange for the outstanding
Notes of the assigning Lender) a new Note to the order of such Assignee in an
amount equal to the amount of such Assignee’s Loan and, if applicable, a new
Note to the order of the assigning Lender in an amount equal to the Loan
retained by such Lender.  Any such new
Notes shall be dated the Closing Date and shall otherwise be in the form of the
Note replaced thereby.  Any Notes
surrendered by the assigning Lender shall be returned by the Agent to the
applicable Borrower marked “cancelled.”


 


(f)            Notwithstanding
the foregoing, any Conduit Lender may assign any or all of the Loans it may
have funded hereunder to its designating Lender without the consent of any
Borrower or the Agent and without regard to the limitations set forth in
subsection 10.7(b); provided, that no Conduit Lender shall be entitled
to receive any greater amount pursuant to subsections 2.19, 2.20, 2.21, 2.22 or
9.7 than the designating Lender would have been entitled to receive in respect
of the extensions of credit made by such Conduit Lender.  In addition, any Conduit Lender may disclose,
on a confidential basis, the existence and terms of the Loans it has funded to
any rating agency, commercial paper dealer or provider of any surety, guarantee
or credit or liquidity enhancements to such Conduit Lender; provided
that no such Person shall receive any confidential financial information with
respect to any Borrower unless such Person has complied with subsection 10.7(g) as
if such Person were a Transferee.  Each
of the Borrowers, the Lenders and the Agent hereby confirms that it will not
institute against a Conduit Lender or join any other Person in instituting
against a Conduit Lender any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceeding under any state bankruptcy or similar law,
for one year and one day after the payment in full of the latest maturing
commercial paper note issued by such Conduit Lender; provided, however,
that each Lender designating any Conduit Lender hereby agrees to indemnify,
save and hold harmless each other party hereto for any loss, cost, damage or
expense (including legal expenses) arising out of its designation of a Conduit
Lender, including but without limitations to, inability to institute such a
proceeding against such Conduit Lender during such period of forbearance.


 


(g)           Each
Borrower authorizes each Lender to disclose to any prospective Participant, any
Participant, any prospective Assignee or any Assignee (each, a “Transferee”)
any and all financial information in such Lender’s possession concerning such
Borrower and its Affiliates which has been delivered to such Lender by or on
behalf of such Borrower pursuant to this Agreement or which has been delivered to
all Lenders by or on behalf of such Borrower in connection with their
respective credit evaluations of such Borrower and its Affiliates prior to
becoming a party to this Agreement; provided that (i) such
Transferee has executed and delivered to such Borrower a written
confidentiality agreement substantially in the form of that which has been
executed and delivered by each Lender prior to the date hereof and (ii) in
the case of any information other than that contained in the Confidential
Information Memorandum, dated November 2005, such Borrower has been
informed of the identity of such Transferee and has consented (such consent
shall not be unreasonably withheld) to the disclosure of such information
thereto.  Nothing contained in this subsection
10.7(g) shall be deemed to prohibit the delivery to any Transferee of any
financial information which is otherwise publicly available.


 


(h)           If at any time, any Lender becomes a
Non-Consenting Lender, then any applicable Borrower may, at its sole cost and
expense, on five Business Days’ prior written notice to the Agent and such
Lender, replace such Lender by causing such Lender to (and such Lender shall be
obligated to) assign pursuant to this subsection 10.7 all of its rights and
obligations under this Agreement to one or more Eligible Assignees; provided
that neither the Agent nor any Lender shall have any 


 


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obligation
to such Borrower to find a replacement Lender or other such Person; provided,
further, that such Non-Consenting Lender shall be entitled to receive the full
outstanding principal amount of Loans so assigned, together with accrued
interest and fees payable in respect of such Loans and all other amounts then
owed and payable to it under the Loan Documents as of the date of such
assignment.


 


(i)            Notwithstanding anything to the
contrary contained in this Agreement, participating interests in, and rights
and obligations with respect to, Canadian Revolving Credit Loans and Canadian
Revolving Credit Commitments may be granted or assigned only to Schedule I
Banks, Schedule II Banks, Schedule III Banks or a Person established under the
laws of Canada or any province or territory thereof that is authorized to carry
on business in Canada pursuant to Part XII of the Bank Act (Canada).


