EXHIBIT 10.6
$600,000,000
CREDIT AGREEMENT
dated as of
August 12, 1996
among
Nationwide Mutual Insurance Company,
Nationwide Life Insurance Company
The Banks Parties Hereto
and
Xxxxxx Guaranty Trust Company of New York,
as Administrative Agent
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X.X. Xxxxxx Securities Inc.,
Arranger
TABLE OF CONTENTS
Page
ARTICLE 1
DEFINITIONS
1.1. Definitions......................................................... 1
1.2. Accounting Terms and Determinations................................. 14
1.3. Types of Borrowings................................................. 14
ARTICLE 2
THE CREDITS
2.1. Commitments to Lend................................................. 15
2.2. Notice of Committed Borrowing....................................... 15
2.3. Money Market Borrowings............................................. 16
2.4. Notice to Banks; Funding of Loans................................... 20
2.5. Notes............................................................... 21
2.6. Maturity of Loans................................................... 21
2.7. Interest Rates...................................................... 22
2.8. Fees................................................................ 26
2.9. Optional Termination or Reduction of
Commitments..................................................... 26
2.10. Method of Electing Interest Rates................................... 26
2.11. Mandatory Termination of Commitments................................ 28
2.12. Optional Prepayments................................................ 28
2.13. General Provisions as to Payments................................... 29
2.14. Funding Losses...................................................... 30
2.15. Computation of Interest and Fees.................................... 30
2.16. Regulation D Compensation........................................... 30
ARTICLE 3
CONDITIONS
3.1. Closing............................................................. 31
3.2. Borrowings.......................................................... 31
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
4.1. Corporate Existence and Power....................................... 32
4.2. Corporate and Governmental Authorization; No
Contravention................................................... 33
4.3. Binding Effect...................................................... 33
4.4. Financial Information............................................... 33
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4.5. Litigation............................................... 33
4.6. Compliance with ERISA.................................... 33
4.7. Environmental Matters.................................... 34
4.8. Taxes.................................................... 34
4.9. Material Subsidiaries.................................... 35
4.10. Regulatory Restrictions.................................. 35
4.11. Full Disclosure.......................................... 35
ARTICLE 5
COVENANTS
5.1. Information.............................................. 35
5.2. Maintenance of Property; Insurance....................... 37
5.3. Conduct of Business and Maintenance of Existence......... 37
5.4. Compliance with Laws..................................... 37
5.5. Mergers and Sales of Assets.............................. 38
5.6. Use of Proceeds.......................................... 38
5.7. Minimum Statutory Surplus................................ 38
5.8. Negative Pledge.......................................... 38
5.9. Transactions with Affiliates............................. 39
ARTICLE 6
DEFAULTS
6.1. Events of Default........................................ 40
6.2. Notice of Default........................................ 43
ARTICLE 7
THE ADMINISTRATIVE AGENT
7.1. Appointment and Authorization............................ 43
7.2. Administrative Agent and Affiliates...................... 43
7.3. Action by Administrative Agent........................... 44
7.4. Consultation with Experts................................ 44
7.5. Liability of Administrative Agent........................ 44
7.6. Indemnification.......................................... 44
7.7. Credit Decision.......................................... 45
7.8. Successor Administrative Agent........................... 45
7.9. Administrative Agent's Fee............................... 45
ARTICLE 8
CHANGE IN CIRCUMSTANCES
8.1. Basis for Determining Interest Rate Inadequate
or Unfair............................................ 46
8.2. Illegality............................................... 47
Page
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8.3. Increased Cost and Reduced Return............................... 47
8.4. Taxes........................................................... 49
8.5. Base Rate Loans Substituted for Affected
Fixed Rate Loans........................................... 51
8.6. Substitution of Bank ........................................... 52
ARTICLE 9
MISCELLANEOUS
9.1. Notices......................................................... 52
9.2. No Waivers...................................................... 53
9.3. Expenses; Indemnification....................................... 53
9.4. Sharing of Set-Offs............................................. 54
9.5. Amendments and Waivers.......................................... 54
9.6. Successors and Assigns.......................................... 54
9.7. Collateral...................................................... 56
9.8. Governing Law; Submission to Jurisdiction....................... 56
9.9. Counterparts; Integration; Effectiveness;
Termination of Designated Credit
Facilities.................................................. 57
9.10. WAIVER OF JURY TRIAL............................................ 57
9.11. Confidentiality................................................. 57
PRICING SCHEDULE
SCHEDULE I - Designated Credit Facilities
EXHIBIT A - Note
EXHIBIT B - Money Market Quote Request
EXHIBIT C - Invitation for Money Market Quotes
EXHIBIT D - Money Market Quote
EXHIBIT E - Opinion of Counsel for the Borrowers
EXHIBIT F - Opinion of Special Counsel for the
Administrative Agent
EXHIBIT G - Assignment and Assumption Agreement
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CREDIT AGREEMENT dated as of August 12, 1996 among NATIONWIDE MUTUAL
INSURANCE COMPANY, NATIONWIDE LIFE INSURANCE COMPANY, the BANKS parties 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
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following meanings:
"Absolute Rate Auction" means a solicitation of Money market Quotes
setting forth Money Market Absolute Rates pursuant to Section 2.3.
"Adjusted CD Rate" has the meaning set forth in Section 2.7(b).
"Administrative Agent" means Xxxxxx Guaranty Trust Company of New York
in its capacity as agent for the Banks hereunder, and its successors in such
capacity.
"Administrative Questionnaire" means, with respect to each Bank, an
administrative questionnaire in the form prepared by the Administrative Agent
and submitted to the Administrative Agent (with a copy to the Borrowers) duly
completed by such Bank.
"Affiliate" means, with respect to either Borrower, (i) any Person that
directly, or indirectly through one or more intermediaries, controls such
Borrower (a "Controlling Person") or (ii) any Person (other than such Borrower
or a Subsidiary of such Borrower) which is controlled by or is under common
control with a Controlling Person. As used herein, the term "control" means
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the
ownership of voting securities, by contract or otherwise.
"Applicable Lending Office" means, with respect to any Bank, (i) in the
case of its Domestic Loans, its Domestic Lending Office, (ii) in the case of its
Euro-Dollar Loans, its Euro-Dollar Lending Office and (iii) in the case of its
Money Market Loans, its Money Marketing Lending Office.
"Article 8 Share" has the meaning set forth in Section 8.3.
"Assessment Rate" has the meaning set forth in Section 2.7(b).
"Assignee" has the meaning set forth in Section 9.6(c).
"Availability Percentage" means, with respect to either Borrower, 50%;
provided that if the Commitments are terminated with respect to one but not both
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Borrowers pursuant to Section 6.1, the Availability Percentage of the Borrower
with respect to which the Commitments are terminated shall be zero and the
Availabilty Percentage of the other Borrower shall be 100%.
"Bank" means each bank listed on the signature pages hereof, each
Assignee which becomes a Bank pursuant to Section 9.6(c), and their respective
successors.
"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 (i) a Committed Loan which bears interest at the
Base Rate pursuant to the applicable Notice of Committed Borrowing or Notice of
Interest Rate Election or the provisions of Article 8 or (ii) an overdue amount
which was a Base Rate Loan immediately before it became overdue.
"Benefit Arrangement" means at any time an employee benefit plan within
the meaning of Section 3(3) of ERISA which is not a Plan or a Multiemployer Plan
and which is maintained or otherwise contributed to by any member of the ERISA
Group.
"Borrower" means either Nationwide Mutual or Nationwide Life. References
to "the Borrower" in connection with any Loan or Borrowing are to the particular
Borrower to which such Loan is made or proposed to be made or by which such
Borrowing is made or proposed to be made.
"Borrowing" has the meaning set forth in Section 1.3.
"CD Base Rate" has the meaning set forth in Section 2.7(b).
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"CD Loan" means (i) a Committed Loan which bears interest at a CD Rate
pursuant to the applicable Notice of Committed Borrowing or Notice of Interest
Rate Election or (ii) an overdue amount which was a CD Loan immediately before
it became overdue.
"CD Margin" means a rate per annum determined in accordance with the
Pricing Schedule.
"CD Rate" means a rate of interest determined pursuant to Section 2.7(b)
on the basis of an Adjusted CD Rate.
"CD Reference Banks" means The First National Bank of Chicago, Mellon
Bank, and Xxxxxx Guaranty Trust Company of New York.
"Closing Date" means the date on or after the Effective Date on which
the Administrative Agent shall have received the documents specified in or
pursuant to Section 3.1.
"Commitment" means, with respect to each Bank, the amount set forth
opposite the name of such Bank on the signature pages hereof (or, in the case of
an Assignee, the portion of the transferor Bank's Commitment assigned to such
Assignee pursuant to Section 9.6(c)), as such amount may be reduced from time to
time pursuant to Section 2.9.
"Committed Loan" means a loan made by a Bank pursuant to Section 2.1;
provided that, if any such loan or loans (or portions thereof) are combined or
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subdivided pursuant to a Notice of Interest Rate Election, the term "Committed
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.
"Debt" of any Persons 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 generally accepted accounting principles, (v) all
non-contingent obligations (and, for purposes of Section 5.8 and the definitions
of Material Debt and Material Financial Obligations, all contingent obligations)
of such Person to reimburse any bank or other Person in
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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 Debt of others Guaranteed
by such Person.
"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.
"Designated Credit Facilities" means the credit facilities listed on
Schedule I.
"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 Bank, 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 Bank may hereafter designate as its Domestic Lending Office by
notice to the Borrowers and the Administrative Agent; provided that any Bank may
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so designate separate Domestic Lending Offices for its Base Rate Loans, on the
one hand, and its CD Loans, on the other hand, in which case all references
herein to the Domestic Lending Office of such Bank shall be deemed to refer to
either or both of such offices, as the context may require.
"Domestic Loans" means CD Loans or Base Rate Loans or both.
"Domestic Reserve Percentage" has the meaning set forth in Section
2.7(b).
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"Effective Date" means the date this Agreement becomes effective in
accordance with Section 9.9.
"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, 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 or the
clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, or any successor statute.
"ERISA Group" means, with respect to either Borrower, any Subsidiary
of such Borrower and all members of a controlled group of corporations and all
trades or businesses (whether or not incorporated) under common control which,
together with such Borrower or any Subsidiary of such Borrower, 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 Bank, 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
Bank as it may hereafter designate as its Euro-Dollar Lending Office by notice
to the Borrowers and the Administrative Agent.
"Euro-Dollar Loan" means (i) a Committed Loan which bears interest at
a Euro-Dollar Rate pursuant to the applicable Notice of Committed Borrowing or
Notice of Interest Rate Election or (ii) an overdue amount which was a
Euro-Dollar Loan immediately before it became overdue.
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"Euro-Dollar Margin" means a rate per annum determined in accordance
with the Pricing Schedule.
"Euro-Dollar Rate" means a rate of interest determined pursuant to
Section 2.7(c) on the basis of a London Interbank Offered Rate.
"Euro-Dollar Reference Banks" means the principal London offices of
The First National Bank of Chicago, Mellon Bank, and Xxxxxx Guaranty Trust
Company of New York.
"Euro-Dollar Reserve Percentage" has the meaning set forth in Section
2.7(c).
"Event of Default" has the meaning set forth in Section 6.1.
"Facility Fee Rate" has the meaning set forth in the Pricing Schedule.
"Facility Fee Share" means, at any date with respect to either
Borrower, a portion of the aggregate amount of the Commitments equal to the sum
of (i) the aggregate principal amount of Loans outstanding to such Borrower plus
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(ii) such Borrower's Availability Percentage of an amount equal to the excess
(if any) of the aggregate amount of the Commitments over the aggregate principal
amount of the Loans outstanding to both Borrowers, all determined as of such
date.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upward, if necessary, to the nearest 1/100th 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
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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.
"Fixed Rate Loans" means CD Loans or Euro-Dollar Loans or Money Market
Loans (excluding Money Market LIBOR Loans bearing interest at the Base Rate
pursuant to Section 8.1) or any combination of the foregoing.
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"Group of Loans" means at any time a group of Loans consisting of
(i) all Committed Loans to a single Borrower which are Base Rate Loans at such
time, (ii) all Euro-Dollar Loans to a single Borrower having the same Interest
Period at such time or (iii) all CD Loans to a single Borrower having the same
interest period at such time, provided that, if a Committed Loan of any
particular Bank 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 other
wise, 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 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 (a)
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endorsements for collection or deposit in the ordinary course of business. The
term "Guarantee" used as a verb has a corresponding meaning.
"Hazardous Substances" means any toxic, radioactive, caustic or
otherwise hazardous substance, including petroleum, its derivatives, by-products
and other hydrocarbons, or any substance having any constituent elements
displaying any of the foregoing characteristics.
"Indemnitee" has the meaning set forth in Section 9.3(c).
"Interest Period" means: (1) 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 the applicable Notice of
Interest Rate Election and ending one, two, three or six months thereafter, as
the Borrower may elect in the applicable notice; provided that:
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(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
7
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.
(2) with respect to each CD Loan, the period commencing on the date
of borrowing specified in the applicable Notice of Borrowing or on the date
specified in the applicable Notice of Interest Rate Election and ending 30, 60,
90 or 180 days thereafter, as the Borrower may elect in the applicable notice
provided that:
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(a) any Interest Period (other than an Interest Period determined
pursuant to clause (b) below) 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; and
(b) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date.
