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CREDIT AGREEMENT
Dated as of August 21, 1998,
among
THE INDIVIDUALS LISTED ON THE SIGNATURE PAGES HERETO,
as Borrowers,
THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO,
and
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Administrative Agent
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The following Table of Contents has been inserted for convenience only and does
not constitute a part of this Agreement.
TABLE OF CONTENTS
PAGE
SECTION 1. DEFINITIONS AND ACCOUNTING TERMS...................................1
1.1 Certain Defined Terms...............................................1
1.2 Other Definitional Provisions.......................................13
1.3 Accounting and Financial Determinations.............................13
SECTION 2. THE COMMITMENTS AND THE LOANS.....................................14
2.1 Commitment..........................................................14
2.2 Procedure for Borrowings............................................14
2.3 Funding Reliance for Borrowings.....................................15
2.4 Conversion and Continuation Elections...............................16
2.5 Repayment of Loans..................................................17
2.6 Loan Accounts; Record Keeping.......................................18
SECTION 3. INTEREST..........................................................18
3.1 Interest Rates......................................................18
3.2 Default Interest Rate...............................................19
3.3 Interest Payment Dates..............................................19
3.4 Setting and Notice of Rates.........................................19
3.5 Fees................................................................19
3.6 Computation of Interest and Fees....................................19
SECTION 4. PAYMENTS AND PREPAYMENTS..........................................20
4.1 Voluntary Termination or Reduction of
Commitments.....................................................20
4.2 Optional Prepayments................................................20
4.3 Payments by the Borrowers...........................................21
4.4 Application of Prepayments..........................................21
4.5 Sharing of Payments.................................................22
4.6 Setoff..............................................................22
4.7 Net Payments........................................................23
SECTION 5. CHANGES IN CIRCUMSTANCES..........................................24
5.1 Increased Costs.....................................................24
5.2 Change in Rate of Return............................................25
5.3 Basis for Determining Interest Rate Inadequate or
Unfair..........................................................26
5.4 Changes in Law Rendering Certain Loans Unlawful.....................27
5.5 Funding Losses......................................................27
5.6 Right of Banks to Fund Through Other Offices........................28
5.7 Discretion of Banks as to Manner of Funding.........................28
5.8 Replacement of Banks................................................28
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5.9 Conclusiveness of Statements; Survival of
Provisions......................................................29
SECTION 6. COLLATERAL AND OTHER SECURITY.....................................29
6.1 Collateral Documents................................................29
6.2 Application of Proceeds from Collateral.............................29
6.3 Further Assurances..................................................30
SECTION 7. REPRESENTATIONS AND WARRANTIES OF BORROWERS.......................30
7.1 No Conflict.........................................................31
7.2 Validity............................................................31
7.3 Financial Statements................................................31
7.4 Material Adverse Change.............................................31
7.5 Litigation and Contingent Obligations...............................31
7.6 Liens...............................................................31
7.7 Taxes...............................................................31
7.8 Accuracy of Information.............................................32
7.9 Proceeds............................................................32
7.10 Securities Laws....................................................32
7.11 Solvency...........................................................32
7.12 No Default.........................................................32
7.13 Organization, etc..................................................32
7.14 Authorization......................................................33
7.15 Margin Regulations.................................................33
7.16 No Default or Event of Default.....................................33
SECTION 8. COVENANTS OF BORROWERS............................................34
8.1 Reports, Certificates and Other Information.........................34
8.2 Taxes and Liabilities...............................................35
8.3 Compliance with Laws................................................35
8.4 Other Agreements....................................................35
SECTION 9. CONDITIONS AND EFFECTIVENESS OF
THIS AGREEMENT..................................................35
9.1 Initial Loans.......................................................36
9.2 All Loans...........................................................38
SECTION 10. EVENTS OF DEFAULT AND THEIR EFFECT...............................39
10.1 Events of Default..................................................39
10.2 Effect of Event of Default.........................................41
SECTION 11. THE AGENT........................................................41
11.1 Authorization and Action...........................................41
11.2 Liability of the Administrative Agent..............................42
11.3 Administrative Agent and Affiliates................................43
11.4 Bank Credit Decision...............................................43
11.5 Indemnification....................................................43
11.6 Successor Agent....................................................44
SECTION 12. ASSIGNMENTS AND PARTICIPATIONS...................................44
12.1 Assignments........................................................44
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12.2 Participations.....................................................46
12.3 Disclosure of Information..........................................47
12.4 Foreign Transferees................................................48
SECTION 13. MISCELLANEOUS....................................................48
13.1 Waivers and Amendments.............................................48
13.2 Failure to Consent.................................................49
13.3 Notices............................................................50
13.4 Indemnity..........................................................50
13.5 Subsidiary References..............................................51
13.6 Captions...........................................................51
13.7 GOVERNING LAW......................................................51
13.8 Counterparts.......................................................51
13.9 SUBMISSION TO JURISDICTION; WAIVER OF VENUE........................51
13.10 Successors and Assigns............................................52
13.11 WAIVER OF JURY TRIAL..............................................52
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SCHEDULES AND EXHIBITS
SCHEDULES
SCHEDULE 2.1 Banks and Percentages
SCHEDULE 2.2 Borrower Loan Percentage
EXHIBITS
EXHIBIT A Form of Note
EXHIBIT B Form of Notice of Borrowing
EXHIBIT C Form of Notice of Conversion/Continuation
EXHIBIT D Form of Pledge Agreement
EXHIBIT E Form of Guaranty
EXHIBIT F-1 Form of Opinion of Xxxx X. Xxxx, counsel to
Guarantor
EXHIBIT F-2 Form of Opinion of Xxxxx & Xxxxxxx, outside
counsel to Guarantor
EXHIBIT G Form of Confidentiality Letter
EXHIBIT H Form of Assignment Agreement
EXHIBIT I Funding Loss Formula
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT is entered into as of August 21, 1998, among the
individuals listed as borrowers on the signature pages hereto (herein,
collectively called the "Borrowers" and each individually, a "Borrower"), the
several financial institutions from time to time party to this Agreement
(herein, together with any Eligible Assignees thereof, collectively called the
"Banks" and each individually, a "Bank"), and BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION ("BofA"), as administrative agent for the Banks (herein in
such capacity, together with any successors thereto in such capacity, called the
"Administrative Agent").
Background
WHEREAS, certain of the Borrowers, certain of the Banks and the
Administrative Agent are parties to that certain Amended and Restated Credit
Agreement, dated as of August 26, 1997 (as amended or modified through the date
hereof, the "Existing Credit Agreement"), whereby the Banks party thereto made
term loans to the Borrowers party thereto, on the terms and subject to the
conditions set forth in the Existing Credit Agreement;
WHEREAS, the Borrowers have requested that the Banks agree to make
term loans in an aggregate principal amount of $200,000,000;
WHEREAS, the proceeds of the term loans to be made under this Agreement
will also be used by the Borrowers solely to purchase up to 4,500,000 shares of
common stock of Guarantor;
WHEREAS, the Banks are willing, on the terms and conditions
hereinafter set forth, to make the term loans to the Borrowers;
NOW, THEREFORE, in consideration of the mutual promises herein
contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1 Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Administrative Agent" - see Preamble.
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"Administrative Agent's Office" shall mean 000 Xxxxx XxXxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000, or such other address designated by the Administrative
Agent (or any successor agent) to the Borrowers and the Banks from time to time.
"Affected Bank" - see Section 5.4.
"Affiliate" shall mean, as to any Person, any other Person which,
directly or indirectly, owns, holds, controls, is controlled by or is under
common control with such Person (including all beneficial control as a trustee,
guardian or other fiduciary). A Person shall be deemed to be "controlled by" any
other Person if such other Person possesses, directly or indirectly, power (a)
to vote 10% or more of the securities (on a fully diluted basis) having ordinary
voting power for the election of directors, managing general partners or
managers; or (b) to direct or cause the direction of the management and policies
of such Person whether through the ownership of voting securities, membership
interests, by contract or otherwise.
"Agent-Related Persons" shall mean BofA and any successor agent arising
under Section 11.6, together with its Affiliates (including, in the case of
BofA, the Arranger), and the officers, directors, employees, agents and
attorneys-in-fact of such Persons and Affiliates.
"Agreement" shall mean this Amended and Restated Credit Agreement, as
amended or modified.
"Arranger" shall mean BancAmerica Xxxxxxxxx Xxxxxxxx, a Delaware
corporation.
"Assignment Agreement" - see Section 12.1.
"Bank" or "Banks" - see Preamble.
"Bank Default" shall mean (a) the refusal (which has not been
retracted) of a Bank to make available its Percentage of any Loans when required
hereunder or (b) a Bank having notified the Administrative Agent and/or
Guarantor (on behalf of any Borrower) that it does not intend to comply with its
obligations under Section 2.1 to the extent required thereunder.
"Base Rate" shall mean, for any day, the higher of (a) 0.50% per annum
above the latest Federal Funds Effective Rate and (b) the rate of interest in
effect for such day as publicly announced from time to time by BofA in San
Francisco, California, as its "reference rate." The "reference rate" is a rate
set by BofA based upon various factors including BofA's costs and desired
return, general economic conditions and other factors, and is
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used as a reference point for pricing some loans, which may be priced at,
above, or below such announced rate. Any change in the reference rate announced
by BofA shall take effect at the opening of business on the date specified in
the public announcement of such change.
"Base Rate Loan" shall mean a Loan bearing interest at the Base Rate.
"BofA" - see Preamble.
"Borrower" or "Borrowers" - see Preamble.
"Borrower Collateral Percentage" shall mean, as to any Borrower, a
fraction, the numerator of which is equal to the principal amount of the Loans
to such Borrower then outstanding hereunder and the denominator of which is
equal to the aggregate principal amount of the Loans to all Borrowers then
outstanding hereunder.
"Borrowing" shall mean a borrowing hereunder consisting of Loans made
to the Borrowers or any Borrower on the same day by the Banks under Section 2.
"Borrowing Date" shall mean any date on which a Borrowing occurs under
Section 2.
"Borrowing Termination Date" shall mean the earlier of (a) one hundred
eighty (180) days after the Closing Date (including the Closing Date) or (b) the
Termination Date.
"Business Day" shall mean any day other than a Saturday, Sunday or
other day on which commercial banks in Chicago, New York City or San Francisco
are authorized or required by law to close and, if the applicable Business Day
relates to any Offshore Rate Loan, means such a day on which dealings are
carried on in the applicable offshore dollar interbank market.
"Charges" - see Section 4.7.
"Closing Date" shall mean the date on which all conditions precedent
set forth in Section 9 are satisfied or waived by all Banks or, with respect to
any payment to be made hereunder, waived by the Person entitled to receive such
payment.
"Code" shall mean the Internal Revenue Code of 1986, as amended, and
regulations promulgated thereunder, or, as the context requires, applicable
provisions of prior laws.
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"Collateral Ratio" shall mean, as to any Borrower, the ratio of (a) the
sum of the Loan Value of Direct Collateral of such Borrower plus the Borrower
Collateral Percentage of the Loan Value of Indirect Collateral to (b) the
aggregate principal amount of the Loans of such Borrower then outstanding.
"Commitments" - see Section 2.1.
"Contingent Obligation" shall mean any agreement, undertaking or
arrangement by which any Person guarantees, endorses or otherwise becomes or is
contingently liable upon (by direct or indirect agreement, contingent or
otherwise, to provide funds for payment, to supply funds to, or otherwise to
invest in, a debtor, or otherwise to assure a creditor against loss) the debt,
obligation or other liability of any other Person (other than by endorsements of
instruments in the course of collection), or guarantees the payment of dividends
or other distributions upon the shares of any other Person. The amount of any
Person's liability with respect to any Contingent Obligation shall (subject to
any limitation set forth therein) be deemed to be the outstanding principal
amount (or maximum outstanding principal amount, if larger) of the debt,
obligation or other liability outstanding thereunder.
"Conversion/Continuation Date" shall mean any date on which, under
Section 2.4, Guarantor (on behalf of the Borrowers) (a) converts Loans of one
Type to another Type, or (b) continues as Loans of the same Type, but with a new
Interest Period, Loans having Interest Periods expiring on such date.
"Default" shall mean 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.
"Defaulting Bank(s)" shall mean any Bank(s) with respect to which a
Bank Default is in effect.
"Direct Collateral" shall mean, with respect to any Borrower, all
property, assets and/or rights on or in which a Lien is now or hereafter granted
by such Borrower to the Administrative Agent (or to any agent, trustee or other
party acting on behalf of the Administrative Agent) for the benefit of the
Banks, pursuant to the Pledge Agreement and any other instruments or documents
provided for herein or therein or delivered hereunder or thereunder or in
connection herewith or therewith.
"Dollars" and the sign "$" shall mean lawful money of the United States
of America.
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"Eligible Assignee" shall mean any bank, pension fund, mutual fund,
investment fund or other financial institution (other than an insurance company
or any Affiliate of an insurance company except those to which the Borrowers
consent).
"Eurodollar Reserve Percentage" has the meaning specified in the
definition of "Offshore Rate."
"Event of Default" - see Section 10.1.
"Existing Credit Agreement" - see first recital.
"Federal Funds Effective Rate" shall mean, for any day, the rate set
forth in the weekly statistical release designated as H.15(519), or any
successor publication, published by the Federal Reserve Bank of New York
(including any such successor, "H.15(519)") on the preceding Business Day
opposite the caption "Federal Funds (Effective)"; or, if for any relevant day
such rate is not so published on any such preceding Business Day, the rate for
such day will be the arithmetic mean as determined by the Administrative Agent
of the rates for the last transaction in overnight Federal funds arranged prior
to 9:00 A.M. (New York City time) on that day by each of three leading brokers
of Federal funds transactions in New York City selected by the Administrative
Agent.
"FRB" shall mean the Board of Governors of the Federal Reserve System,
and any Governmental Authority succeeding to any of its principal functions.
