CONFORMED COPY
$2,250,000,000
CREDIT AGREEMENT
dated as of
August 24, 1998
among
Xxxxx & XxXxxxxx Companies, Inc.
The Lenders Party Hereto
and
Xxxxxx Guaranty Trust Company of New York,
as Administrative Agent
TABLE OF CONTENTS
Page
ARTICLE 1
Definitions
Section 1.01. Definitions 1
Section 1.02. Accounting Terms and Determinations 13
ARTICLE 2
The Credits
Section 2.01. Commitments to Lend 13
Section 2.02. Method of Borrowing 14
Section 2.03. Maturity of Loans 15
Section 2.04. Interest Rates 15
Section 2.05. Method of Electing Interest Rates 16
Section 2.06. Facility Fees 18
Section 2.07. Termination or Reduction of
Commitments 18
Section 2.08. Optional Prepayments 19
Section 2.09. General Provisions as to Payments 19
Section 2.10. Funding Losses 20
Section 2.11. Computation of Interest and Fees 21
Section 2.12. Notes 21
Section 2.13. Regulation D Compensation 21
ARTICLE 3
Conditions
Section 3.01. Closing 22
Section 3.02. Borrowings to Finance Acquisition
of Target Shares Pursuant to Offer 23
Section 3.03. Other Borrowings 23
ARTICLE 4
Representations and Warranties
Section 4.01. Corporate Existence and Power 24
Section 4.02. Corporate and Governmental
Authorization; No Contravention 24
Section 4.03. Binding Effect 24
Section 4.04. Financial Information 25
Section 4.05. Litigation 25
Section 4.06. Compliance with ERISA 25
Section 4.07. Taxes 26
Section 4.08. Subsidiaries 26
Section 4.09. No Regulatory Restrictions on
Borrowing 26
Section 4.10. Full Disclosure 26
Section 4.11. Mortgage 26
Section 4.12. Year 2000 Compliance 26
ARTICLE 5
Covenants
Section 5.01. Information 27
Section 5.02. Conduct of Business and Maintenance
of Existence 30
Section 5.03. Compliance with the Laws 31
Section 5.04. Minimum Consolidated Net Worth;
Consolidated Debt 31
Section 5.05. Consolidations, Mergers and Sales
of Assets 31
Section 5.06. Use of Proceeds 31
Section 5.07. Negative Pledge 32
Section 5.08. Amendment of Mortgage 33
Section 5.09. Taxes, Etc 33
ARTICLE 6
Defaults
Section 6.01. Events of Default 34
Section 6.02. Notice of Default 37
ARTICLE 7
The Agents
Section 7.01. Appointment and Authorization 37
Section 7.02. Administrative Agent and Affiliates 37
Section 7.03. Action by Administrative Agent 38
Section 7.04. Consultation with Experts 38
Section 7.05. Liability of Administrative Agent 38
Section 7.06. Indemnification 39
Section 7.07. Credit Decision 39
Section 7.08. Successor Administrative Agent 39
Section 7.09. Administrative Agent's Fee 39
ARTICLE 8
Change in Circumstances
Section 8.01. Basis for Determining Interest Rate
Inadequate or Unfair 40
Section 8.02. Illegality 40
Section 8.03. Increased Cost and Reduced Return 41
Section 8.04. Taxes 42
Section 8.05. Base Rate Loans Substituted for
Affected Euro-dollar Loans 44
ARTICLE 9
Miscellaneous
Section 9.01. Notices 45
Section 9.02. No Waivers 45
Section 9.03. Expenses; Indemnification 45
Section 9.04. Set-offs 46
Section 9.05. Amendments and Waivers 47
Section 9.06. Successors; Participations and
Assignments 47
Section 9.07. No Reliance on Margin Stock 49
Section 9.08. Governing Law; Submission to
Jurisdiction 49
Section 9.09. Counterparts; Integration;
Effectiveness 49
Section 9.10. Waiver of Jury Trial 49
COMMITMENT SCHEDULE
PRICING SCHEDULE
EXHIBIT A - FORM OF NOTE
EXHIBIT B - FORM OF ASSIGNMENT AND ASSUMPTION
AGREEMENT
AGREEMENT dated as of August 24, 1998 among XXXXX
& XxXXXXXX COMPANIES, INC., the LENDERS party hereto
and XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, as
Administrative Agent.
The parties hereto agree as follows:
ARTICLE 1
Definitions
Section 1.1. Definitions. The following terms,
as used herein, have the following meanings:
"Administrative Agent" means Xxxxxx Guaranty Trust
Company of New York, in its capacity as administrative
agent for the Lenders hereunder, and its successors in
such capacity.
"Administrative Questionnaire" means, with respect
to each Lender, an administrative questionnaire in the
form prepared by the Administrative Agent, completed by
such Lender and returned to the Administrative Agent
(with a copy to the Borrower).
"Affiliate" means (i) any corporation or other
entity the accounts of which are included in the
consolidated financial statements of the Borrower and
its Consolidated Subsidiaries on the equity method and
(ii) any unconsolidated Subsidiary.
"Applicable Lending Office" means, with respect to
any Lender, (i) in the case of its Base Rate Loans, its
Domestic Lending Office and (ii) in the case of its
Euro-Dollar Loans, its Euro-Dollar Lending Office.
"Assignee" has the meaning specified in Section
9.06(c).
"Base Rate" means, for any day, a rate per annum
equal to the higher of (i) the Prime Rate for such day
and (ii) the sum of 1/2 of 1% plus the Federal Funds
Rate for such day.
"Base Rate Loan" means a Loan which bears interest
at the Base Rate pursuant to the applicable Notice of
Borrowing or Notice of Interest Rate Election or the
last sentence of Section 2.05(a) or Article 8.
"Borrower" means Xxxxx & McLennan Companies, Inc.,
a Delaware corporation, and its successors.
"Borrower's 1997 Form 10-K" means the Borrower's
annual report on Form 10-K for 1997, as filed with the
SEC pursuant to the Exchange Act.
"Borrower's Latest Form 10-Q" means the Borrower's
quarterly report on Form 10-Q for the quarter ended
June 30, 1998, as filed with the SEC pursuant to the
Exchange Act.
"Borrowing" means (i) the aggregation of Loans
made or to be made to the Borrower pursuant to Article
2 on the same day, all of which Loans are of the same
type (subject to Article 8) and, except in the case of
Base Rate Loans, have the same initial Interest Period
or (ii) if the context so requires, the borrowing of
such Loans. A Borrowing is a Base Rate Borrowing if
such Loans are Base Rate Loans or a Euro-Dollar
Borrowing if such Loans are Euro-Dollar Loans.
"Closing Date" means the date on or after the
Effective Date on which the Administrative Agent shall
have received all the documents specified in or
pursuant to Section 3.01.
"Commitment" means (i) with respect to each Lender
listed on the Commitment Schedule, the amount set forth
opposite such Lender's name on the Commitment Schedule
and (ii) with respect to any Assignee which becomes a
Lender pursuant to Section 9.06(c), the amount of the
transferor Lender's Commitment assigned to it pursuant
to Section 9.06(c), in each case as such amount may be
changed from time to time pursuant to Section 2.07 or
9.06(c); provided that, if the context so requires, the
term "Commitment" means the obligation of a Lender to
extend credit up to such amount to the Borrower
hereunder.
"Commitment Reduction Event" means the incurrence
after the date hereof of any Debt by the Borrower or
any of its Subsidiaries in the form of debt securities
or by the Borrower in the form of bank borrowings,
other than (i) loan notes issued to shareholders of
Target pursuant to the Offer, (ii) commercial paper
borrowings, (iii) borrowings under the Credit Agreement
dated as of June 13, 1997 among the Borrower, Xxxxx
XxXxxxxx, Incorporated, the banks listed therein and
The Chase Manhattan Bank, as Administrative Agent and
(iv) any such Debt which is secured by a Lien permitted
by Section 5.07.
"Commitment Schedule" means the Commitment
Schedule attached hereto.
"Completion Procedures" means procedures pursuant
to section 428 et seq. Companies Xxx 0000 whereby the
Borrower, after having validly acquired or agreed to
acquire at least 90% in nominal value of the ordinary
shares to which the Offer relates and having complied
with certain other requirements, may acquire the
remainder of such ordinary shares.
"Consolidated Debt" means, at any date, the Debt
of the Borrower and its Consolidated Subsidiaries,
determined on a consolidated basis as of such date.
"Consolidated Net Worth" means, at any date, the
consolidated stockholders' equity of the Borrower and
its Consolidated Subsidiaries plus any unrealized
losses and less any unrealized gains (in each case to
the extent reflected in the determination of such
consolidated stockholders' equity) related, directly or
indirectly, to securities available for sale, as
determined in accordance with Statement of Financial
Accounting Standards No. 115 (or any successor
statements or amendments thereto) (in each case as
affected by any subsequent relevant pronouncements of
the Financial Accounting Standards Board or, if and to
the extent applicable, the SEC).
"Consolidated Subsidiary" means, at any date, any
Subsidiary or other entity the accounts of which would
be consolidated with those of the Borrower in its
consolidated financial statements if such statements
were prepared as of such date.
"Consolidated Tangible Net Worth" means, at any
date, Consolidated Net Worth less the consolidated
Intangible Assets of the Borrower and its Consolidated
Subsidiaries, all determined as of such date. For
purposes of this definition, "Intangible Assets" means,
without duplication, the amount (to the extent
reflected in determining the consolidated stockholders'
equity component of Consolidated Net Worth) of (i) all
write-ups (other than write-ups resulting from foreign
currency translations and write-ups of assets of a
going concern business made within twelve months after
the acquisition of such business) subsequent to
December 31, 1997 in the book value of any asset owned
by the Borrower or a Consolidated Subsidiary, (ii) all
unamortized debt discount and expense, unamortized
deferred charges, goodwill, patents, trademarks,
service marks, trade names, anticipated future benefit
of tax loss carry-forwards, copyrights, organization or
developmental expenses and other intangible assets,
designated as such as contemplated by Section 1.02 and
(iii) all investments in Affiliates in an aggregate
amount in excess of $180,000,000.
"Credit Exposure" means, with respect to any
Lender at any time, (i) the amount of its Commitment
(whether used or unused) at such time or (ii) if the
Commitments have terminated in their entirety, the
aggregate outstanding principal amount of its Loans at
such time.
"Debt" of any Person means, at any date, without
duplication, (i) all obligations of such Person for
borrowed money, (ii) all obligations of such Person
evidenced by bonds, debentures, notes or other similar
instruments, (iii) all obligations of such Person to
pay the deferred purchase price of property or
services, except trade accounts payable arising in the
ordinary course of business, (iv) all obligations of
such Person as lessee which are capitalized in
accordance with GAAP, (v) all non-contingent
obligations (and, for purposes of Section 5.07 and the
definitions of Material Debt and Material Financial
Obligations, all contingent obligations) of such Person
to reimburse any bank or other Person in respect of
amounts paid under a letter of credit or similar
instrument, (vi) all Debt secured by a Lien on any
asset of such Person, whether or not such Debt is
otherwise an obligation of such Person, and (vii) all
Guarantees by such Person of Debt of another Person
(each such Guarantee to constitute Debt in an amount
equal to the amount of such other Person's Debt
Guaranteed thereby).
"Default" means any condition or event which
constitutes an Event of Default or which with the
giving of notice or lapse of time or both would, unless
cured or waived, become an Event of Default.
"Derivatives Obligations" of any Person means all
obligations of such Person in respect of any rate swap
transaction, basis swap, forward rate transaction,
commodity swap, commodity option, equity or equity
index swap, equity or equity index option, bond option,
interest rate option, foreign exchange transaction, cap
transaction, floor transaction, collar transaction,
currency swap transaction, cross-currency rate swap
transaction, currency option or any other similar
transaction (including any option with respect to any
of the foregoing transactions) or any combination of
the foregoing transactions.
"Dollars" and "$" mean lawful money of the United
States.
"Domestic Business Day" means any day except a
Saturday, Sunday or other day on which commercial banks
in New York City are authorized or required by law to
close.
"Domestic Lending Office" means, as to each
Lender, its office located at its address set forth in
its Administrative Questionnaire (or identified in its
Administrative Questionnaire as its Domestic Lending
Office) or such other office as such Lender may
hereafter designate as its Domestic Lending Office by
notice to the Borrower and the Administrative Agent.
"Effective Date" means the date this Agreement
becomes effective in accordance with Section 9.09.
"Environmental Laws" means any and all federal,
state, local and foreign statutes, laws, judicial
decisions, regulations, ordinances, rules, judgments,
orders, decrees, plans, injunctions, permits,
concessions, grants, franchises, licenses, agreements
and other governmental restrictions relating to the
environment or the effect of the environment on human
health or to emissions, discharges or releases of
pollutants, contaminants, hazardous substances or
wastes into the environment, including (without
limitation) ambient air, surface water, ground water or
land, or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage,
disposal, transport or handling of pollutants,
contaminants, hazardous substances or wastes.
"ERISA" means the Employee Retirement Income
Security Act of 1974, as amended, or any successor
statute.
"ERISA Group" means the Borrower, any Material
Subsidiary and all members of a controlled group of
corporations and all trades or businesses (whether or
not incorporated) under common control which, together
with the Borrower or any Material Subsidiary, are
treated as a single employer under Section 414 of the
Internal Revenue Code.
"Euro-Dollar Business Day" means any Domestic
Business Day on which commercial banks are open for
international business (including dealings in Dollar
deposits) in London.
"Euro-Dollar Lending Office" means, as to each
Lender, its office, branch or affiliate located at its
address set forth in its Administrative Questionnaire
(or identified in its Administrative Questionnaire as
its Euro-Dollar Lending Office) or such other office,
branch or affiliate of such Lender as it may hereafter
designate as its Euro-Dollar Lending Office by notice
to the Borrower and the Administrative Agent.
"Euro-Dollar Loan" means a Loan which bears
interest at a Euro-Dollar Rate pursuant to the
applicable Notice of Borrowing or Notice of Interest
Rate Election.
"Euro-Dollar Margin" means (i) on any date on or
prior to February 24, 1999, the applicable Euro-Dollar
Margin set forth on the Pricing Schedule for Level IV
Status and the Utilization (as defined therein) that
exists on such date, and (ii) on any date thereafter, a
rate per annum determined in accordance with the
Pricing Schedule.
"Euro-Dollar Rate" means a rate of interest
determined pursuant to Section 2.04(b) on the basis of
a London Interbank Offered Rate.
"Euro-Dollar Reserve Percentage" means, for any
day, that percentage (expressed as a decimal) which is
in effect on such day, as prescribed by the Board of
Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve
requirement for a member bank of the Federal Reserve
System in New York City with deposits exceeding five
billion Dollars in respect of "Eurocurrency
liabilities" (or in respect of any other category of
liabilities which includes deposits by reference to
which the interest rate on Euro-Dollar Loans is
determined or any category of extensions of credit or
other assets which includes loans by a non-United
States office of any Lender to United States
residents).