(3) with respect to each Money Market LIBOR Loan, the period
commencing on the date of borrowing specified in the applicable Notice of
Borrowing and ending such whole number of months thereafter as the Borrower may
elect in accordance with Section 2.3; provided that:
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(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
8
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.
(4) with respect to each Money Market Absolute Rate Loan, the period
commencing on the date of borrowing specified in the applicable Notice of
Borrowing and ending such number of days thereafter (but not less than 7 days)
as the Borrower may elect in accordance with Section 2.3; provided that:
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(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; and
(b) 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.
"LIBOR Auction" means a solicitation of Money Market Quotes setting
forth Money Market Margins based on the London Interbank Offered Rate
pursuant to Section 2.3.
"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 the practical effect of creating a
security interest, in respect of such asset. For the purposes of this
Agreement, a Person 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 Domestic Loan, a Euro-Dollar Loan or a Money Market
Loan and "Loans" means Domestic Loans, Euro-Dollar Loans or Money Market
Loans or any combination of the foregoing.
"London Interbank Offered Rate" has the meaning set forth in Section
2.7 (c).
"Material Affiliate" means,
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(i) in respect of Nationwide Mutual, (x) any other Person which is a
party to the Nationwide Insurance Intercompany Pooling Agreement, effective
as of January 1, 1994, as amended or supplemented from time to time and (y)
any of its Material Subsidiaries.
(ii) in respect of Nationwide Life, any of its Material Subsidiaries.
"Material Debt" means, with respect to either Borrower, Debt (other
than the Notes) of such 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 $25,000,000.
"Material Financial Obligations" means, with respect to either
Borrower, a principal or face amount of Debt and/or payment or collateralization
obligations in respect of Derivatives Obligations of such Borrower and/or one or
more of its Subsidiaries, arising in one or more related or unrelated
transactions, exceeding in the aggregate $25,000,000.
"Material Plan" means at any time a Plan or Plans having aggregate
Unfunded Liabilities in excess of $25,000,000.
"Material Subsidiary" means,
(i) in respect of Nationwide Mutual, any Subsidiary having, as of the
date of the Combined Annual Statement most recently delivered to the Banks
pursuant to Section 4.4 or 5.1(a)(iii), consolidated assets of at least 1%
of the total combined assets set out in such statement; provided that, for
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purposes of this Agreement, neither Nationwide Life nor any of its
consolidated Subsidiaries shall be considered to be a Material Subsidiary
of Nationwide Mutual, and
(ii) in respect of Nationwide Life, any Subsidiary having, as of the
date of the balance sheet most recently delivered to the Banks by such
Borrower pursuant to Section 4.4 or 5.1(a)(ii), consolidated assets of at
least 1% of the total consolidated assets set out in such statement.
"Money Market Absolute rate" has the meaning set forth in Section
2.3(d).
"Money Market Absolute Rate Loan" means a loan to be made by a Bank
pursuant to an Absolute Rate Auction.
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"Money Market Lending Office" means, as to each Bank, its Domestic
Lending Office or such other office, branch or affiliate of such Bank as it may
hereafter designate as its Money Market Lending Office by notice to the
Borrowers and the Administrative Agent; provided that any Bank may from time to
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time by notice to the Borrowers and the Administrative Agent designate separate
Money Market Lending Offices for its Money Market LIBOR Loans, on the one hand,
and its Money Market Absolute Rate Loans, on the other hand, in which case all
references herein to the Money Market Lending Office of such Bank shall be
deemed to refer to either or both of such offices, as the context may require.
"Money Market LIBOR Loan" means a loan to be made by a Bank pursuant
to a LIBOR Auction (including such a loan bearing interest at the Base Rate
pursuant to Section 8.1).
"Money Market Loan" means a Money Market LIBOR Loan or a Money Market
Absolute Rate Loan.
"Money Market Margin" has the meaning set forth in Section
2.3(d)(ii)(C).
"Money Market Quote" means an offer by a Bank to make a Money Market
Loan in accordance with Section 2.3.
"Xxxxx'x" means Xxxxx'x Investors Services, Inc.
"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.
"Nationwide Life" means Nationwide Life Insurance Company, an Ohio
insurance company, and its successors.
"Nationwide Mutual" means Nationwide Mutual Insurance Company, an Ohio
mutual insurance company, and its successors.
"Notes" means promissory notes of a Borrower, substantially in the
form of Exhibit A hereto, evidencing the obligation of such Borrower to repay
the Loans made to it, and "Note" means any one of such promissory notes issued
hereunder.
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"Notice of Borrowing" means a Notice of Committed Borrowing (as defined
in Section 2.2) or a Notice of Money Market Borrowing (as defined in
Section 2.3(f)).
"Notice of Interest Rate Election" has the meaning set forth in
Section 2.10.
"Other Taxes" has the meaning set forth in Section 8.4.
"Parent" means, with respect to any Bank, any Person controlling such
Bank.
"Participant" has the meaning set forth in Section 9.6(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
company, 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 with respect to either Borrower, 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 of such Borrower for employees of any member of
the ERISA Group of such Borrower or (ii) has at any time within the preceding
five years been maintained, or contributed to, by any Person which was a such
time a member of the ERISA Group of such Borrower for employees of any Person
which was at such time a member the ERISA Group of such Borrower.
"Pricing Schedule" means the Schedule attached hereto identified as
such.
"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 Dates" means each March 31, June 30, September 30 and
December 31.
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"Reference Banks" means the CD Reference Banks or the Euro-Dollar
Reference Banks, as the context may require, and "Reference Bank" means any one
of such Reference Banks.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Required Banks" means at any time Banks having at least 66 2/3% of
the aggregate amount of the Commitments or, if the Commitments shall have been
terminated, holding Notes evidencing at least 66 2/3% of the aggregate unpaid
principal amount of the Loans.
"Revolving Credit Period" means the period from and including the
Effective Date to but not including the Termination Date.
"S&P" means Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc.
"Statutory Surplus" means, at any date with respect to either Borrower,
the statutory capital and surplus of such Borrower at such date, determined in
accordance with Section 1.2.
"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.
"Termination Date" means August 12, 2001, or, if such day is not a
Euro-Dollar Business Day, the next succeeding Euro-Dollar Business Day unless
such Euro-Dollar Business Day falls in another calendar month, in which case
the Termination Date shall be 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
13
a member of the related 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.
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
included in Annual Statements required to be delivered hereunder shall be
prepared in accordance with accounting practices prescribed or permitted by
applicable insurance regulatory authorities as in effect from time to time (the
"Insurance Accounting Principles"), applied on a basis consistent (except for
changes required by such insurance regulatory authorities) with the most recent
Annual Statement of the applicable Borrower delivered to the Banks; provided
--------
that, if such Borrower notifies the Agent that it wishes to amend any covenant
in Article 5 to eliminate the effect of any change in Insurance Accounting
Principles on the operation of such covenant (or if the Agent notifies such
Borrower that the Required Banks wish to amend Article 5 for such purpose), then
such Borrower's compliance with such covenant shall be determined on the basis
of accounting practices prescribed or permitted by insurance regulatory
authorities in effect immediately before the relevant change in such accounting
practices or principles became effective, until either such notice is withdrawn
or such covenant is amended in a manner satisfactory to the Borrowers and the
Required Banks.
SECTION 1.3. Types of Borrowings. The term "Borrowing" denotes the
-------------------
aggregation of Loans of one or more Banks to be made to a single Borrower
pursuant to Article 2 on the same date, 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. Borrowings are classified for purposes of this
Agreement either by reference to the pricing of Loans comprising such Borrowing
(e.g., a "Fixed Rate Borrowing" is a Euro-Dollar Borrowing, a CD Borrowing or a
----
Money Market Borrowing (excluding any such Borrowing consisting of Money Market
LIBOR Loans bearing interest at the Base Rate pursuant to Section 8.1), and a
"Euro-Dollar Borrowing" is a Borrowing comprised of Euro-Dollar Loans) or by
reference to the provisions of Article 2 under which participation therein is
determined (i.e., a "Committed Borrowing" is a Borrowing under Section 2.1 in
----
which all Banks participate in proportion to their Commitments, while a "Money
Market Borrowing" is a Borrowing
14
under Section 2.3 in which the Bank participants are determined on the basis of
their bids in accordance therewith).
ARTICLE 2
THE CREDITS
SECTION 2.1. Commitments to Lend. During the Revolving Credit
-------------------
Period, each Bank severally agrees, on the terms and conditions set forth in
this Agreement, to make loans to either Borrower pursuant to this Section from
time to time in amounts such that the aggregate principal amount of Committed
Loans by such Bank at any one time outstanding to both Borrowers shall not
exceed the amount of 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
available in accordance with Section 3.2) and shall be made from the several
Banks ratably in proportion to their respective Commitments. Within the
foregoing limits, the Borrowers may borrow under this Section, prepay Loans to
the extent permitted by Section 2.12 and reborrow at any time during the
Revolving Credit Period under this Section.
SECTION 2.2. Notice of Committed Borrowing. The relevant Borrower
-----------------------------
shall give the Administrative Agent notice (a "Notice of Committed Borrowing")
not later than 10:30 A.M. (New York City time) on (x) the date of each Base Rate
Borrowing, (y) the second Domestic Business Day before each CD Borrowing and
(z) the third Euro-Dollar Business Day before each Euro-Dollar Borrowing,
specifying:
(i) the date of such Borrowing, which shall be a Domestic Business
Domestic Business Day in the case of a Domestic Borrowing or a Euro-Dollar
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, a CD Rate or a Euro-
Dollar Rate; and
(iv) in the case of a Fixed Rate Borrowing, the duration of the
Interest Period applicable thereto, subject to the provisions
of the definition of Interest Period.
15
SECTION 2.3. Money Market Borrowings. (a) The Money Market Option.
----------------------- -----------------------
In addition to Committed Borrowings pursuant to Section 2.1, either Borrower
may, as set forth in this Section, request the Banks during the Revolving Credit
Period to make offers to make Money Market Loans to such Borrower. The Banks
may, but shall have no obligation to, make such offers and such Borrower may,
but shall have no obligation to, accept any such offers in the manner set forth
in this Section.
(b) Money Market Quote Request. When a Borrower wishes to request
--------------------------
offers to make Money Market Loans under this Section, it shall transmit to the
Administrative Agent by telex or facsimile transmission a Money Market Quote
Request substantially in the form of Exhibit B hereto so as to be received not
later than 10:30 A.M. (New York City time) on (x) the fifth Euro-Dollar Business
Day prior to the date of Borrowing proposed therein, in the case of a LIBOR
Auction or (y) the Domestic Business Day next preceding the date of Borrowing
proposed therein, in the case of an Absolute Rate Auction (or, in either case,
such other time or date as the Borrower and the Administrative Agent shall have
mutually agreed and shall have notified to the Banks not later than the date of
the Money Market Quote Request for the LIBOR Auction or Absolute Rate Auction
for which such change is to be effective) specifying:
(i) the proposed date of Borrowing, which shall be a Euro-Dollar
Business Day in the case of a LIBOR Auction or a Domestic Business Day in
the case of an Absolute Rate Auction,
(ii) the aggregate amount of such Borrowing, which shall be
$10,000,000 or a larger multiple of $1,000,000,
(iii) the duration of the Interest Period applicable thereto, subject
to the provisions of the definition of Interest period, and
(iv) whether the Money Market Quotes requested are to set forth a
Money Market Margin or a Money Market Absolute Rate.
A Borrower may request offers to make Money Market Loans for more than one
Interest Period in a single Money Market Quote Request. No Money Market Quote
Request shall be given within five Euro-Dollar Business Days (or such other
number of days as the Borrower and the Administrative Agent may agree) of any
other Money Market Quote Request.
16
(c) Invitation for Money Market Quotes. Promptly upon receipt of a
----------------------------------
Money Market Quote Request, the Administrative Agent shall send to the Banks by
telex or facsimile transmission an Invitation for Money Market Quotes
substantially in the form of Exhibit C hereto, which shall constitute an
invitation by the Borrower to each Bank to submit Money Market Quotes offering
to make the Money Market Loans to which such Money Market Quote Request relates
in accordance with this Section.
(d) Submission and Contents of Money Market Quotes. (i) Each Bank
----------------------------------------------
may submit a Money Market Quote containing an offer or offers to make Money
Market Loans in response to any Invitation for Money Market Quotes. Each Money
Market Quote must comply with the requirements of this subsection (d) and must
be submitted to the Administrative Agent by telex or facsimile transmission at
its offices specified in or pursuant to Section 9.1 not later than (x) 2:00 P.M.
(New York City time) on the fourth Euro-Dollar Business Day prior to the
proposed date of Borrowing, in the case of an Absolute Rate Auction (or, in
either case, such other time or date as the Borrower and the Administrative
Agent shall have mutually agreed and shall have notified to the Banks not later
than the date of the Money Market Quote Request for the first LIBOR Auction or
Absolute Rate Auction for which such change is to be effective); provided that
--------
Money Market Quotes submitted by the Administrative Agent (or any affiliate of
the Administrative Agent) in the capacity of a Bank may be submitted, and may
only be submitted, if the Administrative Agent or such affiliate notifies the
Borrower of the terms of the offer or offers contained therein not later than
(x) one hour prior to the deadline for the other Banks, in the case of a LIBOR
Auction or (y) 15 minutes prior to the deadline for the other Banks, in the case
of an Absolute Rate Auction. Subject to Articles 3 and 6, any Money Market
Quote so made shall be irrevocable except with the written consent of the
Administrative Agent given on the instructions of the Borrower.
(ii) Each Money Market Quote shall be in substantially the form of
Exhibit D hereto and shall in any case specify:
(A) the proposed date of Borrowing,
(B) the principal amount of the Money Market Loan for which each such
offer is being made, which principal amount (w) may be greater than or less
than the Commitment of the quoting Bank, (x) must be
17
$5,000,000 or a larger multiple of $1,000,000, (y) may not exceed the
principal amount of Money Market Loans for which offers were requested and
(z) may be subject to an aggregate limitation as to the principal amount of
Money Market Loans for which offers being made by such quoting Bank may be
accepted,
(C) in the case of a LIBOR Auction, the margin above or below the
applicable London Interbank Offered Rate (the "Money Market Margin")
offered for each such Money Market Loan, expressed as a percentage
(specified to the nearest 1/10,000th of 1%) to be added to or subtracted
from such base rate,
(D) in the case of an Absolute Rate Auction, the rate of interest per
annum (specified to the nearest 1/10,000th of 1%) (the "Money Market
Absolute Rate") offered for each such Money Market Loan, and
(E) the identity of the quoting Bank.
A Money Market Quote may set forth up to five separate offers by the quoting
Bank with respect to each Interest Period specified in the related Invitation
for Money Market Quotes.
(iii) Any Money Market Quote shall be disregarded if it:
(A) is not substantially in conformity with Exhibit D hereto or does
not specify all of the information required by subsection (d)(ii) above;
(B) contains qualifying, conditional or similar language;
(C) proposes terms other than or in addition to those set forth in
the applicable Invitation for Money Market Quotes; or
(D) arrives after the time set forth in subsection (d)(i)
(e) Notice to Borrower. The Administrative Agent shall promptly
------------------
notify the Borrower of the terms (x) of any Money Market Quote submitted by a
Bank that is in accordance with subsection (d) and (y) of any Money Market Quote
that amends, modifies or is otherwise inconsistent with a previous Money Market
Quote submitted by such Bank with respect to the same Money Market Quote
Request. Any such subsequent Money Market Quote shall be disregarded by the
18
Administrative Agent unless such subsequent Money Market Quote is submitted
solely to correct a manifest error in such former Money Market Quote. The
Administrative Agent's notice to the Borrower shall specify (A) the aggregate
principal amount of Money Market Loans for which offers have been received for
each Interest Period specified in the related Money Market Quote Request, (B)
the respective principal amounts and Money Market Margins or Money Market
Absolute Rates, as the case may be, so offered and (C) if applicable,
limitations on the aggregate principal amount of Money Market Loans for which
offers in any single Money Market Quote may be accepted.
(f) Acceptance and Notice by Borrower. Not later than 10:30 A.M.
---------------------------------
(New York City time) on (x) the third Euro-Dollar Business Day prior to the
proposed date of Borrowing, in the case of a LIBOR Auction or (y) the proposed
date of Borrowing, in the case of an Absolute Rate Auction (or, in either case,
such other time or date as the Borrower and the Administrative Agent shall have
mutually agreed and shall have notified to the Banks not later than the date of
the Money Market Quote Request for the first LIBOR Auction or Absolute Rate
Auction for which such change is to be effective), the Borrower shall notify the
Administrative Agent of its acceptance or non-acceptance of the offers so
notified to it pursuant to subsection (e). In the case of acceptance, such
notice (a "Notice of Money Market Borrowing") shall specify the aggregate
principal amount of offers for each Interest Period that are accepted. The
Borrower may accept any Money Market Quote in whole or in part; provided that:
--------
(i) the aggregate principal amount of each Money Market Borrowing may
not exceed the applicable amount set forth in the related Money Market Quote
Request;
(ii) the principal amount of each Money Market Borrowing must be
$10,000,000 or a larger multiple of $1,000,000;
(iii) acceptance of offers may only be made on the basis of ascending
Money Market Margins or Money Market Absolute Rates, as the case may be; and
(iv) the Borrower may not accept any offer that is described in
subsection (d) (iii) or that otherwise fails to comply with the requirements
of this Agreement.
(g) Allocation by Administrative Agent. If offers are made by two or
----------------------------------
more Banks with the same Money
19
Market Margins or Money Market Absolute Rates, as the case may be, for a greater
aggregate principal amount than the amount in respect of which such offers are
accepted for the related Interest Period, the principal amount of Money
Market-Loans in respect of which such offers are accepted shall be allocated by
the Administrative Agent among such Banks as nearly as possible (in multiples of
$1,000,000, or as the Administrative Agent may deem appropriate) in proportion
to the aggregate principal amounts of such offers. Determinations by the
Administrative Agent of the amounts of Money Market Loans shall be conclusive in
the absence of manifest error.
SECTION 2.4. Notice to Banks; Funding of Loans.
---------------------------------
(a) Upon receipt of a Notice of Borrowing, the Administrative Agent shall
promptly notify each Bank of the contents thereof and of such Bank's share (if
any) of such Borrowing and such Notice of Borrowing shall not thereafter be
revocable by the Borrower.
(b) Not later than 12:00 Noon (New York City time) on the date of
each Borrowing, each Bank participating therein shall make available its share
of such Borrowing, in Federal or other funds immediately available in New York
City, to the Administrative Agent at its address referred to in Section 9.1.
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 Banks available to the Borrower at the
Administrative Agent's aforesaid address.
(c) Unless the Administrative Agent shall have received notice from a
Bank prior to the date of any Borrowing that such Bank will not make available
to the Administrative Agent such Bank's share of such Borrowing, the
Administrative Agent may assume that such Bank has made such share available to
the Administrative Agent on the date of such Borrowing in accordance with
subsection (b) of this Section 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 Bank shall not have so made
such share available to the Administrative Agent, such Bank 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) in the case of the Borrower, a rate
per annum equal to the higher of the Federal Funds Rate and the interest rate
applicable thereto pursuant to Section 2.7 and (ii) in the case of such Bank,
20
the Federal Funds Rate. If such Bank shall repay to the Administrative Agent
such corresponding amount, such amount so repaid shall constitute such Bank's
Loan included in such Borrowing for purposes of this Agreement.
SECTION 2.5. Notes. (a) The Loans of each Bank to each Borrower
-----
shall be evidenced by a single Note of such Borrower payable to the order of
such Bank for the account of its Applicable Lending Office in an amount equal to
the aggregate unpaid principal amount of such Bank's Loans to such Borrower.
(b) Each Bank may, by notice to a Borrower and the Administrative
Agent, request that its Loans of a particular type to such Borrower be evidenced
by a separate Note of such Borrower in an amount equal to the aggregate unpaid
principal amount of such Loans. Each such Note shall be in substantially the
form of Exhibit A hereto with appropriate modifications to reflect the fact that
it evidences solely Loans of the relevant type. Each reference in this Agreement
to the "Note" of such Bank shall be deemed to refer to and include any or all of
such Notes, as the context may require.
(c) Upon receipt of each Bank's Notes pursuant to Section 3.1(a), the
Administrative Agent shall forward such Notes to such Bank. Each Bank shall
record the date, amount and type of each Loan made by it to each Borrower and
the date and amount of each payment of principal made with respect thereto, and
may, if such Bank so elects in connection with any transfer or enforcement of
its Note of either Borrower, endorse on the schedule forming a part thereof
appropriate notations to evidence the foregoing information with respect to each
such Loan to such Borrower then outstanding; provided that the failure of any
--------
Bank to make any such recordation or endorsement shall not affect the
obligations of any Borrower hereunder or under the Notes. Each Bank is hereby
irrevocably authorized by each Borrower so to endorse its Notes and to attach to
and make a part of any Note a continuation of any such schedule as and when
required.
SECTION 2.6. Maturity of Loans. (a) Each Committed Loan shall
-----------------
mature, and the principal amount thereof shall be due and payable, together with
accrued interest thereon, on the Termination Date.
(b) Each Money Market Loan included in any Money Market Borrowing
shall mature, and the principal amount thereof shall be due and payable,
together with accrued
21
interest thereon, on the last day of the Interest Period applicable to such
Borrowing.
SECTION 2.7. 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 Date and, with respect to the principal amount of any Base Rate Loan
converted to a CD Loan or a Euro-Dollar Loan, on each date a Base Rate Loan is
so converted. 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 rate otherwise applicable to Base Rate Loans for
such day.
(b) Each CD 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 CD Margin for such day plus the
Adjusted CD Rate applicable to such Interest Period; provided that if any CD
--------
Loan shall, as a result or clause (2)(b) of the definition of Interest Period,
have an Interest Period of less than 30 days, such CD Loan shall bear interest
during such Interest Period at the rate applicable to Base Rate Loans during
such period. Such interest shall be payable for each Interest Period on the last
day thereof and, if such Interest Period is longer than 90 days, at intervals of
90 days after the first day thereof. Any overdue principal of or interest on any
CD 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 higher of (i) the rate applicable
to Base Rate Loans for such day and (ii) the sum of the CD Margin plus the
Adjusted CD Rate applicable to such Loan at the date such payment was due.
The "Adjusted CD Rate" applicable to any Interest Period means a rate
per annum determined pursuant to the following formula:
22
[ CDBR ]*
ACDR = [ ---------- ] + AR
[ 1.00 - DRP ]
ACDR = Adjusted CD Rate
CDBR = CD Base Rate
DRP = Domestic Reserve Percentage
AR = Assessment Rate
----------
* The amount in brackets being rounded upward, if necessary, to the next
higher 1/100 of 1%
The "CD Base Rate" applicable to any Interest Period is the rate of
interest determined by the Administrative Agent to be the average (rounded
upward, if necessary, to the next higher 1/100 of 1%) of the prevailing rates
per annum bid at 10:00 A.M. (New York City time) (or as soon thereafter as
practicable) on the first day of such Interest Period by two or more New York
certificate of deposit dealers of recognized standing for the purchase at face
value from each CD Reference Bank of its certificates of deposit in an amount
comparable to the principal amount of the CD Loan of such CD Reference Bank to
which such Interest Period applies and having a maturity comparable to such
Interest Period.
"Domestic 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 (including without limitation any
basic, supplemental or emergency reserves) for a member bank of the Federal
Reserve System in New York City with deposits exceeding five billion dollars in
respect of new non-personal time deposits in dollars in New York City having a
maturity comparable to the related Interest Period and in an amount of $100,000
or more. The Adjusted CD Rate shall be adjusted automatically on and as of the
effective date of any change in the Domestic Reserve Percentage.
"Assessment Rate" means for any day the annual assessment rate in
effect on such day which is payable by a member of the Bank Insurance Fund
classified as adequately capitalized and within supervisory subgroup "A" (or a
comparable successor assessment risk classification) within the meaning of 12
C.F.R. (S) 327.4(a) (or any successor provision) to the Federal Deposit
Insurance Corporation (or any successor) for such Corporation's (or such
successor's) insuring time deposits at offices of such institution in the
00
Xxxxxx Xxxxxx. The Adjusted CD Rate shall be adjusted automatically on and as of
the effective date of any change in the Assessment Rate.
(c) 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 of the Euro-Dollar Reference Banks 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 Euro-Dollar Reference Bank to
which such Interest Period is to apply and for a period of time comparable to
such Interest Period.
"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 Bank to United
States residents). The London Interbank Offered rate shall be adjusted
automatically on and as of the effective date of any change in the Euro-Dollar
Reserve Percentage.
(d) 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 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
24
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 of
the Euro-Dollar Reference Banks are offered to such Euro-Dollar 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 (a) or (b) of Section 8.1 shall exist, at a
rate per annum equal to the sum of 2% plus the rate applicable to Base Rate
Loans for such day) and (ii) the sum of 2% plus the Euro-Dollar Margin for such
day plus the Adjusted London Interbank Offered Rate applicable to such Loan at
the date such payment was due.
(e) Subject to Section 8.1, each Money Market LIBOR Loan shall bear
interest on the outstanding principal amount thereof, for the Interest Period
applicable thereto, at a rate per annum equal to the sum of the London Interbank
Offered Rate for such Interest Period (determined in accordance with Section 2.7
(c) as if the related Money Market LIBOR Borrowing were a Committed Euro-Dollar
Borrowing) plus (or minus) the Money Market Margin quoted by the Bank making
such Loan in accordance with Section 2.3. Each Money Market Absolute Rate Loan
shall bear interest on the outstanding principal amount thereof, for the
Interest Period applicable thereto, at a rate per annum equal to the Money
Market Absolute Rate quoted by the Bank making such Loan in accordance with
Section 2.3. 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. Any overdue principal of
or interest on any Money Market 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.
(f) The Administrative Agent shall determine each interest rate
applicable to the Loans hereunder. The Administrative Agent shall give prompt
notice to the Borrower and the participating Banks of each rate of interest so
determined, and its determination thereof shall be conclusive in the absence of
manifest error.
(g) 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
25
available on a timely basis, the provisions of Section 8.1 shall apply.
SECTION 2.8 Fees. (a) The Borrowers shall pay to the Administrative
----
Agent for the account of the Banks ratably a facility fee at the Facility Fee
Rate (determined daily in accordance with the Pricing Schedule). Such Facility
fee shall accrue for the account of each Borrower (i) from and including the
Effective Date to but excluding the date of termination of the Commitments in
their entirety, on such Borrower's Facility Fee Share of the daily aggregate
amount of the Commitments (whether used or unused) and (ii) from and including
such date of termination to but excluding the date the Loans to such Borrower
shall be repaid in their entirety, on the daily aggregate outstanding principal
amount of the Loans to such Borrower.
(b) Accrued fees under this Section shall be payable quarterly in
arrears on each Quarterly Date and on the date of termination of the Commitments
in their entirety (and, if later, each date on which the Loans to such Borrower
shall be repaid in their entirety).
SECTION 2.9. Optional Termination or Reduction of Commitments.
------------------------------------------------
During the Revolving Credit Period, the Borrowers may, upon at least three
Domestic Business Days' notice to the Administrative 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.
SECTION 2.10. Method of Electing Interest Rates. (a) The Loans
---------------------------------
included in each Committed Borrowing shall bear interest initially at the type
of rate specified by the Borrower in the applicable Notice of Committed
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 in each
case to the provisions of Article 8), as follows:
(i) if such Loans are Base Rate Loans, the Borrower may elect to
convert such Loans to CD Loans as of any Domestic Business Day or to Euro-
Dollar Loans as of any Euro-Dollar Business Day;
(ii) if such Loans are CD Loans, the Borrower may elect to convert
such Loans to Base Rate Loans or Euro-Dollar Loans or elect to continue
such Loans as CD
26
Loans for an additional Interest Period, subject to Section 2.14 in the
case of any such conversion or continuation effective on any day other than
the last day of the then current Interest Period applicable to such Loans;
and
(iii) if such Loans are Euro-Dollar Loans, the Borrower may elect to
convert such Loans to Base Rate Loans or CD Loans or elect to continue such
Loans as Euro-Dollar Loans for an additional Interest Period, subject to
Section 2.14 in the case of any such conversion or continuation effective
on any day other than the last day of the then current 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 10:00 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 (unless the relevant
Loans are to be converted to Domestic Loans of the other type or are CD Rate
Loans to be continued as CD Rate Loans for an additional Interest Period, in
which case such notice shall be delivered to the Administrative Agent not later
than 10:00 A.M. (New York City time) on the second Domestic Business Day before
such conversion or continuation 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 it does not apply, are each $10,000,000 or any larger multiple of
$1,000,000. If no such notice is timely received prior to the end of an Interest
Period, the Borrower shall be deemed to have elected that all Loans having such
Interest Period be converted to Base Rate Loans.
(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
subsection (a) above;
(iii) if the Loans comprising such Group are to be converted, the new
type of Loans and, if the Loans
27
being converted are to be Fixed Rate Loans, the duration of the next
succeeding Interest Period applicable thereto; and
(iv) if such Loans are to be continued as CD Loans or 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) Upon receipt of a Notice of Interest Rate Election from the
Borrower pursuant to subsection (a) above, the Administrative Agent shall
promptly notify each Bank of the contents thereof and such notice shall not
thereafter be revocable by the Borrower.
(d) An election by the Borrower to change or continue the rate of
interest applicable to any Group of Loans pursuant to this Section shall not
constitute a "Borrowing" subject to the provisions of Section 3.2.
SECTION 2.11. Mandatory Termination of Commitments. The Commitments
------------------------------------
shall terminate on the Termination Date and any Loans then outstanding (together
with accrued interest thereon) shall be due and payable on such date.
SECTION 2.12. Optional Prepayments. (a) Subject in the case of any
Fixed Rate Borrowing to Section 2.14, the Borrower may, upon at least one
Domestic Business Day's notice to the Administrative Agent, prepay any Group of
Domestic Loans (or any Money Market Borrowing bearing interest at the Base Rate
pursuant to Section 8.1) or 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 $10,000,000 or any larger multiple of $1,000,000, by paying the
principal amount to be prepaid together with accrued interest thereon to the
date of prepayment. Each such optional prepayment shall be applied to prepay
ratably the Loans of the several Banks included in such Group.
(b) Except as provided in subsection (a) above, no Borrower may
prepay all or any portion of the principal amount of any Money Market Loan prior
to the maturity thereof.
28
(c) Upon receipt of a notice of prepayment pursuant to this Section,
the Administrative Agent shall promptly notify each Bank of the contents thereof
and of such Bank's ratable share (if any) of such prepayment and such notice
shall not thereafter be revocable by the Borrower.
SECTION 2.13. General Provisions as to Payments.
---------------------------------
(a) The Borrowers 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 referred to in Section 9.1. The
Administrative Agent will promptly distribute to each Bank its ratable share of
each such payment received by the Administrative Agent for the account of the
Banks. Whenever any payment of principal of, or interest on, the Domestic Loans
or 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 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. Whenever any payment of principal of, or interest on, the Money
Market 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. If the date for any payment of principal is extended by operations
of law or otherwise, interest thereon shall be payable for such extended time.
(b) Unless the Administrative Agent shall have received notice from a
Borrower prior to the date on which any payment is due from such Borrower to the
Banks hereunder that such Borrower will not make such payment in full, the
Administrative Agent may assume that such Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each Bank on such due
date an amount equal to the amount then due such Bank. If and to the extent that
such Borrower shall not have so made such payment, each Bank shall repay to the
Administrative Agent forthwith on demand such amount distributed to such Bank
together with interest thereon, for each day from the date such account is
distributed to such Bank until the date such Bank repays such amount to the
Administrative Agent, at the Federal Funds Rate.
29
SECTION 2.14. Funding Losses. If a Borrower makes any payment of
--------------
principal with respect to any Fixed Rate Loan or any Fixed Rate Loan is
converted (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 2.7(d), or if a Borrower fails to
borrow, prepay, convert or continue any Fixed Rate Loans after notice has been
given to any Bank in accordance with Section 2.4(a), 2.12(c) or 2.10(c), such
Borrower shall reimburse each Bank 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 any such payment or conversion or failure to
borrow, prepay, convert or continue, provided that such Bank shall have
--------
delivered to such Borrower a certificate as to the amount of such loss or
expense, which certificate shall be conclusive in the absence of manifest error.
SECTION 2.15. 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 2.16. Regulation D Compensation. Each Bank may require the
-------------------------
Borrower to pay, contemporaneously with each payment of interest on the
Euro-Dollar Loans, additional interest on the related Euro-Dollar Loan of such
Bank at a rate per annum determined by such Bank 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 Bank 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 Euro-Dollar Loans of such Bank shall be
payable to such Bank at the place indicated in such notice with respect to each
Interest Period commencing at least three Euro-Dollar Business Days after the
giving of such notice and (y) shall notify the Borrower at least five
Euro-Dollar Business Days prior to each date on which interest is payable on the
Euro-Dollar Loans of the amount then due it under this Section.
30
ARTICLE 3
CONDITIONS
SECTION 3.1. Closing. The closing hereunder shall occur on or after the
-------
Effective Date upon receipt by the Administrative Agent of the following
documents, each dated the Closing Date unless otherwise indicated:
(a) a duly executed Note of each Borrower for the account of each Bank,
dated on or before the Closing Date and complying with the provisions of
Section 2.5;
(b) an opinion of Xxxxx, Xxxx & Xxxxxxxx, counsel for the Borrowers,
substantially in the form of Exhibit E hereto and covering such additional
matters relating to the transactions contemplated hereby as the Required
Banks may reasonably request;
(c) an opinion of Xxxxx Xxxx & Xxxxxxxx, special counsel for the
Administrative Agent, substantially in the Form of Exhibit F hereto and
covering such additional matters relating to the transactions contemplated
hereby as the Required Banks may reasonably request:; and
(d) all documents the Administrative Agent may reasonably request
relating to the existence of the Borrowers, the corporate authority for and
the validity this Agreement and the Notes, and any other matters relevant
all in form and substance satisfactory to the Administrative Agent.
The Administrative Agent shall promptly notify the Borrowers and the Banks of
the Closing Date, and such notice shall be conclusive and binding on all parties
hereto.
SECTION 3.2. Borrowings. The obligation of any Bank to make a Loan on
----------
the occasion of any Borrowing is subject to the satisfaction of the following
conditions:
(a) the fact that the Closing Date shall have occurred on or prior to
August 25, 1996;
(b) receipt by the Administrative Agent of a Notice of Borrowing as
required by Section 2.2 or 2.3, as the case may be;
31
(c) the fact that, immediately after such Borrowing, the aggregate
outstanding principal amount of the Loans will not exceed the aggregate
amount of the Commitments;
(d) the fact that, immediately before and after such Borrowing, no
Default with respect to the Borrower shall have occurred and be continuing;
and
(e) the fact that the representations and warranties of the Borrower
contained in this Agreement (except, unless the Borrowing is taking place
on the Closing Date, the representations and warranties set forth in
Sections 4.4(b) and 4.5 as to any matter which has been disclosed in
writing by the Borrower to the Banks) shall be true and correct 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 clauses
(c), (d) and (e) of this Section.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
Each Borrower severally represents and warrants that:
SECTION 4.1. Corporate Existence and Power. (a) In the case of
-----------------------------
Nationwide Mutual, such Borrower is a mutual insurance company duly
incorporated, validly existing and in good standing under the laws of the
jurisdiction of its incorporation, and has all corporate powers and all material
governmental licenses, authorizations, consents and approvals required to carry
on its business as now conducted.
(b) In the case of Nationwide Life, such Borrower is an insurance
company duly incorporated, validly existing and in good standing under the laws
of the jurisdiction of its incorporation, and has all corporate powers and all
material governmental licenses, authorizations, consents and approvals required
to carry on its business as now conducted.
32
SECTION 4.2. Corporate and Governmental Authorization; No
--------------------------------------------
Contravention. The execution, delivery and performance by such Borrower of this
-------------
Agreement and its Notes are within the corporate powers of such Borrower, 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 certificate of incorporation or by-laws of such Borrower
or of any agreement, judgment, injunction, order, decree or other instrument
binding upon such Borrower or any of its Subsidiaries or result in the creation
or imposition of any Lien on any asset of such Borrower or any of its
Subsidiaries.
SECTION 4.3. Binding Effect. This Agreement constitutes a valid and
--------------
binding agreement of such Borrower and each Note, when executed and delivered in
accordance with this Agreement, will constitute a valid and binding obligation
of the relevant Borrower, in each case enforceable in accordance with its terms.
SECTION 4.4. Financial Information. (a) The respective financial
---------------------
statements of such Borrower (and, when applicable, its Subsidiaries and
affiliates) heretofore delivered to the Banks fairly present the financial
condition and results of operations of such Borrower at the dates and for the
periods covered thereby on the basis set forth therein.
(b) Since the date of the most recent financial statements of such
Borrower delivered prior to the date hereof, there has been no material adverse
change in the business, financial position, results of operations or prospects
of such Borrower.
SECTION 4.5. Litigation. There is no action, suit or proceeding
----------
pending against, or to the knowledge of such Borrower threatened against or
affecting, such Borrower or any of its Subsidiaries before any court or
arbitrator or any governmental body, agency or official in which there is a
reasonable possibility of an adverse decision which could materially adversely
affect the business, financial position or results of operations of such
Borrower 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
---------------------
of such Borrower has fulfilled its obligations under the minimum funding
standards of ERISA and the Internal Revenue Code with respect to each Plan and
is
33
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
such 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 in respect
of any Benefit Arrangement, or made any amendment to any Plan or Benefit
Arrangement, 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. Environmental Matters. In the ordinary course of its
---------------------
business, such Borrower conducts an ongoing review of the effect of
Environmental Laws on the business, operations and properties of such Borrower,
in the course of which it identifies and evaluates associated liabilities and
costs (including, without limitation, any capital or operating expenditures
required for clean-up or closure of properties presently or previously owned,
any capital or operating expenditures required to achieve or maintain
compliance with environmental protection standards imposed by law or as a
condition of any license, permit or contract, any related constraints on
operating activities, including any periodic or permanent shutdown of any
facility or reduction in the level of or change in the nature of operations
conducted thereat, any costs or liabilities in connection with off-site
disposal of wastes or Hazardous Substances, and any actual or potential
liabilities to third parties, including employees, and any related costs and
expenses. On the basis of this review, such Borrower has reasonably concluded
that such associated liabilities and costs, including the costs of compliance
with Environmental Laws, are unlikely to have a material adverse effect on the
business, financial condition, results of operations or prospects of such
Borrower.
SECTION 4.8. Taxes. Such Borrower and its Subsidiaries have filed
-----
all United States Federal income tax returns and all other material tax returns
which are required to be filed by them and have paid all taxes due pursuant to
such returns or pursuant to any assessment received by such Borrower or any
Subsidiary. The charges, accruals and reserves on the books of such Borrower
and its Material Subsidiaries in respect of taxes or other governmental charges
are, in the opinion of such Borrower, adequate.
34
SECTION 4.9. Material Subsidiaries. Each of such Borrower's
---------------------
Material Subsidiaries is duly organized, validly existing and in good standing
under the laws of its jurisdiction of organization, and has all necessary powers
and all material governmental licenses, authorizations, consents and approvals
required to carry on its business as now conducted.
SECTION 4.10. Regulatory Restrictions on Borrowing. Such Borrower is
------------------------------------
not an "investment company" within the meaning of the Investment Company Act of
1940, as amended, a "holding company" within the meaning of the Public Utility
Holding Company Act of 1935, as amended, or otherwise subject to any regulatory
scheme which restricts its ability to incur debt.
SECTION 4.11. Full Disclosure. All information heretofore furnished
---------------
by or in respect of such Borrower to the Administrative Agent or any Bank for
purposes of or in connection with this Agreement or any transaction contemplated
hereby is, and all such information hereafter furnished by or in respect of such
Borrower to the Administrative Agent or any Bank will be, true and accurate in
all material respects on the date as of which such information is stated or
certified. Such Borrower has disclosed to the Banks in writing any and all
facts which materially and adversely affect or may affect (to the extent such
Borrower can now reasonably foresee), the business, operations or financial
condition of such Borrower or the ability of such Borrower to perform its
obligations under this Agreement.
ARTICLE 5
COVENANTS
Each Borrower severally agrees that, so long as any Bank has any
Commitment hereunder or any amount payable by such Borrower under any Note
remains unpaid:
SECTION 5.1. Information. Such Borrower will deliver to each of the
-----------
Banks:
(a) as soon as available and in any event within 90 days after the
each fiscal year of such Borrower,
(i) in the case of each Borrower, the Annual Statement of such
Borrower as of the end of such
35
fiscal year in the form submitted to the Insurance Department of the
State of Ohio;
(ii) in the case of Nationwide Life, the consolidated financial
statements of Nationwide Life and its consolidated Subsidiaries as of
the end of such fiscal year, setting forth in each case in comparative
form the figures for the previous fiscal year, all reported on in a
manner consistent with generally accepted accounting principles in the
United States by KPMG Peat Marwick LLP or other independent public
accountants of nationally recognized standing; and
(iii) in the case of Nationwide Mutual, the Combined Annual
Statement of the Nationwide Mutual Insurance Company and its Affiliated
Property and Casualty Insurances as of the end of such fiscal year, in
the form submitted to the Insurance Department of the State of Ohio;
(b) as soon as available and in any event within 60 days after the end
of each of the first three quarters of each fiscal year of such Borrower, the
quarterly statement of such Borrower as of the end of such fiscal quarter in the
form submitted to the Insurance Department of the State of Ohio;
(c) simultaneously with the delivery of each statement referred to in
clauses (a) and (b) above, a certificate of the chief financial officer or the
chief accounting officer of such Borrower 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 such Borrower is taking or proposes to take
with respect thereto;
(d) within five Domestic Business Days after any officer of such
Borrower obtains knowledge of any Default, if such Default is then continuing, a
certificate of the chief financial officer or the chief accounting officer of
such Borrower setting forth the details thereof and the action which such
Borrower is taking or proposes to take with respect thereto;
(e) in the event that such Borrower becomes subject to the periodic
reporting requirements of the Securities Exchange Act of 1934 (as amended),
promptly upon the mailing thereof to securityholders of the Borrower generally,
copies of all financial statements, reports and proxy statements so mailed;
36
(f) within five Domestic Business Days after the receipt thereof by
the Borrower, any written communication from the Insurance Department of
the State of Ohio which questions in any material respect the financial
soundness of the Borrower; and
(g) from time to time such additional information regarding the
financial position or business of the Borrower as the Administrative Agent,
at the request of any Bank, may reasonably request.
SECTION 5.2. Maintenance of Property; Insurance. (a) Such Borrower
----------------------------------
will keep, and will cause each of its Subsidiaries to keep, all property useful
and necessary in its business in good working order and condition, ordinary wear
and tear excepted.
(b) Such Borrower will maintain, and will cause each of its
Subsidiaries to maintain (either in the name of such Borrower or in such
Subsidiary's own name) with financially sound and responsible insurance
companies, insurance on all their respective properties in at least such
amounts, against at least such risks and with such risk retention as are usually
maintained, insured against or retained, as the case may be, in the same general
area by companies of established repute engaged in the same or a similar
business, and will furnish to the Banks, upon request from the Administrative
Agent, information presented in reasonable detail as to the insurance so
carried; provided that such Borrower may self-insure such risks to the extent it
--------
deems it prudent to do so.
SECTION 5.3. Conduct of Business and Maintenance of Existence. Such
------------------------------------------------
Borrower will continue, and will cause each of its Subsidiaries to continue, to
engages in the insurance business and will preserve, renew and keep in full
force and effect, and will cause each such Subsidiary to preserve, renew and
keep in full force and effect their respective corporate existence and their
respective rights, privileges and franchises necessary or desirable in the
normal conduct of business; provided that nothing in this Section 5.3 shall
--------
prohibit any consolidation, merger, sale, lease or other transfer permitted
under Section 5.5.
SECTION 5.4. Compliance with Laws. Such Borrower will comply, and
--------------------
will cause each of its Subsidiaries 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 the necessity of
compliance
37
therewith is contested in good faith by appropriate proceedings.
SECTION 5.5. Mergers and Sales of Assets. Such Borrower will not (i)
---------------------------
consolidate or merge with or into any other Person or (ii) sell, lease or
otherwise transfer, directly or indirectly, all or any substantial part of the
assets of such Borrower and its Subsidiaries, taken as a whole, to any other
Person; provided that the Borrower may merge with another Person if (x) such
--------
Borrower is the corporation surviving such merger and (y) after giving effect to
such merger, no Default shall have occurred and be continuing.
SECTION 5.6. Use of Proceeds. The proceeds of the Loans made under
---------------
this Agreement will be used by such Borrower for general corporate purposes.
None of such proceeds will be used, directly or indirectly, for the purpose,
whether immediate, incidental or ultimate, of buying or carrying any "margin
stock" within the meaning of Regulation U.
SECTION 5.7. Minimum Statutory Surplus. (a) In the case of
-------------------------
Nationwide Mutual, its Statutory Surplus shall at no time be less than
$2,750,000,000.
(b) In the case of Nationwide Life, its Statutory Surplus shall at no
time be less than $875,000,000.
SECTION 5.8. Negative Pledge. Neither such Borrower nor any Subsidiary
---------------
of such Borrower will create, assume or suffer to exist any Lien on any asset
now owned or hereafter acquired by it, except:
(a) 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 (i) in the case of Nationwide Mutual, $10,000,000 and
(ii) in the case of Nationwide Life, $10,000,000;
(b) any Lien existing on any asset of any Person at the time such
Person becomes its Subsidiary and not created in contemplation of such
event;
(c) 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;
38
(d) any Lien on any asset of any Person existing at the time such
Person is merged or consolidated with or into such Borrower or its
Subsidiary and not created in contemplation of such event;
(e) any Lien existing on any asset prior to the acquisition thereof
by such Borrower or its Subsidiary and not created in contemplation of
such acquisition;
(f) any Lien arising out of the refinancing, extension, renewal or
refunding of any Debt secured by any Lien permitted by any of the
foregoing clause of this Section, provided that such Debt is not increased
--------
and is not secured by an additional assets;
(g) any Lien which arises by operation of law (including, without
limitation, preferences given to insurance policyholders under law);
(h) Liens arising in the ordinary course of its business which (i) do
not secure Debt or Derivatives Obligations, (ii) do not secure any
obligation in an amount exceeding $25,000,000 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 $25,000,000; and
(j) Liens not otherwise permitted by the foregoing clauses of this
Section securing Debt in an aggregate principal or face amount at any date
not to exceed 5% of such Borrower's Statutory Surplus.
SECTION 5.9. Transaction with Affiliates. Such Borrower will not,
---------------------------
and will not permit any of its Subsidiaries to, directly or indirectly, pay
any funds to or for the account of, make any investment (whether by acquisition
of stock or indebtedness, by loan, advance, transfer of property, guarantee or
other agreement to pay, purchase or service, directly or indirectly, any Debt,
or otherwise) in, lease, sell, transfer or otherwise dispose of any assets,
tangible or intangible, to, or participate in, or effect, any transaction with,
any Affiliate except on an arms-length basis on terms at least as favorable to
such Borrower or such Subsidiary as could have been obtained from a third party
who was not an Affiliate; provided that the
--------
39
foregoing provisions of this Section shall not prohibit any such Person from
declaring or paying any lawful dividend or other payment ratably in respect of
all of its capital stock of the relevent class so long as, after giving effect
thereto, no Default in respect of such Borrower shall have occurred and be
continuing.
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 with respect
to any Borrower:
(a) such Borrower shall fail to pay when due any principal of any
Loan or any interest, any fees or any other amount payable by it hereunder;
(b) such Borrower shall fail to observe or perform any covenant
contained in Article 5, other than those contained in Sections 5.1 through
5.4;
(c) such Borrower shall fail to observe or perform any covenant or
agreement contained in this Agreement (other than those covered by clause
(a) or (b) above) for 10 days after notice thereof has been given to such
Borrower by the Administrative Agent at the request of any Bank;
(d) any representation, warranty, certification or statement made by
such Borrower in this Agreement 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) such Borrower or any of its Material Affiliates shall fail to make
any payment in respect of any Material Financial Obligations 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 of such Borrower or any
of its Material Affiliates 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;
40
(g) such Borrower or any of its Material Affiliated 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
such Borrower or any of its Material Affiliates 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 such Borrower
or any of its Material Affiliates under the federal bankruptcy laws as now or
hereafter in effect;
(i) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises for the appointment of a conservator or
receiver or liquidator in any insolvency proceedings, readjustment of debt,
marshalling of assets and liabilities or similar proceedings affecting such
Borrower or any of its Material Affiliates or all or substantially all of their
respective property, or for the winding-up or liquidation of their respective
affairs, shall have been entered, or such Borrower or any of its Material
Affiliates shall consent to the appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings affecting such Borrower or Material Affiliate
or all or substantially all of their respective property (including, in either
case, without limitation, the commencement of proceedings for the rehabilitation
or liquidation of such Borrower or any of its Material
41
Affiliates in accordance with the applicable provisions of Chapter 3903 of
the Ohio Insurance Code);
(j) any member of the ERISA Group of such Borrower shall fail to pay
when due an amount or amounts aggregating in excess of $5,000,000 which it
shall have become liable to pay to the PBGC or to a Plan 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 such 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 cause one or more members of such ERISA Group to incur a
current payment obligation in excess of $5,000,000;
(k) the rights, privileges or franchises of such Borrower or any of
its Material Affiliates to do business shall be declared forfeited by any
governmental authority or any court of competent jurisdiction where the loss
of such rights, privileges or franchises would have a material adverse
effect on the ability of such Borrower to meet its obligations under this
Agreement or the Notes;
(l) judgments or orders for the payment of money in excess of 3% of
such Borrower's Statutory Surplus shall be rendered against such Borrower or
any of its Material Affiliates and such judgments or orders shall continue
unsatisfied and unstayed for a period of 10 days;
(m) in the case of Nationwide Life, it shall cease to be Subsidiary of
Nationwide Mutual; or
(n) in the case of Nationwide Mutual, it shall cease to be mutual
insurance company;
then, and in every such event, the Administrative Agent shall (i) if requested
by Banks having more than 50% in aggregate amount of the Commitments, by notice
to such
42
Borrower terminate the Commitments as to such Borrower and they shall thereupon
terminate as to such Borrower, and (ii) if requested by Banks holding more than
50% of the aggregate principal amount of the Loans outstanding to such Borrower,
by notice to such Borrower declare such Loans (together with accrued interest
thereon) to be, and such 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 each
Borrower; provided that in the case of any of the Events of Default specified in
--------
clause 6.1(g), 6.1(h) or 6.1(i) above with respect to such Borrower, without any
notice to such Borrower or any other act by the Administrative Agent or the
Banks, the Commitments shall thereupon terminate as to such Borrower and the
Loans outstanding to such Borrower (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 each Borrower.
Termination of the Commitments as to either Borrower under this Section 6.1
shall not terminate the Commitments as to the other Borrower.
SECTION 6.2. Notice of Default. The Administrative Agent shall give
-----------------
notice to a Borrower under Section 6.1(c) promptly upon being requested to do so
by any Bank and shall thereupon notify all the Banks thereof.
ARTICLE 7
THE ADMINISTRATIVE AGENT
SECTION 7.1. Appointment and Authorization. Each Bank irrevocably
-----------------------------
appoints and authorizes the Administrative Agent to take such action as agent on
its behalf and to exercise such powers under this Agreement and the Notes 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. Xxxxxx Guaranty
-----------------------------------
Trust Company of New York shall have the same rights and powers under this
Agreement as any other Bank 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 either Borrower or any
Subsidiary
43
or affiliate of either 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 any 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 Administration Agent. Neither the
---------------------------------
Administrative Agent nor any of its affiliates nor any of their respective
directors, officers, agents or 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 Banks (or, when expressly required hereby, all the Banks) or
(ii) in the absence of its own gross negligence or willful misconduct. Neither
the Administrative Agent nor any of its affiliates nor any of their respective
directors, officers, agents or 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 any Borrower; (iii) the satisfaction of any condition specified in
Article 3, except receipt of items required to be delivered to the
Administrative Agent; 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 transmission or similar writing)
believed by it to be genuine or to be signed by the proper party or parties.
SECTION 7.6. Indemnification. Each Bank shall, ratably in accordance
---------------
with its Commitment, indemnify the Administrative Agent, its affiliates and
their respective directors, officers, agents and employees (to the extent
not reimbursed by the Borrowers) against any cost, expense (including counsel
fees and disbursements), claim, demand,
44
action, loss or liability (except such as result from such indemnitees' gross
negligence or willful misconduct) that such indemnities may suffer or incur in
connection with this Agreement or any action taken or omitted by such
indemnities hereunder.
SECTION 7.7. Credit Decision. Each Bank acknowledges that it has,
---------------
independently and without reliance upon the Administrative Agent or any other
Bank, 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
Bank also acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Bank, and based on such documents, and
information as it shall deem appropriate at the time, continue to make its own
credit 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 Banks and the Borrowers.
Upon any such resignation, the Required Banks shall have the right to appoint a
successor Administrative Agent. If no successor Administrative Agent shall have
been so appointed by the Required Banks, and shall have accepted such
appointment, within 30 days after the retiring Administrative Agent may, on
behalf of the Banks, appoint a successor Administrative Agent, which shall be a
commercial bank organized or licensed under the laws of the United States of
America 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 shall be discharged from
its duties and obligations hereunder. After any retiring Administrative Agent's
resignation hereunder as Administrative Agent, the provisions of this Article
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Administrative Agent.
SECTION 7.9. Administrative Agent's Fee. The Borrowers shall pay to
--------------------------
the Administrative Agent for its own account fees in the amounts and at the
times previously agreed upon between the Borrowers and the Administrative Agent.
45
ARTICLE 8
CHANGE IN CIRCUMSTANCES
SECTION 8.1. Basis for Determining Interest Rate Inadequate or Unfair.
--------------------------------------------------------
If on or prior to the first day of any Interest Period for any CD Loan,
Euro-Dollar Loan or Money Market LIBOR Loan:
(a) the Administrative Agent is advised by the Reference Banks that
deposits in dollars (in the applicable amounts) are not being offered to the
Reference Banks that deposits in dollars (in the applicable amounts) are not
being offered to the Reference Banks in the relevant market for such
Interest Period, or
(b) in the case of CD Loans or Euro-Dollar Loans, Banks having 50% or
more of the aggregate principal amount of the affected Loans advise the
Administrative Agent that the Adjusted CD Rate or the London Interbank
Offered Rate, as the case may be, as determined by the Administrative Agent
will not adequately and fairly reflect the cost to such Banks of funding
their CD Loans or Euro-Dollar Loans, as the case may be, for such Interest
Period,
the Administrative Agent shall forthwith give notice thereof to the Borrower and
the Banks, whereupon until the Administrative Agent notifies the Borrower that
the circumstances giving rise to such suspension no longer exist, (i) the
obligations of the Banks to make CD Loans or Euro-Dollar Loans, as the case may
be, or to continue or convert outstanding Loans as or into CD Loans or
Euro-Dollar Loans, as the case may be, shall be suspended and (ii) each
outstanding CD Loan or Euro-Dollar Loan, as the case may be, 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 Fixed Rate Borrowing for
which a Notice of Borrowing has previously been given that it elects not to
borrow on such date, (i) if such Fixed Rate Borrowing is a Committed Borrowing,
such Borrowing shall instead be made as a Base Rate Borrowing and (ii) if such
Fixed Rate Borrowing is a Money Market LIBOR Borrowing, the Money Market LIBOR
Loans comprising such Borrowing shall bear interest for each day from and
including the first day to but excluding the last day of the Interest Period
applicable thereto at the Base Rate for such day.
46
SECTION 8.2. Illegality. If, on or after the date of this Agreement.
----------
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 Bank (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 Bank (or its
Euro-Dollar Lending Office) to make, maintain or fund its Euro-Dollar Loans to
either Borrower and such Bank shall so notify the Administrative Agent, the
Administrative Agent shall forthwith give notice thereof to the other Banks and
such Borrower, whereupon until such Bank notifies such Borrower and the
Administrative Agent that the circumstances giving rise to such suspension no
longer exist, the obligation of such Bank to make Euro-Dollar Loans to such
Borrower, or to convert outstanding Loans to such Borrower, or to convert
outstanding Loans to such Borrower into Euro-Dollar Loans, shall be suspended.
Before giving any notice to the Administrative Agent pursuant to this Section,
such Bank 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 Bank, be otherwise disadvantageous to such Bank. If such notice
is given, each Euro-Dollar Loan of such Bank to such Borrower then outstanding
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 Bank may
lawfully continue to maintain and fund such Loan to such day or (b) immediately
if such Bank shall determine that it may not lawfully continue to maintain and
fund such Loan to such day.
SECTION 8.3. Increased Cost and Reduced Return. (a) If on or after
---------------------------------
(x) the date hereof, in the case of any Committed Loan or any obligation to make
Committed Loans or (y) the date of the related Money Market Quote, in the case
of any Money Market Loan, 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 of
administration thereof, or compliance by any Bank (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
47
excluding (i) with respect to any CD Loan any such requirement included in an
applicable Domestic Reserve Percentage and (ii) with respect to any Euro-Dollar
Loan any such requirement with respect to which such bank is entitled to
compensation during the relevant Interest Period under Section 2.16), special
deposit, insurance assessment (excluding, with respect to any CD Loan, any such
requirement against assets of, deposits with or for similar requirement against
assets of, deposits with or for the account of, or credit extended by, any Bank
(or its Applicable Lending Office) or shall impose on any Bank (or its
Applicable Lending Office) or on the United States market for certification of
deposit or the London interbank market any other condition affecting its Fixed
Rate Loans and the result of any of the foregoing is to increase the cost to
such Bank (or its Applicable Lending Office) of making or maintaining any Fixed
Rate Loan, or to reduce the amount of any sum received or receivable by such
Bank (or its Applicable Lending Office) under this Agreement or under any of its
Notes with respect thereto, by an amount deemed by such Bank to be material,
then, within 15 days after demand by such Bank (with a copy to the
Administrative Agent), the Borrowers shall pay to such Bank such additional
amount or amounts as will compensate such Bank for such increased cost or
reduction. Each Borrower shall be severally liable for its Article 8 Share of
each such amount.
(b) If any Bank 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, 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 Bank (or its Parent) as a consequence of such
Bank's obligations hereunder to a level below that which such Bank (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 Bank to be material, then from time to time, within 15
days after demand by such Bank (with a copy to the Administrative Agent), the
Borrowers shall pay to such Bank such additional amount or amounts as will
compensate such Bank (or its Parent) for such reduction. Each Borrower
48
shall be severally liable for its Article 8 Share of each such amount.
(c) Each Bank will promptly notify the Borrowers and the
Administrative Agent of any event of which it has knowledge, occurring after the
date hereof, which will entitle such Bank to compensation pursuant to this
Section and will designate a different 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 Bank, be otherwise disadvantageous to such Bank. A
certificate of any Bank 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
Bank may use any reasonable averaging and attribution methods.
(d) The "Article 8 Share" of any Borrower with respect to any amount
payable hereunder is the sum of (i) to the extent such amount is properly
allocable to Loans outstanding hereunder, the portion of such amount properly
allocable to the Loans outstanding to such Borrower and (ii) to the extent such
amount is not properly allocable to Loans outstanding hereunder, such Borrower's
Availability Percentage thereof.
SECTION 8.4. Taxes. (a) For the purposes of this Section 8.4, the
-----
following terms have the following meanings:
"Taxes" means any and all present or future taxes, duties, levies,
imposts, deductions, charges or withholdings with respect to any payment by any
Borrower pursuant to this Agreement or under any Note, and all liabilities with
respect thereto, excluding (i) in the case of each Bank and the Administrative
---------
Agent, taxes imposed on its income, and franchise or similar taxes imposed on
it, by a jurisdiction under the laws of which such Bank or the Administrative
Agent (as the case may be) is organized or in which its principal executive
office is located or, in the case of each Bank, in which its Applicable Lending
Office is located and (ii) in the case of each Bank, any United States
withholding tax imposed on such payments but only to the extent that such Bank
is subject to United States withholding tax at the time such Bank 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
49
pursuant to this Agreement or under any Note or from the execution or delivery
of, or otherwise with respect to, this Agreement or any Note.
(b) Any and all payments by any Borrower to or for the account of any
Bank or the Administrative Agent hereunder or under any Note shall be made
without deduction for any Taxes or Other Taxes; provided that, if any Borrower
--------
shall be required by law to deduct any Taxes or Other Taxes from any such
payments, (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 Bank or the Administrative Agent (as the
case may be) receives an amount equal to the sum it would have received had no
such deductions been made, (ii) such Borrower shall make such deductions, (iii)
such Borrower shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law and (iv) such
Borrower shall furnish to the Administrative Agent, at its address referred to
in Section 9.1, the original or a certified copy of a receipt evidencing payment
thereof.
(c) The Borrowers agree to indemnify each Bank and the
Administrative Agent for the full amount of Taxes or Other Taxes (including,
without limitation, any Taxes or Other Taxes imposed or asserted by any
jurisdiction on amounts payable under this Section) paid by such Bank or the
Administrative Agent (as the case may be) and any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto.
Each Borrower shall be severally liable for its Article 8 Share of each such
amount. This indemnification shall be paid within 15 days after such Bank or the
Administrative Agent (as the case may be) makes demand therefor.
(d) Each Bank organized under the laws of a jurisdiction outside the
United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Bank listed on the signature pages hereof and on
or prior to the date on which it becomes a Bank in the case of each other Bank,
and from time to time thereafter if requested in writing by the Borrowers (but
only so long as such Bank remains lawfully able to do so), shall provide the
Borrowers 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 Bank is entitled to benefits under an
income tax treaty to which the United States is a party which exempts the Bank
from United States withholding tax or reduces the rate of withholding tax on
payments of interest for the
50
account of such Bank or certifying that the income receivable 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 Bank has failed to provide
the Borrowers or the Administrative Agent with the appropriate form described in
Section 8.4(d) (unless such failure is due to a change in treaty, law or
regulation occurring subsequent to the date on which such form originally was
required to be provided), such Bank shall not be entitled to indemnification
under Section 8.4(b) or (c) with respect to Taxes imposed by the United States;
provided that if a Bank, which is otherwise exempt from or subject to a reduced
--------
rate of withdrawal tax, becomes subject to Taxes because of its failure to
deliver a form required hereunder, the Borrowers shall take such steps as such
Bank shall reasonably request to assist such Bank to recover such Taxes.
(f) If any Borrower is required to pay additional amounts to or for the
account of any Bank pursuant to this Section, then such Bank will change the
jurisdiction of its Applicable Lending Office if, in the judgement of such Bank,
such change (i) will eliminate or reduce any such additional payment which may
thereafter accrue and (ii) is not otherwise disadvantageous to such Bank.
SECTION 8.5. Base Rate Loans Substituted for Affected Fixed Rate Loans.
---------------------------------------------------------
If (i) the obligation of any Bank to make, or convert outstanding Loans to,
Euro-Dollar Loans has been suspended pursuant to Section 8.2 or (ii) any Bank
has demanded compensation under Section 8.3 or 8.4 with respect to its CD Loans
or Euro-Dollar Loans and a Borrower shall, by at least five Euro-Dollar Business
Day's prior notice to such Bank through the Administrative Agent, have elected
that the provisions of this Section shall apply to such Bank with respect to
such Borrower, then, unless and until such Bank notifies such Borrower that the
circumstances giving rise to such suspension or demand for compensation no
longer exist:
(a) all Loans which would otherwise be made by such Bank to such
Borrower as (or continued as or converted into) CD Loans or Euro-Dollar
Loans, as the case may be, shall instead be Base Rate Loans (on which
interest and principal shall be payable contemporaneously with the related
Fixed Rate Loans of the other Banks); and
51
(b) after each of its CD Loans or Euro-Dollar Loans, as the case may
be, to such Borrower has been repaid (or converted to a Base Rate Loan),
all payments or principal which would otherwise be applied to repay such
Fixed Rate Loans shall be applied to repay its Base Rate Loans to such
Borrower instead.
If such Bank notifies such Borrower that the circumstances giving rise to such
notice no longer apply, the principal amount of each such Base Rate Loan shall
be converted into a CD Loan or Euro-Dollar Loan, as the case may be, on the
first day of the next succeeding Interest Period applicable to the related CD
Loans or Euro-Dollar Loans of the other Banks.
SECTION 8.6. Substitution of Bank. If (a) the obligation of any
--------------------
Bank to make Loans has been suspended pursuant to Section 8.2 or (b) any Bank
has demanded compensation under Section 8.3 or 8.4, the Borrowers, acting
jointly, shall have the right to seek a substitute financial institution or
institutions (which may be one or more of the Banks) to purchase the Notes and
assume the Commitment of such Bank pursuant to Section 9.6(c).
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 transmission or similar writing) and shall be given to such
party: (a) in the case of any 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 Bank, at its address, facsimile number or telex
number set forth in its Administrative Questionnaire or (c) in the case of any
party, 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
Borrowers. Each such notice, request or other communication shall be effective
(i) if given by telex, when such telex is transmitted to the telex number
specified in this Section and the appropriate answerback is received, (ii) if
given by facsimile transmission, when transmitted to the facsimile number
specified 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
52
any other means, when delivered at the address specified 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 the Administrative
----------
Agent or any Bank 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
shall be cumulative and not exclusive of any rights or remedies provided by law.
SECTION 9.3. Expenses; Indemnification. (a) The Borrowers jointly
-------------------------
and severally agree to pay all out-of-pocket expenses of the Administrative
Agent, including reasonable 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.
(b) If any Default or alleged Default or Event of Default occurs
with respect to either Borrower, such Borrower shall pay all out-of-pocket
expenses incurred by the Administrative Agent and each Bank, including (without
duplication) the reasonable fees and disbursements of outside counsel and the
allocated cost of inside counsel, in connection with such Default, alleged
Default, or Event of Default and all collection, settlement, bankruptcy,
insolvency and other enforcement proceeding resulting therefrom.
(c) The Borrowers jointly and severally agree to indemnify the
Administrative Agent and each Bank, 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.
53
SECTION 9.4. Sharing of Set-Offs. Each Bank agrees that if it
-------------------
shall, by exercising any right of set-off or counterclaim or otherwise, receive
payment of an proportion of the aggregate amount of principal and interest then
due with respect to the Note of either Borrower held by it which is greater than
the proportion received by any other Bank in respect of the aggregate amount of
principal and interest then due with respect to the Note of such Borrower held
by such other Bank, the Bank receiving such proportionately greater payment
shall purchase such participations in the Notes of such Borrower held by the
other Banks, and such other adjustments shall be made, as may be required so
that all such payments of principal and interest with respect to the Notes of
such Borrower held by the Banks shall be shared by the Banks pro rata; provided
--------
that nothing in this Section shall impair the right of any Bank to exercise any
right of set-off or counterclaim it may have to apply the amount subject to such
exercise to the payment of indebtedness of either Borrower other than its
indebtedness hereunder. Each Borrower agrees, to the fullest extent it may
effectively do so under applicable law, that any holder of a participation in a
Note of such Borrower, whether or not acquired pursuant to the foregoing
arrangements, may exercise rights of set-offs or counterclaim and other rights
with respect to such participation as fully as if such holder of a participation
were a direct creditor of such 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 Borrowers and the Required Banks
(and, if the rights or duties of the Administrative Agent are affected thereby,
by the Administrative Agent); provided that no such amendment or waiver shall,
unless signed by all the Banks, (i) increase or decrease the Commitment of any
Bank (except for a ratable decrease in the Commitments of all Banks) or subject
any Bank 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 scheduled termination of any Commitment, (iv) change the percentage of the
Commitments or of the aggregate unpaid principal amount of the Notes, or the
number of Banks, which shall be required for the Banks or any of them to take
any action under this Section or any other provision of this Agreement, or
(v) change this proviso.
-------
SECTION 9.6. Successors and Assigns. (a) The provisions of this
----------------------
Agreement shall be binding upon and inure
54
to the benefit of the parties hereto and their respective successors and
assigns, except that no Borrower may assign or otherwise transfer any of its
rights under this Agreement without the prior written consent of all Banks.
(b) Any Bank 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. In the event of any such grant by a Bank of a
participating interest to a Participant, whether or not upon notice to either
Borrower and the Administrative Agent, such Bank shall remain responsible for
the performance of its obligations hereunder, and the Borrowers and the
Administrative Agent shall continue to deal solely and directly with such Bank
in connection with such Bank's rights and obligations under this Agreement. Any
agreement pursuant to which any Bank may grant such a participating interest
shall provide that such Bank shall retain the sole right and responsibility to
enforce the obligations of the Borrowers 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 Bank will not agree to any modification, amendment or waiver
of this Agreement described in clause (i), (ii), or (iii) of Section 9.5 without
the consent of the Participant. Subject to subsection (e) below, each Borrower
agrees that each Participant shall, to the extent provided in its participation
agreement, be entitled to the benefits of Section 2.16 and Article 8 with
respect to its participating interest. An assignment or other transfer which is
not permitted by subsection (c) or (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 (b).
(c) Any Bank 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 $10,000,000.00) of all, of its rights and
obligations under this Agreement and the Notes, and such Assignee shall assume
such rights and obligations, pursuant to an Assignment and Assumption Agreement
in substantially the form of Exhibit G hereto executed by such Assignee and such
transferor Bank, with (and subject to) the subscribed consent of the Borrowers
and the Administrative Agent; provided that if an Assignee is an affiliate of
--------
such transferor Bank or was a Bank immediately prior to such assignment, no such
consent shall be required; and provided further that such assignment may, but
-------- -------
need not, include rights of the transferor Bank in respect of outstanding
55
Money Market Loans; and provided further that the assignor Bank shall retain a
----------------
Commitment equivalent to an initial Commitment of not less than $10,000,000.
Upon execution and delivery of such instrument and payment by such Assignee to
such transferor Bank of an amount equal to the purchase price agreed between
such transferor Bank and such Assignee, such Assignee shall be a Bank party to
this Agreement and shall have all the rights and obligations of a Bank with a
Commitment as set forth in such instrument of assumption, and the transferor
Bank 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 (c), the transferor
Bank, the Administrative Agent and the Borrowers shall make appropriate
arrangements so that, if required, new Notes are issued to the Assignee. In
connection with any such assignment, the transferor Bank shall pay to the
Administrative Agent an Administrative fee for processing such assignment in
the amount of $2,5000. If the Assignee is not incorporated under the laws of
the United States of America or a state thereof, it shall deliver to the
Borrowers and the Administrative Agent certification as to exemption from
deduction or withholding of any United States federal income taxes in accordance
with Section 8.4.
(d) Any Bank 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 Bank from its obligations hereunder.
(e) No Assignee, Participant or other transferee of any Bank's rights
shall be entitled to receive any greater payment under Section 8.3 or 8.4 than
such Bank 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 8.2, 8.3 or 8.4 requiring such
Bank 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. Collateral. Each of the Banks represents to the
----------
Administrative Agent and each of the other Banks that it in good faith is not
relying upon any "margin stock" (as defined in Regulation U) as collateral in
the extension or maintenance of the credit provide for in this Agreement.
SECTION 9.8. Governing Law; Submission to Jurisdiction. This Agreement
-----------------------------------------
and each Note shall be
56
governed by and construed in accordance with the laws of the State of New York.
Each 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. Each 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; Termination of
--------------------------------------------------------
Designated Credit Facilities. (a) 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).
(b) The parties hereto (comprising all the parties to the Designated
Credit Facilities) agree that, on the Effective Date, the Designated Credit
Facilities shall terminate without further action by any party thereto, and any
loans outstanding thereunder and other amounts payable thereunder shall be due
and payable on such date.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH OF THE BORROWERS, THE
--------------------
ADMINISTRATIVE AGENT AND THE BANKS 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.
SECTION 9.11. Confidentiality. The Administrative Agent and each Bank
---------------
agree to keep any information delivered or made available by the Borrowers
pursuant to this Agreement confidential from anyone other than persons employed
or retained by such Bank or its affiliates who are engaged in evaluating,
approving, structuring or administering the credit facility.
57
contemplated hereby; provided that nothing herein shall prevent any Bank from
--------
disclosing such information (a) to any other Bank or to the Administrative
Agent, (b) to any other Person if reasonably incidental to the administration of
the credit facility contemplated hereby, (c) upon the order of any court or
administrative agency, (d) upon the request or demand of any regulatory agency
or authority, (e) which had been publicly disclosed other than as a result of a
disclosure by the Administrative Agent or any Bank prohibited by this Agreement,
(f) in connection with any litigation to which the Administrative Agent, any
Bank or its affiliates or Parent may be a party, (g) to the extent necessary in
connection with the exercise of any remedy hereunder, (h) to such Bank's or
Administrative Agent's legal counsel and independent auditors and (i) subject to
provisions substantially similar to those contained in this Section, to any
actual or proposed Participant or Assignee.
58
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.
NATIONWIDE MUTUAL INSURANCE
COMPANY
By
-----------------------
Name:
Title:
Address: Xxx Xxxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Facsimile: (000) 000-0000
NATIONWIDE MUTUAL INSURANCE
COMPANY
By
-----------------------
Name:
Title:
Address: Xxx Xxxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Facsimile: (000) 000-0000
$70,000,000 XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
By
-----------------------
Title:
$65,000,000 THE BANK OF NEW YORK
By
-----------------------
Title:
59
$65,000,000 BANK ONE, COLUMBUS, NA
By
-----------------------
Title:
$65,000,000 THE FIRST NATIONAL BANK
OF CHICAGO
By
-----------------------
Title:
$65,000,000 MELLON BANK, N.A.
By
-----------------------
Title:
$30,000,000 THE CHASE MANHATTAN BANK N.A.
By
-----------------------
Title:
$30,000,000 FLEET NATIONAL BANK
By
-----------------------
Title:
$30,000,000 THE HUNTINGTON NATIONAL BANK
By
-----------------------
Title:
60
$30,000,000 KEYBANK NATIONAL ASSOCIATION
By
-----------------------
Title:
$30,000,000 NATIONAL CITY BANK OF COLUMBUS
By
-----------------------
Title:
$30,000,000 THE NORTHERN TRUST COMPANY
By
-----------------------
Title:
$30,000,000 ROYAL BANK OF CANADA
By
-----------------------
Title:
$30,000,000 STATE STREET BANK AND TRUST
COMPANY
By
-----------------------
Title:
$30,000,000 XXXXX FARGO BANK, N.A.
By
-----------------------
Title:
Total Commitments
$600,000,000
============
61
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK,
as Administrative Agent
By
-----------------------
Name:
Title:
Address: 00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
62
PRICING SCHEDULE
Each of "Euro-Dollar Margin", "CD Margin", and "Facility Fee Rate"
means, for any date, the rates set forth below in the row opposite such term and
in the column corresponding to the "Pricing Level" that applies at such date:
--------------------------------------------------------------------------------------------------
Xxxxx Xxxxx Xxxxx Xxxxx Xxxxx Xxxxx
X II III IV V VI
--------------------------------------------------------------------------------------------------
CD Margin
Usage less than
and/or equal to 50% 0.2525% 0.255% 0.285% 0.375% 0.425% 0.625%
Usage greater than 50% 0.3025% 0.305% 0.335% 0.425% 0.475% 0.725%
--------------------------------------------------------------------------------------------------
Euro-Dollar Margin
Usage less than
and/or equal to 50% 0.1275% 0.130% 0.160% 0.250% 0.300% 0.500%
Usage greater than 50% 0.1775% 0.180% 0.210% 0.300% 0.350% 0.600%
--------------------------------------------------------------------------------------------------
Facility Fee 0.060% 0.070% 0.090% 0.125% 0.150% 0.250%
Rate
--------------------------------------------------------------------------------------------------
For purposes of this Schedule, the following terms have the following
meanings, subject to the concluding paragraph of this Schedule:
"Level I Pricing" applies at any date if, at such date, Nationwide
Mutual's claims paying ability is rated AAA or higher by S&P or Aaa or higher
--
by Xxxxx'x.
"Level II Pricing" applies at any date if, at such date, (i)
Nationwide Mutual's claims paying ability is rated AA- or higher by S&P or Aa3
--
or higher by Xxxxx'x and (ii) Level I Pricing does not apply.
"Level III Pricing" applies at any date if, at such date, (i)
Nationwide Mutual's claims paying ability is rated A or higher by S&P or A2 or
--
higher by Xxxxx'x and (ii) neither Level I Pricing nor Level II Pricing
applies.
"Level IV Pricing" applies at any date if, at such date, (i)
Nationwide Mutual's claims paying ability is rated A- or higher by S&P or A3
--
or higher by Xxxxx'x and (ii) none of Level I Pricing, Level II Pricing and
Level III Pricing applies.
"Level V Pricing" applies at any date if, at such date, (i) Nationwide
Mutual's claims paying ability is rated BBB+ or higher by S&P or Baa1 or
--
higher by Xxxxx'x and (ii) none of Level I Pricing, Level II Pricing, Level
III Pricing or Level IV Pricing applies.
"Level VI Pricing" applies at any date if, at such date, no other
Pricing Level applies.
63
"Pricing Level" refers to the determination of which of Level I, Level
II, Level III, Level IV, Level V or Level VI applies at any date.
"Usage" 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 Usage for
each date on or after the date of such termination shall be deemed to be greater
than 50%.
The rating in effect at any date is that in effect at the close of business on
such date.
For purposes of determining which Pricing Level applies: (a) if the claims
paying ability of Nationwide Mutual is split-rated and the differential is one
category, the higher rating category will apply (e.g., AAA/Aa1 results in Level
I Pricing); but (b) if the claims paying ratings of Nationwide Mutual is
split-rated and the differential is two categories or more, the rating at the
midpoint will apply (e.g., AAA/Aa2 results in Level II Pricing) and if there is
no such midpoint category, the higher of the two intermediate categories will
apply (e.g., A+/Baa1 results in Level III Pricing).
64
Schedule I
Designated Credit Facilities
----------------------------
$15,000,000 lines of credit in favor of nationwide Mutual and/or Nationwide Life
from each of the following financial institutions:
1. Xxxxxx Guaranty Trust Company of New York
2. Mellon Bank, N.A.
3. NBD Bank
4. Shawmut Bank
5. Huntington National Bank
6. Bank One, Columbus, NA
7. Fleet National Bank
8. National City Bank
00
XXXXXXX X
XXXX
Xxx Xxxx, Xxx Xxxx
____________ __, 199_
For value received, [Name of Borrower], a [Borrower's Jurisdiction of
Incorporation] corporation (the "Borrower"), promises to pay to the order of
___________________(the "Bank"), for the account of its Applicable Lending
Office, the unpaid principal amount of each Loan made by the Bank 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, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx.
All Loans made by the Bank, the respective types thereof and all repayments
of the principal thereof shall be recorded by the Bank and, if the Bank so
elects in connection with any transfer or enforcement hereof, appropriate
notations to evidence the foregoing information with respect to each such Loans
then outstanding may be endorsed by the Bank 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 Bank to make any such recordation or endorsement shall
not affect the obligations of the Borrower hereunder or under the Credit
Agreement.
This note is one of the Notes referred to in the Credit Agreement dated as
of August 12, 1996 among Nationwide Mutual Insurance Company, Nationwide Life
Insurance Company, the Banks parties thereto and Xxxxxx
Guaranty Trust Company of New York, as Administrative Agent (as 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.
[NAME OF BORROWER]
By
----------------------------------
Name:
Title:
2
LOANS AND PAYMENTS OF PRINCIPAL
--------------------------------------------------------------------------------
Amount Type Amount of
of of Principal Notation
Date Loan Loan Repaid Made By
--------------------------------------------------------------------------------
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3
EXHIBIT B
Form of Money Market Quote Request
----------------------------------
[Date]
To: Xxxxxx Guaranty Trust Company of New York (the "Administrative
Agent")
From: [Name of Borrower]
Re: Credit Agreement (as amended from time to time, the "Credit
Agreement") dated as of August 12, 1996 among Nationwide Mutual
Insurance Company, Nationwide Life Insurance Company, the
Banks parties thereto and the Administrative Agent
We hereby give notice pursuant to Section 2.3 of the Credit Agreement that
we request Money Market Quotes for the following proposed Money Market
Borrowing(s):
Date of Borrowing: _____________________
Principal Amount/1/ Interest Period/2/
------------------- ------------------
$
Such Money Market Quotes should offer a Money Market [Margin] [Absolute
Rate]. [The applicable base rate is the London Interbank Offered Rate.]
--------------------
/1/ Amount must be $10,000,000 or a larger multiple of $1,000,000.
/2/ Not less than one month (LIBOR Auction) or not less than 7 days
(Absolute Rate Auction), subject to the provisions of the definition of Interest
Period.
Terms used herein have the meanings assigned to them in the Credit
Agreement.
[NAME OF BORROWER]
By
---------------------------------
Name:
Title:
2
EXHIBIT C
Form of Invitation for Money Market Ouotes
------------------------------------------
To: [Name of Bank]
Re: Invitation for Money Market Quotes to [Name of
Borrower] (the "Borrower")
Pursuant to Section 2.3 of the Credit Agreement dated as of August 12, 1996
among Nationwide Mutual Insurance Company, Nationwide Life Insurance Company,
the Banks parties thereto and the undersigned, as Administrative Agent, we are
pleased on behalf of the Borrower to invite you to submit Money Market Quotes to
the Borrower for the following proposed Money Market Borrowing(s):
Date of Borrowing:
_____________________
Principal Amount Interest Period
---------------- ---------------
$
Such Money Market Quotes should offer a Money Market [Margin] [Absolute
Rate]. [The applicable base rate is the London Interbank Offered Rate.]
Please respond to this invitation by no later than [2:00 P.M.] [9:30 A.M.]
(New York City time) on [date].
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK,
as Administrative Agent
By
---------------------------
Authorized Officer
EXHIBIT D
Form of Money Market Ouote
--------------------------
To: Xxxxxx Guaranty Trust Company of New York, as
Administrative Agent
Re: Money Market Quote to [Name of Borrower] (the
"Borrower")
In response to your invitation on behalf of the Borrower dated , we hereby
make the following Money Market Quote on the following terms:
1. Quoting Bank:_____________________________
2. Person to contact at Quoting Bank:
___________________________________
3. Date of Borrowing:________________________*
4. We hereby offer to make Money Market Loan(s) in the following principal
amounts, for the following Interest Periods and at the following rates:
Principal Interest Money Market
Amount** Period*** [Marqin****] [Absolute Rate*****]
-------- ------------------------------------------
$
$
[Provided, that the aggregate principal amount of Money Market Loans for
which the above offers may be accepted shall not exceed $___________ .]**
________
* As specified in the related Invitation.
** Principal amount bid for each Interest Period may not exceed principal amount
requested. Specify aggregate limitation if the sum of the individual offers
exceeds the amount the Bank is willing to lend. Bids must be made for
$5,000,000 or a larger multiple of $1,000,000.
(notes continued on following page)
We understand and agree that the offer(s) set forth above, subject to
the satisfaction of the applicable conditions set forth in the Credit Agreement
dated as of August 12, 1996 among Nationwide Mutual Insurance Company,
Nationwide Life Insurance Company, the Banks parties thereto and yourselves, as
Administrative Agent, irrevocably obligates us to make the Money Market Loan(s)
for which any offer(s) are accepted, in whole or in part.
Very truly yours,
[NAME OF BANK]
Dated: By:
______________ ____________________________
Authorized Officer
________
*** Not less than one month or not less than 30 days, as specified in the
related Invitation. No more than five bids are permitted for each Interest
Period.
**** Margin over or under the London Interbank Offered Rate determined for the
applicable Interest Period. Specify percentage (to the nearest l/l0,000 of 1%)
and specify whether "PLUS" or "MINUS". ***** Specify rate of interest per annum
(to the nearest 1/10,OOOth of 1%).
77
EXHIBIT E
August 12, 1996
To the Banks and the Administrative Agent
Referred to Below
c/x Xxxxxx Guaranty Trust Company
of New York, as Administrative Agent
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
We have acted as counsel for Nationwide Mutual Insurance Company and
Nationwide Life Insurance Company (each, a "Borrower") in connection with the
Credit Agreement (the "Credit Agreement") dated as of August 12, 1996 among the
Borrowers, the Banks parties thereto, and Xxxxxx Guaranty Trust Company of New
York, as Administrative Agent. Terms defined in the Credit Agreement are used
herein as therein defined. This opinion is being rendered to you at the request
of the Borrowers pursuant to Section 3.1(b) of the Credit Agreement.
We have examined originals or copies, certified or otherwise identified
to our satisfaction, of such documents, corporate records, certificates of
public officials and other instruments and have conducted such other
investigations of fact and law as we have deemed necessary or advisable for
purposes of this opinion.
Upon the basis of the foregoing, we are of the opinion that:
1. Each Borrower is a corporation duly incorporated, validly existing
and in good standing under the laws of the jurisdiction of its incorporation
and has all corporate powers and all material governmental licenses,
authorizations, consents and approvals required to carry on its business as now
conducted.
2. The execution, delivery and performance by each Borrower of the
Credit Agreement and its Notes are within the corporate powers of such Borrower,
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 certificate of incorporation or by-laws
of such Borrower or of any agreement, judgment, injunction, order, decree or
other instrument binding upon such Borrower or any of its Subsidiaries or result
in the creation or imposition of any Lien on any asset of such Borrower or any
of its Subsidiaries.
3. The Credit Agreement constitutes a valid and binding agreement of
each Borrower and each note constitutes a valid and binding obligation of the
Borrower issuing the same, in each case enforceable in accordance with its terms
except as the same may be limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally and by general principles of equity.
4. There is no action, suit or proceeding pending against, or to the
best of our knowledge threatened against or affecting, any Borrower or any of
their Subsidiaries before any court or arbitrator or any governmental body,
agency or official, in which there is a reasonable possibility of an adverse
decision which could materially adversely affect the business, consolidated
financial position or consolidated results of operations of such Borrower or any
of its consolidated Subsidiaries, considered as a whole, or which in any manner
draws into question the validity of the Credit Agreement or the Notes.
Very truly yours,
2
EXHIBIT F
August 12, 1996
To the Banks and the Administrative Agent
Referred to Below
c/x Xxxxxx Guaranty Trust Company
of New York, as Administrative Agent
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
We have participated in the preparation of the Credit Agreement (the
"Credit Agreement") dated as of August 12, 1996 among Nationwide Mutual
Insurance Company, Nationwide Life Insurance Company, the Banks parties thereto
and Xxxxxx Guaranty Trust Company of New York, as Administrative Agent, and have
acted as special counsel for the Administrative Agent for the purpose of
rendering this opinion pursuant to Section 3.1(c) of the Credit Agreement.
Terms defined in the Credit Agreement are used herein as therein defined.
We have examined originals or copies, certified or otherwise identified
to our satisfaction, of such documents, corporate records, certificates of
public officials and other instruments and have conducted such other
investigations of fact and law as we have deemed necessary or advisable for
purposes of this opinion.
Upon the basis of the foregoing, we are of the opinion that:
1. The execution, delivery and performance by each Borrower of the
Credit Agreement and its Notes are within such Borrower's corporate powers and
have been duly authorized by all necessary corporate action.
2. The Credit Agreement constitutes a valid and binding agreement of
each Borrower and each Note constitutes a valid and binding obligation of the
Borrower issuing the same, in each case enforceable in accordance with its terms
except as the same may be limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally and by general principles of equity.
We are members of the Bar of the State of New York and the foregoing
opinion is limited to the laws of the State of New York and the federal laws of
the United States of America. In giving the foregoing opinion, (i) we express no
opinion as to the effect (if any) of any law of any jurisdiction (except the
State of New York) in which any Bank is located which the rate of interest that
such Bank may charge or collect and (ii) as to all matters governed by the laws
of Ohio, we have relied, without independent investigation, on the opinion of
counsel for the Borrowers, copies of which have been delivered to you.
This opinion is rendered solely to you in connection with the above
matter. This opinion may not be relied upon by you for other purposes or relied
upon by any other person without our prior written consent.
Very truly yours,
2
EXHIBIT G
ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT, dated as of ________________ among (NAME OF ASSIGNOR) (the
"Assignor"), (NAME OF ASSIGNEE) (the "Assignee"), NATIONWIDE MUTUAL INSURANCE
NATIONWIDE LIFE INSURANCE COMPANY (each, a "Borrower") and XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK, as Administrative Agent (the "Administrative Agent").
WHEREAS, this Assignment and Assumption Agreement (the "Agreement")
relates to the Credit Agreement dated as of August 12, 1996 among the Borrowers,
the Assignor and the other Banks parties thereto, as Banks, and the
Administrative Agent (as amended from time to time, the "Credit Agreement");
WHEREAS, as provided under the Credit Agreement, the Assignor has a
Commitment to make Loans to the Borrowers in an aggregate principal amount at
any time outstanding not to exceed $___________;
WHEREAS, Committed Loans made to the Borrowers 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 its outstanding Committed
Loans, and the Assignee proposes to accept assignment of such rights and assume
the corresponding obligations from the Assignor on such terms;
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 shall 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 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,
including the purchase from the Assignor of the corresponding portion of
the principal amount of the Committed Loans made by the Assignor
outstanding at the date hereof. Upon the execution and delivery hereof by
the Assignor, the Assignee, [the Borrowers 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 Bank under
the Credit Agreement with a Commitment in an amount equal to the Assigned
Amount, and (ii) the Commitment of the Assignor shall, as of the date
hereof, be reduced by a like amount and the Assignor 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/ It is understood that facility fees accrued to the date hereof
with respect to the Assigned Amount are for the account of the Assignor and
such fees accruing from and including the date hereof are for the account
of the Assignee. Each of the Assignor and the Assignee hereby 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
--------------------------------
/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.
2
same for the account of such other party to the extent of such other party's
interest therein and shall promptly pay the same to such other party.
[SECTION 4. Consent of the Borrowers and the Administrative Agent. This
-----------------------------------------------------
Agreement is conditioned upon the consent of the Borrowers and the
Administrative Agent pursuant to Section 9.6(c) of the Credit Agreement. The
execution of this Agreement by the Borrowers and the Administrative Agent is
evidence of this consent. Pursuant to Section 9.6(c), the Borrowers agree to
execute and deliver a Note payable to the order of the Assignee to evidence the
assignment and assumption provided for herein.]
SECTION 5. 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 any
Borrower, or the validity and enforceability of the obligations of any Borrower
in respect of 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 Borrowers.
SECTION 6. Governing Law. This Agreement shall be governed by and
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construed in accordance with the laws of the State of New York.
SECTION 7. 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.
3
IN WITNESS WHEREOF, the parties 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 ASSIGNOR]
By
-----------------------
Name:
Title:
[NATIONWIDE MUTUAL INSURANCE
COMPANY
By
-----------------------
Name:
Title:
NATIONWIDE LIFE INSURANCE
COMPANY
By
-----------------------
Name:
Title:
4
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK,
as Administrative Agent
By
-----------------------
Name:
Title: ]
5