"GAAP" shall mean generally accepted accounting principles in the
United States of America as from time to time in the opinions and pronouncements
of the Accounting Principles Board and the American Institute of Certified
Public Accountants and statements and pronouncements of the Financial Accounting
Standards Board (or agencies with similar functions of comparable stature and
authority within the U.S. accounting profession), which are applicable to the
circumstances as of the date of determination.
"Governmental Authority" shall mean any nation or government, any state
or other political subdivision thereof, any central bank (or similar monetary or
regulatory authority) thereof, and any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government,
and any corporation or other entity owned or controlled, through stock or
capital ownership or otherwise, by any of the foregoing.
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"Guarantor" shall mean Conseco, Inc., an Indiana corporation.
"Guaranty" shall mean the Guaranty of Guarantor, dated as of the date
hereof, executed and delivered in favor of the Administrative Agent, for the
benefit of the Banks, in substantially the form of Exhibit E.
"Hedging Obligations" shall have the meaning provided in the Revolving
Credit Agreement.
"IBOR" has the meaning set forth in the definition of Offshore Rate.
"Indebtedness" shall mean, with respect to any Person at any date,
without duplication: (a) all obligations of such Person for borrowed money or in
respect of loans or advances; (b) all obligations of such Person evidenced by
bonds, debentures, notes or other similar instruments; (c) all obligations in
respect of letters of credit, whether or not drawn, and bankers' acceptances
issued for the account of such Person; (d) all Capitalized Lease Liabilities of
such Person; (e) all Hedging Obligations of such Person; (f) all obligations of
such Person to pay the deferred purchase price of property or services which are
included as liabilities in accordance with GAAP, and Indebtedness secured by a
Lien on property owned or being purchased by such Person (including Indebtedness
arising under conditional sales or other title retention agreements); (g) any
Indebtedness of a partnership in which such Person is a general partner; and (h)
all Contingent Obligations of such Person in connection with the foregoing.
"Indemnified Parties" - see Section 13.4.
"Indirect Collateral" shall mean any assets of Guarantor which, as
determined by the Administrative Agent in its sole discretion exercised in good
faith, shall be deemed to "indirectly secure" the Liabilities pursuant to
Regulation U as a result of the negative pledge agreement of Guarantor set forth
in the Guaranty.
"Interest Payment Date" shall mean, as to any Loan other than a Base
Rate Loan, the last day of each Interest Period applicable to such Loan and, as
to any Base Rate Loan, the last Business Day of each calendar quarter and each
date such Loan is converted into another Type of Loan, provided, however, that
if any Interest Period for an Offshore Rate Loan exceeds three months, the date
that falls three months (as the case may be) after the beginning of such
Interest Period and after each
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Interest Payment Date thereafter is also an Interest Payment Date.
"Interest Period" shall mean, as to any Offshore Rate Loan, the period
commencing on the Borrowing Date of such Loan or on the Conversion/Continuation
Date on which the Loan is converted into or continued as an Offshore Rate Loan,
and ending on the date one, two, three or six months thereafter as selected by
Guarantor (on behalf of the Borrowers) in its Notice of Borrowing or Notice of
Conversion/Continuation;
provided that:
(a) if any Interest Period would otherwise end on a day that
is not a Business Day, that Interest Period shall be extended to
the following Business Day unless, in the case of an Offshore Rate
Loan, the result of such extension would be to carry such Interest
Period into another calendar month, in which event such Interest
Period shall end on the preceding Business Day;
(b) any Interest Period pertaining to an Offshore Rate Loan
that begins on the last Business Day of a calendar month (or on a
day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall end on
the last Business Day of the calendar month at the end of such
Interest Period; and
(c) no Interest Period for any Loan shall extend beyond the
Termination Date.
"Lending Office" shall mean, with respect to any Bank, any office
designated by such Bank in its sole discretion beneath its signature hereto (or
in an Assignment Agreement) or otherwise from time to time by written notice to
the Borrowers and the Administrative Agent, as a Lending Office for purposes
hereunder. A Bank may designate separate Lending Offices for the purposes of
making and maintaining Loans.
"Liabilities" shall mean, as to any Borrower, all obligations of such
Borrower to the Banks or the Administrative Agent, howsoever created, arising or
evidenced, whether direct or indirect, joint or several, absolute or contingent,
or now or hereafter existing, or due or to become due, which arise out of or in
connection with this Agreement, the Notes, if any, or the other Loan Documents.
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"Lien" shall mean any security interest, mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or
other) or other priority or preferential arrangement of any kind or nature
whatsoever.
"Litigation" shall mean any litigation (including, without limitation,
any governmental proceeding or arbitration proceeding), tax audit or
investigative proceeding, claim, lawsuit, and/or investigation pending or
threatened against or involving any Borrower, or Guarantor or any of its
Subsidiaries or any of its or their businesses or operations.
"Loan(s)" shall have the meaning set forth in Section 2.1 and may be a
Base Rate Loan or an Offshore Rate Loan (each, a "Type of Loan").
"Loan Documents" shall mean, collectively, this Agreement, the Notes,
if any, the Guaranty, the Pledge Agreement and any and all other documents or
instruments furnished or required to be furnished in connection with any of the
foregoing, as the same may be amended or modified in accordance with this
Agreement.
"Loan Value of Direct Collateral" shall mean, with respect to any
Borrower, (a) the current market value of the common stock of Guarantor pledged
by such Borrower to the Administrative Agent, for the benefit of the Banks,
under the Pledge Agreement, plus (b) without duplication, the current market
value of any other Direct Collateral constituting Margin Stock pledged by such
Borrower to the Administrative Agent, for the benefit of the Banks, under any
Loan Document, plus (c) without duplication, the maximum loan value of all
Direct Collateral of such Borrower not constituting Margin Stock, it being
understood that the maximum loan value of Direct Collateral shall be its good
faith loan value (i.e., the value of such Direct Collateral as determined from
time to time by the Administrative Agent (with the concurrence of the Required
Lenders) exercising sound banking judgment) without regard to such Borrower's
assets securing any unrelated transactions. The Administrative Agent and/or the
Required Lenders shall have the right at any time in their sole discretion to
recompute the Loan Value of Direct Collateral.
"Loan Value of Indirect Collateral" shall mean, with respect to any
Borrower, the sum of the maximum loan value of Indirect Collateral under
Regulation U, after taking into account any other Indebtedness of Guarantor
"indirectly secured" (as set forth in Regulation U and the interpretations
thereof) by the assets of Guarantor, it being understood that (a) the maximum
loan value of Indirect Collateral constituting Margin Stock shall be 50% of its
current market value and (b) the maximum loan value of Indirect Collateral not
constituting Margin Stock shall be its
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good faith loan value (i.e., the value of such Indirect Collateral as determined
from time to time by the Administrative Agent (with the concurrence of the
Required Lenders) exercising sound banking judgment), in each case without
regard to Guarantor's assets securing any unrelated transactions. Until further
notice from the Administrative Agent to the Borrower, the Loan Value of Indirect
Collateral shall be deemed to be $1,759,352,500, it being understood that the
Administrative Agent and/or the Required Lenders shall have the right at any
time in their sole discretion to recompute the Loan Value of Indirect
Collateral.
"Margin Stock" shall mean "margin stock" as such term is defined in
Regulation U and Regulation G.
"Material Adverse Change" or "Material Adverse Effect" shall mean any
change, event, action, condition or effect which individually or in the
aggregate (a) impairs the validity or enforceability of this Agreement or any
other Loan Document, or (b) materially and adversely affects the consolidated
business, operations, financial prospects or condition of Guarantor and its
Subsidiaries taken as a whole, or (c) materially impairs the ability of any
Borrower or Guarantor to perform his, hers or its obligations under this
Agreement or any of the other Loan Documents to which he, she or it is a party,
or (d) materially adversely affects the perfection or priority of any Lien
granted under any of the Loan Documents.
"Material Litigation" or "Material Litigation Development" shall mean
any Litigation, or development in any Litigation, as the case may be, (a) which
seeks to enjoin, prohibit, discontinue or otherwise impacts the validity or
enforceability of this Agreement or any of the other Loan Documents or other
transactions contemplated hereby or thereby, or (b) which could be reasonably
expected to have a Material Adverse Effect.
"NationsBank" shall mean NationsBank, N.A. (South), a
national banking association.
"Nonconsenting Bank" - see Section 13.2.
"Note" shall mean a promissory note, substantially in the form of
Exhibit A with blanks appropriately completed in conformity herewith, evidencing
the aggregate Commitments of the Banks, or any promissory note or promissory
notes issued in substitution or replacement therefor.
"Notice of Borrowing" shall mean a notice in substantially the form of
Exhibit B.
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"Notice of Conversion/Continuation" shall mean a notice in
substantially the form of Exhibit C.
"Obligations" shall have the meaning provided in the Guaranty.
"Offshore Rate" shall mean, for any Interest Period, with respect to
Offshore Rate Loans comprising part of the same Borrowing, the rate of interest
per annum (rounded upward to the next 1/100th of 1%) determined by the
Administrative Agent as follows:
Offshore Rate = IBOR
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1.00 - Eurodollar Reserve Percentage
Where,
"Eurodollar Reserve Percentage" means for any day for any Interest
Period the maximum reserve percentage (expressed as a decimal, rounded
upward to the next 1/100th of 1%) in effect on such day (whether or not
applicable to any Bank) under regulations issued from time to time by
the FRB for determining the maximum reserve requirement (including any
emergency, supplemental or other marginal reserve requirement) with
respect to Eurocurrency funding (currently referred to as "Eurocurrency
liabilities"); and
"IBOR" shall mean the rate of interest per annum (computed for the
actual number of days elapsed on the basis of a 360- day year)
determined by the Administrative Agent as the rate at which dollar
deposits (rounded upward to the next 1/100th of 1% in the approximate
amount of the Loans of such Borrower for an Interest Period would be
offered by BofA's Grand Cayman Branch, Grand Cayman B.W.I. (or such
other office as may be designated for such purpose by BofA), to major
banks in the offshore dollar interbank market at their request at
approximately 11:00 A.M. (New York City time) two (2) Business Days
prior to the commencement of such interest period.
The Offshore Rate shall be adjusted automatically as to all Offshore
Rate Loans then outstanding as of the effective date of any change in the
Eurodollar Reserve Percentage.
"Offshore Rate Loan" shall mean a Loan that bears interest based on the
Offshore Rate.
"Percentage" shall mean, relative to any Bank, the percentage set forth
opposite such Bank's name on Schedule 2.1 (or set forth in an Assignment
Agreement), as such Percentage may
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be adjusted from time to time pursuant to Assignment Agreement(s) executed by
such Bank and its Eligible Assignee and delivered pursuant to Section 12.1.
"Pledge Agreement" shall mean the Pledge Agreement, dated as of the
date hereof, substantially in the form of Exhibit D.
"Regulation "D," "G" and "U" shall mean Regulation D, Regulation G and
Regulation U, respectively, or any successor regulation thereto, promulgated by
the FRB as from time to time in effect.
"Replaced Bank" - see Section 5.8.
"Replacement Bank" - see Section 5.8.
"Required Banks" shall mean Banks (other than a Defaulting Bank) having
at least 51% of the Commitments (excluding the Commitment of any Defaulting
Bank) or, if the Commitments have terminated or expired, 51% of the aggregate
principal amount of the Loans outstanding at such time (excluding the Loans of
any Defaulting Bank).
"Responsible Officer" shall mean, in the case of any Person, any of the
following officers of such Person: the chief executive officer; the president;
the chief financial officer; the chief operating officer; the chief investment
officer; the general counsel; the secretary; the treasurer or any senior or
executive vice president. If any of the titles of the preceding officers of such
corporate Person are changed after the date hereof, the term "Responsible
Officer" shall thereafter mean any officer performing substantially the same
functions as are presently performed by one or more of the officers listed in
the first sentence of this definition.
"Revolving Credit Agent" shall mean the Administrative Agent (as
defined in the Revolving Credit Agreement).
"Revolving Credit Agreement" shall mean that certain Credit Agreement,
dated as of November 22, 1996, among Guarantor, the Revolving Credit Banks,
BofA, as syndication agent for the Revolving Credit Banks, First Union National
Bank of North Carolina, as documentation agent for the Revolving Credit Banks,
and NationsBank, as administrative agent for the Revolving Credit Banks, as the
same may be amended or modified from time to time in accordance with the terms
of this Agreement and the Guaranty.
"Revolving Credit Bank(s)" shall mean the Bank(s) (as defined in the
Revolving Credit Agreement).
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"Revolving Credit Loan Documents" shall mean the Loan Documents (as
defined in the Revolving Credit Agreement).
"Significant Subsidiary" shall have the meaning provided in the
Revolving Credit Agreement as in effect on the Closing Date.
"Solvent", as to any Person on a particular date, shall mean that on
such date (a) the fair value of the property of such Person is greater than the
total amount of liabilities, including, without limitation, Contingent
Obligations, of such Person, (b) the present fair salable value of the assets of
such Person is not less than the amount that will be required to pay the
probable liabilities of such Person on its debts as they become absolute and
matured, (c) such Person is able to realize upon its assets and pay its debts
and other liabilities, Contingent Obligations and other commitments as they
mature in the normal course of business, (d) such Person does not intend to, and
does not believe that such Person will, incur debts or liabilities beyond such
Person's ability to pay as such debts and liabilities mature, and (e) such
Person is not engaged in business or a transaction, and is not about to engage
in business or a transaction, for which such Person's property would constitute
unreasonably small capital after giving due consideration to the prevailing
practice in the industry in which such Person is engaged. For the purposes of
this definition, in computing the amount of any Contingent Obligation at any
time, it is intended that such Contingent Obligation will be computed at the
amount which, in light of all the facts and circumstances existing at such time,
represents the amount that can reasonably be expected to become an actual or
matured liability.
"Subsidiary" shall have the meaning provided in the Revolving Credit
Agreement as in effect on the Closing Date.