"Events of Default" has the meaning specified in
Section 6.01.
"Exchange Act" means the Securities Exchange Act
of 1934, as amended from time to time.
"Facility Fee Rate" means (i) on any date on or
prior to February 24, 1999 which is not a Pricing Grid
Day, 0.08% per annum and (ii) on any other date, a rate
per annum determined in accordance with the Pricing
Schedule.
"Federal Funds Rate" means, for any day, the rate
per annum (rounded upward, if necessary, to the nearest
1/100 of 1%) 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 of New York on the Domestic Business Day
next succeeding such day; provided that (i) if such day
is not a Domestic Business Day, the Federal Funds Rate
for such day shall be such rate on such transactions on
the next preceding Domestic Business Day as so
published on the next succeeding Domestic Business Day
and (ii) if no such rate is so published on such next
succeeding Domestic Business Day, the Federal Funds
Rate for such day shall be the average rate quoted to
Xxxxxx Guaranty Trust Company of New York on such day
on such transactions as determined by the
Administrative Agent.
"Fiscal Quarter" means a fiscal quarter of the
Borrower.
"Fiscal Year" means a fiscal year of the Borrower.
"GAAP" means generally accepted accounting
principles as in effect from time to time, applied on a
basis consistent (except for changes concurred in by
the Borrower's independent public accountants) with the
most recent audited consolidated financial statements
of the Borrower and its Consolidated Subsidiaries
delivered to the Lenders.
"Group of Loans" means, at any time, a group of
Loans consisting of (i) all Loans which are Base Rate
Loans at such time or (ii) all Euro-Dollar Loans which
have the same Interest Period at such time; provided
that, if a Loan of any particular Lender is converted
to or made as a Base Rate Loan pursuant to Article 8,
such Loan shall be included in the same Group or Groups
of Loans from time to time as it would have been in if
it had not been so converted or made.
"Guarantee" by any Person means any obligation,
contingent or otherwise, of such Person directly or
indirectly guaranteeing any Debt of any other Person
and, without limiting the generality of the foregoing,
any obligation, direct or indirect, contingent or
otherwise, of such Person (i) to purchase or pay (or
advance or supply funds for the purchase or payment of)
such Debt (whether arising by virtue of partnership
arrangements, by virtue of an agreement to keep-well,
to purchase assets, goods, securities or services, to
take-or-pay, or to maintain financial statement
conditions or otherwise) or (ii) entered into for the
purpose of assuring in any other manner the holder of
such Debt of the payment thereof or to protect such
holder against loss in respect thereof (in whole or in
part); provided that the term "Guarantee" shall not
include endorsements for collection or deposit in the
ordinary course of business. The term "Guarantee" used
as a verb has a correlative meaning.
"Indemnitee" has the meaning set forth in Section
9.03(b).
"Interest Period" means, with respect to each Euro-
Dollar Loan, the period commencing on the date of
borrowing specified in the applicable Notice of
Borrowing or on the date specified in an applicable
Notice of Interest Rate Election and ending one, two,
three or six months thereafter, as the Borrower may
elect in such notice; provided that:
(a) any Interest Period which would otherwise
end on a day which is not a Euro-Dollar Business
Day shall be extended to the next succeeding Euro-
Dollar Business Day unless such Euro-Dollar
Business Day falls in another calendar month, in
which case such Interest Period shall end on the
next preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the
last Euro-Dollar 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, subject to clause
(c) below, end on the last Euro-Dollar Business
Day of a calendar month; and
(c) any Interest Period which would otherwise
end after the Termination Date shall end on the
Termination Date.
"Internal Revenue Code" means the Internal Revenue
Code of 1986, as amended, or any successor statute.
"Lender" means (i) each bank or other institution
listed on the Commitment Schedule, (ii) each Assignee
which becomes a Lender pursuant to Section 9.06(c) and
(iii) their respective successors.
"Lender Parties" means the Lenders and the
Administrative Agent.
"Lien" means, with respect to any asset, any
mortgage, lien, pledge, charge, security interest or
encumbrance of any kind, or any other type of
preferential arrangement that has substantially the
same practical effect as a security interest, in
respect of such asset. For purposes hereof, the
Borrower or any Subsidiary shall be deemed to own
subject to a Lien any asset which it has acquired or
holds subject to the interest of a vendor or lessor
under any conditional sale agreement, capital lease or
other title retention agreement relating to such asset.
"Loan" means a loan made by a Lender pursuant to
Section 2.01; provided that, if any such loan or loans
(or portions thereof) are combined or subdivided
pursuant to a Notice of Interest Rate Election, the
term "Loan" shall refer to the combined principal
amount resulting from such combination or to each of
the separate principal amounts resulting from such
subdivision, as the case may be.
"London Interbank Offered Rate" has the meaning
set forth in Section 2.04(b).
"Margin Stock" means "margin stock" within the
meaning of Regulations U and X.
"Material Adverse Effect" means (i) any material
adverse effect on the business, financial position or
results of operations of the Borrower and its
Subsidiaries, taken as a whole; (ii) any material
adverse effect on the ability of the Borrower to
consummate the transactions contemplated hereby or
(iii) any material adverse effect on any of the rights
and remedies of the Lender Parties under this Agreement
and the Notes.
"Material Debt" means Debt (except Debt
outstanding hereunder) of the Borrower and/or one or
more of its Subsidiaries, arising in one or more
related or unrelated transactions, in an aggregate
principal or face amount exceeding $50,000,000.
"Material Financial Obligations" means a principal
or face amount of Debt (except Debt outstanding
hereunder) and/or payment or collateralization
obligations in respect of Derivatives Obligations of
the Borrower and/or one or more of its Subsidiaries,
arising in one or more related or unrelated
transactions, the principal or face amount (with
respect to Debt) or Settlement Amount (with respect to
Derivatives Obligations, after giving effect to any
netting arrangements) of which exceeds in the aggregate
$50,000,000.
"Material Plan" means, at any time, a Plan or
Plans having aggregate Unfunded Liabilities in excess
of $15,000,000.
"Material Subsidiary" means at any time any
Subsidiary which as of such time meets the definition
of a "significant subsidiary" contained as of the date
hereof in Regulation S-X of the SEC.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Mortgage" means the Restated Mortgage and
Indenture and Security Agreement dated as of April 6,
1989 made by the Borrower, Xxxxx & McLennan,
Incorporated, Xxxxxxx X. Xxxxxx-Xxxxxxxxx-Xxxxxx,
Incorporated and Xxxxx & McLennan Group Associates,
Inc., tenants in common, as mortgagor, and The First
National Bank of Boston, trustee, as mortgagee, as
amended and supplemented from time to time, including,
without limitation, as described in the Mortgage
Memorandum, securing the Secured Notes and covering the
Borrower's headquarters located at 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx.
"Mortgage Memorandum" means the memorandum
prepared by the Borrower describing the Mortgage as in
effect on May 20, 1991, particularly as to the non-
recourse nature of the obligations of the Borrower and
the other mortgagors thereunder and the circumstances
contemplated therein under which such obligations shall
become recourse obligations with respect to any assets
(except the Mortgaged Property) of the Borrower or any
of the other mortgagors or any Subsidiary (including
any such other mortgagor).
"Mortgaged Property" has the meaning set forth in
the Mortgage as in effect on May 20, 1991.
"Multiemployer Plan" means, at any time, an
employee pension benefit plan within the meaning of
Section 4001(a)(3) of ERISA to which any member of the
ERISA Group is then making or accruing an obligation to
make contributions or has within the preceding five
plan years made contributions, including for these
purposes any Person which ceased to be a member of the
ERISA Group during such five year period.
"Net Cash Proceeds" means, with respect to any
Commitment Reduction Event, an amount equal to the cash
proceeds received by the Borrower or any of its
Subsidiaries from or in respect of such Commitment
Reduction Event less any expenses reasonably incurred
by such Person in respect of such Commitment Reduction
Event.
"Notes" means promissory notes of the Borrower,
substantially in the form of Exhibit A hereto,
evidencing the Borrower's obligation to repay the Loans
made to it, and "Note" means any one of such promissory
notes issued hereunder.
"Notice of Borrowing" has the meaning set forth in
Section 2.02.
"Notice of Interest Rate Election" has the meaning
set forth in Section 2.05.
"Offer" means the offer by the Borrower to
purchase all outstanding ordinary shares of Target on
the terms and conditions specified in the form of offer
heretofore delivered by the Borrower to the Lenders.
"Offer Termination Date" means the earliest date
on which all of the following have occurred: (i) all
payments in respect of acceptance of the Offer have
been made in full, (ii) no further such acceptances are
possible and (iii) all Completion Procedures which are
capable of being implemented have been completed and
all payments pursuant thereto to shareholders in Target
have been made in full.
"Operating Cash Flow" means, at any date, for the
period of four consecutive fiscal quarters then ended,
the sum (without duplication) determined on a
consolidated basis for the Borrower and its
Consolidated Subsidiaries as reported in the Borrower's
audited or unaudited quarterly consolidated statements
of cash flows, of Net Cash Generated From Operations
for such period plus (or minus) to the extent reflected
in determining Net Cash Generated From Operations for
such period, Net Changes In Operating Working Capital
Other Than Cash And Cash Equivalents for such period.
"Parent" means, with respect to any Lender, any
Person controlling such Lender.
"Participant" has the meaning set forth in Section
9.06(b).
"PBGC" means the Pension Benefit Guaranty
Corporation or any entity succeeding to any or all of
its functions under ERISA.
"Person" means an individual, a corporation, a
limited liability Borrower, a partnership, an
association, a trust or any other entity or
organization, including a government or political
subdivision or an agency or instrumentality thereof.
"Plan" means, at any time, an employee pension
benefit plan (other than a Multiemployer Plan) which is
covered by Title IV of ERISA or subject to the minimum
funding standards under Section 412 of the Internal
Revenue Code and either (i) is maintained, or
contributed to, by any member of the ERISA Group for
employees of any member of the ERISA Group or (ii) has
at any time within the preceding five years been
maintained, or contributed to, by any Person which was
of any Person which was at such time a member of the
ERISA Group.
"Pricing Grid Day" means any day when (i) the
Borrower has on or prior to such day delivered to the
Administrative Agent a certificate to the effect that
it does not anticipate that any Loans will be borrowed
because the Borrower has access to the commercial paper
market and other sources of funds sufficient to finance
the acquisition of Target without any borrowing under
this Agreement and (ii) there have been no Loans
outstanding on or prior to such day.
"Pricing Schedule" means the Pricing Schedule
attached hereto.
"Prime Rate" means the rate of interest publicly
announced by Xxxxxx Guaranty Trust Company of New York
in New York City from time to time as its Prime Rate.
"Quarterly Payment Dates" means each March 31,
June 30, September 30 and December 31.
"Reference Banks" means the principal London
offices of Xxxxxx Guaranty Trust Company of New York
and, at such time as one or more additional Lenders
shall have become parties hereto, such other Lenders as
may be mutually agreed by the Borrower and the
Administrative Agent.
"Regulations U and X" means Regulations U and X of
the Board of Governors of the Federal Reserve System,
as in effect from time to time.
"Required Lenders" means, at any time, Lenders
having at least 51% in aggregate amount of the Credit
Exposures at such time.
"Revolving Credit Period" means the period from
and including the Closing Date to but not including the
Termination Date.
"S&P" means Standard & Poor's Ratings Services, a
division of The XxXxxx-Xxxx Companies, Inc.
"SEC" means the Securities and Exchange
Commission.
"Secured Notes" means the $200,000,000 aggregate
principal amount of 9.80% Secured Non-Recourse Notes
Due April 6, 2009 secured by the Mortgage.
"Settlement Amount" means, in respect of any
Derivatives Obligation to which the Borrower or any
Subsidiary is a party, the net aggregate marked-to-
market (in accordance with standard industry practice)
amount, if any, that would be due in respect of such
Derivatives Obligation (together with all other
Derivatives Obligations under the same master agreement
and giving effect to any netting arrangements between
the parties to such master agreement) if such
Derivatives Obligation was (and such other Derivatives
Obligations were) terminated because of a default by
the Borrower or such Subsidiary.
"Subsidiary" means, as to any Person, any
corporation or other entity of which securities or
other ownership interests having ordinary voting power
to elect a majority of the board of directors or other
persons performing similar functions are at the time
directly or indirectly owned by such Person. Unless
otherwise specified, "Subsidiary" means a Subsidiary of
the Borrower.
"Target" means Sedgwick Group plc, an English
company.
"Target Shares" means the ordinary shares of
Target.
"Termination Date" means August 23, 1999 or, if
such day is not a Euro-Dollar Business Day, the next
preceding Euro-Dollar Business Day.
"Unfunded Liabilities" means, with respect to any
Plan at any time, the amount (if any) by which (i) the
value of all benefit liabilities under such Plan,
determined on a plan termination basis using the
assumptions prescribed by the PBGC for purposes of
Section 4044 of ERISA, exceeds (ii) the fair market
value of all Plan assets allocable to such liabilities
under Title IV of ERISA (excluding any accrued but
unpaid contributions), all determined as of the then
most recent valuation date for such Plan, but only to
the extent that such excess represents a potential
liability of a member of the ERISA Group to the PBGC or
any other Person under Title IV of ERISA.
"United States" means the United States of
America, including the States and the District of
Columbia, but excluding its territories and
possessions.
"Wholly-Owned Subsidiary" means any Subsidiary all
of the shares of capital stock or other ownership
interests of which (except directors' qualifying
shares) are at the time directly or indirectly owned by
the Borrower.
Section 1.2. Accounting Terms and Determinations.
Unless otherwise specified herein, all accounting terms
used herein shall be interpreted, all accounting
determinations hereunder shall be made, and all
financial statements required to be delivered hereunder
shall be prepared in accordance with GAAP; provided
that, if the Borrower notifies the Administrative Agent
that the Borrower wishes to amend any provision hereof
to eliminate the effect of any change in GAAP (or if
the Administrative Agent notifies the Borrower that the
Required Lenders wish to amend any provision hereof for
such purpose), then such provision shall be applied on
the basis of GAAP in effect immediately before the
relevant change in GAAP became effective, until either
such notice is withdrawn or such provision is amended
in a manner satisfactory to the Borrower and the
Required Lenders.
ARTICLE 2
The Credits
Section 2.1. Commitments to Lend. Each Lender
severally agrees, on the terms and conditions set forth
in this Agreement, to make loans to the Borrower
pursuant to this Section from time to time during the
Revolving Credit Period; provided that, immediately
after each such loan is made, the aggregate outstanding
principal amount of the Loans held by such Lender shall
not exceed its Commitment. Each Borrowing under this
Section shall be in an aggregate principal amount of
$10,000,000 or any larger multiple of $1,000,000
(except that any such Borrowing may be in the aggregate
amount of the unused Commitments) and shall be made
from the several Lenders ratably in proportion to their
respective Commitments. Within the foregoing limits,
the Borrower may borrow under this Section, prepay
Loans to the extent permitted by Section 2.08 and
reborrow at any time during the Revolving Credit Period
under this Section.
Section 2.2. Method of Borrowing. (a) The
Borrower shall give the Administrative Agent notice (a
"Notice of Borrowing") not later than 10:30 A.M. (New
York City time) on (x) the date of each Base Rate
Borrowing and (y) the third Euro-Dollar Business Day
before each Euro-Dollar Borrowing, specifying:
(i) the date of such Borrowing, which shall be
a Domestic Business Day in the case of a Base Rate
Borrowing or a Euro-Dollar Business Day in the
case of a Euro-Dollar Borrowing;
(ii) the aggregate amount of such Borrowing;
(iii) whether the Loans comprising such
Borrowing are to bear interest initially at the
Base Rate or a Euro-Dollar Rate; and
(iv) in the case of a Euro-Dollar Borrowing,
the duration of the initial Interest Period
applicable thereto, subject to the provisions of
the definition of Interest Period.
(b) Promptly after receiving a Notice of Borrowing,
the Administrative Agent shall notify each Lender of
the contents thereof and of such Lender's ratable share
of such Borrowing and such Notice of Borrowing shall
not thereafter be revocable by the Borrower.
(c) Not later than 12:00 Noon (New York City time)
on the date of each Borrowing, each Lender shall make
available its ratable share of such Borrowing, in
Federal or other funds immediately available in New
York City, to the Administrative Agent at its address
specified in or pursuant to Section 9.01. Unless the
Administrative Agent determines that any applicable
condition specified in Article 3 has not been
satisfied, the Administrative Agent will make the funds
so received from the Lenders available to the Borrower
at the Administrative Agent's aforesaid address.
(d) Unless the Administrative Agent shall have
received notice from a Lender before the date of any
Borrowing that such Lender will not make available to
the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that
such Lender has made such share available to the
Administrative Agent on the date of such Borrowing in
accordance with Section 2.02(c) and the Administrative
Agent may, in reliance upon such assumption, make
available to the Borrower on such date a corresponding
amount. If and to the extent that such Lender shall
not have so made such share available to the
Administrative Agent, such Lender and the Borrower
severally agree to repay to the Administrative Agent
forthwith on demand such corresponding amount together
with interest thereon, for each day from the date such
amount is made available to the Borrower until the date
such amount is repaid to the Administrative Agent, at
(i) if such amount is repaid by the Borrower, a rate
per annum equal to the higher of the Federal Funds Rate
and the interest rate applicable to such Borrowing
pursuant to Section 2.04 and (ii) if such amount is
repaid by such Lender, the Federal Funds Rate. If such
Lender shall repay to the Administrative Agent such
corresponding amount, the Borrower shall not be
required to repay such amount and the amount so repaid
by such Lender shall constitute such Lender's Loan
included in such Borrowing for purposes of this
Agreement.
Section 2.3. Maturity of Loans. Each Loan shall
mature, and the principal amount thereof shall be due
and payable (together with interest accrued thereon),
on the Termination Date.
Section 2.4. Interest Rates. (a) Each Base Rate
Loan shall bear interest on the outstanding principal
amount thereof, for each day from the date such Loan is
made until it becomes due, at a rate per annum equal to
the Base Rate for such day. Such interest shall be
payable quarterly in arrears on each Quarterly Payment
Date. Any overdue principal of or interest on any Base
Rate Loan shall bear interest, payable on demand, for
each day until paid at a rate per annum equal to the
sum of 2% plus the Base Rate for such day.
(b) Each Euro-Dollar Loan shall bear interest on
the outstanding principal amount thereof, for each day
during each Interest Period applicable thereto, at a
rate per annum equal to the sum of the Euro-Dollar
Margin for such day plus the London Interbank Offered
Rate applicable to such Interest Period. Such interest
shall be payable for each Interest Period on the last
day thereof and, if such Interest Period is longer than
three months, at intervals of three months after the
first day thereof.
The "London Interbank Offered Rate" applicable to
any Interest Period means the average (rounded upward,
if necessary, to the next higher 1/16 of 1%) of the
respective rates per annum at which deposits in Dollars
are offered to each Reference Bank in the London
interbank market at approximately 11:00 A.M. (London
time) two Euro-Dollar Business Days before the first
day of such Interest Period in an amount approximately
equal to the principal amount of the Euro-Dollar Loan
of such Reference Bank to which such Interest Period is
to apply and for a period of time comparable to such
Interest Period.
(c) Any overdue principal of or interest on any
Euro-Dollar Loan shall bear interest, payable on
demand, for each day until paid at a rate per annum
equal to the higher of (i) the sum of 2% plus the Euro-
Dollar Margin for such day plus the London Interbank
Offered Rate applicable to such Loan on the day before
such payment was due and (ii) the sum of 2% plus the
Euro-Dollar Margin for such day plus a rate per annum
equal to the quotient obtained (rounded upward, if
necessary, to the next higher 1/100 of 1%) by dividing
(x) the average (rounded upward, if necessary, to the
next higher 1/16 of 1%) of the respective rates per
annum at which one day (or, if such amount due remains
unpaid more than three Euro-Dollar Business Days, then
for such other period of time not longer than three
months as the Administrative Agent may select) deposits
in Dollars in an amount approximately equal to such
overdue payment due to each Reference Bank are offered
to such Reference Bank in the London interbank market
for the applicable period determined as provided above
by (y) 1.00 minus the Euro-Dollar Reserve Percentage
(or, if the circumstances described in clause 8.01(a)
or 8.01(b) shall exist, at a rate per annum equal to
the sum of 2% plus the Base Rate for such day).
(d) The Administrative Agent shall determine each
interest rate applicable to the Loans hereunder. The
Administrative Agent shall promptly notify the Borrower
and the Lenders of each rate of interest so
determined, and its determination thereof shall be
conclusive in the absence of manifest error.
(e) Each Reference Bank agrees to use its best
efforts to furnish quotations to the Administrative
Agent as contemplated by this Section. If any
Reference Bank does not furnish a timely quotation, the
Administrative Agent shall determine the relevant
interest rate on the basis of the quotation or
quotations furnished by the remaining Reference Bank or
Banks or, if none of such quotations is available on a
timely basis, the provisions of Section 8.01 shall
apply.
Section 2.5. Method of Electing Interest Rates.
(a) The Loans included in each Borrowing shall bear
interest initially at the type of rate specified by the
Borrower in the applicable Notice of Borrowing.
Thereafter, the Borrower may from time to time elect to
change or continue the type of interest rate borne by
each Group of Loans (subject to Section 2.05(d) and the
provisions of Article 8), as follows:
(i) if such Loans are Base Rate Loans, the
Borrower may elect to convert such Loans to
Euro-Dollar Loans as of any Euro-Dollar Business
Day and
(ii) if such Loans are Euro-Dollar Loans, the
Borrower may elect to convert such Loans to Base
Rate Loans as of any Domestic Business Day or
continue such Loans as Euro-Dollar Loans for an
additional Interest Period, subject to Section
2.10 if any such conversion is effective on any
day other than the last day of an Interest Period
applicable to such Loans.
Each such election shall be made by delivering a notice
(a "Notice of Interest Rate Election") to the Administrative Agent
not later than 10:30 A.M. (New York City time) on the third
Euro-Dollar Business Day before the conversion or
continuation selected in such notice is to be
effective. A Notice of Interest Rate Election may, if
it so specifies, apply to only a portion of the
aggregate principal amount of the relevant Group of
Loans; provided that (i) such portion is allocated
ratably among the Loans comprising such Group and (ii)
the portion to which such Notice applies, and the
remaining portion to which it does not apply, are each
at least $10,000,000 (unless such portion is comprised
of Base Rate Loans). If no such notice is timely
received before the end of an Interest Period for any
Group of Euro-Dollar Loans, the Borrower shall be
deemed to have elected that such Group of Loans be
converted to Base Rate Loans at the end of such
Interest Period.
(b) Each Notice of Interest Rate Election shall
specify:
(i) the Group of Loans (or portion thereof) to
which such notice applies;
(ii) the date on which the conversion or
continuation selected in such notice is to be
effective, which shall comply with the applicable
clause of Section 2.05(a);
(iii) if the Loans comprising such Group are to
be converted, the new type of Loans and, if the
Loans resulting from such conversion are to be
Euro-Dollar Loans, the duration of the next
succeeding Interest Period applicable thereto; and
(iv) if such Loans are to be continued as
Euro-Dollar Loans for an additional Interest
Period, the duration of such additional Interest
Period.
Each Interest Period specified in a Notice of Interest Rate
Election shall comply with the provisions of the
definition of Interest Period.
(c) Promptly after receiving a Notice of Interest
Rate Election from the Borrower pursuant to Section
2.05(a), the Administrative Agent shall notify each
Lender of the contents thereof and such notice shall
not thereafter be revocable by the Borrower.
(d) The Borrower shall not be entitled to elect to
convert any Loans to, or continue any Loans for an
additional Interest Period as, Euro-Dollar Loans if
(i) the aggregate principal amount of any Group of Euro-
Dollar Loans created or continued as a result of such
election would be less than $10,000,000 or (ii) a
Default shall have occurred and be continuing when the
Borrower delivers notice of such election to the
Administrative Agent.
(e) If any Loan is converted to a different type of
Loan, the Borrower shall pay, on the date of such
conversion, the interest accrued to such date on the
principal amount being converted.
Section 2.6. Facility Fees. The Borrower shall
pay to the Administrative Agent, for the account of the
Lenders ratably in proportion to their Credit
Exposures, a facility fee calculated for each day at
the Facility Fee Rate for such day on the aggregate
amount of the Credit Exposures on such day. Such
facility fee shall accrue for each day from and
including the Effective Date to but excluding the day
on which the Credit Exposures are reduced to zero.
Fees accrued for the account of the Lenders under this
Section shall be payable quarterly in arrears on each
Quarterly Payment Date and on the day on which the
Commitments terminate in their entirety (and, if later,
on the day on which the Credit Exposures are reduced to
zero).
Section 2.7. Termination or Reduction of
Commitments. (a) The Borrower may, upon at least three
Domestic Business Days' notice to the Agent, (i)
terminate the Commitments at any time, if no Loans are
outstanding at such time, or (ii) ratably reduce from
time to time by an aggregate amount of $10,000,000 or a
larger multiple of $1,000,000, the aggregate amount of
the Commitments in excess of the aggregate outstanding
principal amount of the Loans. Promptly after
receiving a notice pursuant to this subsection, the
Administrative Agent shall notify each Lender of the
contents thereof.
(b) Within five Domestic Business Days after the
Borrower or any Subsidiary receives any Net Cash
Proceeds of a Commitment Reduction Event, the
Commitments shall be reduced ratably by an aggregate
amount equal to the amount of such Net Cash Proceeds;
provided that:
(i) if the amount of such reduction is less
than $25,000,000, such reduction shall be deferred
until the aggregate amount by which the
Commitments are required to be reduced pursuant to
this Section (including such deferred amounts) is
not less than $25,000,000; and
(ii) if, by reason of any such reduction, this
subsection would otherwise require Euro-Dollars
Loans or portions thereof to be prepaid prior to
the last day of the applicable Interest Period,
such reduction shall be deferred to such last day
unless the Administrative Agent otherwise notifies
the Borrower upon the instruction of the Required
Lenders.
The Borrower shall give the Administrative Agent at least three
Domestic Business Days' notice of each reduction of the
Commitments pursuant to this subsection. If, after
giving effect to any reduction of the Commitments
pursuant to this subsection, the aggregate outstanding
principal amount of the Loans would exceed the
aggregate amount of the Commitments, the Borrower shall
prepay, pursuant to and in accordance with Section
2.08, a sufficient aggregate principal amount of the
Loans to eliminate such excess.
(c) Unless previously terminated, the Commitments
shall terminate on the Termination Date.
Section 2.8. Optional Prepayments. (a) Subject
in the case of Euro-Dollar Loans to Section 2.10, the
Borrower may (i) upon at least one Domestic Business
Day's notice to the Administrative Agent, prepay any
Group of Base Rate Loans or (ii) upon at least three
Euro-Dollar Business Days' notice to the Administrative
Agent, prepay any Group of Euro-Dollar Loans, in each
case in whole at any time, or from time to time in part
in amounts aggregating $20,000,000 or any larger
multiple of $10,000,000, by paying the principal amount
to be prepaid together with interest accrued thereon to
the date of prepayment. Each such optional prepayment
shall be applied to prepay ratably the Loans of the
several Lenders included in such Group of Loans.
(b) Promptly after receiving a notice of prepayment
pursuant to this Section, the Administrative Agent
shall notify each Lender of the contents thereof and of
such Lender's ratable share of such prepayment, and
such notice shall not thereafter be revocable by the
Borrower.
Section 2.9. General Provisions as to Payments.
(a) The Borrower shall make each payment of principal
of, and interest on, the Loans and of fees hereunder
not later than 12:00 Noon (New York City time) on the
date when due, in Federal or other funds immediately
available in New York City, to the Administrative Agent
at its address specified in or pursuant to Section
9.01. The Administrative Agent will promptly
distribute to each Lender its ratable share of each
such payment received by the Administrative Agent for
the account of the Lenders. Whenever any payment of
principal of, or interest on, the Base Rate Loans or
any payment of fees shall be due on a day which is not
a Domestic Business Day, the date for payment thereof
shall be extended to the next succeeding Domestic
Business Day. Whenever any payment of principal of, or
interest on, the Euro-Dollar Loans shall be due on a
day which is not a Euro-Dollar Business Day, the date
for payment thereof shall be extended to the next
succeeding Euro-Dollar Business Day unless such
Euro-Dollar Business Day falls in another calendar
month, in which case the date for payment thereof shall
be the next preceding Euro-Dollar Business Day. If the
date for any payment of principal is extended by
operation of law or otherwise, interest thereon shall
be payable for such extended time.
(b) Unless the Borrower notifies the Administrative
Agent before the date on which any payment is due to
the Lenders hereunder that the Borrower will not make
such payment in full, the Administrative Agent may
assume that the Borrower has made such payment in full
to the Administrative Agent on such date and the
Administrative Agent may, in reliance on such
assumption, cause to be distributed to each Lender on
such due date an amount equal to the amount then due
such Lender. If and to the extent that the Borrower
shall not have so made such payment, each Lender shall
repay to the Administrative Agent forthwith on demand
the amount so distributed to such Lender together with
interest thereon, for each day from the date such
amount is distributed to such Lender until the date
such Lender repays such amount to the Administrative
Agent, at the Federal Funds Rate.
Section 2.10. Funding Losses. If the Borrower
makes any payment of principal with respect to any Euro-
Dollar Loan or any Fixed Rate Loan is converted to a
different type of Loan (whether such payment or
conversion is pursuant to Article 2, 6 or 8 or
otherwise) on any day other than the last day of an
Interest Period applicable thereto, or the last day of
an applicable period fixed pursuant to Section 2.04(c),
or if the Borrower fails to borrow, prepay, convert or
continue any Euro-Dollar Loan after notice has been
given to any Lender in accordance with Section 2.02(b),
2.05(c) or 2.08(b), the Borrower shall reimburse each
Lender within 15 days after demand for any resulting
loss or expense incurred by it (or by an existing or
prospective Participant in the related Loan), including
(without limitation) any loss incurred in obtaining,
liquidating or employing deposits from third parties,
but excluding loss of margin for the period after such
payment or conversion or failure to borrow, prepay,
convert or continue; provided that such Lender shall
have delivered to the Borrower a certificate as to the
amount of such loss or expense, which certificate shall
be conclusive in the absence of manifest error.
Section 2.11. Computation of Interest and Fees.
Interest based on the Prime Rate hereunder shall be
computed on the basis of a year of 365 days (or 366
days in a leap year) and paid for the actual number of
days elapsed (including the first day but excluding the
last day). All other interest and fees shall be
computed on the basis of a year of 360 days and paid
for the actual number of days elapsed (including the
first day but excluding the last day).
Section 2.12. Notes. (a) The Borrower's
obligation to repay the Loans made to it by each Lender
shall be evidenced by a single Note payable to the
order of such Lender for the account of its Applicable
Lending Office.
(b) Each Lender may, by notice to the Borrower and
the Administrative Agent, request that the Borrower's
obligation to repay such Lender's Loans of a particular
type be evidenced by a separate Note. Each such Note
shall be in substantially the form of Exhibit A hereto
with appropriate modifications to reflect the fact that
it relates solely to Loans of the relevant type. Each
reference in this Agreement to the "Note" of such
Lender shall be deemed to refer to and include any or
all of such Notes, as the context may require.
(c) Promptly after it receives each Lender's Note
pursuant to Section 3.01(a), the Administrative Agent
shall forward such Note to such Lender. Each Lender
shall record the date and amount of each Loan made by
it and the date and amount of each payment of principal
made with respect thereto, and may, if such Lender so
elects in connection with any transfer or enforcement
of its Note, endorse on the schedule forming a part
thereof appropriate notations to evidence the foregoing
information with respect to each such Loan then
outstanding; provided that a Lender's failure to make
(or any error in making) any such recordation or
endorsement shall not affect the Borrower's obligations
hereunder or under its Notes. Each Lender is hereby
irrevocably authorized by the Borrower so to endorse
its Note and to attach to and make a part of its Note a
continuation of any such schedule as and when required.
Section 2.13. Regulation D Compensation. If and
so long as a reserve requirement of the type described
in the definition of "Euro-Dollar Reserve Percentage"
is prescribed by the Board of Governors of the Federal
Reserve System (or any successor), each Lender subject
to such requirement may require the Borrower to pay,
contemporaneously with each payment of interest on each
of such Lender's Loans, additional interest on such
Loan at a rate per annum determined by such Lender up
to but not exceeding the excess of (i) (A) the
applicable London Interbank Offered Rate divided by (B)
one minus the Euro-Dollar Reserve Percentage over (ii)
the applicable London Interbank Offered Rate. Any
Lender wishing to require payment of such additional
interest (x) shall so notify the Borrower and the
Administrative Agent, in which case such additional
interest on the Loans of such Lender shall be payable
to such Lender at the place indicated in such notice
with respect to each Interest Period commencing at
least three Business Days after such Lender gives such
notice and (y) shall notify the Borrower at least five
Business Days before each date on which interest is
payable on its Loans of the amount then due to such
Lender under this Section.
ARTICLE 3
Conditions
Section 3.1. Closing. The closing hereunder
shall occur when all the following conditions have been
satisfied:
(a) the Administrative Agent shall have
received a duly executed Note for the account of
each Lender dated on or before the Closing Date
and complying with the provisions of Section 2.12;
(b) the Administrative Agent shall have
received an opinion in form and substance
satisfactory to it of counsel for the Borrower
satisfactory to it, dated the Closing Date and
covering such matters relating to the transactions
contemplated hereby as the Administrative Agent or
the Required Lenders may reasonably request;
(c) the Administrative Agent shall have
received an opinion in form and substance
satisfactory to it of Xxxxx Xxxx & Xxxxxxxx,
special counsel for the Administrative Agent,
dated the Closing Date and covering such matters
relating to the transactions contemplated hereby
as the Administrative Agent or Required Lenders
may reasonably request; and
(d) the Administrative Agent shall have
received all documents the Administrative Agent
may reasonably request relating to the existence
of the Borrower, its corporate authority for and
the validity of this Agreement and its Notes, and
any other matters relevant hereto, all in form and
substance satisfactory to the Administrative
Agent.
Promptly after the Closing Date occurs, the Administrative Agent
shall notify the Borrower and the Lenders thereof, and
such notice shall be conclusive and binding on all
parties hereto.
Section 3.2. Borrowings to Finance Acquisition of
Target Shares Pursuant to Offer. The obligation of any
Lender to make a Loan on the occasion of any Borrowing
for the purposes (and only for the purposes) of
financing the acquisition of Target Shares pursuant to
the Offer and the Completion Procedures is subject to
the following conditions:
(a) the Closing Date shall have occurred on or
before August 26, 1998;
(b) the Administrative Agent shall have
received a Notice of Borrowing as required by
Section 2.02;
(c) immediately before and after such
Borrowing, no Event of Default described in clause
(g) or (h) of Section 6.01 shall have occurred and
be continuing;
(d) the representations and warranties of the
Borrower set forth in Sections 4.01, 4.02 and 4.03
shall be true on and as of the date of such
Borrowing; and
(e) the Offer shall have been declared
unconditional in all respects and the Agent shall
have received a certified copy of the announcement
to such effect.
Each Borrowing described in this Section shall be deemed to be a
representation and warranty by the Borrower on the date
of such Borrowing as to the facts specified in the
foregoing clauses 3.02(c) through 3.02(g), inclusive.
Section 3.3. Other Borrowings. The obligation of
any Lender to make a Loan on the occasion of any
Borrowing for a purpose other than those specified in
Section 3.02 is subject to the satisfaction of the
following conditions:
(a) the fact that the Closing Date shall have
occurred on or before August 26, 1998;
(b) receipt by the Administrative Agent of a
Notice of Borrowing as required by Section 2.02;
(c) the fact that, immediately before and
after such Borrowing, no Default shall have
occurred and be continuing; and
(d) the fact that the representations and
warranties of the Borrower contained in this
Agreement (except, in the case of any Borrowing
made on a date subsequent to the Closing Date, the
representation and warranty set forth in Section
4.04(c)) shall be true on and as of the date of
such Borrowing.
Each Borrowing hereunder shall be deemed to be a representation and
warranty by the Borrower on the date of such Borrowing
as to the facts specified in the foregoing clauses
3.03(c) and 3.03(d).
ARTICLE 4
Representations and Warranties
The Borrower represents and warrants that:
Section 4.1. Corporate Existence and Power. The
Borrower (a) is a corporation duly incorporated,
validly existing and in good standing under the laws of
its jurisdiction of incorporation and (b) has all
corporate powers and all material governmental
licenses, consents, authorizations and approvals
required to carry on its business as now conducted.
Section 4.2. Corporate and Governmental
Authorization; No Contravention. The execution,
delivery and performance by the Borrower of this
Agreement and the Notes are within the Borrower's
corporate powers, have been duly authorized by all
necessary corporate action, require no action by or in
respect of, or filing with, any governmental body,
agency or official and do not contravene, or constitute
a default under, any provision of applicable law or
regulation or of the Borrower's certificate of
incorporation or by-laws or of any agreement, judgment,
injunction, order, decree or other instrument binding
upon the Borrower or any Material Subsidiary or result
in the creation or imposition of any Lien on any asset
of the Borrower or any Material Subsidiary.
Section 4.3. Binding Effect. This Agreement
constitutes a valid and binding agreement of the
Borrower and each Note, when executed and delivered in
accordance with this Agreement, will constitute a valid
and binding obligation of the Borrower, in each case
enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency or similar laws
affecting creditors' rights generally and general
principles of equity.
Section 4.4. Financial Information. (a) The
consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as of December 31, 1997 and
the related consolidated statements of income, cash
flows and stockholders' equity for the Fiscal Year then
ended, reported on by Deloitte & Touche LLP and set
forth in the Borrower's 1997 Form 10-K, fairly present,
in conformity with GAAP, the consolidated financial
position of the Borrower and its Consolidated
Subsidiaries as of such date and their consolidated
results of operations and cash flows for such Fiscal
Year.
(b) The unaudited consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries as of June
30, 1998 and the related unaudited consolidated
statements of income, cash flows and stockholders'
equity for the six months then ended, set forth in the
Borrower's Latest Form 10-Q, fairly present, on a basis
consistent with the financial statements referred to in
Section 4.04(a), the consolidated financial position of
the Borrower and its Consolidated Subsidiaries as of
such date and their consolidated results of operations
and cash flows for such six month period (subject to
normal year-end adjustments).
(c) Since June 30, 1998 there has been no material
adverse change in the business, financial position,
results of operations or prospects of the Borrower and
its Consolidated Subsidiaries, considered as a whole.
Section 4.5. Litigation. There is no action,
suit or proceeding pending against, or to the
Borrower's knowledge threatened against or affecting,
the Borrower or any Subsidiary before any court or
arbitrator or any governmental body, agency or official
in which there is a reasonable probability of an
adverse decision which would have a Material Adverse
Effect (except as disclosed in writing to the Lenders
prior to the execution and delivery of this Agreement
by any Lender, including pursuant to the Borrower's
1997 Form 10-K and the Borrower's Latest Form 10-Q) or
which in any manner draws into question the validity or
enforceability of this Agreement or the Notes.
Section 4.6. Compliance with ERISA. Each member
of the ERISA Group has fulfilled its obligations under
the minimum funding standards of ERISA and the Internal
Revenue Code with respect to each Plan and is in
compliance in all material respects with the presently
applicable provisions of ERISA and the Internal Revenue
Code with respect to each Plan. No member of the ERISA
Group has (i) sought a waiver of the minimum funding
standard under Section 412 of the Internal Revenue Code
in respect of any Plan, (ii) failed to make any
contribution or payment to any Plan or Multiemployer
Plan, or made any amendment to any Plan, which has
resulted or could result in the imposition of a Lien or
the posting of a bond or other security under ERISA or
the Internal Revenue Code or (iii) incurred any
liability under Title IV of ERISA other than a
liability to the PBGC for premiums under Section 4007
of ERISA.
Section 4.7. Taxes. The Borrower and its
Material Subsidiaries have filed all material tax
returns which are required to be filed by them and have
paid all taxes due pursuant to such returns. The
charges, accruals and reserves on the books of the
Borrower and its Material Subsidiaries in respect of
taxes or other governmental charges are, in the
Borrower's opinion, adequate.
Section 4.8. Subsidiaries. Each of the
Borrower's Material Subsidiaries is a corporation duly
incorporated, validly existing and in good standing
under the laws of its jurisdiction of incorporation,
and has all corporate powers and all material
governmental licenses, authorizations, consents and
approvals required to carry on its business as now
conducted.
Section 4.9. No Regulatory Restrictions on
Borrowing. The Borrower is not subject to any
regulatory scheme not applicable to corporations
generally which restricts its ability to incur debt.
Section 4.10. Full Disclosure. All information
heretofore furnished by the Borrower to the
Administrative Agent or any Lender for purposes of or
in connection with this Agreement or any transaction
contemplated hereby is, and all such information
hereafter furnished by the Borrower to the
Administrative Agent or any Lender will be, true and
accurate in all material respects on the date as of
which such information is stated or certified. The
Borrower has disclosed to the Lenders in writing any
and all facts which materially and adversely affect, or
may affect (to the extent the Borrower can now
reasonably foresee), the business, operations or
financial condition of the Borrower and its
Consolidated Subsidiaries, taken as a whole, or the
Borrower's ability to perform its obligations under
this Agreement.
Section 4.11. Mortgage. The Mortgage has not
been amended or supplemented and no waiver of
compliance with any provision thereof has been granted
by any Person since May 15, 1991. No payment default
by the mortgagor (whether cured or waived or not) has
occurred under the Mortgage. The Mortgage Memorandum,
a copy of which has been delivered to each of the
Lenders, does not (i) contain any untrue statement of a
material fact or (ii) omit to state any material fact
relating to the circumstances under which the
obligations of the Borrower or other mortgagors may
become recourse with respect to assets other than the
Mortgaged Property.
Section 4.12. Year 2000 Compliance. The Borrower
has (i) initiated a review and assessment of all areas
within the business and operations of the Borrower and
each of its Subsidiaries (including those areas
affected by suppliers and vendors) that could be
adversely affected by the "Year 2000 Problem" (that is,
the risk that computer applications used by it or any
of its Subsidiaries (or their respective suppliers and
vendors) may be unable to recognize and perform
properly date-sensitive functions involving certain
dates prior to and any date after December 31, 1999),
(ii) developed a plan and timeline for addressing the
Year 2000 Problem on a timely basis and (iii) to date,
implemented such plan in accordance with such
timetable. The Borrower reasonably believes that all
computer applications (including those of suppliers and
vendors) that are material to the business or
operations of the Borrower or any of its Subsidiaries
will on a timely basis be able to perform properly date-
sensitive functions for all dates before and from and
after January 1, 2000 (that is, be "Year 2000
compliant"), except to the extent that a failure to do
so could not reasonably be expected to have a Material
Adverse Effect.
ARTICLE 5
Covenants
The Borrower agrees that, so long as any Lender
has any Credit Exposure hereunder or any interest or
fees accrued hereunder remain unpaid:
Section 5.1. Information. The Borrower will
deliver to each of the Lenders:
(a) as soon as available and in any event
within 120 days after the end of each Fiscal Year,
a consolidated balance sheet of the Borrower and
its Consolidated Subsidiaries as of the end of
such Fiscal Year and the related consolidated
statements of income, cash flows and stockholders'
equity for such Fiscal Year, setting forth in each
case in comparative form the figures for the
previous Fiscal Year, all reported on in a manner
acceptable to the SEC by Deloitte & Touche LLP or
other independent public accountants of nationally
recognized standing (it being understood that
delivery of the Borrower's annual report on Form
10-K for any Fiscal Year as filed with the SEC
pursuant to the Exchange Act will satisfy this
requirement with respect to such Fiscal Year);
(b) as soon as available and in any event
within 60 days after the end of each of the first
three Fiscal Quarters of each Fiscal Year, a
consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as of the end of such
Fiscal Quarter, the related consolidated statement
of income for such Fiscal Quarter and the related
consolidated statements of income and cash flows
for the portion of the Fiscal Year ended at the
end of such Fiscal Quarter, setting forth in the
case of each such statement of income or cash
flows in comparative form the figures for the
corresponding period in the previous Fiscal Year,
all certified (subject to normal year-end
adjustments) as to fairness of presentation and
consistency with GAAP by the Borrower's chief
financial officer, treasurer or chief accounting
officer (it being understood that delivery of the
Borrower's quarterly report on Form 10-Q for any
Fiscal Quarter as filed with the SEC pursuant to
the Exchange Act will satisfy this requirement
with respect to such Fiscal Quarter and, if
applicable, the portion of the Borrower's Fiscal
Year ended at the end of such Fiscal Quarter);
(c) simultaneously with the delivery of each
set of financial statements referred to in clauses
5.01(a) and 5.01(b) above, a certificate of the
Borrower's chief financial officer, treasurer or
chief accounting officer (i) setting forth in
reasonable detail the calculations required to
establish whether the Borrower was in compliance
with the requirements of Sections 5.04 and 5.07 on
the date of such financial statements and (ii)
stating whether any Default exists on the date of
such certificate and, if any Default then exists,
setting forth the details thereof and the action
which the Borrower is taking or proposes to take
with respect thereto;
(d) simultaneously with the delivery of each
set of financial statements referred to in clause
5.01(a) above, a statement of the firm of
independent public accountants which reported on
such statements (i) whether anything has come to
their attention to cause them to believe that the
Borrower was not in compliance with any covenant
or agreement contained in this Article 5 insofar
as such covenant or agreement pertains to
accounting or auditing matters or that any Event
of Default under Article 6 which pertains to
accounting or auditing matters existed on the date
of such financial statements (it being understood
that such firm may state in such statement that
its examination of such financial statements was
not directed primarily towards obtaining knowledge
of any such non-compliance or Event of Default)
and (ii) confirming the calculations set forth in
the officer's certificate delivered simultaneously
therewith pursuant to clause 5.01(c) above;
(e) forthwith (i) upon the occurrence of any
Default, (ii) in the event that Consolidated Net
Worth falls below $2,500,000,000 or (iii) in the
event that either the Debt evidenced by the
Secured Notes or interest thereon is payable other
than solely from the Mortgaged Property, a
certificate of the chief financial officer, the
treasurer or the chief accounting officer of the
Borrower setting forth the details thereof and,
with respect to clause (i) above, the action which
the Borrower is taking or proposes to take with
respect thereto and, with respect to clause (iii)
above, the nature of the assets, and the amount of
liabilities and other details fully explaining the
recourse nature of the obligations of the Borrower
or any other mortgagor or Subsidiary and updating
the Mortgage Memorandum to reflect the conditions
relating to the Mortgage existing on the date of
such certificate;
(f) promptly after the mailing thereof to the
Borrower's shareholders generally, copies of all
financial statements, reports and proxy statements
so mailed;
(g) promptly after the filing thereof, copies
of all registration statements (other than the
exhibits thereto and any registration statements
on Form S-8 or its equivalent) and reports on
Forms 10-K, 10-Q and 8-K (or their equivalents)
filed by the Borrower with the SEC;
(h) if and when any member of the ERISA Group
(i) gives or is required to give notice to the
PBGC of any "reportable event" (as defined in
Section 4043 of ERISA) with respect to any Plan
which might constitute grounds for a termination
of such Plan under Title IV of ERISA, or knows
that the plan administrator of any Plan has given
or is required to give notice of any such
reportable event, a copy of the notice of such
reportable event given or required to be given to
the PBGC; (ii) receives notice of complete or
partial withdrawal liability under Title IV of
ERISA or notice that any Multiemployer Plan is in
reorganization, is insolvent or has been
terminated, a copy of such notice; (iii) receives
notice from the PBGC under Title IV of ERISA of an
intent to terminate, impose liability (other than
for premiums under Section 4007 of ERISA) in
respect of, or appoint a trustee to administer any
Plan, a copy of such notice; (iv) applies for a
waiver of the minimum funding standard under
Section 412 of the Internal Revenue Code, a copy
of such application; (v) gives notice of intent to
terminate any Plan under Section 4041(c) of ERISA,
a copy of such notice and other information filed
with the PBGC; (vi) gives notice of withdrawal
from any Plan pursuant to Section 4063 of ERISA, a
copy of such notice; or (vii) fails to make any
payment or contribution to any Plan or
Multiemployer Plan or makes any amendment to any
Plan which has resulted or could result in the
imposition of a Lien or the posting of a bond or
other security, a certificate of the Borrower's
chief financial officer or chief accounting
officer setting forth details as to such
occurrence and the action, if any, which the
Borrower or applicable member of the ERISA Group
is required or proposes to take;
(i) promptly after any change in the
Borrower's commercial paper rating by S&P or
Xxxxx'x (as defined in the Pricing Schedule), a
notice thereof; and
(j) from time to time such additional
information regarding the financial position or
business of the Borrower and its Subsidiaries as
the Administrative Agent, at the request of any
Lender, may reasonably request.
In the case of information required to be delivered pursuant to
clauses 5.01(a), 5.01(b), 5.01(f) or 5.01(g) above,
either (i) the Borrower shall deliver paper copies of
such information to each Lender, or (ii) such
information shall be deemed to have been delivered on
the date on which the Borrower provides notice to the
Lenders that such information has been posted on the
Borrower's website on the Internet at the website
address listed on the signature pages hereof, at
xxx.xxx/xxxxx/xxxxxxxx.xxx or at another website
identified in such notice and accessible by the Lenders
without charge; provided that (x) such notice may be
included in a certificate delivered pursuant to clause
5.01(c) and (y) the Borrower shall deliver paper copies
of the information referred to in clauses 5.01(a),
5.01(b), 5.01(f) or 5.01(g) to any Lender which
requests such delivery.
Section 5.2. Conduct of Business and Maintenance
of Existence . The Borrower will continue, and will
cause its Material Subsidiaries to continue, to engage
in business of the same general type as now conducted
by the Borrower and its Material Subsidiaries, and will
preserve, renew and keep in full force and effect, and
will cause each Material Subsidiary to preserve, renew
and keep in full force and effect their respective
existences and their respective rights, privileges and
franchises necessary or desirable in the normal conduct
of business; provided that nothing in this Section 5.02
shall prohibit (i) the merger of a Subsidiary into the
Borrower or the merger or consolidation of a Subsidiary
with or into another Person if the corporation
surviving such consolidation or merger is a Subsidiary
and if, in each case, after giving effect thereto, no
Default shall have occurred and be continuing, (ii) the
termination of the corporate existence of any Material
Subsidiary if the Borrower in good faith determines
that such termination is in the best interests of the
Borrower and is not materially disadvantageous to the
Lenders and (iii) the discontinuance of the business of
any Material Subsidiary if the Borrower in good faith
determines that such discontinuance is in the best
interest of the Borrower and is not materially
disadvantageous to the Lenders.
Section 5.3. Compliance with the Laws. The
Borrower will comply, and cause each Material
Subsidiary to comply, in all material respects with all
applicable laws, ordinances, rules, regulations, and
requirements of governmental authorities (including,
without limitation, Environmental Laws and ERISA and
the rules and regulations thereunder) except where (i)
the necessity of compliance therewith is contested in
good faith by appropriate proceedings or (ii) non-
compliance therewith would not have a Material Adverse
Effect.
Section 5.4. Minimum Consolidated Net Worth;
Consolidated Debt . If the Consolidated Net Worth of
the Borrower is less than $2,500,000,000 at the end of
any Fiscal Quarter, then the ratio of (x) Operating
Cash Flow to (y) Consolidated Debt shall be no less
than .25 to 1 as of the end of such Fiscal Quarter;
provided that, for purposes of this Section,
Consolidated Debt shall not include (i) the Secured
Notes if and so long as (1) neither the Debt evidenced
by the Secured Notes nor interest thereon is payable
other than solely from the Mortgaged Property and (2)
the principal amount of the Secured Notes is not
increased and (ii) Debt of the Borrower in an aggregate
principal amount not to exceed $200,000,000 incurred
for the purpose of funding an employee stock ownership
plan as defined in Section 4975(e)(7) of the Internal
Revenue Code sponsored by the Borrower.
Section 5.5. Consolidations, Mergers and Sales of
Assets. The Borrower will not (i) consolidate or merge
with or into any other Person or (ii) sell, lease or
otherwise transfer all or substantially all of its
assets to any other Person; provided that (x) the
Borrower may merge with any Wholly-Owned Consolidated
Subsidiary if immediately after such merger no Default
shall have occurred and be continuing and such Wholly-
Owned Consolidated Subsidiary shall expressly assume in
writing all of the obligations of the Borrower
hereunder, (y) the Borrower may merge with any other
Person if (A) the Borrower is the corporation surviving
such merger and (B) immediately after giving effect to
such merger, no Default shall have occurred and be
continuing and (z) the Borrower may sell, transfer or
otherwise dispose of Margin Stock for fair value.
Section 5.6. Use of Proceeds. The proceeds of
the Loans made under this Agreement will be used by the
Borrower (i) to finance the acquisition of Target
Shares pursuant to the Offer and the Completion
Procedures, (ii) to repay other Debt incurred to
finance the acquisition of Target Shares pursuant to
the Offer and the Completion Procedures, (iii) to
finance open market or privately negotiated purchases
of Target Shares while the Offer is continuing, up to
an aggregate amount not exceeding $225,000,000, (iv) to
refinance certain Debt of Target and to pay fees and
(v) expenses in connection with the transactions
contemplated hereby. None of such proceeds will be
used, directly or indirectly, in violation of
Regulation U or X.
Section 5.7. Negative Pledge. Neither the
Borrower nor any Consolidated Subsidiary will create,
assume or suffer to exist any Lien on any asset now
owned or thereafter acquired by it, except:
(a) Liens existing on the Mortgaged Property;
(b) Liens existing on the date of this Agreement
securing Debt outstanding on the date of this Agreement
in an aggregate principal or face amount not exceeding
$50,000,000;
(c) any Lien existing on any asset of any
corporation at the time such corporation becomes a
Consolidated Subsidiary and not created in
contemplation of such event;
(d) any Lien on any asset securing Debt incurred or
assumed for the purpose of financing all or any part of
the cost of acquiring such asset, provided that such
Lien attaches to such asset concurrently with or within
90 days after the acquisition thereof;
(e) any Lien on any asset of any corporation
existing at the time such corporation is merged or
consolidated with or into the Borrower or a
Consolidated Subsidiary and not created in
contemplation of such event;
(f) any Lien existing on any asset prior to the
acquisition thereof by the Borrower or a Consolidated
Subsidiary and not created in contemplation of such
acquisition;
(g) any Lien arising out of the refinancing,
extension, renewal or refunding of any Debt secured by
any Lien permitted by any of the foregoing clauses of
this Section, provided that such Debt is not increased
and is not secured by any additional assets;
(h) Liens arising in the ordinary course of its
business which (i) do not secure Debt or Derivatives
Obligations, (ii) do not secure, in the case of
judgments or orders, obligations in an aggregate amount
exceeding $50,000,000 and (iii) do not in the aggregate
materially detract from the value of its assets or
materially impair the use thereof in the operation of
its business;
(i) Liens on cash and cash equivalents securing
Derivatives Obligations, provided that the aggregate
amount of cash and cash equivalents subject to such
Liens may at no time exceed $50,000,000 and provided
further that the sum of (x) such aggregate amount and
(y) the aggregate amount of Debt secured as permitted
by clause (k) below does not at any date exceed 20% of
Consolidated Tangible Net Worth;
(j) Liens on Margin Stock, if and to the extent
that the value of such Margin Stock exceeds 25% of the
total assets of the Borrower and its Consolidated
Subsidiaries subject to this Section; and
(k) Liens not otherwise permitted by the foregoing
clauses of this Section securing Debt, provided that
the sum of (x) the principal or face amount of such
Debt and (y) the aggregate amount of cash and cash
equivalents referred to in clause (i) above does not at
any date exceed 20% of Consolidated Tangible Net Worth.
Section 5.8. Amendment of Mortgage. No amendment
of, or supplement to, the Mortgage with respect to the
Mortgaged Property shall be made which could reasonably
be expected to have an adverse effect on the interests
of the Lenders hereunder.
Section 5.9. Taxes, Etc. The Borrower will, and
will cause each of its Material Subsidiaries to:
(a) pay and discharge all taxes, assessments and
governmental charges or levies imposed on it or on its
income or profits or on any of its property prior to
the date on which penalties attach thereto, except for
any such tax, assessment, charge or levy the payment of
which is being contested in good faith and by proper
proceedings and against which adequate reserves are
being maintained or the nonpayment of which would not
have Material Adverse Effect;
(b) keep adequate records and books of account, in
which complete entries will be made in accordance with
GAAP; and
(c) permit representatives of any Lender or the
Administrative Agent, during normal business hours, to
examine, copy and make extracts from its books and
records, to inspect any of its properties, and to
discuss its business and affairs with its officers, all
to the extent reasonably requested by such Lender or
the Administrative Agent (as the case may be).
ARTICLE 6
Defaults
Section 6.1. Events of Default. If one or more
of the following events ("Events of Default") shall
have occurred and be continuing:
(a) the Borrower shall fail to pay any
principal of any Loan when due or shall fail to
pay within five days of the due date any interest,
fee or other amount payable by it hereunder;
(b) the Borrower shall fail to observe or
perform any covenant contained in Sections 5.04
through 5.08, inclusive;
(c) the Borrower shall fail to observe or
perform any covenant or agreement (other than
those covered by clause 6.01(a) or 6.01(b) above)
contained in this Agreement or any amendment
hereof for 10 days after the Administrative Agent
gives notice thereof to the Borrower at the
request of any Lender;
(d) any representation, warranty,
certification or statement made (or deemed made)
by the Borrower in this Agreement or any amendment
hereof or in any certificate, financial statement
or other document delivered pursuant to this
Agreement shall prove to have been incorrect in
any material respect when made (or deemed made);
(e) the Borrower or any Subsidiary shall fail
to make any payment in respect of Material
Financial Obligations (other than the Secured
Notes, but only so long as the Secured Notes do
not constitute Consolidated Debt for the purposes
of Section 5.04) when due or within any applicable
grace period;
(f) any event or condition shall occur which
results in the acceleration of the maturity of any
Material Debt (other than the Secured Notes, but
only so long as the Secured Notes do not
constitute Consolidated Debt for the purposes of
Section 5.04) or enables (or, with the giving of
notice or lapse of time or both, would enable) the
holder of such Debt or any Person acting on such
holder's behalf to accelerate the maturity
thereof;
(g) the Borrower or any Subsidiary holding, as
of the date of the most recent audited financial
statements of the Borrower and its Consolidated
Subsidiaries delivered pursuant to this Agreement,
assets have a book value in excess of $10,000,000,
shall commence a voluntary case or other
proceeding seeking liquidation, reorganization or
other relief with respect to itself or its debts
under any bankruptcy, insolvency or other similar
law now or hereafter in effect or seeking the
appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any
substantial part of its property, or shall consent
to any such relief or to the appointment of or
taking possession by any such official in an
involuntary case or other proceeding commenced
against it, or shall make a general assignment for
the benefit of creditors, or shall fail generally
to pay its debts as they become due, or shall take
any corporate action to authorize any of the
foregoing;
(h) an involuntary case or other proceeding
shall be commenced against the Borrower or any
Subsidiary holding, as of the date of the most
recent audited financial statements of the
Borrower and its Consolidated Subsidiaries
delivered pursuant to this Agreement, assets
having a book value in excess of $10,000,000
seeking liquidation, reorganization or other
relief with respect to it or its debts under any
bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of
a trustee, receiver, liquidator, custodian or
other similar official of it or any substantial
part of its property, and such involuntary case or
other proceeding shall remain undismissed and
unstayed for a period of 60 days; or an order for
relief shall be entered against the Borrower or
any Subsidiary holding, as of the date of the most
recent audited financial statements of the
Borrower and its Consolidated Subsidiaries
delivered pursuant to this Agreement, assets
having a book value in excess of $10,000,000 under
the federal bankruptcy laws as now or hereafter in
effect;
(i) any member of the ERISA Group shall fail
to pay when due an amount or amounts aggregating
in excess of $10,000,000 which it shall have
become liable to pay under Title IV of ERISA; or
notice of intent to terminate a Material Plan
shall be filed under Title IV of ERISA by any
member of the ERISA Group, any plan administrator
or any combination of the foregoing; or the PBGC
shall institute proceedings under Title IV of
ERISA to terminate, to impose liability (other
than for premiums under Section 4007 of ERISA) in
respect of, or to cause a trustee to be appointed
to administer, any Material Plan; or a condition
shall exist by reason of which the PBGC would be
entitled to obtain a decree adjudicating that any
Material Plan must be terminated; or there shall
occur a complete or partial withdrawal from, or a
default, within the meaning of Section 4219(c)(5)
of ERISA, with respect to, one or more
Multiemployer Plans which could reasonably be
expected to cause one or more members of the ERISA
Group to incur a current payment obligation in
excess of $15,000,000;
(j) judgments or orders for the payment of
money exceeding $50,000,000 in aggregate amount
shall be rendered against the Borrower or any
Subsidiary and such judgments or orders shall
continue unsatisfied and unstayed for a period of
30 days;
(k) any person or group of persons (within the
meaning of Section 13 or 14 of the Exchange Act)
other than the Borrower, any trustee or other
fiduciary holding securities under an employee
benefit plan of the Borrower, or any corporation
owned, directly or indirectly, by the stockholders
of the Borrower in substantially the same
proportions as their ownership of stock in the
Borrower, shall have acquired beneficial ownership
(within the meaning of Rule 13d-3 promulgated by
the SEC under the Exchange Act) of 50% or more of
the combined voting power of the Borrower's then
outstanding securities; or, during any period of
24 consecutive calendar months, individuals who
were directors of the Borrower on the first day of
such period and any new director whose election by
the board of directors of the Borrower or
nomination for election by the Borrower's
stockholders was approved by a vote of at least
two-thirds of the directors then still in office
who either were directors at the beginning of such
period or whose election or nomination for
election was previously so approved, shall cease
to constitute a majority of the board of directors
of the Borrower; or
(l) the Borrower shall repudiate, or shall
challenge the validity or enforceability of, its
obligations under Article 9 or a court of
competent jurisdiction shall have determined that
such obligations are invalid or unenforceable;
then, and in every such event, the Administrative Agent shall:
(i) if requested by Lenders having more than
50% in aggregate amount of the Commitments, by
notice to the Borrower terminate the Commitments
or reduce the Commitments ratably to an aggregate
amount specified in such notice, whereupon the
Commitments shall be so terminated or reduced
forthwith; provided that, until either all Target
Shares have been acquired pursuant to the Offer
and the Completion Procedures or the Offer
Termination Date has occurred, the Commitments
shall not be terminated pursuant to this clause
(i) or reduced pursuant to this clause (i) to an
aggregate amount less than the maximum aggregate
amount from time to time remaining to be paid (on
the assumption that all outstanding Target Shares
will be acquired) to accepting shareholders
pursuant to the Offer and the Completion
Procedures; and
(ii) if requested by Lenders holding more than
50% of the aggregate unpaid principal amount of
the Loans, by notice to the Borrower declare the
Loans (together with accrued interest thereon) to
be, and the Loans (together with accrued interest
thereon) shall thereupon become, immediately due
and payable without presentment, demand, protest
or other notice of any kind, all of which are
hereby waived by the Borrower;
provided that, if any Event of Default specified in clause (g) or
(h) of this Section occurs with respect to the
Borrower, then without any notice to the Borrower or
any other act by the Administrative Agent or the
Lenders, the Commitments shall thereupon terminate and
the Loans (together with accrued interest thereon)
shall become immediately due and payable without
presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Borrower.
Except as provided in the foregoing proviso, neither
the Administrative Agent nor any Lender shall, at any
time before the Offer Termination Date, be entitled to
(i) enjoin the funding of the Offer, (ii) exercise any
right of rescission or set-off or similar right or
(iii) attempt in any other manner to obtain payment
from funds drawn hereunder to fund the Offer and the
Completion Procedures, in each case if and to the
extent that to do so would prevent the funding of the
Offer and the Completion Procedures as contemplated
hereby upon satisfaction of the conditions set forth in
Section 3.02.
Section 6.2. Notice of Default. The
Administrative Agent shall give notice to the Borrower
under Section 6.01(c) promptly upon being requested to
do so by any Lender and shall thereupon notify all the
Lenders thereof.
ARTICLE 7
The Agents
Section 7.1. Appointment and Authorization. Each
Lender irrevocably appoints and authorizes the
Administrative Agent to take such action as agent on
its behalf and to exercise such powers under this
Agreement as are delegated to the Administrative Agent
by the terms hereof or thereof, together with all such
powers as are reasonably incidental thereto.
Section 7.2. Administrative Agent and Affiliates.
The Administrative Agent shall have the same rights and
powers under this Agreement as any other Lender and may
exercise or refrain from exercising the same as though
it were not the Administrative Agent, and Xxxxxx
Guaranty Trust Company of New York and its affiliates
may accept deposits from, lend money to and generally
engage in any kind of business with the Borrower or any
Subsidiary or affiliate of the Borrower as if it were
not the Administrative Agent.
Section 7.3. Action by Administrative Agent. The
obligations of the Administrative Agent hereunder are
only those expressly set forth herein. Without
limiting the generality of the foregoing, the
Administrative Agent shall not be required to take any
action with respect to any Default, except as expressly
provided in Article 6.
Section 7.4. Consultation with Experts. The
Administrative Agent may consult with legal counsel
(who may be counsel for the Borrower), independent
public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to
be taken by it in good faith in accordance with the
advice of such counsel, accountants or experts.
Section 7.5. Liability of Administrative Agent.
None of the Administrative Agent, its affiliates and
their respective directors, officers, agents and
employees shall be liable for any action taken or not
taken by it in connection herewith (i) with the consent
or at the request of the Required Lenders (or such
different number of Lenders as any provision hereof
expressly requires for such consent or request) or (ii)
in the absence of its own gross negligence or willful
misconduct. None of the Administrative Agent, its
affiliates and their respective directors, officers,
agents and employees shall be responsible for or have
any duty to ascertain, inquire into or verify (i) any
statement, warranty or representation made in
connection with this Agreement or any borrowing
hereunder; (ii) the performance or observance of any of
the covenants or agreements of the Borrower; (iii) the
satisfaction of any condition specified in Article 3
except, in the case of the Administrative Agent,
receipt of items required to be delivered to it; or
(iv) the validity, effectiveness or genuineness of this
Agreement, the Notes or any other instrument or writing
furnished in connection herewith. The Administrative
Agent shall not incur any liability by acting in
reliance upon any notice, consent, certificate,
statement or other writing (which may be a bank wire,
telex, facsimile or similar writing) believed by it to
be genuine or to be signed by the proper party or
parties. Without limiting the generality of the
foregoing, the use of the term "agent" in this
Agreement with reference to the Administrative Agent is
not intended to connote any fiduciary or other implied
(or express) obligations arising under agency doctrine
of any applicable law. Instead, such term is used
merely as a matter of market custom and is intended to
create or reflect only an administrative relationship
between independent contracting parties.
Section 7.6. Indemnification. The Lenders shall,
ratably in proportion to their Credit Exposures,
indemnify the Administrative Agent, its affiliates and
their respective directors, officers, agents and
employees (to the extent not reimbursed by the
Borrower) against any cost, expense (including counsel
fees and disbursements), claim, demand, action, loss or
liability (except such as result from such indemnitees'
gross negligence or willful misconduct) that such
indemnitees may suffer or incur in connection with this
Agreement or any action taken or omitted by such
indemnitees hereunder.
Section 7.7. Credit Decision. Each Lender
acknowledges that it has, independently and without
reliance on any other Lender Party, and based on such
documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into
this Agreement. Each Lender also acknowledges that it
will, independently and without reliance on any other
Lender Party, and based on such documents and
information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or
not taking any action under this Agreement.
Section 7.8. Successor Administrative Agent. The
Administrative Agent may resign at any time by giving
notice thereof to the Lenders and the Borrower. Upon
any such resignation, the Required Lenders shall have
the right to appoint a successor Administrative Agent,
subject to the approval of such successor
Administrative Agent by the Borrower. If no successor
Administrative Agent shall have been so appointed by
the Required Lenders and approved by the Borrower, and
shall have accepted such appointment, within 30 days
after the retiring Administrative Agent gives notice of
resignation, then the retiring Administrative Agent
may, on behalf of the Lenders, appoint a successor
Administrative Agent, which shall be a commercial bank
organized or licensed under the laws of the United
States or of any State thereof and having a combined
capital and surplus of at least $100,000,000. Upon the
acceptance of its appointment as Administrative Agent
hereunder by a successor Administrative Agent, such
successor Administrative Agent shall thereupon succeed
to and become vested with all the rights and duties of
the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its
duties and obligations hereunder. After any retiring
Administrative Agent resigns as Administrative Agent
hereunder, the provisions of this Article shall inure
to its benefit as to actions taken or omitted to be
taken by it while it was Administrative Agent.
Section 7.9. Administrative Agent's Fee. The
Borrower shall pay to the Administrative Agent for its
own account fees in the amounts and at the times
previously agreed upon by the Borrower and the
Administrative Agent.
ARTICLE 8
Change in Circumstances
Section 8.1. Basis for Determining Interest Rate
Inadequate or Unfair. If on or before the first day of
any Interest Period for any Euro-Dollar Loans:
(a) the Administrative Agent is advised by the
Reference Lenders that deposits in Dollars in the
applicable amounts are not being offered to the
Reference Lenders in the London interbank market
for such Interest Period, or
(b) Lenders having at least 50% in aggregate
amount of the Commitments advise the
Administrative Agent that the London Interbank
Offered Rate as determined by the Administrative
Agent will not adequately and fairly reflect the
cost to such Lenders of funding their Euro-Dollar
Loans for such Interest Period,
the Administrative Agent shall forthwith give notice thereof to the
Borrower and the Lenders, whereupon until the
Administrative Agent notifies the Borrower and the
Lenders that the circumstances giving rise to such
suspension no longer exist, (i) the obligations of the
Lenders to make Euro-Dollar Loans or to continue or
convert outstanding Loans as or into Euro-Dollar Loans
shall be suspended and (ii) each outstanding Euro-
Dollar Loan shall be converted into a Base Rate Loan on
the last day of the then current Interest Period
applicable thereto. Unless the Borrower notifies the
Administrative Agent at least two Domestic Business
Days before the date of any affected Borrowing for
which a Notice of Borrowing has previously been given
that it elects not to borrow on such date, such
Borrowing shall instead be made as a Base Rate
Borrowing.
Section 8.2. Illegality. If, on or after the
date hereof, the adoption of any applicable law, rule
or regulation, or any change in any applicable law,
rule or regulation, or any change in the interpretation
or administration thereof by any governmental
authority, central bank or comparable agency charged
with the interpretation or administration thereof, or
compliance by any Lender (or its Euro-Dollar Lending
Office) with any request or directive (whether or not
having the force of law) of any such authority, central
bank or comparable agency, shall make it unlawful or
impossible for any Lender (or its Euro-Dollar Lending
Office) to make, maintain or fund its Euro-Dollar Loans
and such Lender shall so notify the Administrative
Agent, the Administrative Agent shall forthwith give
notice thereof to the other Lenders and the Borrower,
whereupon until such Lender notifies the Borrower and
the Administrative Agent that the circumstances giving
rise to such suspension no longer exist, the obligation
of such Lender to make Euro-Dollar Loans or to continue
outstanding Loans to the Borrower as Euro-Dollar Loans,
shall be suspended. Before giving any notice to the
Administrative Agent pursuant to this Section, such
Lender shall designate a different Euro-Dollar Lending
Office if such designation will avoid the need for
giving such notice and will not, in the judgment of
such Lender, be otherwise disadvantageous to such
Lender. If such notice is given, each Euro-Dollar Loan
of such Lender then outstanding to the Borrower shall
be converted to a Base Rate Loan either (a) on the last
day of the then current Interest Period applicable to
such Euro-Dollar Loan if such Lender may lawfully
continue to maintain and fund such Loan as a Euro-
Dollar Loan to such day or (b) immediately if such
Lender shall determine that it may not lawfully
continue to maintain and fund such Loan as a Euro-
Dollar Loan to such day. Interest and principal on any
such Base Rate Loan shall be payable on the same dates
as, and on a pro rata basis with, the interest and
principal payable on the related Euro-Dollar Loans of
the other Lenders.
Section 8.3. Increased Cost and Reduced Return.
(a) If on or after the date hereof, the adoption of any
applicable law, rule or regulation, or any change in
any applicable law, rule or regulation, or any change
in the interpretation or administration thereof by any
governmental authority, central bank or comparable
agency charged with the interpretation or
administration thereof, or compliance by any Lender (or
its Applicable Lending Office) with any request or
directive (whether or not having the force of law) of
any such authority, central bank or comparable agency,
shall impose, modify or deem applicable any reserve
(including, without limitation, any such requirement
imposed by the Board of Governors of the Federal
Reserve System, but excluding any such requirement with
respect to which such Lender is entitled to
compensation during the relevant Interest Period under
Section 2.13), special deposit, insurance assessment or
similar requirement against assets of, deposits with or
for the account of, or credit extended by, any Lender
(or its Applicable Lending Office) or shall impose on
any Lender (or its Applicable Lending Office) or the
London interbank market any other condition affecting
its Euro-Dollar Loans, its Notes or its obligation to
make Euro-Dollar Loans and the result of any of the
foregoing is to increase the cost to such Lender (or
its Applicable Lending Office) of making or maintaining
any Euro-Dollar Loan, or to reduce the amount of any
sum received or receivable by such Lender (or its
Applicable Lending Office) under this Agreement or
under its Note with respect thereto, by an amount
deemed by such Lender to be material, then, within 15
days after demand by such Lender (with a copy to the
Administrative Agent), the Borrower shall pay to such
Lender such additional amount or amounts as will
compensate such Lender for such increased cost or
reduction.
(b) If any Lender shall have determined that, after
the date hereof, the adoption of any applicable law,
rule or regulation regarding capital adequacy, or any
change in any such law, rule or regulation, or any
change in the interpretation or administration thereof
by any governmental authority, central bank or
comparable agency charged with the interpretation or
administration thereof, or any request or directive
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 capital of such Lender
(or its Parent) as a consequence of such Lender's
obligations hereunder to a level below that which such
Lender (or its Parent) could have achieved but for such
adoption, change, request or directive (taking into
consideration its policies with respect to capital
adequacy) by an amount deemed by such Lender to be
material, then from time to time, within 15 days after
demand by such Lender (with a copy to the
Administrative Agent), the Borrower shall pay to such
Lender such additional amount or amounts as will
compensate such Lender (or its Parent) for such
reduction.
(c) Each Lender will promptly notify the Borrower
and the Administrative Agent of any event of which it
has knowledge, occurring after the date hereof, which
will entitle such Lender to compensation pursuant to
this Section and will designate a different Applicable
Lending Office if such designation will avoid the need
for, or reduce the amount of, such compensation and
will not, in the judgment of such Lender, be otherwise
disadvantageous to it. A certificate of any Lender
claiming compensation under this Section and setting
forth the additional amount or amounts to be paid to it
hereunder shall be conclusive in the absence of
manifest error. In determining such amount, such
Lender may use any reasonable averaging and attribution
methods.
Section 8.4. Taxes. (a) For the purposes of this
Section, the following terms have the following
meanings:
"Taxes" means any and all present or future taxes
or other charges deducted, withheld or otherwise
imposed with respect to any payment by the Borrower
pursuant to this Agreement or any Note, and all
liabilities with respect thereto, excluding with
respect to each Lender Party: (i) taxes imposed on its
net income, and franchise or similar taxes imposed on
it, by a jurisdiction under the laws of which it is
organized or in which its principal executive office is
located or in which its Applicable Lending Office is
located and (ii) any United States withholding tax
imposed on such payment, but not excluding any portion
of such tax that exceeds the United States withholding
tax which would have been imposed on such a payment to
such Lender Party under the laws and treaties in effect
when such Lender Party first becomes a party to this
Agreement.
"Other Taxes" means any present or future stamp or
documentary taxes and any other excise or property
taxes, or similar charges or levies, which arise from
any payment made pursuant to this Agreement or any Note
or from the execution, delivery, registration or
enforcement of, or otherwise with respect to, this
Agreement or any Note.
(b) All payments by the Borrower to or for the
account of any Lender Party hereunder or under any Note
shall be made without deduction for any Taxes or Other
Taxes; provided that, if the Borrower shall be required
by law to deduct any Taxes or Other Taxes from any such
payment, (i) the sum payable shall be increased as
necessary so that after making all required deductions
(including deductions applicable to additional sums
payable under this Section) such Lender Party receives
an amount equal to the sum it would have received had
no such deductions been made, (ii) the Borrower shall
make such deductions, (iii) the Borrower shall pay the
full amount deducted to the relevant taxation authority
or other authority in accordance with applicable law
and (iv) the Borrower shall promptly furnish to the
Administrative Agent, at its address specified in or
pursuant to Section 9.01, the original or a certified
copy of a receipt evidencing payment thereof.
(c) The Borrower agrees to indemnify each Lender
Party for the full amount of Taxes and Other Taxes
(including, without limitation, any Taxes or Other
Taxes imposed or asserted (whether or not correctly) by
any jurisdiction on amounts payable under this Section)
paid by such Lender Party and any liability (including
penalties, interest and expenses) arising therefrom or
with respect thereto. This indemnification shall be
paid within 15 days after such Lender Party makes
demand therefor.
(d) Each Lender Party organized under the laws of a
jurisdiction outside the United States, before it signs
and delivers this Agreement in the case of each Lender
Party listed on the signature pages hereof and before
it becomes a Lender Party in the case of each other
Lender Party, and from time to time thereafter if
requested in writing by the Borrower (but only so long
as such Lender Party remains lawfully able to do so),
shall provide the Borrower and the Administrative Agent
with Internal Revenue Service form 1001 or 4224, as
appropriate, or any successor form prescribed by the
Internal Revenue Service, certifying that such Lender
Party is entitled to benefits under an income tax
treaty to which the United States is a party which
exempts such Lender Party from United States
withholding tax or reduces the rate of withholding tax
on payments of interest for the account of such Lender
Party or certifying that the income receivable by it
pursuant to this Agreement is effectively connected
with the conduct of a trade or business in the United
States.
(e) For any period with respect to which a Lender
Party has failed to provide the Borrower or the
Administrative Agent with the appropriate form referred
to in Section 8.04(d) (unless such failure is due to a
change in treaty, law or regulation occurring after the
date on which such form originally was required to be
provided), such Lender Party shall not be entitled to
indemnification under Section 8.04(b) or 8.04(c) with
respect to Taxes imposed by the United States; provided
that if a Lender Party, that is otherwise exempt from
or subject to a reduced rate of withholding tax,
becomes subject to Taxes because of its failure to
deliver a form required hereunder, the Borrower shall
take such steps as such Lender Party shall reasonably
request to assist such Lender Party to recover such
Taxes.
(f) If the Borrower is required to pay additional
amounts to or for the account of any Lender Party
pursuant to this Section as a result of a change in law
or treaty occurring after such Lender Party first
became a party to this Agreement, then such Lender
Party will, at the Borrower's request, change the
jurisdiction of its Applicable Lending Office if, in
the judgment of such Lender, such change (i) will
eliminate or reduce any such additional payment which
may thereafter accrue and (ii) is not otherwise
disadvantageous to such Lender.
Section 8.5. Base Rate Loans Substituted for
Affected Euro-dollar Loans. If (i) the obligation of
any Lender to make, or to continue or convert
outstanding Loans as or to, Euro-Dollar Loans has been
suspended pursuant to Section 8.02 or (ii) any Lender
has demanded compensation under Section 8.03 or 8.04
with respect to its Euro-Dollar Loans, and in any such
case the Borrower shall, by at least five Euro-Dollar
Business Days' prior notice to such Lender through the
Administrative Agent, have elected that the provisions
of this Section shall apply to such Lender, then,
unless and until such Lender notifies the Borrower that
the circumstances giving rise to such suspension or
demand for compensation no longer exist, all Loans
which would otherwise be made by such Lender as (or
continued as or converted to) Euro-Dollar Loans shall
instead be Base Rate Loans on which interest and
principal shall be payable contemporaneously with the
related Euro-Dollar Loans of the other Lenders. If
such Lender notifies the Borrower that the
circumstances giving rise to such suspension or demand
for compensation no longer exist, the principal amount
of each such Base Rate Loan shall be converted into a
Euro-Dollar Loan on the first day of the next
succeeding Interest Period applicable to the related
Euro-Dollar Loans of the other Lenders.
ARTICLE 9
Miscellaneous
Section 9.1. Notices. All notices, requests and
other communications to any party hereunder shall be in
writing (including bank wire, telex, facsimile or
similar writing) and shall be given to such party: (a)
in the case of the Borrower or the Administrative
Agent, at its address, facsimile number or telex number
set forth on the signature pages hereof, (b) in the
case of any Lender, at its address, facsimile number or
telex number set forth in its Administrative
Questionnaire or (c) in the case of any party, at such
other address, facsimile number or telex number as such
party may hereafter specify for the purpose by notice
to the Administrative Agent and the Borrower. Each
such notice, request or other communication shall be
effective (i) if given by telex, when transmitted to
the telex number referred to in this Section and the
appropriate answerback is received, (ii) if given by
facsimile, when transmitted to the facsimile number
referred to in this Section and confirmation of receipt
is received, (iii) if given by mail, 72 hours after
such communication is deposited in the mails with first
class postage prepaid, addressed as aforesaid or (iv)
if given by any other means, when delivered at the
address referred to in this Section; provided that
notices to the Administrative Agent under Article 2 or
Article 8 shall not be effective until received.
Section 9.2. No Waivers. No failure or delay by
any Lender Party in exercising any right, power or
privilege hereunder or under any Note shall operate as
a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or
privilege. The rights and remedies herein provided
remedies provided by law.
Section 9.3. Expenses; Indemnification. (a) The
Borrower shall pay (i) all out-of-pocket expenses of
the Administrative Agent, including fees and
disbursements of special counsel for the Administrative
Agent, in connection with the preparation and
administration of this Agreement, any waiver or consent
hereunder or any amendment hereof or any Default or
alleged Default hereunder and (ii) if an Event of
Default occurs, all out-of-pocket expenses incurred by
each Lender Party, including (without duplication) the
fees and disbursements of outside counsel and the
allocated cost of inside counsel, in connection with
such Event of Default and collection, bankruptcy,
insolvency and other enforcement proceedings resulting
therefrom.
(b) The Borrower agrees to indemnify each Lender
Party, their respective affiliates and the respective
directors, officers, agents and employees of the
foregoing (each an "Indemnitee") and hold each
Indemnitee harmless from and against any and all
liabilities, losses, damages, costs and expenses of any
kind, including, without limitation, the reasonable
fees and disbursements of counsel, which may be
incurred by such Indemnitee in connection with any
investigative, administrative or judicial proceeding
(whether or not such Indemnitee shall be designated a
party thereto) brought or threatened relating to or
arising out of this Agreement or any actual or proposed
use of proceeds of Loans hereunder; provided that no
Indemnitee shall have the right to be indemnified
hereunder for such Indemnitee's own gross negligence or
willful misconduct as determined by a court of
competent jurisdiction.
Section 9.4. Set-offs. (a) If (i) an Event of
Default has occurred and is continuing and (ii) the
requisite Lenders have requested the Administrative
Agent to declare the Loans to be immediately due and
payable pursuant to Section 6.01, or the Loans have
become immediately due and payable without notice as
provided in Section 6.01, then each Lender Party is
hereby authorized by the Borrower at any time and from
time to time, to the extent permitted by applicable
law, without notice to the Borrower (any such notice
being expressly waived by the Borrower), to set off and
apply all deposits (general or special, time or demand,
provisional or final) at any time held, other than
deposits held by the Borrower as fiduciary for other
Persons, and other indebtedness at any time owing by
such Lender Party to or for the account of the Borrower
against any obligations of the Borrower to such Lender
Party now or hereafter existing under this Agreement,
regardless of whether any such deposit or other
obligation is then due and payable or is in the same
currency or is booked or otherwise payable at the same
office as the obligation against which it is set off
and regardless of whether such Lender Party shall have
made any demand for payment under this Agreement. Each
Lender Party agrees promptly to notify the Borrower
after any such set-off and application made by such
Lender Party; provided that any failure to give such
notice shall not affect the validity of such setoff and
application. The rights of the Lender Parties under
this subsection are in addition to any other rights and
remedies which they may have.
(b) Each Lender agrees that if it shall, by
exercising any right of set-off or counterclaim or
otherwise, receive payment of a proportion of the
aggregate amount of principal and interest then due
with respect to the Loans held by it which is greater
than the proportion received by any other Lender in
respect of the aggregate amount of principal and
interest then due with respect to the Loans held by
such other Lender, the Lender receiving such
proportionately greater payment shall purchase such
participations in the Loans held by the other Lenders,
and such other adjustments shall be made, as may be
required so that all such payments of principal and
interest with respect to the Loans held by the Lenders
shall be shared by the Lenders pro rata; provided that
nothing in this Section shall impair the right of any
Lender to exercise any right of set-off or counterclaim
it may have and to apply the amount subject to such
exercise to the payment of indebtedness of the Borrower
other than its indebtedness in respect of the Loans.
The Borrower agrees, to the fullest extent it may
effectively do so under applicable law, that any holder
of a participation in a Loan, whether or not acquired
pursuant to the foregoing arrangements, may exercise
rights of set-off or counterclaim and other rights with
respect to such participation as fully as if such
holder of a participation were a direct creditor of the
Borrower in the amount of such participation.
Section 9.5. Amendments and Waivers. Any
provision of this Agreement or the Notes may be amended
or waived if, but only if, such amendment or waiver is
in writing and is signed by the Borrower and the
Required Lenders (and, if the rights or duties of any
Agent are affected thereby, by such Agent); provided
that no such amendment or waiver shall, unless signed
by all the Lenders,(i) increase or decrease the
Commitment of any Lender (except for a ratable decrease
in the Commitments of all the Lenders) or subject any
Lender to any additional obligation, (ii) reduce the
principal of or rate of interest on any Loan or any
fees hereunder, (iii) postpone the date fixed for any
payment of principal of or interest on any Loan or any
fees hereunder or for the termination of any Commitment
or (iv) change the percentage of the Commitments or of
the aggregate unpaid principal amount of the Loans, or
the number of Lenders, which shall be required for the
Lenders or any of them to take any action under this
Section or any other provision of this Agreement.
Section 9.6. Successors; 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, except that the Borrower may not assign or
otherwise transfer any of its rights under this
Agreement without the prior written consent of all the
Lenders.
(b) Any Lender may at any time grant to one or more
banks or other institutions (each a "Participant")
participating interests in its Commitment or any or all
of its Loans. If a Lender grants any such
participating interest to a Participant, whether or not
upon notice to the Borrower and the Administrative
Agent, such Lender shall remain responsible for the
performance of its obligations hereunder, and the
Borrower and the Administrative Agent shall continue to
deal solely and directly with such Lender in connection
with such Lender's rights and obligations under this
Agreement. Any agreement pursuant to which any Lender
may grant such a participating interest shall provide
that such Lender shall retain the sole right and
responsibility to enforce the obligations of the
Borrower hereunder including, without limitation, the
right to approve any amendment, modification or waiver
of any provision of this Agreement; provided that such
participation agreement may provide that such Lender
will not agree to any modification, amendment or waiver
of this Agreement described in clause (i), (ii) or
(iii) of Section 9.05 without the consent of the
Participant. The Borrower agrees that each Participant
shall, to the extent provided in its participation
agreement, be entitled to the benefits of Section 2.13
and Article 8 with respect to its participating
interest. An assignment or other transfer which is not
permitted by Section 9.06(c) or 9.06(d) below shall be
given effect for purposes of this Agreement only to the
extent of a participating interest granted in
accordance with this subsection.
(c) Any Lender may at any time assign to one or
more banks or other institutions (each an "Assignee")
all, or a proportionate part (equivalent to an initial
Commitment of not less than $10,000,000) of all, of its
rights and obligations under this Agreement and its
Notes, and such Assignee shall assume such rights and
obligations, pursuant to an Assignment and Assumption
Agreement substantially in the form of Exhibit B hereto
signed by such Assignee and such transferor Lender,
with (and subject to) the subscribed consent of the
Borrower and the Administrative Agent, which consents
shall not be unreasonably withheld; provided that if an
Assignee is an affiliate of such transferor Lender or
was a Lender immediately before such assignment, no
such consent shall be required. When such instrument
has been signed and delivered by the parties thereto
and such Assignee has paid to such transferor Lender
the purchase price agreed between them, such Assignee
shall be a Lender party to this Agreement and shall
have all the rights and obligations of a Lender with a
Commitment as set forth in such instrument of
assumption, and the transferor Lender shall be released
from its obligations hereunder to a corresponding
extent, and no further consent or action by any party
shall be required. Upon the consummation of any
assignment pursuant to this subsection, the transferor
Lender, the Administrative Agent and the Borrower shall
make appropriate arrangements so that, if required, new
Notes are issued to the Assignee. In connection with
any such assignment, the transferor Lender shall pay to
the Administrative Agent an administrative fee for
processing such assignment in the amount of $2,500. If
the Assignee is not incorporated under the laws of the
United States or a State thereof, it shall deliver to
the Borrower and the Administrative Agent certification
as to exemption from deduction or withholding of United
States federal income taxes in accordance with Section
8.04.
(d) Any Lender may at any time assign all or any
portion of its rights under this Agreement and its
Notes to a Federal Reserve Bank. No such assignment
shall release the transferor Lender from its
obligations hereunder.
(e) No Assignee, Participant or other transferee of
any Lender's rights shall be entitled to receive any
greater payment under Section 8.03 or 8.04 than such
Lender would have been entitled to receive with respect
to the rights transferred, unless such transfer is made
with the Borrower's prior written consent or by reason
of the provisions of Section 8.02, 8.03 or 8.04
requiring such Lender to designate a different
Applicable Lending Office under certain circumstances
or at a time when the circumstances giving rise to such
greater payment did not exist.
Section 9.7. No Reliance on Margin Stock. Each
Lender represents to the Administrative Agent and each
of the other Lenders that it in good faith is not
relying upon any Margin Stock as collateral in the
extension or maintenance of the credit provided for in
this Agreement.
Section 9.8. Governing Law; Submission to
Jurisdiction. This Agreement and each Note shall be
governed by and construed in accordance with the laws
of the State of New York. The Borrower hereby submits
to the nonexclusive jurisdiction of the United States
District Court for the Southern District of New York
and of any New York State court sitting in New York
City for purposes of all legal proceedings arising out
of or relating to this Agreement or the transactions
contemplated hereby. The Borrower irrevocably waives,
to the fullest extent permitted by law, any objection
which it may now or hereafter have to the laying of the
venue of any such proceeding brought in such a court
and any claim that any such proceeding brought in such
a court has been brought in an inconvenient forum.
Section 9.9. Counterparts; Integration;
Effectiveness. This Agreement may be signed in any
number of counterparts, each of which shall be an
original, with the same effect as if the signatures
thereto and hereto were upon the same instrument. This
Agreement constitutes the entire agreement and
understanding among the parties hereto and supersedes
any and all prior agreements and understandings, oral
or written, relating to the subject matter hereof.
This Agreement shall become effective upon receipt by
the Administrative Agent of counterparts hereof signed
by each of the parties hereto (or, in the case of any
party as to which an executed counterpart shall not
have been received, receipt by the Administrative Agent
in form satisfactory to it of telegraphic, telex,
facsimile or other written confirmation from such party
of execution of a counterpart hereof by such party).
Section 9.10. Waiver of Jury Trial. EACH PARTY
HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed by their respective
authorized officers as of the day and year first above
written.
XXXXX & XxXXXXXX COMPANIES, INC.
By: /s/ Xxxxxx X. Xxxxxx
Title: Vice President and
Treasurer
By: /s/ Xxxxxxx X. Xxx Xxxxx
Title: Secretary
Address:
1166 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000-0000
Facsimile: (000) 000-0000
Web Site: xxx.xxxxxxxx.xxx
XXXXXX GUARANTY TRUST COMPANY OF
NEW YORK,
as Lender and Administrative
Agent
By:/s/ Xxxxxx X. Xxxxxx-Xxxxxx
Title: Vice President
Address:
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Facsimile: (000) 000-0000
COMMITMENT SCHEDULE
Lender Commitment
Xxxxxx Guaranty Trust Company of $2,250,000,000
New York
Total $2,250,000,000
PRICING SCHEDULE
The "Euro-Dollar Margin" and "Facility Fee Rate"
mean, on any date when such rates are to be determined
in accordance with this Pricing Schedule, the per annum
rates set forth below in the applicable row under the
column corresponding to the Status and Utilization that
exist on such day:
Xxxxxx Xxxxx X Xxxxx Xxxxx Xxxxx
XX III IV
Euro-Dollar
Margin
If 0.20% 0.24% 0.28% 0.37%
Utilization is
equal to or 0.45% 0.49% 0.53% 0.62%
less than
50%
If
Utilization
exceeds 50%
Facility Fee 0.05% 0.06% 0.07% 0.08%
Rate
For purposes of this Schedule, the following terms
have the following meanings:
"Level I Status" exists at any date if, at such
date, the Borrower's commercial paper is rated A-1+ by
S&P and P-1 by Xxxxx'x.
"Level II Status" exists at any date if, at such
date, the Borrower's commercial paper is rated A-1 by
S&P and P-1 by Xxxxx'x.
"Level III Status" exists at any date if, at such
date, (i) the Borrower's commercial paper is rated A-1
or higher by S&P and P-2 by Xxxxx'x or (ii) the
Borrower's commercial paper is rated A-2 by S&P and P-1
by Xxxxx'x.
"Level IV Status" exists at any date if, at such
date, no other Status exists.
"Status" refers to the determination of which of
Level I Status, Level II Status, Level III Status or
Level IV Status exists at any date.
"Utilization" means, at any date, the percentage
equivalent of a fraction (i) the numerator of which is
the aggregate outstanding principal amount of the Loans
at such date, after giving effect to any borrowing or
payment on such date and (ii) the denominator of which
is the aggregate amount of the Commitments at such
date, after giving effect to any reduction of the
Commitments on such date. For purposes of this
schedule, if for any reason any Loans remain
outstanding after termination of the Commitments, the
utilization on each date on or after the date of such
termination shall be deemed to be greater than 50%.
The credit ratings to be utilized for purposes of this
Schedule are those assigned to the Borrower's
commercial paper without third-party credit enhancement
and any rating assigned to any other debt security of
the Borrower shall be disregarded. The rating in
effect for any date is that in effect at the close of
business on such date.
EXHIBIT A
FORM OF NOTE
New York, New York
___________ __, _____
For value received, XXXXX & XxXXXXXX COMPANIES,
INC., a Delaware corporation (the "Borrower"), promises
to pay to the order of ______________________ (the
"Lender"), for the account of its Applicable Lending
Office, the unpaid principal amount of each Loan made
by the Lender to the Borrower pursuant to the Credit
Agreement referred to below on the maturity date
provided for in the Credit Agreement. The Borrower
promises to pay interest on the unpaid principal amount
of each such Loan on the dates and at the rate or rates
provided for in the Credit Agreement. All such
payments of principal and interest shall be made in
lawful money of the United States in Federal or other
immediately available funds at the office of Xxxxxx
Guaranty Trust Company of New York, at 00 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx.
All Loans made by the Lender and all repayments of
the principal thereof shall be recorded by the Lender
and, if the Lender so elects in connection with any
transfer or enforcement hereof, appropriate notations
to evidence the foregoing information with respect to
each such Loan then outstanding may be endorsed by the
Lender on the schedule attached hereto, or on a
continuation of such schedule attached to and made a
part hereof; provided that the failure of the Lender to
make (or any error in making) any such recordation or
endorsement shall not affect the Borrower's obligations
hereunder or under the Credit Agreement.
This note is one of the Notes referred to in the
Credit Agreement dated as of August 24, 1998 among
Xxxxx & XxXxxxxx Companies, Inc., the Lenders party
thereto and Xxxxxx Guaranty Trust Company of New York,
as Administrative Agent (as the same may be amended
from time to time, the "Credit Agreement"). Terms
defined in the Credit Agreement are used herein with
the same meanings. Reference is made to the Credit
Agreement for provisions for the prepayment hereof and
the acceleration of the maturity hereof.
XXXXX & XxXXXXXX COMPANIES, INC.
By:
Name:
Title:
LOANS AND PAYMENTS OF PRINCIPAL
Date Amount of Amount of Notation Made By
Loan Principal
Repaid
EXHIBIT B
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of ________, ____ among [NAME
OF ASSIGNOR] (the "Assignor") and [NAME OF ASSIGNEE]
(the "Assignee").
WHEREAS, this Assignment and Assumption Agreement
(the "Agreement") relates to the Credit Agreement
dated as of August 24, 1998 (as amended from time to
time, the "Credit Agreement") among the Xxxxx &
McLennan Companies, Inc., the Lenders party thereto and
Xxxxxx Guaranty Trust Company of New York, as
Administrative Agent (the "Administrative Agent");
WHEREAS, as provided under the Credit Agreement,
the Assignor has a Commitment to make Loans to the
Borrower in an aggregate principal amount at any time
outstanding not to exceed $____________;
WHEREAS, Loans made to the Borrower by the
Assignor under the Credit Agreement in the aggregate
principal amount of $__________ are outstanding at the
date hereof; and
WHEREAS, the Assignor proposes to assign to the
Assignee all of the rights of the Assignor under the
Credit Agreement in respect of a portion of its
Commitment thereunder in an amount equal to $__________
(the "Assigned Amount"), together with a corresponding
portion of each of its outstanding Loans, and the
Assignee proposes to accept such assignment and assume
the corresponding obligations of the Assignor under the
Credit Agreement;
NOW, THEREFORE, in consideration of the foregoing
and the mutual agreements contained herein, the parties
hereto agree as follows:
Section 1. Definitions. All capitalized terms
not otherwise defined herein have the respective
meanings set forth in the Credit Agreement.
Section 2. Assignment. The Assignor hereby
assigns and sells to the Assignee all of the rights of
the Assignor under the Credit Agreement to the extent
of the Assigned Amount and a corresponding portion of
each of its outstanding Loans, and the Assignee hereby
accepts such assignment from the Assignor and assumes
all of the obligations of the Assignor under the Credit
Agreement to the extent of the Assigned Amount. Upon
the execution and delivery hereof by the Assignor and
the Assignee and the execution of the consent attached
hereto by the Borrower and the Administrative Agent and
the payment of the amounts specified in Section 3
required to be paid on the date hereof, (i) the
Assignee shall, as of the date hereof, succeed to the
rights and be obligated to perform the obligations of a
Lender under the Credit Agreement with a Commitment in
an amount equal to the Assigned Amount and acquire the
rights of the Assignor with respect to a corresponding
portion of each of its outstanding Loans and (ii) the
Commitment of the Assignor shall, as of the date
hereof, be reduced by the Assigned Amount, and the
Assignor shall be released from its obligations under
the Credit Agreement to the extent such obligations
have been assumed by the Assignee. The assignment
provided for herein shall be without recourse to the
Assignor.
Section 3. Payments. As consideration for the
assignment and sale contemplated in Section 2 hereof,
the Assignee shall pay to the Assignor on the date
hereof in Federal funds the amount heretofore agreed
between them.1 Facility fees accrued before the date
hereof are for the account of the Assignor and such
fees accruing on and after the date hereof with respect
to the Assigned Amount are for the account of the
Assignee. Each of the Assignor and the Assignee agrees
that if it receives any amount under the Credit
Agreement which is for the account of the other party
hereto, it shall receive the same for the account of
such other party to the extent of such other party's
interest therein and promptly pay the same to such
other party.
Section 4. Consent of the Borrower and the
Administrative Agent. This Agreement is conditioned
upon the consent of the Borrower and the Administrative
Agent pursuant to Section 9.06(c) of the Credit
Agreement.
Section 5. Note. Pursuant to Section 9.06(c) of
the Credit Agreement, the Borrower has agreed to
execute and deliver a Note payable to the order of the
Assignee to evidence the assignment and assumption
provided for herein.
Section 6. Non-reliance on Assignor. The
Assignor makes no representation or warranty in
connection with, and shall have no responsibility with
respect to, the solvency, financial condition or
statements of the Borrower, or the validity and
enforceability of the Borrower's obligations under the
Credit Agreement or any Note. The Assignee
acknowledges that it has, independently and without
reliance on the Assignor, and based on such documents
and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this
Agreement and will continue to be responsible for
making its own independent appraisal of the business,
affairs and financial condition of the Borrower.
Section 7. Governing Law. This Agreement shall
be governed by and construed in accordance with the
laws of the State of New York.
Section 8. Counterparts. This Agreement may be
signed in any number of counterparts, each of which
shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be executed and delivered by their
duly authorized officers as of the date first above
written.
[NAME OF ASSIGNOR]
By:
Name:
Title:
[NAME OF ASSIGNEE]
By:
Name:
Title:
The undersigned consent to the foregoing assignment.
XXXXX & McLENNAN COMPANIES, INC.
By:
Name:
Title:
XXXXXX GUARANTY TRUST COMPANY OF
NEW YORK, as Administrative Agent
By:
Name:
Title:
_______________________________
1 Amount should combine principal together with
accrued interest and breakage compensation, if any, to
be paid by the Assignee, net of any portion of any
upfront fee to be paid by the Assignor to the Assignee.
It may be preferable in an appropriate case to specify
these amounts generically or by formula rather than as
a fixed sum.