 


10.8.  Adjustments.  If any Lender under any Facility (a “Benefitted
Lender”) shall at any time receive any payment of all or part of its Loans
under such Facility, or interest thereon, or receive any collateral in respect
thereof (whether voluntarily or involuntarily, by set-off, pursuant to events
or proceedings of the nature
referred to in subsection 7.1(f), or otherwise), such that it has received
aggregate payments or collateral on account of its Loans under such Facility in
a greater proportion than any such payment to or collateral received by any
other Lender under such Facility, if any, in respect of such other Lender’s
Loans under such Facility which are then due and payable, or interest thereon,
such Benefitted Lender shall purchase for cash from the other Lenders a
participating interest in such portion of each such other Lender’s Loans under
such Facility, or shall provide such other Lenders with the benefits of any
such collateral, or the proceeds thereof, as shall be necessary to cause such
Benefitted Lender to share the excess payment or benefits of such collateral or
proceeds ratably with each of the Lenders under such Facility; provided,
however, that if all or any portion of such excess payment or benefits
is thereafter recovered from such Benefitted Lender, such purchase shall be
rescinded, and the purchase price and benefits returned, to the extent of such
recovery, but without interest; provided, further, that to the
extent that any Benefitted Lender receives any payment of all or part of its
Loans from any Borrower that owes amounts to such Benefitted Lender under more
than one Facility, or interest thereon, or receives any collateral in respect
thereof (whether voluntarily or involuntarily, by set-off, pursuant to events
or proceedings of the nature referred to in subsection 7.1(f), or otherwise),
any such amount shall be deemed to have been received by such Benefitted Lender
to ratably repay amounts owing to such Benefitted Lender under each such
Facility.


 


10.9.  Counterparts. 
(q)This Agreement may be executed by one or more of the parties to this
Agreement on any number of separate counterparts (including by telecopy), and
all of said counterparts taken together shall be deemed to constitute one and
the same instrument.  A set of the copies
of this Agreement signed by all the parties shall be lodged with the Company
and the Agent.


 


(a)  By
its signature hereto, each Lender hereby agrees that this Agreement shall
become effective immediately upon the execution and delivery by the Borrowers
and the Agent of this Agreement.  In the
event that this Agreement has not been duly executed and delivered by each
Person listed on the signature pages hereto (other than the Borrowers and
the Agent, with respect to which the execution and delivery of this Agreement
shall be a condition precedent to its effectiveness) on the date upon which
this Agreement becomes effective in accordance with the immediately preceding
sentence, this Agreement shall nevertheless become effective with respect to
those Persons who have executed and delivered it on or before such effective
date and those Persons who have not executed and delivered it (such Persons,
the “Non-Executing Banks”) shall be deemed not to be Lenders hereunder.


 


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(b)  On
the date of effectiveness of this Agreement, the Company may (after
consultation with the Agent) designate one or more Lenders (the “Designated
Lenders”) to assume the Commitments which would have been held by the
Non-Executing Banks and, if the Designated Lenders agree to assume such
Commitments, (i) Schedules I and II shall be deemed to be amended to
reflect such increase in the respective Commitment of each Designated Lender
and the omission of each Non-Executing Bank as a Lender hereunder and (ii) the
respective Commitment of each Designated Lender shall be deemed to be such
increased amount for all purposes hereunder.


 


(c)  Notwithstanding
anything to the contrary contained herein, the Commitment of a Lender shall not
be increased (without the prior written consent of such Lender) as a result of
the failure of any other Person to execute and deliver this Agreement or
otherwise.


 


10.10.  Judgment.  (r)  If for the purposes
of obtaining judgment in any court it is necessary to convert a sum due
hereunder in Dollars into another currency, the parties hereto agree, to the
fullest extent that they may effectively do so, that the rate of exchange used
shall be that at which in accordance with normal banking procedures the Agent
could purchase Dollars with such other currency at Citibank’s principal office
in London at 11:00 A.M. (London time) on the Business Day preceding that
on which final judgment is given.


 


(a)  If
for the purposes of obtaining judgment in any court it is necessary to convert
a sum due hereunder in another currency into Dollars, the parties agree to the
fullest extent that they may effectively do so, that the rate of exchange used
shall be that at which in accordance with normal banking procedures the Agent
could purchase such other currency with Dollars at Citibank’s principal office
in London at 11:00 A.M. (London time) on the Business Day preceding that
on which final judgment is given.