"Substitute Bank" - see Section 13.2.
"Taxes" or "Tax" shall mean all taxes of any nature whatsoever and
howsoever denominated, including, without limitation, retaliatory, income,
premium, withholding, guaranty fund or similar assessments, excise, import,
governmental fees, duties and all other charges, as well as additions to tax,
penalties and interest thereon, imposed by any Governmental Authority.
"Termination Date" shall mean, as to any Borrower, the earlier of (a)
August 26, 2001, or (b) the date of termination in whole of the Commitments
pursuant to Section 4.1, 4.2 or 10.2.
"Transferee" - see Section 12.3.
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"Type" or "Type of Loan" has the meaning specified in the definition of
"Loan."
"UCC" shall mean the Uniform Commercial Code or comparable statute or
any successor statutes thereto, as in effect from time to time in the relevant
jurisdiction.
"United States" and "U.S." each means the United States of America.
SECTION 1.2 Other Definitional Provisions.
(a) All terms defined in this Agreement shall have the
above-defined meanings when used in any Loan Document, or any
certificate, report or other document made or delivered pursuant
to this Agreement, unless the context therein shall clearly
otherwise require.
(b) The words "hereof," "herein," "hereunder" and similar
terms when used in this Agreement shall refer to this Agreement as
a whole and not to any particular provision of this Agreement; and
subsection, Section, Schedule and Exhibit references are to this
Agreement unless otherwise specified.
(c) The words "amended or modified" when used in any Loan
Document shall mean with respect to such Loan Document as from
time to time, in whole or in part, amended, modified,
supplemented, restated, refinanced, refunded or renewed.
(d) In the computation of periods of time in this Agreement
from a specified date to a later specified date, the word "from"
means "from and including" and the words "to" and "until" each
means "to but excluding."
(e) This Agreement and the other Loan Documents are the result
of negotiations among and have been reviewed by counsel to the
Administrative Agent, the Borrowers and the other parties, and are
the products of all parties. Accordingly, they shall not be
construed against the Banks or the Administrative Agent merely
because of the Administrative Agent's or Banks' involvement in
their preparation.
SECTION 1.3 Accounting and Financial Determinations. For purposes of
this Agreement, unless otherwise specified or the context otherwise requires,
all accounting terms used in any Loan Document shall be interpreted, all
accounting determinations and
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computations hereunder or thereunder shall be made, and all financial statements
required to be delivered hereunder or thereunder shall be prepared, in
accordance with GAAP.
SECTION 2. THE COMMITMENTS AND THE LOANS
Subject to the terms and conditions of this Agreement and relying on
the representations and warranties herein set forth:
SECTION 2.1 Commitment. Each of the Banks, severally and for itself
alone, agrees, on the terms and conditions set forth herein, to make a term loan
(herein collectively called the "Loans" and individually called a "Loan") to the
Borrowers in the amounts set forth on Schedule 2.2 from the Closing Date until
the Borrowing Termination Date in such Bank's Percentage of the aggregate amount
of such Loans as the Borrowers may request from all Banks. The aggregate
principal amount of Loans which any Bank shall be committed to have outstanding
to the Borrowers shall not at any one time exceed the amount set opposite such
Bank's name on Schedule 2.1 and the aggregate principal amount of the Loans
which all Banks shall be committed to have outstanding hereunder to the
Borrowers shall not at any one time exceed $200,000,000 (or such reduced amount
as may be fixed pursuant to Sections 4.1, 4.2 and 10.2). The Loans to any
Borrower shall be disbursed in accordance with Section 2.2 and once repaid may
not thereafter be reborrowed. The foregoing commitment of each Bank is herein
called its "Commitment" and for all Banks the "Commitments."
SECTION 2.2 Procedure for Borrowings.
(a) Each Borrowing shall be made to each Borrower upon irrevocable
written notice (or by telephone promptly confirmed in writing) of Guarantor (on
behalf of such Borrower) delivered to the Administrative Agent in the form of a
Notice of Borrowing (which notice must be received by the Administrative Agent
prior to 11:00 A.M. (Chicago time) (i) three Business Days prior to the
requested Borrowing Date, in the case of Offshore Rate Loans and (ii) on the
requested Borrowing Date, in the case of Base Rate Loans, specifying:
(i) the amount of such Borrowing, which shall be in
an aggregate minimum amount of $1,000,000 for all Borrowers
requesting that a Borrowing be made pursuant to such Notice of
Borrowing or any integral multiple of $100,000 in excess
thereof; provided that the last Borrowing to be made under
this Agreement shall not be required to be in an integral
multiple of $100,000; and provided, further, that the
Borrowers, collectively,
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shall not be entitled to make more than thirty (30) Borrowings
hereunder in the aggregate;
(ii) the requested Borrowing Date, which shall be a
Business Day and the same Business Day for each Borrower to
which such Notice of Borrowing relates;
(iii) the Type of Loans comprising such Borrowing;
and
(iv) with respect to any Borrowing comprised of
Offshore Rate Loans, the duration of the Interest Period
applicable to such Offshore Rate Loan included in such notice.
If the Notice of Borrowing fails to specify the duration of
the Interest Period for any Borrowing comprised of Offshore
Rate Loans, such Interest Period shall be three (3) months.
(b) The Administrative Agent will promptly notify each Bank of
its receipt of any Notice of Borrowing and of the amount of such Bank's
Percentage of the related Borrowing(s).
(c) Each Bank will make the amount of its Percentage of each
Borrowing available to the Administrative Agent for the account of each Borrower
requesting a Loan at the Administrative Agent's Office by 1:00 P.M. (Chicago
time) on the Borrowing Date requested by such Borrower in funds immediately
available to the Administrative Agent. The proceeds of all such Loans will then
be made available to such Borrower by the Administrative Agent by wire transfer
in accordance with written instructions provided to the Administrative Agent by
such Borrower of like funds as received by the Administrative Agent.
(d) After giving effect to any Borrowing, unless the
Administrative Agent shall otherwise consent, there may not be more than one (1)
Interest Period in effect for all Loans then outstanding.
SECTION 2.3 Funding Reliance for Borrowings. Unless the Administrative
Agent shall have been notified by telephone, confirmed in writing, by any Bank
by 11:30 A.M. (Chicago time) on the relevant Borrowing Date that such Bank will
not make available the amount which would constitute its Percentage of the
related Borrowing(s), the Administrative Agent may assume, subject to the
satisfactory fulfillment by the Borrower requesting such Borrowing of the
conditions precedent set forth in Section 9, that such Bank shall make such
amount available to the Administrative Agent and, in reliance upon such
assumption the Administrative Agent may (but shall not be required to) make
available to such Borrower a corresponding amount. If and to the
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extent that such Bank shall not make such amount available to the Administrative
Agent, such Bank and such Borrower severally agree to repay the Administrative
Agent forthwith on demand such corresponding amount together with interest
thereon, for each day from the date the Administrative Agent made such amount
available to such Borrower to the date such amount is repaid to the
Administrative Agent, at the interest rate applicable at the time to the Type of
Loans comprising such Borrowing; provided that if such amount is repaid by such
Borrower and such Bank the Administrative Agent agrees to refund to such
Borrower any excess amount paid by such Borrower; and provided, further, that
such Borrower, upon the request of the Administrative Agent, agrees to return
such refund to the Administrative Agent, on demand, in the event the
Administrative Agent is legally required to return any amount received from such
Bank.
SECTION 2.4 Conversion and Continuation Elections. (a) Guarantor (on
behalf of the Borrowers) may, upon irrevocable written notice to the Agent in
accordance with Section 2.4(b):
(i) elect, as of any Business Day, in the case of Base Rate
Loans, or as of the last day of the applicable Interest Period, in
the case of Offshore Rate Loans, to convert any such Loans (or any
part thereof in an amount not less than $5,000,000, or that is in
an integral multiple of $1,000,000 in excess thereof) into Loans
of any other Type; or
(ii) elect as of the last day of the applicable Interest
Period, to continue any Offshore Rate Loans having Interest
Periods expiring on such day (or any part thereof) in an amount
not less than $5,000,000, or that is in an integral multiple of
$1,000,000 in excess thereof;
provided, that if at any time the aggregate amount of Offshore Rate Loans in
respect of any Borrowing is reduced, by payment, prepayment, or conversion of
part thereof to be less than $5,000,000, such Offshore Rate Loans shall
automatically convert into Base Rate Loans, and on and after such date the right
of Guarantor (on behalf of the Borrowers) to continue such Loans as, or convert
such Loans into, Offshore Rate Loans, as the case may be, shall terminate.
(b) Guarantor (on behalf of the Borrowers) shall deliver a Notice of
Conversion/Continuation to be received by the Agent not later than 9:00 A.M.
(San Francisco time) at least (i) three Business Days in advance of the
Conversion/Continuation Date, if the Loans are to be converted into or continued
as Offshore Rate Loans; and (ii) one Business Day in advance of the
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Conversion/Continuation Date, if the Loans are to be converted into Base Rate
Loans, specifying:
(A) the proposed Conversion/Continuation Date;
(B) the aggregate amount of Loans to be converted or
continued;
(C) the Type of Loans resulting from the proposed conversion
or continuation; and
(D) in the case of conversions into Offshore Rate Loans, the
duration of the requested Interest Period.
(c) If upon the expiration of any Interest Period applicable to
Offshore Rate Loans, Guarantor (on behalf of the Borrowers) has failed to select
timely a new Interest Period to be applicable to such Offshore Rate Loans or if
any Default or Event of Default then exists, Guarantor (on behalf of the
Borrowers) shall be deemed to have elected to convert such Offshore Rate Loans
into Base Rate Loans effective as of the expiration date of such Interest
Period.
(d) The Administrative Agent will promptly notify each Bank of its
receipt of a Notice of Conversion/Continuation, or, if no timely notice is
provided by Guarantor (on behalf of the Borrowers), the Administrative Agent
will promptly notify each Bank of the details of any automatic conversion. All
conversions and continuations shall be made ratably according to the respective
outstanding principal amounts of the Loans with respect to which the notice was
given held by each Bank.
(e) Unless the Required Banks otherwise consent, during the existence
of a Default or Event of Default, Guarantor (on behalf of the Borrowers) may not
elect to have a Loan converted into or continued as an Offshore Rate Loan.
(f) After giving effect to any conversion or continuation of Loans,
unless the Administrative Agent shall otherwise consent, there may not be more
than one (1) Interest Period in effect for all Loans hereunder.
SECTION 2.5 Repayment of Loans. Subject to the provisions of Sections
4.1 and 4.2, the Loans of each Bank shall be payable in full (and each Borrower
agrees to pay such Loans) on the Termination Date.
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SECTION 2.6 Loan Accounts; Record Keeping.
(a) The Loans made by each Bank shall be evidenced by one or more
loan accounts or records maintained by such Bank in the ordinary course of
business and the Administrative Agent. The loan accounts or records maintained
by the Administrative Agent and each Bank shall be conclusive absent manifest
error of the amount of the Loans made by the Banks to the Borrowers and the
interest and payments thereon; provided, that in the event of a conflict between
information recorded by the Administrative Agent and any Bank as to such Bank's
Loans, the records of the Administrative Agent absent manifest error shall
control. Any failure to so record or any error in doing so shall not, however,
limit or otherwise affect the obligations of any Borrower hereunder or to pay
any amount owing with respect to the Loans.
(b) The Loans made by the Banks to each Borrower shall, upon the
request of the Administrative Agent, be evidenced by a Note executed and
delivered by such Borrower payable to the Administrative Agent, for the benefit
of the Banks, in an aggregate principal amount equal to the aggregate
Commitments of the Banks to make Loans to such Borrower instead of or in
addition to loan accounts. The Administrative Agent shall endorse on the
schedules annexed to each Note the date, amount and maturity of each Loan made
by the Banks to such Borrower and the amount of each payment of principal made
by such Borrower with respect thereto. The Administrative Agent is irrevocably
authorized by each Borrower to endorse the Note of such Borrower and the
Administrative Agent's record shall be conclusive absent manifest error;
provided, however, that the failure of the Administrative Agent to make, or an
error in making, a notation thereon with respect to any Loan shall not limit or
otherwise affect the obligations of any Borrower hereunder or under any such
Note to any Bank.
SECTION 3. INTEREST AND FEES
SECTION 3.1 Interest Rates. With respect to each Loan made to any
Borrower hereunder, such Borrower hereby promises to pay interest on the unpaid
principal amount thereof for the period commencing on the Borrowing Date of such
Loan until such Loan is paid in full as follows:
(a) at all times while such Loan or any portion thereof is a Base
Rate Loan, at a rate per annum equal to the Base Rate from time to time
in effect minus 2.00%.
(b) at all times while such Loan or any portion thereof is an
Offshore Rate Loan, at a rate per annum equal to the
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Offshore Rate, plus the Eurodollar Rate Committed Margin (as defined
in the Revolving Credit Agreement) plus .125% per annum.
SECTION 3.2 Default Interest Rate. Notwithstanding the provisions of
Section 3.1, in the event that any Default under Section 10.1.2 or any Event of
Default shall occur with respect to any Borrower, such Borrower hereby promises
to pay, automatically in the case of a Default under Section 10.1.2 or upon
demand therefor by the Administrative Agent for any Event of Default (other than
pursuant to Section 10.1.2), interest on the unpaid principal amount of the
Loans of such Borrower (and interest thereon to the extent permitted by law) for
the period commencing on the date of such Default or demand until such Loans are
paid in full or such Default or Event of Default is cured or waived in
accordance with Sections 10.2 and 13.1 at a rate per annum equal to the
applicable interest rate from time to time in effect (but not less than the
applicable interest rate as at such date of demand), plus two percent (2%) per
annum.
SECTION 3.3 Interest Payment Dates. Interest on each Loan shall be paid
in arrears on each Interest Payment Date. Interest shall also be paid on the
date of any prepayment of Loans under Section 4.1 or 4.2 for the portion of the
Loans so prepaid and upon payment (including prepayment) in full thereof and
during the existence of any Event of Default, interest shall be paid on demand
of the Administrative Agent at the request or with the consent of the Required
Banks. After maturity, accrued interest on the Loans shall be payable on demand.
SECTION 3.4 Setting and Notice of Rates. The applicable Offshore Rate
shall be determined by the Administrative Agent. Each determination of the
applicable Offshore Rate shall be conclusive and binding upon the parties
hereto, in the absence of manifest error. If the Administrative Agent is unable
to determine such a rate, the provisions of Section 5.3 shall apply. The
Administrative Agent shall, upon written request of Guarantor (on behalf of the
Borrowers) or a Bank, deliver to Guarantor (on behalf of the Borrowers) or such
Bank a statement showing the computations used by the Administrative Agent in
determining any applicable Offshore Rate hereunder.
SECTION 3.5 Fees. The Borrowers agree to pay the fees set forth in the
Summary of Indicative Terms and Conditions dated August 10, 1998, for the sole
benefit of the Administrative Agent.
SECTION 3.6 Computation of Interest and Fees. Interest on Offshore Rate
Loans shall be computed for the actual number of days elapsed on the basis of a
360-day year, and interest on Base
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Rate Loans shall be computed for the actual number of days elapsed on the basis
of a 365/366-day year. Each determination of an interest rate by the
Administrative Agent shall be conclusive and binding on the Borrowers and the
Banks in the absence of manifest error. Notwithstanding anything contained
herein to the contrary interest on the Loans shall not exceed the maximum
interest permitted by applicable law.
SECTION 4. PAYMENTS AND PREPAYMENTS
SECTION 4.1 Voluntary Termination or Reduction of Commitments. Each
Borrower may, upon not less than three (3) Business Days' irrevocable prior
written notice to the Administrative Agent (which shall promptly advise each
Bank thereof), terminate the Commitments of the Banks relating to such Borrower
or permanently reduce such Commitments by an aggregate minimum amount of
$100,000 or any integral multiple of $100,000 in excess thereof; unless, after
giving effect thereto and to any prepayments of Loans made on the effective date
thereof, the then outstanding principal amount of the Loans of such Borrower
would exceed the amount of the aggregate Commitments then in effect with respect
to such Borrower. Once reduced in accordance with this Section, such
Commitments, to the extent terminated or permanently reduced, may not be
increased. Any reduction of the Commitments of such Borrower pursuant to this
Section 4.1 shall be applied in accordance with Section 4.4.
SECTION 4.2 Optional Prepayments. Each Borrower may, at any time or
from time to time, upon not less than three (3) Business Day's irrevocable
written notice with respect to such Borrower's Loans to the Administrative Agent
by 11:00 A.M. (Chicago time), ratably prepay such Loans in whole or in part, in
minimum amounts of $100,000 or any integral multiple of $100,000 in excess
thereof (unless such Borrower is prepaying the total amount of the Loans then
outstanding with respect to such Borrower). Such notice of prepayment shall
specify the date, the amount of such prepayment and the Types of Loans to be
prepaid. The Administrative Agent will promptly notify each Bank of its receipt
of any such notice, and of such Bank's Percentage of such prepayment. If such
notice is given by such Borrower, such Borrower shall make such prepayment and
the payment amount specified in such notice shall be due and payable on the date
specified therein, together with accrued interest to each such date on the
amount prepaid and any amounts required pursuant to Section 5.5. Any prepayment
of the Loans of such Borrower pursuant to this Section 4.2 shall be applied in
accordance with Section 4.4 and shall reduce the Commitments of the Banks with
respect to such Borrower as set forth therein.
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SECTION 4.3 Payments by the Borrowers.
(a) All payments to be made by any Borrower hereunder shall be
made without set-off, recoupment or counterclaim. Except as otherwise expressly
provided herein, all payments by such Borrower shall be made to the
Administrative Agent for the account of the Banks at the Administrative Agent's
Office, and shall be made in Dollars and in immediately available funds, no
later than 12:30 P.M. (Chicago time) on the date specified herein. The
Administrative Agent will promptly distribute to each Bank its Percentage (or
other applicable share as expressly provided herein) of such payment in like
funds as received. Any payment received by the Administrative Agent later than
12:30 P.M. (Chicago time) shall be deemed to have been received on the following
Business Day and any applicable interest or fee shall continue to accrue.
(b) Subject to the provisions set forth in the definition of
Interest Period, whenever any payment is due on a day other than a Business Day,
such payment shall be made on the following Business Day, and such extension of
time shall in such case be included in the computation of interest or fees, as
the case may be.
(c) Unless the Administrative Agent receives notice from the
applicable Borrower prior to the date on which any payment is due to the Banks
that such Borrower will not make such payment in full as and when required, the
Administrative Agent may assume that such Borrower has made such payment in full
to the Administrative Agent on such date in immediately available funds and the
Administrative Agent may (but shall not be so required), in reliance upon such
assumption, distribute to each Bank on such due date an amount equal to the
amount then due such Bank. If and to the extent such Borrower has not made such
payment in full to the Administrative Agent, each Bank shall repay to the
Administrative Agent on demand such amount distributed to such Bank, together
with interest thereon at the Federal Funds Effective Rate for each day from the
date such amount is distributed to such Bank until the date repaid.
SECTION 4.4 Application of Prepayments. Except as otherwise set forth
in this Agreement, any reduction in the Commitments pursuant to Sections 4.1 and
4.2 shall be applied to a reduction of the remaining Commitments and prepayment
of the Loans of each Bank, pro rata, according to its Percentage.
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SECTION 4.5 Sharing of Payments.
(a) If any Bank shall obtain any payment or other recovery
(whether voluntary, involuntary, by application of offset or otherwise)
on account of the Loans (other than pursuant to the terms of Sections
5, 12.1 and 13.2) in excess of its pro rata share (based on its
Percentage) of payments and other recoveries obtained by all Banks of
the Loans on account of principal of and interest on the Loans, such
Bank shall purchase from the other Banks such participation in the
Loans as shall be necessary to cause such purchasing Bank to share the
excess payment or other recovery ratably with each of them; provided,
however, that if all or any portion of the excess payment or other
recovery is thereafter recovered from such purchasing Bank, the
purchase shall be rescinded and each Bank which has sold a
participation to the purchasing Bank shall repay to the purchasing Bank
the purchase price to the ratable extent of such recovery together with
an amount equal to such selling Bank's ratable share (according to the
proportion of (i) the amount of such selling Bank's required repayment
to the purchasing Bank to (ii) the total amount so recovered from the
purchasing Bank) of any interest or other amount paid or payable by the
purchasing Bank in respect of the total amount so recovered.
(b) Each Borrower agrees that any Bank so purchasing a
participation from another Bank pursuant to Section 4.5(a) may, to the
fullest extent permitted by law, exercise all its rights of payment
(including pursuant to Section 4.6) with respect to such participation
as fully as if such Bank were the direct creditor of such Borrower in
the amount of such participation. If under any applicable bankruptcy,
insolvency or other similar law, any Bank receives a secured claim in
lieu of a setoff to which this Section applies, such Bank shall, to the
extent practicable, exercise its rights in respect of such secured
claim in a manner consistent with the rights of the Banks entitled
under this Section 4.5(b) to share in the benefits of any recovery of
such secured claim.
SECTION 4.6 Setoff. Each Bank shall, upon the occurrence of any Event
of Default under Section 10.1.1, the occurrence of a Default under Section
10.1.2, or, with the consent of the Required Banks, upon the occurrence of any
other Event of Default, have the right to appropriate and apply to the payment
of the Liabilities owing to it (whether or not then due), and
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(as security for such Liabilities) each Borrower hereby grants to each Bank a
continuing security interest in, any and all balances, credits, deposits,
accounts or moneys of such Borrower then or thereafter maintained with such
Bank. Any such appropriation and application shall be subject to the provisions
of Section 4.5. Each Bank agrees promptly to notify such Borrower and the
Administrative Agent after any such setoff and application made by such Bank;
provided, however, that the failure to give such notice shall not affect the
validity of such setoff and application. The rights of each Bank under this
Section 4.6 are in addition to other rights and remedies (including other rights
of setoff under applicable law or otherwise) which such Bank may have.
SECTION 4.7 Net Payments. All payments by any Borrower of principal of,
and interest on, the Loans and all other amounts payable hereunder shall be made
free and clear of and without deduction for any present or future income, stamp
or other Taxes, fees, duties, withholdings or other charges of any nature
whatsoever imposed by any taxing authority, other than Taxes imposed on or
measured by any Bank's net income or receipts with respect to payments received
hereunder (such non-excluded items being called "Charges"). In the event that
any withholding or deduction from any payment to be made by any Borrower
hereunder is required in respect of any Charges pursuant to any applicable law,
rule or regulation, then such Borrower will:
(a) pay directly to the relevant authority the full amount
required to be so withheld or deducted;
(b) promptly forward to the Administrative Agent an official
receipt or other documentation satisfactory to the Administrative Agent
evidencing such payment to such authority;
(c) pay to the Administrative Agent for the account of the Banks
such additional amount or amounts as are necessary to ensure that the
net amount actually received by each Bank will equal the full amount
such Bank would have received had no such withholding or deduction been
required; and
(d) if any Bank receives a refund in respect of any Taxes as to
which it has been indemnified by any Borrower or with respect to which
any Borrower (or any Person acting on behalf of such Borrower) has paid
additional amounts pursuant to this Section 4.7, it shall promptly
repay such refund (but only to the extent of indemnity payments made,
or additional amounts paid, by such Borrower (or such Person acting on
behalf of
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such Borrower) under this Section 4.7 with respect to the Taxes giving
rise to such refund), net of all out-of-pocket expenses of such Bank or
the Administrative Agent, as the case may be; provided, that such
Borrower, upon the request of such Bank or the Administrative Agent,
agrees to return such refund (together with any penalties, interest or
other charges due in connection therewith to the appropriate taxing
authority or other Governmental Authority) to such Bank or the
Administrative Agent in the event such Bank or the Administrative Agent
is required to pay or to return such refund to the relevant taxing
authority or other Governmental Authority.
Each Bank that is organized under the laws of a jurisdiction other than the
United States shall, prior to the due date of any payments under the Loans,
execute and deliver to the Borrowers, on or about the first scheduled payment
date in each calendar year, a United States Internal Revenue Service Form 4224
or Form 1001, as may be applicable (or any successor form), appropriately
completed. Without prejudice to the survival of any other agreement of the
Borrowers hereunder or any other document, the agreements of the Borrowers
contained in this Section shall survive satisfaction of the Liabilities and
termination of this Agreement.
SECTION 5. CHANGES IN CIRCUMSTANCES
SECTION 5.1 Increased Costs. If (a) Regulation D, or (b) after the
Closing Date, the adoption of any applicable law, rule or regulation, or any
change therein, 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 any
Lending Office of such Bank) with any request or directive (whether or not
having the force of law) of any such authority, central bank or comparable
agency,
(i) shall subject any Bank (other than a Defaulting Bank) (or any
Lending Office of such Bank) to any tax, duty or other charge or shall
change the basis of taxation of payments to any Bank (other than a
Defaulting Bank) of the principal of, or interest on, any other amounts
due under this Agreement in respect of its Loans or its obligation to
make Loans (except for changes in the rate of Tax, other than Taxes
covered by Section 4.7, on the overall gross or net income of such Bank
or its Lending Office); or
24
(ii) shall impose, modify or deem applicable any reserve
(including, without limitation, any reserve imposed by the FRB, but
excluding any reserve included in the determination of interest rates
pursuant to Section 3), special deposit or similar requirement against
assets of, deposits with or for the account of, or credit extended by,
any Bank (other than a Defaulting Bank) (or any Lending Office of such
Bank); or
(iii) shall impose on any Bank (other than a Defaulting Bank) (or
its Lending Office) any other condition affecting its Loans;
and the result of any of the foregoing is to increase the cost to (or in the
case of Regulation D referred to above, to impose a cost on) such Bank (or any
Lending Office of such Bank) of making or maintaining Offshore Rate Loans to
reduce the amount of any sum received or receivable by such Bank (or the Lending
Office of such Bank) under this Agreement or under its Loans with respect
thereto, then within thirty (30) days after demand by such Bank (which demand
shall be accompanied by a statement setting forth in reasonable detail the basis
of such demand and the calculation of such additional amount), the relevant
Borrowers shall pay directly to such Bank such additional amount or amounts as
will compensate such Bank for such increased cost or such reduction. Each Bank
shall promptly, but in no event more than ninety (90) days after it has
knowledge thereof, notify such Borrower of any event occurring after the date
hereof, which will entitle such Bank to compensation pursuant to this Section
5.1.
SECTION 5.2 Change in Rate of Return. If any change in, or the
introduction, adoption, effectiveness, interpretation, reinterpretation or
phase-in of, any law or regulation, directive, guideline, decision or request
(whether or not having the force of law) of any court, central bank, regulator
or other Governmental Authority affects or would affect the amount of capital
required or expected to be maintained by any Bank (other than a Defaulting Bank)
or any Person controlling such Bank, and such Bank reasonably determines that
the rate of return on its or such controlling Person's capital as a consequence
of the Loans made by such Bank (or any participating interest therein held by
such Bank) is reduced to a level below that which such Bank or such controlling
Person could have achieved but for the occurrence of any such circumstance,
then, in any such case the relevant Borrowers shall, within thirty (30) days
after written demand by such Bank to such Borrowers, pay directly to such Bank
additional amounts sufficient to compensate such Bank or such controlling Person
for such reduction in rate of return. A statement of such Bank as to any such
additional amount or
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amounts (including calculations thereof in reasonable detail) shall, in the
absence of manifest error, be conclusive and binding on such Borrowers. In
determining such amount, such Bank may use any method of averaging and
attribution that it shall deem reasonably applicable. Each Bank shall promptly,
but in no event more than ninety (90) days after it has knowledge thereof,
notify such Borrowers of any event occurring after the Closing Date, which will
entitle such Bank to compensation pursuant to this Section 5.2.
SECTION 5.3 Basis for Determining Interest Rate Inadequate or Unfair.
If with respect to any Interest Period:
(a) deposits in Dollars (in the applicable amounts) are not being
offered to the Administrative Agent in the offshore dollar interbank
market for such Interest Period, or the Administrative Agent otherwise
determines (which determination shall be conclusive and binding on all
parties) that by reason of circumstances affecting the offshore dollar
interbank market adequate and reasonable means do not exist for
ascertaining the applicable Offshore Rate; or
(b) any Bank advises the Administrative Agent that the Offshore
Rate as determined by the Administrative Agent, will not adequately and
fairly reflect the cost to such Bank of maintaining or funding such
Loan for such Interest Period, or that the making or funding of
Offshore Rate Loans has become impracticable as a result of an event
occurring after the Closing Date which in the opinion of such Bank
materially changes such Loans;
then, so long as such circumstances shall continue:
(i) the Administrative Agent shall promptly notify Guarantor (on
behalf of the Borrowers) and the Banks thereof,
(ii) no Bank shall be under any obligation to make or continue or
convert into Offshore Rate Loans so affected, and
(iii) on the last day of the then current Interest Period for
Offshore Rate Loans so affected, such Offshore Rate Loans shall, unless
then repaid in full, automatically convert to Base Rate Loans.
Notwithstanding the foregoing, the Administrative Agent and each Bank shall take
any reasonable actions available to it (including designation of a different
Lending Office),
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consistent with legal and regulatory restrictions, that will avoid the need to
take the steps described in this Section 5.3, which will not, in the reasonable
judgment of the Administrative Agent or such Bank, be disadvantageous to the
Administrative Agent or such Bank.
SECTION 5.4 Changes in Law Rendering Certain Loans Unlawful. In the
event that any change in (including the adoption of any new) applicable laws or
regulations, or any change in the interpretation of applicable laws or
regulations by any governmental or other regulatory body charged with the
administration thereof, should make it unlawful for a Bank or the Lending Office
of such Bank ("Affected Bank") to make, maintain or fund Offshore Rate Loans,
then (a) the Affected Bank shall promptly notify each of the other parties
hereto, (b) the obligation of all Banks to make or continue or convert into
Offshore Rate Loans or make Offshore Rate Loans made unlawful for the Affected
Bank shall, upon the effectiveness of such event, be suspended for the duration
of such unlawfulness, and (c) on the last day of the current Interest Period for
Offshore Rate Loans (or, in any event, if the Affected Bank so requests, on such
earlier date as may be required by the relevant law, regulation or
interpretation), the Offshore Rate Loans shall, unless then repaid in full,
automatically convert to Base Rate Loans. Notwithstanding the foregoing, the
Administrative Agent and each Bank shall take any reasonable actions available
to it (including designation of a different Lending Office), consistent with
legal and regulatory restrictions, that will avoid the need to take the steps
described in this Section 5.4, which will not, in the reasonable judgment of the
Administrative Agent or such Bank, be disadvantageous to Administrative Agent or
such Bank.
SECTION 5.5 Funding Losses. Each Borrower hereby agrees that upon
demand by any Bank to the Administrative Agent (which demand shall be made
within three (3) Business Days after receipt of notice of any payment or
proposed payment by such Borrower under this Agreement giving rise to
indemnification under this Section 5.5 and shall be accompanied by a statement
setting forth in reasonable detail using the methodology set forth in Exhibit I)
such Borrower will indemnify such Bank against any loss or expense which such
Bank may sustain or incur (including, without limitation, any loss or expense
incurred by reason of the liquidation or reemployment of deposits or other funds
acquired by such Bank to fund or maintain Offshore Rate Loans), as reasonably
determined by such Bank, as a result of (a) any payment or prepayment or
conversion of any Offshore Rate Loans of such Bank on a date other than the last
day of an Interest Period for such Offshore Rate Loan, or (b) any failure of
such Borrower to borrow on the date of any Borrowing set
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forth in any Notice of Borrowing or (c) any failure of such Borrower to convert
or continue any portion of the Loans on a date specified therefor in the Notice
of Continuation/Conversion delivered pursuant to this Agreement. For this
purpose, all notices to the Administrative Agent pursuant to this Agreement
shall be deemed to be irrevocable.
SECTION 5.6 Right of Banks to Fund Through Other Offices. Each Bank
may, if it so elects, fulfill its commitment as to any Offshore Rate Loans by
causing any of its Lending Offices to make such Offshore Rate Loans; provided,
that in such event for the purposes of this Agreement, such Loan shall be deemed
to have been made by such Bank and the obligation of the Borrower to repay such
Offshore Rate Loan shall nevertheless be to such Bank and shall be deemed held
by it, to the extent of such Offshore Rate Loan, for the account of such branch
or affiliate.
SECTION 5.7 Discretion of Banks as to Manner of Funding.
Notwithstanding any provision of this Agreement to the contrary, each Bank shall
be entitled to fund and maintain its funding of all or any part of its Loans in
any manner it sees fit, it being understood, however, that for the purposes of
this Agreement all determinations hereunder shall be made as if such Bank had
actually funded and maintained each Offshore Rate Loan during each Interest
Period for such Loan through the purchase of deposits having a maturity
corresponding to such Interest Period and bearing an interest rate equal to the
Offshore Rate, as the case may be, for such Interest Period.
SECTION 5.8 Replacement of Banks. If any Bank shall become affected by
any of the changes or events described in Section 5.1, 5.2, 5.3(b), or 5.4 above
(any such Bank being hereinafter referred to as a "Replaced Bank") and shall
petition the relevant Borrowers for any increased cost or amounts thereunder,
then in such case, Guarantor (on behalf of the Borrowers) may, upon at least
five (5) Business Days' notice to the Administrative Agent and such Replaced
Bank, designate a replacement bank (a "Replacement Bank") acceptable to the
Administrative Agent in its reasonable discretion, to which such Replaced Bank
shall, subject to its receipt (unless a later date for the remittance thereof
shall be agreed upon by the relevant Borrowers and the Replaced Bank) of all
amounts owed to such Replaced Bank under Section 5.1, 5.2, 5.3(b), or 5.4 above,
assign all (but not less than all) of its rights, obligations, Loans and
Commitment hereunder and execute an Assignment Agreement with such Replacement
Bank; provided, that all Liabilities (except Liabilities which by the terms
hereof survive the payment in full of the Loans and termination of this
Agreement) due and payable to the Replaced Bank shall be paid in full as of the
date of such assignment. Upon any assignment by
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any Bank pursuant to this Section 5.8 becoming effective, the Replacement Bank
shall thereupon be deemed to be a "Bank" for all purposes of this Agreement and
such Replaced Bank shall thereupon cease to be a "Bank" for all purposes of this
Agreement and shall have no further rights or obligations hereunder (other than
pursuant to Sections 5.1, 5.2, 5.5, 11.5 and 13.4, and Sections 7.1 and 7.2 of
the Guaranty while such Replaced Bank was a Bank). Notwithstanding any Replaced
Bank's failure or refusal to assign its rights, obligations, Loans and
Commitment under this Section 5.8, the Replaced Bank shall cease to be a "Bank"
for all purposes of this Agreement and the Replacement Bank substituted therefor
upon payment to the Replaced Bank by the Replacement Bank of all amounts set
forth in this Section 5.8 without any further action of the Replaced Bank.
SECTION 5.9 Conclusiveness of Statements; Survival of Provisions.
Determinations and statements of the Administrative Agent or any Bank pursuant
to Sections 5.1, 5.2, 5.3, 5.4 and Section 5.5 shall be conclusive absent
demonstrable error. The provisions of Sections 5.1, 5.2, 5.5 and this Section
5.9 shall survive termination of this Agreement.
SECTION 6. COLLATERAL AND OTHER SECURITY
SECTION 6.1 Collateral Documents. Concurrently with or prior to the
Closing Date:
(a) Pledge Agreement. The Borrowers shall execute and deliver to
the Administrative Agent, for the benefit of the Banks, a pledge
agreement, substantially in the form of Exhibit D (herein, as the same
may be amended or modified, called the "Pledge Agreement"), whereby
each of the Borrowers shall pledge all of the issued and outstanding
common stock of Guarantor owned by each Borrower and purchased with
proceeds of the Loans.
(b) Guaranty. Guarantor shall execute and deliver to the
Administrative Agent the Guaranty, covering (i) the payment and
performance of all of the Liabilities and (ii) the other Obligations.
SECTION 6.2 Application of Proceeds from Collateral. As to each
Borrower, all proceeds received by the Administrative Agent from the sale or
disposition of any of the Direct Collateral furnished by such Borrower pursuant
to this Agreement or Indirect Collateral furnished by Guarantor pursuant to the
Guaranty shall be applied by the Administrative Agent in the following order
after receipt thereof:
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First: to the payment of all of the reasonable costs and
expenses of the Administrative Agent in connection with (a) the
administration, sale or disposition of such Direct Collateral or
Indirect Collateral, as the case may be, and (b) the
administration and enforcement of this Agreement and the other
Loan Documents, to the extent that such costs and expenses shall
not have been reimbursed to the Administrative Agent;
Second: to the payment in full of all accrued and unpaid
interest on the Loans of such Borrower, then to the payment in
full of all unpaid principal of the Loans of such Borrower, and
then to any remaining Liabilities of such Borrower;
Third: the balance, if any, of such proceeds shall be
paid to such Borrower, to such Borrower's heirs and assigns,
or as a court of competent jurisdiction may direct.
SECTION 6.3 Further Assurances. Each Borrower agrees that upon request
of the Administrative Agent (a) such Borrower shall promptly deliver or cause to
be delivered to the Administrative Agent, in due form for transfer, all chattel
paper, instruments, securities and documents of title, if any, at any time
representing all or any of the Direct Collateral, and (b) such Borrower shall
forthwith execute and deliver or cause to be executed and delivered to the
Administrative Agent, in due form for filing or recording (and pay the cost of
filing or recording the same in all public offices deemed necessary by the
Administrative Agent), such further assignment agreements, security agreements,
pledge agreements, instruments, consents, waivers, financing statements, stock
or bond powers, searches, releases, and other documents, and do such other acts
and things, all as the Administrative Agent may from time to time reasonably
request to establish and maintain to the satisfaction of the Administrative
Agent a valid perfected Lien on all Direct Collateral (free of all other Liens)
to secure payment of the Liabilities.
SECTION 7. REPRESENTATIONS AND WARRANTIES OF BORROWERS
To induce the Administrative Agent and the Banks to enter into this
Agreement and to make the Loans hereunder, each Borrower represents and warrants
to the Administrative Agent and to each of the Banks that:
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SECTION 7.1 No Conflict. The execution, delivery and performance by
such Borrower of this Agreement and the other Loan Documents to which such
Borrower is a party does not and will not (a) contravene or conflict with any
provision of any law, statute, rule or regulation applicable to such Borrower,
(b) contravene or conflict with, result in any breach of, or constitute a
default under, any material agreement or instrument binding on such Borrower
(including, without limitation, any writ, judgment, injunction or other similar
court order) or (c) result in the creation or imposition of or the obligation to
create or impose any Lien upon any of the property or assets of such Borrower
(except for the Lien of the Administrative Agent).
SECTION 7.2 Validity. This Agreement and the other Loan Documents to
which such Borrower is a party constitute or upon execution and delivery will
constitute the legal, valid and binding obligation of such Borrower enforceable
in accordance with its terms subject to (a) applicable bankruptcy, insolvency,
reorganization, moratorium, or similar laws affecting creditors' rights
generally and (b) general equitable principles, including without limitation,
concepts of good faith and fair dealing, materiality, fraudulent transfer and
reasonableness (regardless of whether considered in a proceeding in equity or at
law).
SECTION 7.3 Financial Statements. Such Borrower's financial statement
as at December 31, 1997, delivered to the Administrative Agent, accurately
present the financial condition of such Borrower at such date.
SECTION 7.4 Material Adverse Change. No Material Adverse Change has
occurred since December 31, 1997 as to such Borrower.
SECTION 7.5 Litigation and Contingent Obligations. No Material
Litigation is pending as to such Borrower or, to the best of such Borrower's
knowledge, threatened as to such Borrower, and such Borrower has no material
Contingent Obligations.
SECTION 7.6 Liens. None of the Direct Collateral pledged by such
Borrower is subject to any Lien (except for the Lien of the Administrative
Agent).
SECTION 7.7 Taxes. Such Borrower has filed all material Tax Returns and
Reports required by law to have been filed by such Borrower and has paid Taxes
thereby shown to be owing, except any such Taxes which are being diligently
contested in good faith by appropriate proceedings. There is no ongoing audit
or, to the best of such Borrower's knowledge, other governmental investigation
of the tax liability of such Borrower and there is no unresolved claim by a
taxing authority
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concerning such Borrower's tax liability, for any period for which returns have
been filed or were due.
SECTION 7.8 Accuracy of Information. All factual information heretofore
or contemporaneously furnished by or on behalf of such Borrower in writing to
the Administrative Agent or any Bank for purposes of or in connection with this
Agreement or any transaction contemplated hereby is, and all other such factual
information hereafter furnished by or on behalf of such Borrower to the
Administrative Agent or any Bank will be, true and accurate in every material
respect on the date as of which such information is dated or certified and,
except as such information speaks solely as of a particular date, such
information is not, or shall not be, as the case may be, incomplete by omitting
to state any material fact necessary to make such information not misleading.
SECTION 7.9 Proceeds. The proceeds of the Loans made to such Borrower
will be used solely to purchase up to 4,500,000 shares of common stock of
Guarantor.
SECTION 7.10 Securities Laws. Neither such Borrower nor, to the best of
such Borrower's knowledge, any of its Affiliates, nor anyone acting on behalf of
any such Person, has directly or indirectly offered any interest in the Loans or
any other Liabilities for sale to, or solicited any offer to acquire any such
interest from, or has sold any such interest to, any Person that would subject
the making of the Loans or any other Liabilities to registration under the
Securities Act of 1933, as amended.
SECTION 7.11 Solvency. Such Borrower is and, after consummation of this
Agreement and after giving effect to all Indebtedness incurred by such Borrower
in connection herewith, will be, Solvent.
SECTION 7.12 No Default. Such Borrower is not in default under any
agreement or instrument to which such Borrower is a party or by which any of its
properties or assets is bound or affected, which default might reasonably be
expected to have a Material Adverse Effect.
SECTION 7.13 Organization, etc. Each Borrower (other than any Borrower
which is an individual) is a partnership or irrevocable trust duly organized,
validly existing and, with respect to any partnership, in good standing under
the laws of the state of its formation and each partnership Borrower is duly
qualified to transact business as a foreign partnership authorized to do
business in each jurisdiction where the nature of its business makes such
qualification necessary and failure
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to so qualify could reasonably be expected to have a Material Adverse Effect.
SECTION 7.14 Authorization. Each Borrower (other than any Borrower
which is an individual) (a) has the power to execute, deliver and perform this
Agreement and the other Loan Documents to which it is a party, and (b) has taken
all necessary action to authorize the execution, delivery and performance by it
of this Agreement and the other Loan Documents to which it is a party.
SECTION 7.15 Margin Regulations.
(a) None of the obligations of such Borrower to Guarantor is or will be
secured, directly or indirectly, by Margin Stock;
(b) Neither Guarantor nor any third party acting on behalf of Guarantor
has taken or will take possession of such Borrower's Margin Stock to secure,
directly or indirectly, any of the obligations of such Borrower to Guarantor;
(c) Guarantor does not and will not have any right to prohibit such
Borrower from selling, pledging, encumbering or otherwise disposing of any
Margin Stock owned by such Borrower so long as the Guaranty is in effect or any
of the obligations of such Borrower or the obligations of Guarantor under the
this Agreement, the Guaranty or any of the Loan Documents remain outstanding;
(d) Such Borrower has not granted and will not grant Guarantor or any
third party acting on behalf of Guarantor the right to accelerate repayment of
any of the obligations under this Agreement of such Borrower if any of the
Margin Stock owned by such Borrower is sold by such Borrower or otherwise; and
(e) There is no agreement or other arrangement between such Borrower
and Guarantor or any third party acting on behalf of Guarantor (and no such
agreement or arrangement shall be entered into so long as this Agreement or
Guaranty is in effect or any of the Obligations of such Borrower or the
obligations of Guarantor under the Guaranty or any of the Loan Documents remain
outstanding) under which the Margin Stock of such Borrower would be made more
readily available as security to Guarantor than to other creditors of such
Borrower.
SECTION 7.16 No Default or Event of Default. No Default or Event of
Default (as such terms are defined in the Existing Credit Agreement) has
occurred and is continuing under the Existing Credit Agreement.
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SECTION 8. COVENANTS OF BORROWERS
Each Borrower agrees that, on and after the Closing Date until the
termination or expiration of the Commitments and for so long thereafter as any
of the Liabilities remain unpaid or outstanding (except Liabilities which by the
terms hereof survive the payment in full of the Loans and termination of this
Agreement), such Borrower will:
SECTION 8.1 Reports, Certificates and Other Information. Unless otherwise
provided herein, furnish or cause to be furnished to the Administrative Agent
and each Bank:
8.1.1 Borrower Financials. Upon the request of the Administrative
Agent, a financial statement of such Borrower in a form acceptable to the
Required Banks;
8.1.2 Tax Returns and Reports. If requested by the Administrative Agent
or the Required Banks, copies of all federal, state, local and foreign Tax
Returns and Reports filed by such Borrower;
8.1.3 Notice of Default and Litigation. Promptly upon learning of the
occurrence of any of the following, written notice thereof, describing the
same and the steps being taken by such Borrower with respect thereto:
(a) the occurrence of a Default;
(b) the institution of any Material Litigation or the occurrence
of any Material Litigation Development as to such Borrower;
(c) the commencement of any dispute which might reasonably be
expected to lead to the material modification, transfer, revocation,
suspension or termination of any Loan Document; or
(d) any Material Adverse Change as to such Borrower;
8.1.4 Collateral Ratio. Upon the request of the Administrative Agent or
the Required Banks, cause Guarantor (on behalf of the Borrowers) to provide
to the Administrative Agent, for the benefit of the Banks, a computation of
the Collateral Ratio certified by its chief financial officer or a vice
president with responsibility for or knowledge of financial matters of
Guarantor. Nothing contained in this Section 8.1.4 shall
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be deemed to limit in any way whatsoever the Administrative Agent's right,
on behalf of the Banks, to calculate the Loan Value of Direct Collateral or
the Loan Value of Indirect Collateral or the Collateral Ratio at any time
it deems appropriate or necessary. If after making such calculation, the
Administrative Agent or the Required Banks determine that the amount of
such Collateral Ratio is different from the Collateral Ratio most recently
provided by Guarantor or the Administrative Agent, as the case may be, the
Administrative Agent shall deliver written notice of such amount to
Guarantor (on behalf of the Borrowers); provided that the Administrative
Agent's failure to deliver such notice shall not prejudice the rights of
the Administrative Agent and the Banks or the obligations of the Borrowers
under this Agreement or the other Loan Documents; and
8.1.5 Other Information. From time to time, such other information
concerning such Borrower as the Administrative Agent or a Bank may
reasonably request.
SECTION 8.2 Taxes and Liabilities. Pay when due all of its Taxes and
other material liabilities, except as contested in good faith and by appropriate
proceedings.
SECTION 8.3 Compliance with Laws. Comply with all federal, state and
local laws, rules and regulations related to such Borrower, except where such
failure to comply could not reasonably be expected to have a Material Adverse
Effect.
SECTION 8.4 Other Agreements. Not enter into any agreement containing
any provision which (a) would be violated or breached by the performance of its
obligations hereunder or under any instrument or document delivered or to be
delivered by such Borrower hereunder or in connection herewith, (b) prohibits or
restricts the ability of such Borrower to amend or otherwise modify this
Agreement, any other Loan Document or any other document executed in connection
herewith or (c) constitutes an agreement to a limitation or restriction of the
type described in clauses (a) and (b) with respect to any other Indebtedness.
SECTION 9. CONDITIONS AND EFFECTIVENESS OF
THIS AGREEMENT
The obligation of the Banks to make the Loans and the effectiveness of this
Agreement is subject to the performance by the Borrowers and Guarantor of all of
the obligations under this
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Agreement and to the satisfaction of the following conditions precedent:
SECTION 9.1 Initial Loans. Prior to or concurrent with the making of the
initial Loans, the Administrative Agent shall have received all of the
following, each, except to the extent otherwise specified below, duly executed
by such Borrower dated the date of the initial Loans (or such earlier date as
shall be satisfactory to the Administrative Agent), in form and substance
satisfactory to the Administrative Agent, each in sufficient number of signed
counterparts or copies to provide one for each Bank and the Administrative
Agent:
9.1.1 If requested by the Administrative Agent, an appropriately
completed Note from each Borrower, payable to the order of the
Administrative Agent evidencing the aggregate Commitments of the Banks to
make Loans to such Borrower;
9.1.2 The Pledge Agreement;
9.1.3 The Administrative Agent's receipt of all common stock of
Guarantor owned by each Borrower which have been purchased with proceeds of
Loans or any of the foregoing relating thereto as required by the Pledge
Agreement, together with appropriate stock powers for such shares endorsed
in blank and/or other appropriate evidence of the perfection of the
Administrative Agent's Lien, including UCC financing statements and/or
registrations or acknowledgements of the Lien of the Administrative Agent
on any applicable brokerage account of each Borrower;
9.1.4 The Guaranty, together with the documents provided in Article V
of the Guaranty;
9.1.5 A favorable opinion of Xxxx X. Xxxx, counsel of Guarantor,
substantially in the form of Exhibit F-1, and addressing such other legal
matters as the Administrative Agent may require;
9.1.6 A favorable opinion of Xxxxx & Xxxxxxx, outside counsel to
Guarantor, substantially in the form of Exhibit F-2, and addressing such
other legal matters as the Administrative Agent may require;
9.1.7 Certified copies of each material consent, license and approval
(including, without limitation, any consent or approval required under the
Revolving Credit Agreement) required in connection with the execution,
delivery, performance, validity and enforceability of
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this Agreement and the other Loan Documents; such consents, licenses and
approvals shall be in full force and effect, shall be satisfactory in form
and substance to the Administrative Agent and shall be all of the material
consents required to be obtained or made on or before the consummation of
the financing contemplated by this Agreement;
9.1.8 A certificate of Guarantor certifying that since December 31,
1997, no event has occurred which individually or in the aggregate could
reasonably be expected to have a Material Adverse Effect as to the
Guarantor;
9.1.9 Schedules and Exhibits satisfactory to the Administrative Agent
and the Banks;
9.1.10 Evidence satisfactory to the Administrative Agent of compliance
by each Borrower and Guarantor with Regulation U and Regulation G in
connection with the financing transactions contemplated hereby;
9.1.11 Evidence of each filing, registration or recordation (and
payment of any necessary fee, Tax or expense relating thereto) with respect
to each document (including, without limitation, any UCC financing
statement) required by the Loan Documents or under law or requested by the
Administrative Agent to be filed, registered or recorded in order to
create, in favor of the Administrative Agent, for the benefit of the Banks
a valid perfected Lien on all Direct Collateral (free of all other Liens)
(other than UCC financing statements to be filed in connection with the
Loan Documents which will be delivered for filing on the Closing Date);
9.1.12 Evidence satisfactory to the Administrative Agent that each of
the Loan Documents has been duly executed and delivered and is in full
force and effect without modification; and
9.1.13 Certified copies of any indemnification or similar agreements or
arrangements between any Borrower and Guarantor relating to the
reimbursement by such Borrower of any payments made by Guarantor under the
Guaranty, and certified copies of all documents and instruments relating to
the Conseco Stock Purchase Program (including, without limitation, any plan
relating thereto), as the same may have been amended or modified.
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9.1.14 A Federal Reserve Form U-1 for the benefit of the Banks, duly
executed by each Borrower and the Guarantor, the statements made in which
shall be such, in the opinion of the Administrative Agent, as to permit the
transactions contemplated by this Agreement in accordance with Regulation
U.
9.1.15 Such other information and documents including direction
letters, powers of attorney, and Borrower authorizations to the
Administrative Agent to supplement Form U-1 statements in connection with
subsequent Loans as may reasonably be required by the Administrative Agent
and the Administrative Agent's counsel.
SECTION 9.2 All Loans. The obligation of the Banks to make Loans hereunder
is subject to the following further conditions precedent:
9.2.1 The Administrative Agent shall have received a duly executed
Notice of Borrowing;
9.2.2 No Default exists or will result from the making of the Loans,
and no Default (as defined under the Revolving Credit Agreement) has
occurred and is continuing;
9.2.3 The representations and warranties of the Borrowers contained in
Section 7, the representations and warranties of Guarantor contained in
Article III of the Guaranty and the other Loan Documents are true and
correct with the same effect as though made on the Borrowing Date;
9.2.4 No Material Litigation exists;
9.2.5 No Material Adverse Change has occurred with respect to the
Guarantor or any Borrower since the date of the most recent respective
financial statements of the Guarantor and each such Borrower delivered to
the Banks pursuant to this Agreement or the Guaranty, respectively;
9.2.6 The Collateral Ratio for such Borrower, after giving effect to
such Loan, is at least 2.0 to 1.0.
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SECTION 10. EVENTS OF DEFAULT AND THEIR EFFECT
SECTION 10.1 Events of Default. An "Event of Default" shall exist with
respect to a Borrower if any one or more of the following events (herein
collectively called "Events of Default") shall occur and be continuing:
10.1.1 Non-Payment of Loans, etc.
(a) Default by such Borrower in the payment or prepayment when due
of any principal on the Loans made to such Borrower, or
(b) Default by such Borrower in the payment within five (5) days
of when due of any interest on the Loans made to such Borrower or any other
amount owing by such Borrower pursuant to this Agreement.
10.1.2 Bankruptcy, Insolvency, etc. Such Borrower, Guarantor or any
Significant Subsidiary becomes insolvent or generally fails to pay, or
admits in writing its inability to pay, debts as they become due; or such
Borrower, Guarantor or any such Significant Subsidiary applies for,
consents to, or acquiesces in the appointment of, a trustee, receiver or
other custodian for such Borrower, Guarantor or such Significant Subsidiary
or any property thereof, or makes a general assignment for the benefit of
creditors; or, in the absence of such application, consent or acquiescence,
a trustee, receiver or other custodian is appointed for such Borrower,
Guarantor or such Significant Subsidiary or for a substantial part of the
property of such Borrower, Guarantor or such Significant Subsidiary and is
not discharged within sixty (60) days; or any bankruptcy, reorganization,
debt arrangement, or other case or proceeding under any bankruptcy or
similar insolvency law is commenced in respect of such Borrower, Guarantor
or such Significant Subsidiary and if such case or proceeding is not
commenced by such Borrower, Guarantor or such Significant Subsidiary, it is
consented to or acquiesced in by such Borrower, Guarantor or such
Significant Subsidiary or remains for sixty (60) days undismissed.
10.1.3 Defaults Under this Agreement. Failure by such Borrower or
Guarantor (or any of its Subsidiaries) to comply with or perform any of the
covenants or agreements of such Borrower, Guarantor or any of its
Subsidiaries set forth in this Agreement or the
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other Loan Documents applicable to such Borrower, Guarantor or any of its
Subsidiaries (other than those constituting an Event of Default under any
of the other provisions of this Section 10) and continuance of such failure
for thirty (30) days with respect to such Borrower and ten (10) days with
respect to Guarantor, in each case after notice thereof to such Borrower or
Guarantor, as the case may be, from the Administrative Agent.
10.1.4 Representations and Warranties. Any representation or warranty
made by such Borrower or Guarantor in any of the Loan Documents is false or
misleading in any material respect as of the date hereof or as of the date
hereafter certified, or any schedule, certificate, financial statement,
report, notice, or other writing furnished by such Borrower or Guarantor to
the Administrative Agent or any Bank is false or misleading in any material
respect on the date as of which the facts therein set forth are stated or
certified.
10.1.5 Collateral Ratio. The Collateral Ratio for such Borrower is less
than 1.5 to 1.0.
10.1.7 Defaults under Revolving Credit Agreement. An event of default
shall have occurred and be continuing under the Revolving Credit Agreement.
If the Revolving Credit Agreement is terminated, the occurrence of any
event or the existence of any circumstance which would have, had it
occurred or existed prior to such termination, constituted an event of
default, shall constitute an Event of Default hereunder; provided that if
such termination results from Guarantor's execution and delivery of a new
credit facility in replacement, restatement or substitution for the
Revolving Credit Agreement, so long as (a) the terms of such new credit
facility could not reasonably be expected to have a material adverse effect
on the Banks, Guarantor or any material provision of the Loan Documents,
(b) no Default or Event of Default exists or would result therefrom and (c)
no violation or contravention of Regulation U or Regulation G exists or
would result therefrom, the events of default set forth in such new credit
facility shall be deemed to replace and be substituted for the events of
default set forth in the Revolving Credit Agreement.
10.1.8 Defaults Under Existing Credit Agreement. An event of default
shall have occurred and be continuing under the Existing Credit Agreement.
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10.1.9 Default Under Other Indebtedness. The Guarantor or any
Significant Subsidiary defaults in the payment when due (subject to any
applicable grace period), whether by acceleration or otherwise, of any
Indebtedness of Guarantor or any Significant Subsidiary (other than
Indebtedness in respect of the Guaranty) in an amount in excess of
$75,000,000.
SECTION 10.2 Effect of Event of Default. If any Event of Default described
in Section 10.1.2 shall occur and be continuing, the Commitments with respect to
such Borrower (or if such Event of Default relates to Guarantor, any Significant
Subsidiary or Section 10.1.7, all Borrowers) (if they have not theretofore
terminated) shall immediately terminate and all Liabilities of such Borrower
shall become immediately due and payable, all without presentment, demand,
protest or notice of any kind; and, in the case of any other Event of Default,
the Administrative Agent may (or shall, upon the written request of the Required
Banks) declare the Commitments of such Borrower (or if such Event of Default
relates to Guarantor, any Significant Subsidiary or Section 10.1.7, all
Borrowers) (if they have not theretofore terminated) to be terminated and all
Liabilities with respect to such Borrower to be due and payable, whereupon the
Commitments with respect to such Borrower (or if such Event of Default relates
to Guarantor, any Significant Subsidiary or Section 10.1.7, all Borrowers) (if
they have not theretofore terminated) shall immediately terminate and all
Liabilities with respect to such Borrower or all Borrowers, as the case may be,
shall become immediately due and payable, all without presentment, demand,
protest or notice of any kind. The Administrative Agent shall promptly advise
such Borrower or all Borrowers, as the case may be, and each Bank of any such
declaration, but failure to do so shall not impair the effect of such
declaration. Notwithstanding the foregoing or any provision of Section 13.1, the
effect as an Event of Default of any event described in Section 10.1.2 may be
waived by the written concurrence of the Banks holding 100% of the aggregate
unpaid principal amount of the Loans, and the effect as an Event of Default of
any other event described in this Section 10 may be waived as provided in
Section 13.1.
SECTION 11. THE AGENT
SECTION 11.1 Authorization and Action. Each Bank hereby appoints and
authorizes the Administrative Agent to take such action as administrative agent
on its behalf and to exercise such powers to the extent provided herein or in
any document or instrument delivered hereunder or in connection herewith,
together with such other action as may be reasonably incidental
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thereto. As to matters not expressly provided for by this Agreement (including,
without limitation, enforcement or collection of this Agreement or any other
Loan Document) the Administrative Agent shall not be required to exercise any
discretion, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
the Required Banks and such instructions shall be binding upon all Banks. Under
no circumstances shall the Administrative Agent have any fiduciary duties to any
Bank or be required to take any action which exposes the Administrative Agent to
personal liability or which is contrary to this Agreement or to the other Loan
Documents or applicable law.
SECTION 11.2 Liability of the Administrative Agent. None of the
Administrative Agent or any Agent-Related Person shall be liable for any action
taken or omitted to be taken by it or them under or in connection with this
Agreement and the other Loan Documents, except for its own gross negligence or
willful misconduct. Without limiting the generality of the foregoing, the
Administrative Agent: (a) may treat a Bank as such until the Administrative
Agent receives an executed Assignment Agreement entered into between a Bank and
an Eligible Assignee pursuant to Section 12.1 hereof; (b) may consult with legal
counsel (including counsel for any Borrower), independent public accountants and
other experts or consultants selected by it; (c) shall not be liable for any
action taken or omitted to be taken in good faith by the Administrative Agent in
accordance with the advice of counsel, accountants, consultants or experts; (d)
shall make no warranty or representation to any Bank and shall not be
responsible to any Bank for any recitals, statements, warranties or
representations, whether written or oral, made in or in connection with this
Agreement or the other Loan Documents; (e) shall not have any duty to ascertain
or to inquire as to the performance or observance of any of the terms,
obligations, covenants or conditions of this Agreement on the part of any
Borrower or to inspect the property (including, without limitation, any books
and records) of any Borrower; (f) shall not be responsible to any Bank for the
due execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other Loan Document or other support or security
(including the validity, priority or perfection of any Lien), or any other
document furnished in connection with any of the foregoing; and (g) shall incur
no liability under or in respect of this Agreement or any other Loan Document by
action upon any written notice, statement, certificate, order, telephone
message, facsimile or other document which the Administrative Agent believes in
good faith to be genuine and correct and to have been signed, sent or made by
the proper Person.
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SECTION 11.3 Administrative Agent and Affiliates. With respect to the Loans
made by it, BofA shall have the same rights and powers under this Agreement and
the other Loan Documents as any other Bank and may exercise the same as though
it were not the Administrative Agent; and the term "Bank" or "Banks" shall,
unless otherwise expressly indicated, include BofA in its individual capacity.
BofA and its Affiliates may accept deposits from, lend money to, act as trustee
under indentures of, and generally engage in any kind of business with, any
Borrower, Guarantor and any of its Subsidiaries and any Person who may do
business with or own securities of Guarantor or any such Subsidiary, all as if
BofA was not the Administrative Agent and without any duty to account therefor
to the Banks.
SECTION 11.4 Bank Credit Decision. Each Bank acknowledges that it has,
independently and without reliance upon the Administrative Agent or any other
Bank and based on the financial statements referred to in Section 7.3 hereof and
Section 3.7 of the Guaranty and such other 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 action under this
Agreement.
SECTION 11.5 Indemnification. The Banks agree to indemnify the
Administrative Agent and each Agent-Related Person (to the extent not reimbursed
by the Borrower), ratably according to their Percentages, from and against any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever which may be imposed on, incurred by, or assessed against the
Administrative Agent in any way relating to or arising out of this Agreement or
the other Loan Documents, or any action taken or omitted by the Administrative
Agent under this Agreement or the other Loan Documents; provided, that no Bank
shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the Administrative Agent's gross negligence or willful
misconduct. Without limiting any of the foregoing, each Bank agrees to reimburse
the Administrative Agent promptly upon demand for their Percentage of any
expenses (including reasonable counsel fees) incurred by the Administrative
Agent (in its individual capacity as agent or in its capacity as representative
of the Banks) in connection with the preparation, execution, delivery,
administration, modification, amendment, waiver or enforcement (whether through
negotiations, legal proceedings or otherwise)
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of, or legal advice in respect of rights or responsibilities under this
Agreement or the other Loan Documents to the extent that the Administrative
Agent is not reimbursed for such expenses by the Borrowers or Guarantor. All
obligations provided for in this Section 11.5 shall survive termination of this
Agreement.
SECTION 11.6 Successor Agent. The Administrative Agent may, and at the
request of the Required Banks shall, resign as Administrative Agent upon 30
days' notice to the Banks. If the Administrative Agent resigns under this
Agreement, the Required Banks shall appoint from among the Banks a successor
agent for the Banks which successor agent shall be approved by a majority of the
Borrowers (which consent shall not be unreasonably withheld). If no successor
agent is appointed prior to the effective date of the resignation of the
Administrative Agent, the Administrative Agent may appoint, after consulting
with the Banks and the Borrowers, a successor agent from among the Banks. Upon
the acceptance of its appointment as successor agent hereunder, such successor
agent shall succeed to all the rights, powers and duties of the retiring
Administrative Agent and the term "Administrative Agent" shall mean such
successor agent and the retiring Administrative Agent's appointment, powers and
duties as Administrative Agent shall be terminated. After any retiring
Administrative Agent's resignation hereunder as Administrative Agent, the
provisions of this Section 11 shall inure to its benefit as to any actions taken
or omitted to be taken by it while it was Administrative Agent under this
Agreement. If no successor agent has accepted appointment as Administrative
Agent by the date which is 30 days following a retiring Administrative Agent's
notice of resignation, the retiring Administrative Agent's resignation shall
nevertheless thereupon become effective and the Banks shall perform all of the
duties of the Administrative Agent hereunder until such time, if any, as the
Required Banks appoint a successor agent as provided for above.
SECTION 12. ASSIGNMENTS AND PARTICIPATIONS
SECTION 12.1 Assignments.
(a) Each Bank shall have the right at any time to assign with the
consent of Guarantor (on behalf of the Borrowers) and the Administrative
Agent (which consent, in each case, will not unreasonably be withheld), to
any Eligible Assignee, all or any part of such Bank's rights and
obligations under this Agreement and each other Loan Document including its
rights in respect of its Loans and Notes, if any. Any such assignment shall
be
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pursuant to an assignment agreement, substantially in the form of Exhibit H
(an "Assignment Agreement"), duly executed by such Bank and the Eligible
Assignee, and acknowledged by the Administrative Agent. Notwithstanding the
foregoing, each Bank may make assignments to its Affiliates or to any
Federal Reserve Bank without obtaining consent of the Administrative Agent.
(b) Each assignment shall be pro rata with respect to all rights
and obligations of the assigning Bank including the Commitments, the Loans
and the Notes, if any. Each assignment shall be in an amount equal to or in
excess of $5,000,000 (except for assignments of the entire unpaid balance,
if less than $5,000,000, of the Loans of a Bank or assignments to existing
Banks). In the case of any such assignment, upon the fulfillment of the
conditions in Section 12.1(c), this Agreement shall be deemed to be amended
to the extent, and only to the extent, necessary to reflect the addition of
such Eligible Assignee, and such Eligible Assignee shall for all purposes
be a Bank party hereto and shall have, to the extent of such assignment,
the same rights and obligations as a Bank hereunder.
(c) An assignment shall become effective hereunder when all of the
following shall have occurred:
(i) the Assignment Agreement shall have been executed by the
assigning Bank and the Eligible Assignee,
(ii) the Assignment Agreement shall have been acknowledged
by the Administrative Agent,
(iii) either the assigning Bank or the Eligible Assignee
shall have paid a processing fee of $3,000 to the Administrative Agent for
its own account; provided that the Eligible Assignee shall be solely
responsible for such processing fee with respect to any assignment pursuant
to Sections 5.8 and 13.2, and
(iv) the assigning Bank and the Administrative Agent shall
have agreed upon a date upon which such assignment shall become effective.
Upon such assignment becoming effective, the Administrative Agent shall
forward all payments of interest, principal, fees and other amounts that
would have been made to the
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assigning Bank, in proportion to the percentage of the assigning Bank's
rights transferred, to the Eligible Assignee.
(d) Upon the effectiveness of any assignment, the assigning Bank
shall be relieved from its obligations hereunder to the extent of the
obligations so assigned (except to the extent, if any, that any Borrower,
any other Bank or the Administrative Agent have rights against such
assigning Bank as a result of any default by such Bank under this
Agreement). Promptly following the effectiveness of each assignment, the
Administrative Agent shall furnish to the Borrowers and each Bank a revised
Schedule 2.1, revised to reflect such assignment.
SECTION 12.2 Participations.
(a) Each Bank may grant participations in all or any part of its
Loans, Commitments and, if applicable, the Notes to any commercial bank or
other financial institution (other than insurance companies and Affiliates
thereof unless consented to by Guarantor). A participant shall not have any
rights under this Agreement or any other document delivered in connection
herewith (the participant's rights against such Bank in respect of such
participation to be those set forth in the agreement executed by such Bank
in favor of the participant relating thereto, which agreement with respect
to such participation shall not restrict such Bank's ability to make any
modification, amendment or waiver to this Agreement without the consent of
the participant except that the consent of such participant may be required
in connection with matters requiring the consent of all of the Banks under
Section 13.1). Notwithstanding the foregoing, each participant shall have
the rights of a Bank pursuant to Section 4.6. All amounts payable by any
Borrower under this Agreement shall be determined as if the Bank had not
sold such participation. In the event of any such sale by a Bank of
participating interests to a participant, such Bank's obligations under
this Agreement shall remain unchanged, such Bank shall remain solely
responsible for the performance thereof, such Bank shall remain the holder
of any obligation for all purposes under this Agreement, 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.
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(b) Limitation of Rights of any Participant. Notwithstanding
anything in the foregoing to the contrary,
(i) no participant shall have any direct rights hereunder,
(ii) the Borrowers, the Administrative Agent and the Banks,
other than the selling Bank, shall deal solely with the selling Bank and
shall not be obligated to extend any rights or make any payment to, or seek
any consent of, the participant,
(iii) no participation shall relieve the selling Bank of any
of its other obligations hereunder and such Bank shall remain solely
responsible for the performance thereof, and
(iv) no participant, other than an affiliate of the selling
Bank, shall be entitled to require such Bank to take or omit to take any
action hereunder, except that such Bank may agree with such participant
that such Bank will not, without participant's consent, take any action
which requires the consent of all of the Banks under Section 13.1.
SECTION 12.3 Disclosure of Information. Each Borrower authorizes each Bank
to disclose to any participant, assignee or Eligible Assignee (each, a
"Transferee") and any prospective Transferee any and all financial and other
information in such Bank's possession concerning such Borrower, Guarantor and
its Subsidiaries which has been delivered to such Bank by such Borrower and/or
Guarantor in connection with such Bank's credit evaluation of such Borrower
prior to entering into this Agreement or which has been delivered to such Bank
by such Borrower and/or Guarantor pursuant to this Agreement; provided, however,
that each Bank, participant, assignee and Eligible Assignee shall execute a
confidentiality agreement substantially in the form of Exhibit G in which it
agrees that it shall hold all non-public, confidential and proprietary
information obtained pursuant to the requirements of this Agreement in
accordance with safe and sound banking and business practices and may make
disclosure reasonably required by any bona fide participant, assignee or
Eligible Assignee in connection with the contemplated transfer of any portion of
the Loans or as required or requested by any Governmental Authority or
representative thereof or pursuant to legal process. For the purposes of this
Section 12.3, by execution of this Agreement each of the Banks shall be deemed
to have agreed to and executed the confidentiality agreement contained in
Exhibit G.
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SECTION 12.4 Foreign Transferees. If, pursuant to this Section 12, any
interest in this Agreement or any Loans or the Note is transferred to any
Transferee which is organized under the laws of any jurisdiction other than the
United States or any state thereof or upon the request of the Administrative
Agent, the transferor Bank shall cause such Transferee (other than any
participant), and may cause any participant, concurrently with the effectiveness
of such transfer,
(a) to represent to the transferor Bank (for the benefit of the
transferor Bank, the Administrative Agent and the Borrowers) that under
applicable law and treaties no Taxes will be required to be withheld by the
Administrative Agent,
(b) to represent to the Borrowers or the transferor Bank that
under applicable law and treaties no Taxes will be required to be withheld
with respect to any payments to be made to such Transferee in respect of
the Loans or, if applicable, the Notes,
(c) to furnish to the transferor Bank, the Administrative Agent
and the Borrowers either U.S. Internal Revenue Service Form 4224 or U.S.
Internal Revenue Service Form 1001 (wherein such Transferee claims
entitlement to complete exemption from U.S. federal withholding tax on all
interest payments hereunder), and
(d) to agree (for the benefit of the transferor Bank, the
Administrative Agent and the Borrowers) to provide the transferor Bank, the
Administrative Agent and the Borrowers a new Form 4224 or Form 1001 upon
the obsolescence of any previously delivered form and comparable statements
in accordance with applicable U.S. laws and regulations and amendments duly
executed and completed by such Transferee, and to comply from time to time
with all applicable U.S. laws and regulations with regard to such
withholding tax exemption.
SECTION 13. MISCELLANEOUS
SECTION 13.1 Waivers and Amendments. The provisions of this Agreement and
of each other Loan Document may from time to time be amended, modified or
waived, if such amendment, modification or waiver is in writing and consented to
by the Borrowers and the Required Banks; provided, that no such amendment,
modification or waiver:
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(a) which would modify any requirement hereunder that any
particular action be taken by all Banks or by the Required Banks, shall be
effective without the consent of each Bank;
(b) which would modify this Section 13.1, change the definition of
"Required Banks," change any Percentage for any Bank (except pursuant to an
Assignment Agreement), reduce any fees, extend the maturity date of any
Loan, reduce any rate of interest payable on the Loans or subject any Bank
to any additional obligations, shall be effective without the consent of
each Bank;
(c) which would permit the release of all or any material portion
of the Direct Collateral or Indirect Collateral or the release or
termination of Guarantor's obligations in the aggregate, or any material
obligation individually, under the Guaranty, shall be effective without the
consent of each Bank;
(d) which would extend the due date for, or reduce the amount of,
any payment or prepayment of principal of or interest on the Loans, shall
be effective without the consent of each Bank; or
(e) which would affect adversely the interests, rights or
obligations of the Administrative Agent (in such capacity) other than
removal in accordance with Section 11.6, shall be effective without consent
of the Administrative Agent.
SECTION 13.2 Failure to Consent. If any Bank shall fail to consent to any
amendment, modification or waiver described in Section 13.1 (any such Bank being
hereinafter referred to as a "Non-Consenting Bank") then in such case, Guarantor
(on behalf of the Borrowers) may, upon at least five (5) Business Days' written
notice to the Administrative Agent and such NonConsenting Bank, designate a
substitute lender (a "Substitute Bank") acceptable to the Administrative Agent
in its sole discretion, to which such Non-Consenting Bank shall assign all (but
not less than all) of its rights and obligations under the Loans and Commitment
hereunder. Upon any assignment by any Bank pursuant to this Section 13.2
becoming effective, the Substitute Bank shall thereupon be deemed to be a "Bank"
for all purposes of this Agreement and the assigning Bank shall thereupon cease
to be a "Bank" for all purposes of this Agreement and shall have no further
rights or obligations hereunder (other than pursuant to Sections 5.1, 5.2, 5.5,
11.5 and 13.4, and Sections 7.1 and 7.2 of the Guaranty while such
Non-Consenting Bank was a Bank);
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provided, that all Liabilities (except Liabilities which by the terms hereof
survive the payment in full of the Loans and termination of this Agreement) due
and payable to the NonConsenting Bank shall be paid in full as of the date of
such assignment. Notwithstanding the foregoing, in the event that in connection
with any amendment, modification or waiver more than one Bank is a
Non-Consenting Bank, the Borrowers may not require one Bank to assign its rights
and obligations to a Substitute Bank unless all Non-Consenting Banks are
required to make such an assignment. Notwithstanding any Non-Consenting Bank's
failure or refusal to assign its rights, obligations, Loans and Commitment under
this Section 13.2, the Non-Consenting Bank shall cease to be a "Bank" for all
purposes of this Agreement and the Substitute Bank substituted therefor upon
payment to the Non-Consenting Bank by the Substitute Bank of all amounts set
forth in this Section 13.2 without any further action of the Non-Consenting
Bank.
SECTION 13.3 Notices. All notices, requests and other communications to any
party hereunder shall be in writing (including bank wire, telex, facsimile or
similar writing) and shall be given to such party at its address, facsimile or
telex number set forth on the signature or acknowledgement pages hereof or such
other address, facsimile or telex number as such party may hereafter specify for
the purpose by written notice to the Administrative Agent, the Borrowers and
Guarantor. Each such notice, request or other communication shall be effective
(a) if given by facsimile or telex, when such facsimile or telex is transmitted
to the facsimile or telex number specified in this Section and, in the case of
telex, the appropriate answerback is received, (b) if given by mail, seventy-two
(72) hours after such communication is deposited in the mails with first class
postage prepaid, addressed as aforesaid or (c) if given by any other means, when
delivered at the address specified in this Section, provided, that notices to
the Administrative Agent under Sections 2, 3, 4 and 10 shall not be effective
until received by the Administrative Agent.
SECTION 13.4 Indemnity. The Borrowers agree, jointly and severally, to
indemnify each Bank, its Affiliates and each of their respective directors,
officers, employees, persons controlling or controlled by any of them or their
respective agents, consultants, attorneys and advisors (the "Indemnified
Parties") and hold each Indemnified Party harmless from and against any and all
liabilities, losses, claims, damages, costs and expenses of any kind to which
any of the Indemnified Parties may become subject, whether directly or
indirectly (including, without limitation, the reasonable fees and disbursements
of counsel for any Indemnified Party), relating to or arising out of this
Agreement, the other Loan Documents, or any actual or
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proposed use of the proceeds of the Loans hereunder; provided, that no
Indemnified Party shall have the right to be indemnified hereunder for its own
gross negligence or willful misconduct as determined by a court of competent
jurisdiction. All obligations of the Borrowers and Guarantor provided for in
this Section 13.4 shall survive termination of this Agreement.
SECTION 13.5 Subsidiary References. The provisions of this Agreement
relating to Subsidiaries shall apply only during such times as a Person
referenced in such a provision has one or more Subsidiaries.
SECTION 13.6 Captions. Section captions used in this Agreement are for
convenience only, and shall not affect the construction of this Agreement.
SECTION 13.7 GOVERNING LAW. THIS AGREEMENT, THE NOTES, IF ANY, AND THE
LOANS SHALL BE A CONTRACT MADE UNDER AND GOVERNED BY THE LAWS OF THE STATE OF
ILLINOIS, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES. ALL OBLIGATIONS OF THE
BORROWERS AND GUARANTOR AND RIGHTS OF THE ADMINISTRATIVE AGENT AND THE BANKS IN
RESPECT OF THE LIABILITIES EXPRESSED HEREIN OR IN THE OTHER LOAN DOCUMENTS SHALL
BE IN ADDITION TO AND NOT IN LIMITATION OF THOSE PROVIDED BY APPLICABLE LAW.
SECTION 13.8 Counterparts. This Agreement may be executed in any number of
counterparts and by the different parties on separate counterparts and each such
counterpart shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same agreement. When counterparts executed
by all the parties shall have been lodged with the Administrative Agent (or, in
the case of any Bank as to which an executed counterpart shall not have been so
lodged, the Administrative Agent shall have received telegraphic, facsimile,
telex or other written confirmation from such Bank of execution of a counterpart
hereof by such Bank), this Agreement shall become effective as of the Closing
Date hereof, and at such time the Administrative Agent shall notify the
Borrowers and each Bank.
SECTION 13.9 SUBMISSION TO JURISDICTION; WAIVER OF VENUE. THE
ADMINISTRATIVE AGENT, EACH BANK AND EACH BORROWER (A) HEREBY IRREVOCABLY SUBMIT
TO THE JURISDICTION OF ANY ILLINOIS STATE OR FEDERAL COURT SITTING IN THE
NORTHERN DISTRICT OF ILLINOIS OVER ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS, AND THE ADMINISTRATIVE
AGENT, EACH BANK AND EACH BORROWER HEREBY IRREVOCABLY AGREE THAT ALL CLAIMS IN
RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH
ILLINOIS STATE OR FEDERAL COURT, AND (B) AGREE NOT TO INSTITUTE ANY LEGAL ACTION
OR PROCEEDING AGAINST
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ANOTHER PARTY OR THE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR PROPERTY OF ANY
THEREOF, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENTS, IN ANY COURT OTHER THAN AS HEREINABOVE SPECIFIED IN THIS SECTION
13.9. THE ADMINISTRATIVE AGENT, EACH BANK AND EACH BORROWER HEREBY IRREVOCABLY
WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION IT OR THEY MAY NOW
OR HEREAFTER HAVE TO THE LAYING OF VENUE IN ANY ACTION OR PROCEEDING (WHETHER
BROUGHT BY ANY BORROWER, THE ADMINISTRATIVE AGENT, ANY BANK, OR OTHERWISE) IN
ANY COURT HEREINABOVE SPECIFIED IN THIS SECTION 13.9 AS WELL AS ANY RIGHT IT OR
THEY MAY NOW OR HEREAFTER HAVE TO REMOVE ANY SUCH ACTION OR PROCEEDING, ONCE
COMMENCED, TO ANOTHER COURT ON THE GROUNDS OF FORUM NON CONVENIENS OR OTHERWISE.
THE ADMINISTRATIVE AGENT, EACH BANK AND EACH BORROWER AGREE THAT A FINAL
JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE
ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER
PROVIDED BY LAW.
SECTION 13.10 Successors and Assigns. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their respective
successors and assigns; provided, however, that: the Borrowers may not assign or
transfer their rights or obligations under this Agreement or any other Loan
Document without the prior written consent of all Banks, and the rights of the
Banks to make assignments or grant participations are subject to the provisions
of Section 12.
SECTION 13.11 WAIVER OF JURY TRIAL. EACH BORROWER, THE ADMINISTRATIVE AGENT
AND EACH BANK HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT TO
A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM CONCERNING ANY RIGHTS
UNDER THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR ANY OTHER DOCUMENT OR AGREEMENT
DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR
THEREWITH, OR ARISING FROM ANY BANKING RELATIONSHIP EXISTING IN CONNECTION WITH
THIS AGREEMENT, AND AGREE THAT ANY SUCH ACTION, PROCEEDING OR COUNTERCLAIM SHALL
BE TRIED BEFORE A COURT AND NOT BEFORE A JURY; THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THE PARTIES ENTERING INTO THIS AGREEMENT.
* * *
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Executed as of the day and year first above written at Chicago, Illinois.
BORROWERS:
[INSERT BORROWERS]
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ADMINISTRATIVE AGENT:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By: /s/Xxxxxxxxx X. X. Xxxxxx
------------------------------
Name: Xxxxxxxxx X. X. Xxxxxx
Title:Vice President
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BANKS:
BANK OF AMERICA NATIONAL TRUST AND
AND SAVINGS ASSOCIATION
By: /s/Xxxxxxxxx X. X. Xxxxxx
------------------------------
Name: Xxxxxxxxx X. X. Xxxxxx
Title:Vice President
Lending Office
Address: 000 X. XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Notice Address:
Address: 000 X. XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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ACCEPTANCE AND ACKNOWLEDGEMENT
CONSECO, INC. hereby acknowledges and agrees to make such deliveries as
are required by it and comply with the covenants and other provisions applicable
to it contained in this Agreement.
CONSECO, INC.
By:/s/Xxxxxx X. Xxxx
-------------------------------
Name: Xxxxxx X. Xxxx
Title:Executive Vice President and
Chief Financial Officer
Notice Address:
00000 X. Xxxxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxx X. Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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