 


(b)  The
obligation of each Borrower in respect of any sum due from it in any currency
(the “Primary Currency”) to any Lender, Issuing Bank, Sub-Agent or the
Agent hereunder shall, notwithstanding any judgment in any other currency, be
discharged only to the extent that on the Business Day following receipt by such
Lender, Issuing Bank, Sub-Agent or the Agent (as the case may be), of any sum
adjudged to be so due in such other currency, such Lender, Issuing Bank,
Sub-Agent or the Agent (as the case may be) may in accordance with normal
banking procedures purchase the applicable Primary Currency with such other
currency; if the amount of the applicable Primary Currency so purchased is less
than such sum due to such Lender, Issuing Bank, Sub-Agent or the Agent (as the
case may be) in the applicable Primary Currency, such Borrower agrees, as a
separate obligation and notwithstanding any such judgment, to indemnify such
Lender, Issuing Bank, Sub-Agent or the Agent (as the case may be) against such
loss, and if the amount of the applicable Primary Currency so purchased exceeds
such sum due to any Lender, Issuing, Sub-Agent or the Agent (as the case may
be) in the applicable Primary Currency, such Lender, Issuing Bank, Sub-Agent or
the Agent (as the case may be) agrees to remit to the such Borrower such
excess.


 


10.11.  Substitution of Currency.  If a
change in any Available Foreign Currency occurs pursuant to any applicable law,
rule or regulation of any governmental, monetary or 


 


95

















 


multi-national authority,
this Agreement (including, without limitation, the definitions of Eurocurrency
Rate and EURIBO Rate) will be amended to the extent determined by the Agent and
the Borrowers (each acting reasonably) to be necessary to reflect the change in
currency and to put the Lenders and the Borrowers in the same position, so far
as possible, that they would have been in if no change in such Available
Foreign Currency had occurred.


 


10.12.  Intentionally
Omitted.


 


10.13.  Severability.  Any
provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any jurisdiction
shall not invalidate or render unenforceable such provision in any other
jurisdiction.


 


10.14.  GOVERNING LAW.  THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK.


 


10.15.  USA
PATRIOT Act.  Each Lender hereby notifies each Borrower
that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L.
107-56 (signed into law October 26, 2001)) (the “Patriot Act”), it
is required to obtain, verify and record information that identifies such
Borrower, which information includes the name and address of such Borrower and
other information that will allow such Lender to identify such Borrower in
accordance with the Patriot Act.  Each
Borrower shall promptly provide such information upon request by any Lender.


 


10.16.  WAIVER
OF JURY TRIAL.  EACH OF THE LOAN PARTIES,
THE AGENT AND THE LENDERS IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR
OTHERWISE) ARISING OUT OF OR RELATING TO ANY OF THE LOAN DOCUMENTS, THE
BORROWINGS, THE LETTERS OF CREDIT OR THE ACTIONS OF ANY AGENT OR ANY LENDER IN
THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.


 


96

















 


IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed and delivered by their proper and duly
authorized officers as of the day and year first above written.


 


	
   

  	
  CAPMARK FINANCIAL GROUP INC.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Address:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Taxpayer ID:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CITIBANK, N.A.,

  
	
   

  	
    as
  Administrative Agent and a Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
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  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  [OTHER AGENTS]

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  [LENDERS]

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 

















 


Annex B to


Amendment No. 2 to the Credit Agreement


 


Form of Guarantor Consent


 


CONSENT


 


Reference is made to the
Credit Agreement, dated as of March 23, 2006, as amended by Amendment No. 1 to
the Credit Agreement, dated as of April 17, 2007 and Amendment No. 2 to the
Credit Agreement, dated as of June 30, 2007, among Capmark Financial Group Inc.
(the “Company”), certain subsidiaries of the Company, the financial
institutions and other institutional lenders party thereto, Citibank, N.A., as
administrative agent for the Lenders and the other agents party thereto (such
Credit Agreement, as so amended, the “Credit Agreement”).


 


Each of the undersigned
confirms and agrees that notwithstanding the effectiveness of the foregoing
Amendment No. 2 to the Credit Agreement, each Loan Document to which such
Person is a party is, and shall continue to be, in full force and effect and is
hereby ratified and confirmed in all respects, in each case as amended by
Amendment No. 2 to the Credit Agreement (in each case, as defined therein).


 


[The remainder of this
page intentionally left blank.]


 

















 


	
   

  	
  COMMERCIAL EQUITY
  INVESTMENTS,

  INC.,

  as a Guarantor

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CAPMARK CAPITAL INC.,

  as a Guarantor

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  NET LEASE ACQUISITION LLC,

  as a Guarantor

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 

















 


	
   

  	
  CAPMARK FINANCE INC.,

  as a Guarantor

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CAPMARK INVESTMENTS LP,

  as a Guarantor

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  MORTGAGE INVESTMENTS, LLC,

  as a Guarantor

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SJM CAP, LLC,

  as a Guarantor

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CRYSTAL BALL HOLDING OF
  BERMUDA

  LIMITED, as a Guarantor

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title: