Exhibit 10.1
CREDIT AGREEMENT
dated as of May 29, 2002
among
XXXXXX XXXX EDUCATORS CORPORATION
as the Borrower,
VARIOUS FINANCIAL INSTITUTIONS,
as the Lenders,
and
BANK OF AMERICA, N.A.
as Administrative Agent
TABLE OF CONTENTS
ARTICLE I DEFINITIONS ............................................................. 1
SECTION 1.1 Definitions ........................................................ 1
SECTION 1.2 Use of Defined Terms ............................................... 14
SECTION 1.3 Cross References; Headings ......................................... 14
SECTION 1.4 Other Definitional Provisions ...................................... 14
ARTICLE II AMOUNT AND TERMS OF COMMITMENT .......................................... 14
SECTION 2.1 Revolving Loan Commitment .......................................... 14
SECTION 2.2 Types of Loans ..................................................... 16
SECTION 2.3 Borrowing Request .................................................. 16
SECTION 2.4 Funding of Borrowing ............................................... 16
ARTICLE III RECORDKEEPING; NOTE; PAYMENTS; SETOFF ................................... 16
SECTION 3.1 Evidence of Debt ................................................... 16
SECTION 3.2 Payment of the Loans ............................................... 17
SECTION 3.3 Making of Payments ................................................. 17
SECTION 3.4 Due Date Extension ................................................. 18
SECTION 3.5 Set-off ............................................................ 18
ARTICLE IV INTEREST; CONVERSION; EURODOLLAR LOANS .................................. 18
SECTION 4.1 Interest Rates ..................................................... 18
SECTION 4.2 Interest Payment Dates ............................................. 19
SECTION 4.3 Setting of Rates ................................................... 19
SECTION 4.4 Computation of Interest and Fees ................................... 19
SECTION 4.5 Continuation and Conversion Elections .............................. 19
SECTION 4.6 Funding ............................................................ 20
SECTION 4.7 Eurodollar Rate Lending Unlawful ................................... 20
SECTION 4.8 Eurodollar Deposits Unavailable .................................... 20
ARTICLE V FEES .................................................................... 21
SECTION 5.1 Payment of Fees .................................................... 21
SECTION 5.2 Non-Use Fee ........................................................ 21
SECTION 5.3 Compensation of Administrative Agent ............................... 21
ARTICLE VI INCREASED COSTS AND OTHER SPECIAL PROVISIONS ............................ 21
SECTION 6.1 Increased Costs .................................................... 21
SECTION 6.2 Payment for Credits ................................................ 22
SECTION 6.3 Certificate Requirements ........................................... 22
i
SECTION 6.4 General Funding Losses........................................................ 22
SECTION 6.5 Discretion of Lender as to Manner of Funding.................................. 22
SECTION 6.6 Conclusiveness of Statements: Survival of Provisions.......................... 23
ARTICLE VII REPRESENTATIONS AND WARRANTIES..................................................... 23
SECTION 7.1 Due Organization, Authorization, etc.......................................... 23
SECTION 7.2 Statutory Financial Statements................................................ 24
SECTION 7.3 GAAP Financial Statements..................................................... 25
SECTION 7.4 Litigation and Contingent Liabilities......................................... 25
SECTION 7.5 Investment Company Act........................................................ 25
SECTION 7.6 Regulations T, U and X........................................................ 25
SECTION 7.7 Proceeds...................................................................... 26
SECTION 7.8 Insurance..................................................................... 26
SECTION 7.9 Accuracy of Information....................................................... 26
SECTION 7.10 Subsidiaries.................................................................. 26
SECTION 7.11 Insurance Licenses............................................................ 26
SECTION 7.12 Taxes......................................................................... 26
SECTION 7.13 Compliance with Laws.......................................................... 27
ARTICLE VIII COVENANTS.......................................................................... 27
SECTION 8.1 Affirmative Covenants......................................................... 27
SECTION 8.2 Negative Covenants............................................................ 32
ARTICLE IX CONDITIONS......................................................................... 34
SECTION 9.1 Conditions to Occurrence of the Effective Date................................ 34
SECTION 9.2 Conditions to All Borrowings.................................................. 35
ARTICLE X EVENTS OF DEFAULT AND THEIR EFFECT................................................. 36
SECTION 10.1 Events of Default............................................................. 36
SECTION 10.2 Effect of Event of Default.................................................... 38
ARTICLE XI THE ADMINISTRATIVE AGENT........................................................... 39
SECTION 11.1 Appointment and Authorization of Administrative Agent......................... 39
SECTION 11.2 Delegation of Duties.......................................................... 39
SECTION 11.3 Liability of Administrative Agent............................................. 39
SECTION 11.4 Reliance by Administrative Agent.............................................. 40
SECTION 11.5 Notice of Default............................................................. 40
ii
SECTION 11.6 Credit Decision; Disclosure of Information by Administrative Agent............ 40
SECTION 11.7 Indemnification of Administrative Agent....................................... 41
SECTION 11.8 Administrative Agent in its Individual Capacity............................... 41
SECTION 11.9 Successor Administrative Agent................................................ 42
SECTION 11.10 Administrative Agent May File Proofs of Claim................................. 42
ARTICLE XII ASSIGNMENTS AND PARTICIPATIONS..................................................... 43
SECTION 12.1 Successors and Assigns........................................................ 43
SECTION 12.2 Assignments................................................................... 43
SECTION 12.3 Register...................................................................... 44
SECTION 12.4 Participations................................................................ 44
SECTION 12.5 Greater Payment............................................................... 45
SECTION 12.6 Pledge........................................................................ 45
SECTION 12.7 Definitions................................................................... 45
ARTICLE XIII GENERAL............................................................................ 46
SECTION 13.1 Waiver; Amendments............................................................ 46
SECTION 13.2 Confirmations................................................................. 46
SECTION 13.3 Notices and Other Communications; Facsimile Copies............................ 46
SECTION 13.4 Attorney Costs, Expenses and Taxes............................................ 47
SECTION 13.5 Indemnification by the Borrower............................................... 48
SECTION 13.6 Survival of Representations and Warranties.................................... 49
SECTION 13.7 GOVERNING LAW................................................................. 49
SECTION 13.8 JURY TRIAL.................................................................... 49
SECTION 13.9 Successors and Assigns........................................................ 49
iii
SCHEDULES AND EXHIBITS
SCHEDULE 2.1 Commitments
SCHEDULE 7.1 Jurisdictions
SCHEDULE 7.2(a) SAP Exceptions
SCHEDULE 7.2(e) Adverse Changes and Dividends
SCHEDULE 7.4 Litigation
SCHEDULE 7.10 Subsidiaries
SCHEDULE 7.11 Insurance Licenses
SCHEDULE 7.12 Taxes
SCHEDULE 13.3 Addresses
EXHIBIT A Borrowing Request ((S)2.3)
EXHIBIT B Note ((S)3.1)
EXHIBIT C Continuation/Conversion Notice ((S)4.5)
EXHIBIT D Compliance Certificate ((S)8.1.1(f))
EXHIBIT E Opinion of Counsel ((S)9.1.4)
EXHIBIT F Assignment Agreement ((S)12.1.1)
CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of May 29, 2002, is entered into by
and among XXXXXX XXXX EDUCATORS CORPORATION, a Delaware corporation (the
"Borrower"), various financial institutions which are parties hereto (the
"Lenders"), and BANK OF AMERICA, N.A., as administrative agent for the Lenders
(in such capacity, the "Administrative Agent").
W I T N E S S E T H:
WHEREAS, the Lenders have agreed to make available to the Borrower a
revolving credit facility upon the terms and conditions set forth in this
Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereinafter contained, and other good and valuable consideration the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions. When used herein the following terms shall
have the following meanings:
Administrative Agent shall mean (a) Bank of America, N.A., in its
capacity as administrative agent for the Lenders, and (b) each other Person as
shall have subsequently been appointed as the successor Administrative Agent
pursuant to Section 11.9.
Administrative Questionnaire means an administrative questionnaire in
a form supplied by the Administrative Agent.
Affiliate of any Person shall mean any other Person which, directly or
indirectly, controls or is controlled by or is under common control with such
Person (excluding any trustee under, or any committee with responsibility for
administering, any Plan). A Person shall be deemed to be:
(a) "controlled by" any other Person if such other Person possesses,
directly or indirectly, power:
(i) to vote 10% or more of the securities having at the time of
any determination hereunder voting power for the election of directors
of such Person; or
(ii) to direct or cause the direction of the management and
policies of such Person whether by contract or otherwise; or
(b) "controlled by" or "under common control with" such other Person
if such other Person is the executor, administrator, or other personal
representative of such Person.
Agent-Related Persons shall mean the Administrative Agent, together
with its Affiliates, and the officers, directors, employees, agents and
attorneys-in-fact of such Persons and Affiliates.
Agreement shall mean this Credit Agreement as from time to time
amended, modified, supplemented, restated, refunded or renewed and in effect.
Annual Statement shall mean the annual financial statement of any
Insurance Subsidiary as required to be filed with the insurance commissioner (or
similar authority) of such Insurance Subsidiary's state of domicile, together
with all exhibits or schedules filed therewith, prepared in conformity with SAP.
References to amounts on particular exhibits, schedules, lines, pages and
columns of the Annual Statement are based on the format promulgated by the NAIC
for 2001 Annual Statements. If such format is changed in future years so that
different information is contained in such items or they no longer exist, it is
understood that the reference is to information consistent with that reported in
the referenced item in the 2001 Annual Statement of such Insurance Subsidiary.
Applicable Eurodollar Interest Rate Margin shall mean at any time,
subject to Section 4.1(c), the applicable percentage per annum determined
pursuant to the following table by reference to the higher public rating, if
any, assigned to the Borrower's senior, unsecured long-term debt by Standard &
Poor's Rating Group ("S&P") or Xxxxx'x Investor Service Inc. ("Moody's"), as the
case may be:
S&P/Xxxxx'x Rating Interest Rate Margin
--------------------------------------------------------------------------------
A/A2 or above 0.500
X-/X0 0.000
XXXx/Xxx0 0.750
BBB/Baa2 1.000
BBB-/Baa3 or lower
(or no rating) 1.250
--------------------------------------------------------------------------------
Applicable Non-Use Fee Rate shall mean at any time, the
applicable percentage per annum determined pursuant to the following table by
reference to the higher public rating, if any, assigned to the Borrower's
senior, unsecured long-term debt by S&P or Moody's, as the case may be:
S&P/Xxxxx'x Rating Non-Use Fee Rate
--------------------------------------------------------------------------------
A/A2 or above 0.1000
A-/A3 0.1500
2
BBB+/Baa1 0.2000
BBB/Baa2 0.2500
BBB-/Baa3 or lower
(or no rating) 0.300
--------------------------------------------------------------------------------
Assignment and Assumption shall mean an Assignment and Assumption
substantially in the form of Exhibit F.
Attributable Indebtedness shall mean, on any date, (a) in respect of
any capital lease of any Person, the capitalized amount thereof that would
appear on a balance sheet of such Person prepared as of such date in accordance
with GAAP, and (b) in respect of any Synthetic Lease Obligation, the capitalized
amount of the remaining lease payments under the relevant lease that would
appear on a balance sheet of such Person prepared as of such date in accordance
with GAAP if such lease were accounted for as a capital lease.
Authorized Officers shall mean those officers of the Borrower whose
signatures and incumbency shall have been certified to the Administrative Agent
pursuant to Section 9.1.3.
Bank of America shall mean Bank of America, N.A.
Base Rate shall mean, for any day, a fluctuating rate per annum equal
to the higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of
interest in effect for such day as publicly announced from time to time by Bank
of America as its "prime rate." The "prime rate" is a rate set by Bank of
America based upon various factors including Bank of America's costs and desired
return, general economic conditions and other factors, and is used as a
reference point for pricing some loans, which may be priced at, above, or below
such announced rate. Any change in such rate announced by Bank of America shall
take effect at the opening of business on the day specified in the public
announcement of such change.
Base Rate Loan shall mean any Loan which bears interest at or by
reference to the Base Rate.
Borrower is defined in the Preamble.
Borrowing shall mean the Loans of a single Type and Interest Period
made by the Lenders on any single specified day in accordance with Section 2.1.
Borrowing Date shall mean any Business Day on which a Borrowing is
made.
Borrowing Request shall mean a loan request and certificate duly
executed by two Authorized Officers of the Borrower substantially in the form of
Exhibit A.
Business Day shall mean any day other than a Saturday, Sunday or other
day on which commercial banks in New York City or Chicago are authorized or
required by law to close and, if the applicable Business Day relates to any
Eurodollar Loan, shall mean such a day on which dealings are carried on in the
applicable offshore dollar interbank market.
3
Capitalized Lease shall mean, as to any Person, any lease which is or
should be capitalized on the balance sheet in accordance with GAAP, together
with any other lease which is in substance a financing lease, including, without
limitation, any lease under which (a) such Person has or will have an option to
purchase the property subject thereto at a nominal amount or an amount less than
a reasonable estimate of the fair market value of such property as of the date
the lease is entered into or (b) the term of the lease approximates or exceeds
the expected useful life of the property leased thereunder.
Change in Control shall be deemed to have occurred if (a) there shall
be consummated (i) any consolidation or merger of the Borrower in which the
Borrower is not the continuing or surviving corporation, or pursuant to which
shares of the Borrower's common stock would be converted into cash, securities
or other property, other than a merger of the Borrower in which no Borrower
shareholder's ownership percentage in the surviving corporation immediately
after the merger is less than such shareholder's ownership percentage in the
Borrower immediately prior to such merger by ten percent (10%) or more, or (ii)
any sale, lease, exchange or other transfer (in one transaction or a series of
related transactions) of all, or substantially all, of the assets of the
Borrower; (b) the shareholders of the Borrower approve any plan or proposal for
the liquidation or dissolution of the Borrower which is a part of a similar
transaction; (c) any "person" as such term is used in Sections 13(d) and 14(d)
of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), is or
becomes, directly or indirectly, the "beneficial owner," as defined in Rule
13d-3 under the Exchange Act, of securities of the Borrower that represent 51%
or more of the combined voting power of the Borrower's then outstanding
securities; or (d) a majority of the members of the Borrower's Board of
Directors are persons who are then serving on the Board of Directors without
having been elected by the Board of Directors or having been nominated by the
Borrower for election by its shareholders.
Closing shall mean the execution and delivery of this Agreement by the
parties hereto.
Code shall mean the Internal Revenue Code of 1986, as amended and any
successor statute of similar import, together with the regulations thereunder,
as amended, reformed or otherwise modified and in effect from time to time.
References to sections of the Code shall be construed to also refer to successor
sections.
Combined shall mean with reference to any group of two or more Persons
and to any financial item (e.g., Statutory EBT, etc.), the amount obtained by
aggregating the respective amounts of such financial item for all such Persons,
without duplication.
Commitment is defined in Section 2.1.
Commitment Amount shall mean, on any date, the aggregate amount shown
on Schedule 2.1 for all Lenders, as such amount may be reduced pursuant to
Section 2.1.1 or 10.2 or increased pursuant to Section 2.1.2.
Commitment Termination Date shall mean the earlier to occur of May
31, 2005 or the date on which any Commitment Termination Event occurs.
4
Commitment Termination Event shall mean (a) the occurrence of a
Default described in Section 10.1.5 or (b) the occurrence and continuance of any
other Event of Default and either (i) the Loans are declared to be due and
payable pursuant to Section 10.2, or (ii) in the absence of such declaration,
the Administrative Agent, acting at the direction of the Required Lenders, gives
notice to the Borrower that the Commitments have been terminated.
Compliance Certificate shall mean a certificate substantially in the
form of Exhibit D but with such changes as the Administrative Agent may from
time to time request for purposes of monitoring the Borrower's compliance
herewith.
Consolidated Debt shall mean the consolidated Debt of the Borrower and
its consolidated Subsidiaries, including without limitation the principal amount
of the Loans.
Contingent Liability shall mean any agreement, undertaking or
arrangement by which any Person (outside the ordinary course of business)
guarantees, endorses, acts as surety for or otherwise becomes or is contingently
liable for (by direct or indirect agreement, contingent or otherwise, to provide
funds for payment by, 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 for the payment of dividends or other distributions
upon the shares of any other Person or undertakes or agrees (contingently or
otherwise) to purchase, repurchase, or otherwise acquire or become responsible
for any Debt, obligation or liability or any security therefor, or to provide
funds for the payment or discharge thereof (whether in the form of loans,
advances, stock purchases, capital contributions or otherwise), or to maintain
solvency, assets, level of income, or other financial condition of any other
Person, or to make payment or transfer property to any other Person other than
for fair value received; provided, however, that obligations of each of the
Insurance Subsidiaries under insurance policies, annuities, or surety contracts
issued by it or to which it is a party, reinsurance treaties, certificates or
other agreements of each of the Insurance Subsidiaries which are entered into in
the ordinary course of business (including security posted by each of the
Insurance Subsidiaries in the ordinary course of its business to secure
obligations thereunder) shall not be deemed to be Contingent Liabilities of such
Insurance Subsidiary or the Borrower for the purposes of this Agreement. The
amount of any Person's obligation under any Contingent Liability shall (subject
to any limitation set forth therein) be deemed to be the outstanding principal
amount (or maximum permitted principal amount, if larger) of the debt,
obligation or other liability guaranteed or supported thereby.
Continuation/Conversion Notice shall mean a notice of continuation or
conversion duly executed by two Authorized Officers substantially in the form of
Exhibit C.
Contractual Obligation shall mean, relative to any Person, any
obligation, commitment or undertaking under any agreement or other instrument to
which such Person is a party or by which it or any of its property is bound or
subject.
Controlled Group shall mean the Borrower and any corporation, trade or
business that is, along with the Borrower, a member of a controlled group of
corporations or a controlled group of trades or businesses as described in
sections 414(b) and 414(c), respectively, of the Code or in section 4001 of
ERISA.
5
Debt 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 which have been drawn but not reimbursed by the Person for
whose account such letter of credit was issued, and bankers' acceptances issued
for the account of such Person; (d) all obligations in respect of Capitalized
Leases and Synthetic Lease Obligations of such Person; (e) all Hedging
Obligations of such Person; (f) whether or not so included as liabilities in
accordance with GAAP, all obligations of such Person to pay the deferred
purchase price of property or services; (g) Debt of such Person secured by a
Lien on property owned or being purchased by such Person (including Debt arising
under conditional sales or other title retention agreements) whether or not such
Debt is limited in recourse; (h) any Debt of another Person secured by a Lien on
any assets of such first Person, whether or not such Debt is assumed by such
first Person; (i) any Debt of a partnership in which such Person is a general
partner; and (j) all Contingent Liabilities of such Person whether or not in
connection with the foregoing. The amount of any net obligation under any
Hedging Obligation on any date shall be deemed to be the Swap Termination Value
thereof as of such date. The amount of any capital lease or Synthetic Lease
Obligation as of any date shall be deemed to be the amount of Attributable
Indebtedness in respect thereof as of such date.
Default shall mean any Event of Default or any Unmatured Event of
Default.
Default Rate is defined in Section 4.1(c).
Department is defined in Section 7.2(a).
Dollar(s) and the sign "$" shall mean lawful money of the United
States of America.
Effective Date shall mean the first date when all of the conditions
set forth in Article IX shall have been satisfied.
Eligible Assignee is defined in Section 2.17.
ERISA shall mean the Employee Retirement Income Security Act of 1974,
as amended, and any successor statute of similar import, together with the
regulations promulgated thereunder and under the Code, in each case as in effect
from time to time. References to sections of ERISA also refer to successor
sections.
Eurodollar Loan(s) shall mean any Loan bearing interest at a rate
determined with reference to the Offshore Rate.
Event of Default shall mean any of the events described in Section
10.1.
Executive Officer shall mean, as to any Person, the president, the
chief financial officer, the chief executive officer, the general counsel, the
treasurer or the secretary.
Federal Funds Rate shall mean, for any day, the rate per annum equal
to the weighted average of the rates on overnight Federal funds transactions
with members of the
6
Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank on the Business Day next succeeding such
day; provided that (a) if such day is not a Business Day, the Federal Funds Rate
for such day shall be such rate on such transactions on the next preceding
Business Day as so published on the next succeeding Business Day, and (b) if no
such rate is so published on such next succeeding Business Day, the Federal
Funds Rate for such day shall be the average rate (rounded upward, if necessary,
to a whole multiple of 1/100 of 1%) charged to Bank of America on such day on
such transactions as determined by the Administrative Agent.
Fiscal Quarter shall mean any quarter of a Fiscal Year.
Fiscal Year shall mean any period of twelve consecutive calendar
months ending on the last day of December.
F.R.S. Board shall mean the Board of Governors of the Federal Reserve
System (or any successor thereto).
Funding Percentage shall mean for any Lender, the percentage set forth
opposite the name of such Lender in Schedule 2.1.
Future Interest Expense shall mean at any time the sum of (a) the
consolidated projected interest expense on Consolidated Debt. For purposes of
this definition, the projected interest expense with respect to any Debt shall
be calculated by multiplying the outstanding principal amount of such Debt at
the date of calculation by the annualized interest rate then applicable to such
principal amount and subtracting therefrom, for each mandatory reduction of such
principal that is scheduled to occur within such four Fiscal Quarters, the
corresponding portion of such interest.
GAAP shall mean generally accepted accounting principles in the United
States of America as in effect from time to time.
Governmental Authority shall mean any nation or government, any state
or other political subdivision thereof, and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
Hedging Obligations shall mean, with respect to any Person, the net
liability of such Person under Swap Contracts.
Included Taxes shall mean all taxes, duties or other similar charges
imposed on a Lender including any interest or penalties thereon, except for any
taxes, duties or similar charges imposed on the net income of such Lender by the
jurisdiction under the laws of which such Lender is constituted, by the
jurisdiction in which such Lender booked the Loans made pursuant to this
Agreement, or by the jurisdiction in which such Lender's principal office is
located, but including taxes, duties or similar charges including any interest
or penalties thereon imposed by the United States by means of withholding at the
source on payments of principal and interest on the Loans.
Indemnified Liabilities is defined in Section 13.5.
7
Indemnified Parties is defined in Section 13.5.
Insurance Code shall mean, with respect to any Insurance Subsidiary,
the Insurance Code of such Insurance Subsidiary's state of domicile and any
successor statute of similar import, together with the regulations thereunder,
as amended or otherwise modified and in effect from time to time. References to
sections of the Insurance Code shall be construed to also refer to successor
sections.
Insurance Policies shall mean policies purchased from insurance
companies by any of the Borrower or its Subsidiaries, for its own account to
insure against its own liability and property loss (including, without
limitation, casualty, liability and workers' compensation insurance), other than
Reinsurance Agreements and Surplus Relief Reinsurance Agreements.
Insurance Subsidiary shall mean any Life Subsidiary or any P/C
Subsidiary.
Interest Coverage Ratio shall mean the ratio of (a) the combined
dividends then permitted to be paid by the Insurance Subsidiaries to the
Borrower under applicable law without approval of the Department to (b) Future
Interest Expense for the following four Fiscal Quarters.
Interest Period shall mean, relative to any Eurodollar Loan, the
period which begins on (and includes) the date on which such Eurodollar Loan is
made or continued as, or converted into, a Eurodollar Loan pursuant to Section
4.5 and, unless the maturity of such a Eurodollar Loan is accelerated, ends on
(but excludes) the day which numerically corresponds to such date one, two,
three or six months thereafter, as the Borrower may select in its relevant
Borrowing Request or Continuation/Conversion Notice; provided, that:
(a) if there exists no numerically corresponding day in such month,
such Interest Period shall end on the last Business Day of such month;
(b) if such Interest Period would otherwise end on a day which is not
a Business Day, such Interest Period shall end on the next following
Business Day (unless such next following Business Day is the first Business
Day of a calendar month, in which case such Interest Period shall end on
the Business Day next preceding such numerically corresponding day); and
(c) the Borrower shall not be permitted to select, and there shall
not be applicable, any Interest Period that would end later than the
maturity of the Loans.
Lease Obligations shall mean, at any date, the rental commitments of
any person under leases for real and/or personal property (including taxes,
insurance, maintenance and similar expenses which any Person is obligated to pay
under the terms of said leases) on such date, whether or not such obligations
are reflected as liabilities or commitments on a balance sheet of such Person or
in the notes thereto, excluding, however, obligations under Capitalized Leases.
Lenders is defined in the Preamble.
License(s) is defined in Section 7.13.
8
Lien shall mean, when used with respect to any Person, any interest in
any real or personal property, asset or other right held, owned or being
purchased or acquired by such Person for its own use, consumption or enjoyment
which secures payment or performance of any obligation and shall include any
mortgage, lien, pledge, encumbrance, charge, retained title of a conditional
vendor or lessor, or other security agreement, mortgage, deed of trust, chattel
mortgage, assignment, pledge, retention of title, financing or similar statement
or notice, or other encumbrance arising as a matter of law, judicial process or
otherwise.
Life Subsidiary shall mean any Subsidiary of the Borrower that is
engaged in the business of providing life insurance and/or annuities, and
related services.
Loan(s) is defined in Section 2.1.
Loan Documents shall mean this Agreement, the Note, and all other
agreements, instruments, certificates, documents, schedules or other written
indicia relating to or delivered by the Borrower or any of its Subsidiaries in
connection with any of the foregoing.
Material Adverse Effect shall mean, relative to any occurrence of
whatever nature (including any adverse determination in any litigation,
arbitration, or governmental investigation or proceeding), a materially adverse
effect on:
(a) the assets, business, financial condition, operations or prospects
of the Borrower or any Subsidiary; or
(b) the ability of the Borrower or any Subsidiary to perform any of
its payment or other material obligations under any of the Loan Documents.
Xxxxx'x is defined in the definition of "Applicable Eurodollar
Interest Rate Margin".
Multiemployer Plan shall mean a "multiemployer plan" as defined in
section 4001(a)(3) of ERISA, and to which the Borrower or any of the
Subsidiaries is making, or is obligated to make, contributions, or has made, or
has been obligated to make, contributions.
NAIC shall mean the National Association of Insurance Commissioners,
or any successor thereto.
Net Worth means the consolidated net worth, calculated in accordance
with GAAP, of the Borrower and its consolidated Subsidiaries, excluding
unrealized gains and losses as calculated in accordance with FASB 115.
Note is defined in Section 3.1.
Obligations shall mean all obligations and liabilities of the Borrower
and its Subsidiaries to the Administrative Agent or any of the Lenders,
howsoever created, arising or evidenced, whether direct or indirect, absolute or
contingent, primary or secondary, joint or several, recourse or nonrecourse or
now or hereafter existing or due or to become due, whether for principal,
interest, fees, expenses, lease obligations, claims, indemnities or otherwise,
under
9
or in connection with this Agreement or any other Loan Document and including
any Hedging Obligations to the Administrative Agent or any of the Lenders.
Offshore Rate shall mean for any Interest Period with respect to any
Eurodollar Rate Loan, a rate per annum determined by the Administrative Agent
pursuant to the following formula:
Offshore Rate = Eurodollar Base Rate
---------------------------------------------
1.00 - Eurodollar Reserve Percentage
Where,
"Eurodollar Base Rate" means, for such Interest Period:
(a) the rate per annum equal to the rate determined by the
Administrative Agent to be the offered rate that appears on the page of the
Telerate screen (or any successor thereto) that displays an average British
Bankers Association Interest Settlement Rate for deposits in Dollars (for
delivery on the first day of such Interest Period) with a term equivalent
to such Interest Period, determined as of approximately 11:00 a.m. (London
time) two Business Days prior to the first day of such Interest Period, or
(b) if the rate referenced in the preceding clause (a) does not appear
on such page or service or such page or service shall not be available, the
rate per annum equal to the rate determined by the Administrative Agent to
be the offered rate on such other page or other service that displays an
average British Bankers Association Interest Settlement Rate for deposits
in Dollars (for delivery on the first day of such Interest Period) with a
term equivalent to such Interest Period, determined as of approximately
11:00 a.m. (London time) two Business Days prior to the first day of such
Interest Period, or
(c) if the rates referenced in the preceding clauses (a) and (b) are
not available, the rate per annum determined by the Administrative Agent as
the rate of interest at which deposits in Dollars for delivery on the first
day of such Interest Period in same day funds in the approximate amount of
the Eurodollar Rate Loan being made, continued or converted by Bank of
America and with a term equivalent to such Interest Period would be offered
by Bank of America's London Branch to major banks in the London interbank
eurodollar market at their request at approximately 4:00 p.m. (London time)
two Business Days prior to the first day of such Interest Period.
"Eurodollar Reserve Percentage" means, for any day during any Interest
Period, the reserve percentage (expressed as a decimal, carried out to five
decimal places) in effect on such day, whether or not applicable to any
Lender, under regulations issued from time to time by the F.R.S. Board 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").
The Offshore Rate for each outstanding Eurodollar Rate Loan shall be
adjusted automatically as of the effective date of any change in the
Eurodollar Reserve Percentage.
10
Ordinary Course Litigation is defined in Section 7.4.
Participants is defined in Section 12.2.1.
Participations is defined in Section 12.2.1.
Payment Date shall mean (a) with respect to any Eurodollar Loan,
the last day of each Interest Period with respect thereto and, if such Interest
Period is in excess of three months, the day three months after the commencement
of such Interest Period, and (b) with respect to any Base Rate Loan, the last
Business Day of each month.
Payor is defined in Section 11.6.
PBGC shall mean the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions.
P/C Subsidiary shall mean any Subsidiary of the Borrower that is
engaged in the business of providing property and casualty insurance and related
services.
Person shall mean any natural person, corporation, limited
liability company, partnership, firm, trust, association, government,
governmental agency or other entity, whether acting in an individual, fiduciary
or other capacity.
Plan shall mean any "employee pension benefit plan," as such term
is defined in ERISA, which is subject to Title IV of ERISA (other than a
"Multiemployer Plan"), and as to which any entity in the Controlled Group has or
may have any liability, including any liability by reason of having been a
substantial employer within the meaning of section 4063 of ERISA for any time
within the preceding five years or by reason of being deemed to be a
contributing sponsor under section 4069 of ERISA.
Regulatory Change shall mean, relative to any Lender:
(a) any change in (or the adoption, implementation, phase-in or
commencement of effectiveness of) any
(i) United States federal or state law or foreign law
applicable to such Lender;
(ii) regulation, interpretation, directive, requirement or
request applicable to such Lender of any court or governmental
authority charged with the interpretation or administration of any
law referred to in clause (a)(i) or of any fiscal, monetary or
other authority having jurisdiction over such Lender; or
(b) any change in the application to such Lender of any existing
law, regulation, interpretation, directive, requirement or request
referred to in clause (a)(i) or (a)(ii) above;
in either case, occurring after the date hereof.
11
Reinsurance Agreements shall mean any agreement, contract, treaty,
certificate or other arrangement (other than a Surplus Relief Reinsurance
Agreement) whereby any Insurance Subsidiary agrees to transfer or cede to
another insurer all or part of the liability assumed by such Insurance
Subsidiary under a policy or policies of insurance reinsured by such Insurance
Subsidiary.
Required Lenders shall mean, at any time, Lenders having, in the
aggregate, a Voting Percentage of 66% or more at such time.
Required Payment is defined in Section 11.6.
Requirement of Law for any Person shall mean the corporate charter
and by-laws or other organizational or governing documents of such Person, and
any law, treaty, rule, ordinance or regulation or determination of an arbitrator
or a court or other governmental authority, in each case applicable to or
binding upon such Person or any of its property or to which such Person or any
of its property is subject.
SAP shall mean, as to each Insurance Subsidiary, the statutory
accounting practices prescribed or permitted by the insurance commissioner (or
other similar authority) in such Insurance Subsidiary's state of domicile for
the preparation of Annual Statements and other financial reports by insurance
corporations of the same type as such Insurance Subsidiary.
S & P is defined in the definition of "Applicable Eurodollar
Interest Rate Margin."
Statutory Carrying Value shall mean, as to any investment of any
Insurance Subsidiary, the value of such investment as determined in accordance
with SAP consistently applied.
Statutory Financial Statements is defined in Section 7.2.
Statutory Liabilities shall mean, as to any Person, as of any
date, with respect to (a) any Life Subsidiary, the amount reported on page 3,
line 28, column 1 of its Annual Statement, and (b) any P/C Subsidiary, the
amount reported on page 3, line 21, column 1 of its Annual Statement; or an
amount determined in a consistent manner for any date other than one as of which
an Annual Statement is prepared.
Subsidiary shall mean a corporation of which the indicated Person
and/or its other Subsidiaries, individually or in the aggregate, own, directly
or indirectly, such number of outstanding shares as have at the time of any
determination hereunder more than 50% of the ordinary voting power. Unless
otherwise specified, "Subsidiary" shall mean a Subsidiary of the Borrower.
Surplus Relief Reinsurance Agreements shall mean any agreement
whereby any Insurance Subsidiary assumes or cedes business under a reinsurance
agreement that would be considered a "financing-type" reinsurance agreement and
(a) with respect to any P/C Subsidiary, which is entered into solely for the
purpose of affecting the income statement of such P/C Subsidiary as the same may
be amended from time to time, and (b) with respect to any Life
12
Subsidiary, as determined in the Fourth Edition of the AICPA Audit Guide for
Stock Life Insurance Companies on pp. 91-92 thereof as the same may be amended
from time to time.
Swap Contract shall mean (a) any and all rate swap transactions,
basis swaps, credit derivative transactions, forward rate transactions,
commodity swaps, commodity options, forward commodity contracts, equity or
equity index swaps or options, bond or bond price or bond index swaps or options
or forward bond or forward bond price or forward bond index transactions,
interest rate options, forward foreign exchange transactions, cap transactions,
floor transactions, collar transactions, currency swap transactions,
cross-currency rate swap transactions, currency options, spot contracts, or any
other similar transactions or any combination of any of the foregoing (including
any options to enter into any of the foregoing), whether or not any such
transaction is governed by or subject to any master agreement, and (b) any and
all transactions of any kind, and the related confirmations, which are subject
to the terms and conditions of, or governed by, any form of master agreement
published by the International Swaps and Derivatives Association, Inc., any
International Foreign Exchange Master Agreement, or any other master agreement
(any such master agreement, together with any related schedules, a "Master
Agreement"), including any such obligations or liabilities under any Master
Agreement.
Swap Termination Value shall mean, in respect of any one or more
Swap Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or after
the date such Swap Contracts have been closed out and termination value(s)
determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as the
xxxx-to-market value(s) for such Swap Contracts, as determined based upon one or
more mid-market or other readily available quotations provided by any recognized
dealer in such Swap Contracts (which may include a Lender or any Affiliate of a
Lender).
Synthetic Lease Obligation shall mean the monetary obligation of a
Person under (a) a so-called synthetic, off-balance sheet or tax retention
lease, or (b) an agreement for the use or possession of property creating
obligations that do not appear on the balance sheet of such Person but which,
upon the insolvency or bankruptcy of such Person, would be characterized as the
indebtedness of such Person (without regard to accounting treatment).
2001 Annual Statement is defined in Section 7.2(b).
2002 Quarterly Statement is defined in Section 7.2(b).
Types of Loan -- see Section 2.2. The Types of Loans under this
Agreement are as follows: Base Rate Loans and Eurodollar Loans.
Unmatured Event of Default shall mean any condition or event,
which, after notice or lapse of time or both, would constitute an Event of
Default.
Voting Percentage shall mean at any time, with respect to any
Lender, the percentage calculated by dividing the aggregate principal amount of
such Lender's Loans by the aggregate principal amount of all Lenders' Loans then
outstanding or, if no Loans are outstanding, the Funding Percentage.
13
Welfare Plan shall mean any "employee welfare benefit plan" as
such term is defined in ERISA, as to which the Borrower has any liability.
SECTION 1.2 Use of Defined Terms. Unless otherwise defined or the
context otherwise requires, terms for which meanings are provided in this
Agreement shall have such meanings when used in the Schedules hereto, the Loan
Documents, the Exhibits and any other communications delivered from time to time
in connection with this Agreement.
SECTION 1.3 Cross References; Headings. The words "hereof,"
"herein" and "hereunder" and words of similar import when used in this Agreement
or in any of the Loan Documents shall refer to this Agreement or such Loan
Document as a whole and not to any particular provision of this Agreement or
such Loan Document. Section, Schedule and Exhibit references contained in this
Agreement are references to Sections, Schedules and Exhibits in or to this
Agreement unless otherwise specified. Any reference in any Section or definition
to any clause is, unless otherwise specified, to such clause of such Section or
definition. The various headings in this Agreement and the Loan Documents are
inserted for convenience only and shall not affect the meaning or interpretation
of this Agreement or such Loan Document or any provision hereof or thereof.
SECTION 1.4 Other Definitional Provisions. Unless otherwise
defined or the context otherwise requires, all financial and accounting terms
used herein or in any of the Loan Documents or any certificate or other document
made or delivered pursuant hereto shall be defined in accordance with GAAP or
SAP, as the context may require. When used in this Agreement, the term
"financial statements" shall include the notes and schedules thereto. In
addition, when used herein, the terms "best knowledge of" or "to the best
knowledge of" any Person shall mean matters within the actual knowledge of such
Person (or an Executive Officer or general partner of such Person) or which
should have been known by such Person after reasonable inquiry.
ARTICLE II
AMOUNT AND TERMS OF COMMITMENT
SECTION 2.1 Revolving Loan Commitment. Upon and subject to the
terms and conditions hereof, each of the Lenders severally and for itself agrees
to make revolving loans (collectively called the "Loans" and individually called
a "Loan") from time to time on any Business Day occurring prior to the
Commitment Termination Date, in such Lender's Funding Percentage of the
aggregate amount of the Borrowing requested by the Borrower to be made on such
date; provided, that (i) the aggregate unpaid principal amount of all Loans from
any single Lender shall not exceed the amount set forth opposite the name of
such Lender on Schedule 2.1 and (ii) the aggregate unpaid principal amount of
all Loans from all Lenders outstanding at any time shall not exceed the
Commitment Amount. The Commitment of each Lender to make the Loans pursuant to
this Section 2.1 is herein referred to as its "Commitment."
2.1.1 Voluntary Reduction of Commitment Amount. The Borrower may,
from time to time on any Business Day, voluntarily reduce the unused
amount of the Commitment Amount in whole or in part; provided, however,
that (i) each such voluntary
14
reduction shall require at least two (2) Business Days' prior written
notice to the Administrative Agent and shall be permanent, and (ii) each
such voluntary reduction shall be in an aggregate minimum amount of
$1,000,000 and an integral multiple of $100,000 (or, if less, the entire
unused amount of the Commitment Amount).
2.1.2 Increase of Commitments. The Borrower may from time to time,
by notice to the Administrative Agent, request that the aggregate
Commitments be increased by an amount that will not result in the
aggregate Commitments under this Agreement to exceed $35,000,000. Each
such notice shall set forth the requested amount of the increase in the
Commitments and the date on which such increase is to become effective.
The Borrower shall have the right, but not the obligation, to arrange for
one or more commercial banks or other financial institutions (any such
bank or other financial institution being called an "Augmenting Lender"),
which may include any Lender, to extend Commitments or increase their
existing Commitments in an aggregate amount up to, but not greater than,
the requested increase, provided that each Augmenting Lender, if not
already a Lender hereunder (i) shall extend a new Commitment of not less
than $5,000,000, (ii) shall execute all such documentation as the
Administrative Agent shall specify to evidence its status as a Lender
hereunder and (iii) shall be consented to by the Administrative Agent. If
(and only if) Lenders (including Augmenting Lenders) shall have agreed to
increase their aggregate Commitments or to extend new Commitments in an
aggregate amount not less than $5,000,000 in the aggregate, such
increases and such new Commitments shall become effective on the date
agreed to by the Borrower, the Augmenting Lenders and the Administrative
Agent. Notwithstanding the foregoing, no increase in the aggregate
Commitments (or in the Commitment of any Lender) shall become effective
under this paragraph unless, on the date of such increase, the conditions
set forth in Section 9.2 shall be satisfied (with all references in such
paragraphs to a Loan being deemed to be references to such increase) and
the Administrative Agent shall have received a certificate to that effect
dated such date and executed by an Authorized Officer of the Borrower.
Upon the effectiveness of any increase pursuant to this Section
2.1.2 of the aggregate Commitments and any resulting adjustment in the
Funding Percentage, the Lenders and the Augmenting Lenders will purchase
from each other and sell to each other outstanding Loans sufficient to
cause the outstanding Loans of each Lender and Augmenting Lender to equal
its Funding Percentage (as so adjusted) of the aggregate outstanding
Loans. Such purchase and sale shall be made pursuant to Section 12.2
except that no minimum amount shall be required, no processing fee shall
be charged and, if any Lender shall suffer a loss or incur an expense as
a result of the effectiveness of such purchase or sale being during an
Interest Period, the Borrower shall reimburse such Lender the amount of
such loss or expense. Each such Lender shall furnish the Borrower with a
certificate setting forth the basis for determining the amount to be paid
to it hereunder.
SECTION 2.2 Types of Loans. The Loans shall be denominated as Base
Rate Loans or Eurodollar Loans (each being herein called a "Type" of Loan), as
the Borrower shall specify in the related Borrowing Request pursuant to Section
2.3 or Continuation/Conversion Notice pursuant to Section 4.5. Base Rate Loans
and Eurodollar Loans may be outstanding at
15
the same time, provided that (a) in the case of Eurodollar Loans, not more than
three (3) different Interest Periods shall be outstanding at any one time for
all such Loans, and (b) the Borrower shall specify Types of Loans and Interest
Periods such that no payment or prepayment of any principal on any Eurodollar
Loan shall result in an interruption of any Interest Period. In the absence of
instructions to the contrary in any Borrowing Request and in the absence of the
delivery of any Continuation/Conversion Notice, the Borrower shall be deemed to
have requested that any affected Loan be made or converted to a Base Rate Loan.
SECTION 2.3 Borrowing Request. By delivering to the Agent a
Borrowing Request at or before 9:00 a.m., Chicago time, on a Business Day, the
Borrower may from time to time irrevocably request, on not less than two (2)
Business Days' notice, that a Borrowing be made in an amount equal to all or any
portion of the unused Commitment Amount (i.e., the Commitment Amount minus the
aggregate amount of all outstanding Loans).
SECTION 2.4 Funding of Borrowing. On each Borrowing Date, each
Lender shall deposit with the Administrative Agent same day funds, at or before
10:00 a.m., Chicago time, in an amount equal to its Funding Percentage of the
requested Borrowing. Such deposit shall be made to such account as the
Administrative Agent shall specify. After timely receipt of such funds, the
Administrative Agent shall, at or before 1:00 p.m., Chicago time, on the
Borrowing Date, make such funds available to the Borrower by wire transfer in
same day funds to such accounts of the Borrower as the Borrower shall have
specified in writing. No Lender's obligation to make any portion of the Loans
shall be affected by any other Lender's failure to make any portion of the
Loans.
ARTICLE III
RECORDKEEPING; NOTE; PAYMENTS; SETOFF
SECTION 3.1 Evidence of Debt. The Loans made by each Lender shall
be evidenced by one or more accounts or records maintained by such Lender and by
the Administrative Agent in the ordinary course of business. The accounts or
records maintained by the Administrative Agent and each Lender shall be
conclusive absent manifest error of the amount of the Loans made by the Lenders
to the Borrower and the interest and payments thereon. Any failure to so record
or any error in doing so shall not, however, limit or otherwise affect the
obligation of the Borrower hereunder to pay any amount owing with respect to the
Obligations. In the event of any conflict between the accounts and records
maintained by any Lender and the accounts and records of the Administrative
Agent in respect of such matters, the accounts and records of the Administrative
Agent shall control in the absence of manifest error. Upon the request of any
Lender made through the Administrative Agent, the Borrower shall execute and
deliver to such Lender (through the Administrative Agent) a Note, which shall
evidence such Lender's Loans in addition to such accounts or records. Each
Lender may attach schedules to its Note and endorse thereon the date, Type (if
applicable), amount and maturity of its Loans and payments with respect thereto.
SECTION 3.2 Payment of the Loans.
3.2.1 Required Payments.
16
(a) If at any time the aggregate outstanding principal amount of
the Loans shall exceed the Commitment Amount in effect at such time, the
Borrower shall make a principal repayment of the Loans in an amount equal
to such excess.
(b) The Borrower shall, immediately upon any acceleration of the
maturity date of the Loans pursuant to Section 11.2, repay the Loans.
3.2.2 Voluntary Payments. The Borrower may, from time to time on
any Business Day, make a voluntary payment, in whole or in part, of the
outstanding principal amount of any Loans, subject to Section 3.3.3.
3.2.3 Conditions Applicable to all Payments.
(a) Each payment of a portion of the Loans shall be made pro rata
among Loans of the same Type and, if applicable, having the same Interest
Period of all Lenders.
(b) No payment of any Eurodollar Loan may be made on any day other
than the last day of the Interest Period for such Loan.
(c) All voluntary payments shall require at least three but no
more than five Business Days' prior written notice to the Administrative
Agent.
(d) All voluntary partial payments shall be in an aggregate
minimum amount of $1,000,000 and an integral multiple of $100,000.
(e) All payments of principal of the Loans (in whole or in part)
shall be accompanied by the payment of interest accrued on the principal
amount being prepaid.
SECTION 3.3 Making of Payments. All payments of principal of, or
interest on, the Note and of all fees and other Obligations to be made by the
Borrower pursuant to this Agreement shall be made by the Borrower without
condition or deduction for any counterclaim, defense, recoupment or setoff to
the Administrative Agent for the Administrative Agent's account or for the
benefit of the Lenders, as applicable, in immediately available Dollars. All
such payments shall be deposited to the Borrower's Account No. 74-50915 at Bank
of America (or such other account as the Administrative Agent may from time to
time specify), not later than 10:00 am., Chicago time, on the date due. The
Administrative Agent shall have the authority to debit such account for the
amount of any payments due in order to effect each such payment. Funds received
after 11:30 a.m., Chicago time, shall be deemed to have been received by the
Administrative Agent on the next following Business Day (unless such failure to
receive funds in a timely fashion is due to the Administrative Agent's failure
to debit the Borrower's account).
SECTION 3.4 Due Date Extension. If any payment of principal or
interest with respect to the Loans falls due on a day which is not a Business
Day, then such due date shall be extended to the next following Business Day,
and additional interest shall accrue and be payable for the period of such
extension.
SECTION 3.5 Set-off. The Borrower agrees that each of the Lenders,
the Administrative Agent and any Participant shall have all rights of set-off
provided by applicable
17
law, and in addition thereto, the Borrower agrees that at any time (a) any
payment or amount owing by the Borrower under or in connection with this
Agreement or the Loan Documents is then due or (b) any Unmatured Event of
Default pursuant to Section 10.1.5 or Event of Default exists, each Lender, the
Administrative Agent or any Participant may apply to the payment of such payment
or other amount any and all balances, credits, deposits, accounts or moneys of
the Borrower then or thereafter with such Lender, the Administrative Agent or
any Participant; provided, that, any proceeds or recoveries obtained by any such
Lender, the Administrative Agent or any Participant from any such appropriation
and application in excess of such entity's pro rata share of such payments or
amounts shall be shared with the other Lenders, the Administrative Agent and the
participants on a pro rata basis; provided, further however, no such set-off
shall be undertaken by any Lender or Participant domiciled in or with respect to
property located in California without the written consent of the Administrative
Agent.
ARTICLE IV
INTEREST; CONVERSION; EURODOLLAR LOANS
SECTION 4.1 Interest Rates. The Borrower shall pay interest on the
unpaid principal amount of the Loans for the period commencing on the date of
each such Loan until such Loan is paid in full, at the rates per annum specified
below:
(a) On the outstanding principal amount of the Loans maintained
from time to time as Base Rate Loans, interest shall accrue at the Base
Rate from time to time in effect; and
(b) On the outstanding principal amount of each Loan maintained
from time to time as a Eurodollar Loan, interest shall accrue at a rate
per annum equal to the Offshore Rate from time to time in effect for the
related Interest Period plus the Applicable Eurodollar Interest Rate
Margin in effect from time to time; and
(c) Notwithstanding the foregoing, (i) any amount past due shall
bear interest at a rate per annum (the "Default Rate") equal to the Base
Rate Loan from time to time in effect (but not less than the Base Rate as
in effect at such occurrence date) plus 3.5% per annum, and (ii) upon the
occurrence and during the continuation of any Event of Default, and after
notice by the Administrative Agent to the Borrower of the Required
Lenders' intent to apply the Default Rate of interest the outstanding
principal amount of the Loans and any other monetary Obligations shall
bear interest at the Default Rate.
SECTION 4.2 Interest Payment Dates. Accrued interest on the Loans
shall be paid on each Payment Date, commencing with the first such date
following the Effective Date. After maturity, accrued interest on the Loans
shall be payable on demand.
SECTION 4.3 Setting of Rates. Interest rates hereunder shall be
calculated from time to time by the Administrative Agent and each such
calculation of an interest rate shall be conclusive and binding on the Borrower
in the absence of manifest error. Any change in the Applicable Eurodollar Rate
Margin resulting from a change in the Borrower's public ratings shall be
effective on the date such public rating change is announced.
18
SECTION 4.4 Computation of Interest and Fees. Interest on Base
Rate Loans, when based on the "prime rate," shall be computed on the basis of
actual days elapsed and a year consisting of 365 or 366 days, as applicable. All
other interest and fees shall be computed on the basis of actual days elapsed
and a year consisting of 360 days.
SECTION 4.5 Continuation and Conversion Elections. At the election
of the Borrower pursuant to a Continuation/ Conversion Notice delivered to the
Administrative Agent at or before 10:00 a.m., Chicago time, the Borrower may
elect, from time to time on not less than three (3) Business Days' notice:
(a) that all, or any portion, in an aggregate minimum amount of
$1,000,000 and an integral multiple of $100,000, of the Loans be
converted from Base Rate Loans into Eurodollar Loans; and
(b) on the expiration of the Interest Period applicable to any
Eurodollar Loans, that all, or any portion, in an aggregate minimum
amount of $1,000,000 and an integral multiple of $100,000, of such Loans
be continued as Eurodollar Loans or converted into Base Rate Loans;
provided, however, that:
(i) no portion of the outstanding principal amount of any
Loan may be continued as, or be converted into, a Eurodollar Loan
when any Default has occurred and is continuing; and
(ii) no portion of the outstanding principal amount of any
Loan may be made or continued as, or be converted into, a
Eurodollar Loan if, after giving effect to such action, the
Interest Period applicable thereto shall extend beyond the date of
any mandatory payment of such Loan unless a sufficient principal
amount of the Loans is being maintained as Base Rate Loans or as
Eurodollar Loans having Interest Periods ending on or prior to the
date of any such mandatory prepayment to permit such repayment to
be applied in full to Base Rate Loans.
SECTION 4.6 Funding. In the event the Borrower elects to obtain
any portion of the Loans as Eurodollar Loans, or elects to convert any portion
of the principal amount of any Base Rate Loan into a Eurodollar Loan, each
Lender may, if it so elects, fulfill its obligation to make or continue any
portion of the principal amount of the Loans as, or to convert any portion of
the principal amount of any Loan into, a Eurodollar Loan in accordance with any
election made by the Borrower by causing a foreign branch or Affiliate of such
Lender or an international banking facility created by such Lender to make such
Eurodollar Loan; provided, however, that in such event such Eurodollar Loan
shall be deemed to have been made by such Lender for the purpose of all
provisions of this Agreement, and the obligation of the Borrower to repay such
Eurodollar Loan shall nevertheless be to such Lender and shall be deemed to be
held by it, to the extent of such Eurodollar Loan, for the account of such
foreign branch, Affiliate or international banking facility.
19
SECTION 4.7 Eurodollar Rate Lending Unlawful. If as the result of
any Regulatory Change, any Lender shall determine (which determination shall be
conclusive and binding on the Borrower) that it is unlawful for such Lender to
make, continue, or maintain any Loan as, or to convert any Loan into, a
Eurodollar Loan, the obligations of all Lenders to make, continue or maintain
any portion of the principal amount of any Loan as, or to convert any Loan into,
a Eurodollar Loan shall be, upon such determination (and telephonic notice
thereof, confirmed in writing, to the Administrative Agent and the Borrower),
forthwith suspended until such Lender shall notify the Administrative Agent that
the circumstances causing such suspension no longer exist, and all Eurodollar
Loans shall automatically convert into Base Rate Loans; provided, however, that
each Lender shall take any reasonable actions available to it (including the
designation of its lending office) consistent with legal and regulatory
restrictions that will avoid the need for such suspension and will not, in the
reasonable judgment of such Lender, be otherwise materially disadvantageous to
the Lender.
SECTION 4.8 Eurodollar Deposits Unavailable. If prior to the date
on which all or any portion of the principal amount of any Loan is to be made or
continued as, or be converted into, a Eurodollar Loan, the Administrative Agent
shall have determined (and telephonic notice thereof, confirmed in writing,
shall have been given to the Borrower and the Lenders) that:
(a) Dollar deposits in the relevant amount and for the relevant
Interest Period are not available to the Administrative Agent or any
Lender in the interbank eurodollar market; or
(b) by reason of circumstances affecting the interbank eurodollar
market in Dollars, adequate means do not exist for ascertaining the
interest rate applicable hereunder to such Eurodollar Loan;
then, the obligations of all Lenders to make or continue any portion of the
principal amount of any Loan as, or to convert any portion of any Loan into,
Eurodollar Loans shall forthwith be suspended until the Administrative Agent
shall notify the Borrower and the Lenders that the circumstances causing such
suspension no longer exist; provided, however, that each Lender shall take any
reasonable actions available to it (including the designation of its lending
office) consistent with legal and regulatory restrictions that will avoid the
need for such suspension and will not, in the reasonable judgment of such
Lender, be otherwise materially disadvantageous to the Lender.
ARTICLE V
FEES
SECTION 5.1 Payment of Fees. The Borrower agrees to pay the fees
set forth in this Article V. Where such fees are paid to the Administrative
Agent for the benefit of the Lenders, the Administrative Agent shall, upon
receipt of any such fees, promptly transmit to each Lender such Lender's ratable
portion of such fees.
SECTION 5.2 Non-Use Fee. The Borrower agrees to pay to the
Administrative Agent for the ratable benefit of the Lenders a fee for the period
commencing on the Effective
20
Date and ending on the Commitment Termination Date, equal to the Applicable
Non-Use Fee Rate in effect from time to time in each case applied to the daily
average unused portion of the Commitment Amount from time to time. Accrued
non-use fees shall be payable in arrears on the last day of each Fiscal Quarter
of Borrower and on the Commitment Termination Date.
SECTION 5.3 Compensation of Administrative Agent. The Borrower shall pay
to the Administrative Agent such fees and other amounts as each shall agree to
in writing with the Borrower from time to time.
ARTICLE VI
INCREASED COSTS AND OTHER SPECIAL PROVISIONS
SECTION 6.1 Increased Costs. If, after the date hereof, any Regulatory
Change, or compliance by the Administrative Agent or any Lender with any request
or directive (whether or not having the force of law) of any Governmental
Authority, shall subject the Administrative Agent or any Lender to any Included
Tax or capital adequacy requirement with respect to, or shall otherwise increase
the effective cost of the Loans or such Lender's obligation to make, issue or
maintain the Loans (except for taxes, duties or similar charges including any
interest or penalties thereon which do not constitute Included Taxes), or shall
impose on a Lender any other condition, except with respect to taxes, duties or
similar charges including any interest or penalties thereon which do not
constitute Included Taxes, affecting the Loan, or such Lender's obligation to
make the Loans and the result of any of the foregoing is to increase the cost to
any Lender of making, issuing or maintaining the Loans, or to reduce the amount
of, or any rate of return on, any sum received or receivable by such Lender
under this Agreement or under the Note with respect thereto, then upon written
notice of such occurrence to the Borrower by such Lender (which notice shall
contain a statement setting forth a description of such occurrence and shall be
signed by an authorized officer of such Lender), the Borrower shall pay directly
to such Lender such additional amount or amounts as will compensate such Lender
for such increased cost or such reduction; provided, however, that each Lender
shall take any reasonable actions available to it (including the designation of
a different lending office) consistent with legal and regulatory restrictions
that will avoid the need for, or reduce the amount of, such compensation and
will not, in the reasonable judgment of such Lender, be otherwise materially
disadvantageous to such Lender.
SECTION 6.2 Payment for Credits. If the Borrower is required pursuant to
Section 6.1 to pay and pays a Lender for any increased costs or any reduction of
any rate of return, and if such Lender, in good faith, determines that it has
received or been granted a credit against or relief or remission for or
repayment of any tax paid or payable by it, it shall, to the extent that it
could do so without prejudice to the retention of the amount of such credit,
relief, remission or repayment, pay to the Borrower such amount as such Lender
shall, in good faith, have determined to be attributable to such payment by the
Borrower.
SECTION 6.3 Certificate Requirements. Each Lender that is not an entity
organized under the laws of the United States shall deliver to the Borrower
(with a copy to the Administrative Agent) an accurate and complete original
signed copy of an Internal Revenue Service Form W-8BEN or W-8ECI properly
claiming complete exemption from withholding,
21
within thirty days of the signing of this Agreement, and shall promptly deliver
such additional or supplemental forms thereafter as may be required in order to
maintain the effectiveness and accuracy of such forms. In addition, each Lender
shall deliver to the Borrower such other forms or documentation as the Borrower
may reasonably request in order to comply with the United States tax laws.
SECTION 6.4 General Funding Losses. The Borrower hereby agrees that upon
demand by the Administrative Agent (which demand shall be accompanied by a
statement signed by an authorized officer of the Administrative Agent setting
forth the basis for the calculations of the amount being claimed) the Borrower
will indemnify such Lender against any loss or expense which each Lender may
sustain or incur as reasonably determined by such Lender in accordance with the
provisions of this Section 6.4, as a result of any failure of the Borrower to
borrow, continue, convert or repay any Loan on a date specified therefor in a
notice (whether written or oral) of borrowing continuation, conversion or
repayment pursuant to this Agreement. For the purposes of this Section 6.4 such
loss or expense for each Lender shall include an amount equal to the excess, if
any, of (a) its cost of obtaining in the interbank eurodollar market the funds
for the Loans being repaid or not borrowed for the period from the date of such
prepayment or failure to borrow to the last day of the then current Interest
Period for such Loans (or, in the case of a failure to borrow, the Interest
Period for such Loans that would have commenced on the date of such failure)
over (b) the amount of interest that such Lender would have earned had it
invested the entire amount of funds so prepaid or the entire amount of funds
acquired to effect, fund or maintain the Loans not borrowed, at the Federal
Funds Rate. For this purpose, all notices to a Lender or the Administrative
Agent pursuant to this Agreement shall be deemed to be irrevocable.
SECTION 6.5 Discretion of Lender as to Manner of Funding. Notwithstanding
any provision of this Agreement to the contrary, each Lender shall be entitled
to fund and maintain its funding of all or its portion of the Loans in any
manner it sees fit; provided, however, that each Lender shall take any
reasonable actions available to it (including the designation of its lending
office) consistent with legal and regulatory restrictions that will avoid
increased cost to the Borrower and will not, in the reasonable judgment of such
Lender, be otherwise materially disadvantageous to the Lender.
SECTION 6.6 Conclusiveness of Statements: Survival of Provisions. In
making the determinations contemplated by this Article VI, the Administrative
Agent or the Lenders may make such reasonable estimates, assumptions,
allocations and the like that the Administrative Agent or the Lenders in good
faith determine to be appropriate. Upon making any determination pursuant to
this Article VI, the Administrative Agent shall provide the Borrower with a
certificate signed by an authorized officer of the Administrative Agent setting
forth any estimates, assumptions, allocations or other similar calculations made
by the Administrative Agent in connection with such determination. Subject to
the foregoing, determinations and statements of the Administrative Agent and the
Lenders pursuant to this Article VI and any certificates delivered in connection
therewith shall be conclusive absent manifest error. The provisions of this
Article VI shall survive termination of this Agreement.
22
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
To induce the Lenders to enter into this Agreement and to make Loans
hereunder, the Borrower represents and warrants to each Lender that:
SECTION 7.1 Due Organization, Authorization, etc. Each of the Borrower
and each Subsidiary (a) is a corporation duly organized, validly existing and in
good standing under the laws of its state of incorporation, (b) is duly
qualified to do business and in good standing in each jurisdiction where,
because of the nature of its activities or properties, such qualification is
required, which jurisdictions are set forth with respect to the Borrower and
each Subsidiary on Schedule 7.1, (c) has the requisite corporate power and
authority and the right to own and operate its properties, to lease the property
it operates under lease, and to conduct its business as now and proposed to be
conducted, and (d) has obtained all material licenses, permits, consents or
approvals from or by, and has made all filings with, and given all notices to,
all Governmental Authorities having jurisdiction, to the extent required for
such ownership, operation and conduct (including, without limitation, the
consummation of the transactions contemplated by this Agreement) as to each of
the foregoing except where the failure to do so would not have a Material
Adverse Effect on the Borrower, or on the Borrower and its Subsidiaries taken as
a whole. The execution, delivery and performance by the Borrower of this
Agreement and the consummation of the transactions contemplated hereby and
thereby are within its corporate powers and have been duly authorized by all
necessary corporate action (including, without limitation, shareholder approval,
if required). Each of the Borrower and its Subsidiaries has received all
material governmental and other consents and approvals (if any shall be
required) necessary for such execution, delivery and performance, and such
execution, delivery and performance do not and will not contravene or conflict
with, or create a Lien or right of termination or acceleration under, any
Requirement of Law or Contractual Obligation binding upon the Borrower or such
Subsidiaries. This Agreement and each of the Loan Documents is (or when executed
and delivered will be) the legal, valid, and binding obligation of the Borrower
enforceable against the Borrower in accordance with its respective terms;
provided that the Borrower assumes for purposes of this Section 7.1 that this
Agreement and the other Loan Documents have been validly executed and delivered
by each of the parties thereto other than the Borrower.
SECTION 7.2 Statutory Financial Statements. (a) The Annual Statement of
each of the Insurance Subsidiaries (including, without limitation, the
provisions made therein for investments and the valuation thereof, reserves,
policy and contract claims and Statutory Liabilities) as filed with the
appropriate Governmental Authority of its state of domicile (the "Department")
and delivered to each Lender prior to the execution and delivery of this
Agreement, as of and for the 1997, 1998, 1999, 2000 and 2001 Fiscal Years, and
as of and for the Fiscal Quarter ended March 31, 2002 (collectively, the
"Statutory Financial Statements"), have been prepared in accordance with SAP
applied on a consistent basis (except as noted therein). Each such Statutory
Financial Statement was in material compliance with applicable law when filed.
The Statutory Financial Statements fairly present the financial position, the
results of operations, changes in equity and changes in financial position of
each such Insurance Subsidiary as of and for the respective dates and periods
indicated therein in accordance with
23
SAP applied on a consistent basis, except as set forth in the notes thereto or
on Schedule 7.2(a). Except for liabilities and obligations, including, without
limitation, reserves, policy and contract claims and Statutory Liabilities (all
of which have been computed in accordance with SAP), disclosed or provided for
in the Statutory Financial Statements, the Insurance Subsidiaries did not have,
as of the respective dates of each of such financial statements, any material
liabilities or obligations (whether absolute or contingent and whether due or to
become due) which, in conformity with SAP, applied on a consistent basis, would
have been required to be or should be disclosed or provided for in such
financial statements. All books of account of each of the Insurance Subsidiaries
fully and fairly disclose all of the transactions, properties, assets,
investments, liabilities and obligations of such Insurance Subsidiary and all of
such books of account are in the possession of each such Insurance Subsidiary
and are true, correct and complete in all material respects.
(b) The investments of Insurance Subsidiaries reflected in the Annual
Statements filed with the respective Departments with respect to the 2001 Fiscal
Year (the "2001 Annual Statement") and the March 31, 2002 Quarterly Statement
(the "2002 Quarterly Statement") comply in all material respects with all
applicable requirements of the Department with respect to each such Insurance
Subsidiary as well as those of any other applicable jurisdiction relating to
investments in respect of which it may invest its funds.
(c) The provisions made by each Insurance Subsidiary in its 2001 Annual
Statement and in its 0000 Xxxxxxxxx Xxxxxxxxx for reserves, policy and contract
claims and Statutory Liabilities are in compliance in all material respects with
the requirements of the applicable Department as well as those of any other
applicable jurisdiction, and have been computed in accordance with SAP.
(d) Marketable securities and short term investments reflected in the
2001 Annual Statement and in the 2002 Quarterly Statement of each Insurance
Subsidiary are valued at cost, amortized cost or market value, as required by
applicable law.
(e) Except as set forth on Schedule 7.2(e), there has been no material
adverse change in the business, assets, operations or financial condition of the
Borrower or any Subsidiary which has had or could reasonably be expected to have
a Material Adverse Effect on the Borrower, or on the Borrower and its
Subsidiaries taken as a whole since December 31, 2001.
SECTION 7.3 GAAP Financial Statements.
(a) The Borrower has furnished to the Administrative Agent and each of
the Lenders (i) a copy of the unaudited consolidated balance sheets of the
Borrower and its Subsidiaries, and the balance sheet of the Borrower on an
unconsolidated basis as of the close of such Fiscal Quarter and the related
consolidated statements of income and cash flows for that portion of the Fiscal
Year ending as of the close of such a Fiscal Quarter and (ii) a copy of the
unaudited consolidated statement of Income of the Borrower and its Subsidiaries,
and the statement of income of the Borrower on an unconsolidated basis, for such
Fiscal Quarter, all prepared in accordance with GAAP (subject to normal year-end
adjustments and except that footnote and schedule disclosures are abbreviated)
which financial statements are complete and
24
correct and present fairly in accordance with GAAP (subject to normal year-end
adjustments) consolidated or unconsolidated, as the case may be results of
operations and cash flows of the Borrower as of the end of such Fiscal Quarter
and the period then ended.
(b) With respect to any representation and warranty which is deemed to be
made after the date hereof by the Borrower, the balance sheet and statements of
operations, of shareholders' equity and of cash flow, which as of such date
shall most recently have been furnished by or on behalf of the Borrower to each
Lender for the purposes of or in connection with this Agreement or any
transaction contemplated hereby, shall have been prepared in accordance with
GAAP consistently applied (except as disclosed therein), and shall present
fairly the consolidated financial condition of the corporations covered thereby
as at the dates thereof for the periods then ended, subject, in the case of
quarterly financial statements, to normal year-end audit adjustments.
SECTION 7.4 Litigation and Contingent Liabilities. as set forth
(including estimates of the dollar amounts involved) in Schedule 7.4 hereto and
(b) except for claims which are covered by Insurance Policies, coverage for
which has not been denied in writing, or which relate to insurance policies or
surety contracts issued by the Borrower or to which it is a party, reinsurance
treaties, reinsurance certificates, or any other such agreements entered into by
the Borrower in the ordinary course of business (referred to herein as "Ordinary
Course Litigation"), no claim, litigation (including, without limitation,
derivative actions), arbitration, governmental investigation or proceeding or
inquiry is pending or threatened against the Borrower or any of its Subsidiaries
(i) which would, if adversely determined, have a Material Adverse Effect on the
Borrower, or on the Borrower and its Subsidiaries taken as a whole or (ii) which
relates to any of the transactions contemplated hereby, and there is no basis
known to the Borrower for any of the foregoing. Other than any liability
incident to such claims, litigation or proceedings, the Borrower has no material
Contingent Liabilities not provided for or referred to in the financial
statements delivered pursuant to Section 7.3.
SECTION 7.5 Investment Company Act. Other than Xxxxxx Xxxx Investors,
Inc., neither the Borrower nor any of its Subsidiaries is an "investment
company" or a company "controlled by an investment company," within the meaning
of the Investment Company Act of 1940, as amended.
SECTION 7.6 Regulations T, U and X. Neither the Borrower nor any of its
Subsidiaries is engaged principally, or as one of its important activities, in
the business of extending credit for the purpose of purchasing or carrying
margin stock. None of the Borrower, any of its Subsidiaries or any Person acting
on their behalf has taken or will take action to cause the execution, delivery
or performance of this Agreement or the Note, the making or existence of the
Loans or the use of proceeds of the Loans to violate Regulations T, U or X of
the F.R.S. Board.
SECTION 7.7 Proceeds. The proceeds of the Loans will be used for general
corporate purposes. None of such proceeds will be used in violation of
applicable law, and none of such proceeds will be used, directly or indirectly,
for the purpose, whether immediate, incidental or ultimate, of buying or
carrying any margin stock as defined in Regulation U of the F.R.S. Board.
25
SECTION 7.8 Insurance. The Borrower and its Subsidiaries maintain
Insurance Policies to such extent and against such hazards and liabilities as is
required by law or customarily maintained by prudent companies similarly
situated.
SECTION 7.9 Accuracy of Information. All factual written information
furnished heretofore or contemporaneously herewith by or on behalf of the
Borrower or any of its Subsidiaries to the Administrative Agent or the Lenders
for purposes of or in connection with this Agreement or any of the transactions
contemplated hereby, as supplemented to the date hereof, is and all other such
factual written information hereafter furnished by or on behalf of the Borrower
or any of its Subsidiaries to the Administrative Agent or the Lenders will be,
true and accurate in every material respect on the date as of which such
information is dated or certified and not incomplete by omitting to state any
material fact necessary to make such information not misleading.
SECTION 7.10 Subsidiaries. Schedule 7.10 contains a complete list of the
Borrower's Subsidiaries.
SECTION 7.11 Insurance Licenses. Except as set forth on Schedule 7.11, to
the best of the Borrower's knowledge, no license (including, without limitation,
licenses or certificates of authority from applicable insurance departments),
permits or authorizations to transact insurance and reinsurance business
(collectively, the "Licenses") is the subject of a proceeding for suspension or
revocation or any similar proceedings, there is no sustainable basis for such a
suspension or revocation, and no such suspension or revocation is threatened by
any state insurance department.
SECTION 7.12 Taxes. The Borrower and each of its Subsidiaries has filed
all material tax returns that are required to be filed by it, and has paid or
provided adequate reserves for the payment of all material taxes, including,
without limitation, all payroll taxes and federal and state withholding taxes,
and all assessments payable by it that have become due, other than those that
are not yet delinquent or that are disclosed on Schedule 7.12 and are being
contested in good faith by appropriate proceedings and with respect to which
reserves have been established, and are being maintained, in accordance with
GAAP. Except as set forth in Schedule 7.12, there is no ongoing audit or, to the
Borrower's knowledge, other governmental investigation of the tax liability of
the Borrower or any of its Subsidiaries and there is no unresolved claim by a
taxing authority concerning the Borrower's or any such Subsidiary's tax
liability, for any period for which returns have been filed or were due. As used
in this Section 7.12, the term "taxes" includes all taxes of any nature
whatsoever and however denominated, including, without limitation, excise,
import, governmental fees, duties and all other charges, as well as additions to
tax, penalties and interest thereon, imposed by any government or
instrumentality, whether federal, state, local, foreign or other.
SECTION 7.13 Compliance with Laws. Neither the Borrower nor any of its
Subsidiaries is in violation of any law, ordinance, rule, regulation, order,
policy, guideline or other requirement of any Governmental Authority, if the
effect of such violation could reasonably be expected to have a Material Adverse
Effect on the Borrower, or on the Borrower and its Subsidiaries taken as a whole
and, to the best of the Borrower's knowledge, no such violation has been alleged
and each of the Borrower and its Subsidiaries (a) has filed in a timely
26
manner all reports, documents and other materials required to be filed by it
with any Governmental Authority, if such failure to so file could reasonably be
expected to have a Material Adverse Effect on the Borrower, or on the Borrower
and its Subsidiaries taken as a whole; and the information contained in each of
such filings is true, correct and complete in all material respects and (b) has
retained all records and documents required to be retained by it pursuant to any
law, ordinance, rule, regulation, order, policy, guideline or other requirement
of any Governmental Authority, if the failure to so retain such records and
documents could reasonably be expected to have a Material Adverse Effect on the
Borrower, or on the Borrower and its Subsidiaries taken as a whole.
ARTICLE VIII
COVENANTS
Until the Loans and all other Obligations are paid in full, and
until the Commitment Termination Date, the Borrower agrees that, unless at any
time the Required Lenders shall otherwise expressly consent in writing, it will:
SECTION 8.1 Affirmative Covenants.
8.1.1 Reports, Certificates and Other Information. Furnish or
cause to be furnished to the Administrative Agent and the Lenders:
(a) GAAP Financial Statements:
(i) Within 55 days after the close of each of the first
three Fiscal Quarters of each Fiscal Year of the Borrower, a copy
of its Form 10Q filed with the Securities and Exchange Commission
and accompanied by the certification of the chief executive
officer, chief financial officer or treasurer of the Borrower that
the financial statements set forth therein are complete and
correct and present fairly in accordance with GAAP (subject to
normal year-end adjustments) the consolidated, or unconsolidated,
as the case may be, results of operations and cash flows of the
Borrower as at the end of such Fiscal Quarter and for the period
then ended.
(ii) Within 100 days after the close of each Fiscal Year, a
copy of the annual audited consolidated financial statements of
the Borrower and its Subsidiaries, consisting of consolidated
balance sheets and consolidated statements of income and retained
earnings and cash flows, setting forth in comparative form in each
case the consolidated figures for the previous Fiscal Year, which
financial statements shall be prepared in accordance with GAAP,
certified without material qualification by the independent
certified public accountants regularly retained by the Borrower,
or any other firm of independent certified public accountants of
recognized national standing selected by the Borrower and
reasonably acceptable to the Required Lenders that all such
financial statements are complete and correct and present fairly
in accordance with GAAP the consolidated financial position and
the consolidated results of
27
operations and cash flows of the Borrower and its Subsidiaries as
at the end of such year and for the period then ended.
(b) Tax Returns. If requested by the Administrative Agent, copies
of all federal, state, local and foreign tax returns and reports in
respect of income, franchise or other taxes on or measured by income
(excluding sales, use or like taxes) filed by the Borrower or any of its
Subsidiaries.
(c) SAP Financial Statements:
(i) Within 10 days after the applicable regulatory filing
date for each of its Fiscal Quarters, but in any event within 55
days after the end of each of the first three Fiscal Quarters of
each Fiscal Year of each Insurance Subsidiary a copy of the
Quarterly Statement of such Insurance Subsidiary for such Fiscal
Quarter, all prepared in accordance with SAP and accompanied by
the certification of the chief financial officer or chief
executive officer of each Insurance Subsidiary that all such
financial statements are complete and correct and present fairly
in accordance with SAP the financial position of such Insurance
Subsidiary for the periods then ended.
(ii) Within 10 days after the applicable regulatory filing
date for each of its Fiscal Years, but in any event within 65 days
after the end of each Fiscal Year of each Insurance Subsidiary a
copy of the Annual Statement of each Insurance Subsidiary for such
Fiscal Year prepared in accordance with SAP and accompanied by the
certification of the chief financial officer or chief executive
officer of each Insurance Subsidiary that such financial statement
is complete and correct and presents fairly in accordance with SAP
the financial position of such Insurance Subsidiary for the period
then ended.
(iii) Within 10 days after the applicable regulatory filing
date for each of its Fiscal Years, but in any event within 100
days after the close of each Fiscal Year of each Insurance
Subsidiary a copy of each Insurance Subsidiary's "Statement of
Actuarial Opinion" which is provided to the applicable Department
(or equivalent information should the Department no longer require
such a statement) as to the adequacy of loss reserves of such
Insurance Subsidiary. Such opinion shall be in the format
prescribed by the applicable Insurance Code.
(d) Notice of Default, etc. Immediately after an Executive Officer
of the Borrower knows or has reason to know of the existence of any
Default, or any development or other information which would have a
Material Adverse Effect on the Borrower, or on the Borrower and its
Subsidiaries taken as a whole, telephonic notice specifying the nature of
such Default or development or information, including the anticipated
effect thereof, which notice shall be promptly confirmed in writing
within two (2) Business Days.
(e) Other Information. The following certificates and other
information related to the Borrower:
28
(i) Promptly after completion of each such item but in no event
later than the first day of April of each Fiscal Year of the Borrower, a
copy of the Borrower's (A) operating budget, (B) new business plans, if
any, and (C) estimated quarterly Statutory EBT of the Insurance
Subsidiaries for such Fiscal Year which, in the case of each of clause
(A) and (B), are in the form approved by the Board of Directors of the
Borrower.
(ii) Within five (5) Business Days of receipt, a copy of any
financial examination reports by a Governmental Authority with respect to
the Insurance Subsidiaries relating to the insurance business of the
Insurance Subsidiaries (when, and if, prepared); provided, the Borrower
shall only be required to deliver any interim report hereunder at such
time as Borrower has knowledge that a final report will not be issued and
delivered to the Administrative Agent within 90 days of any such interim
report.
(iii) Copies of all Insurance Holding Company System Act filings
with Governmental Authorities, with respect to any occurrence which might
reasonably be expected to have a Material Adverse Effect, by the Borrower
or any Subsidiary not later than five (5) Business Days after such
filings are made, including, without limitation, filings which seek
approval of Governmental Authorities with respect to transactions between
the Borrower or such Subsidiary and its Affiliates.
(iv) Within five (5) Business Days of such notice, notice of
actual suspension, termination or revocation of any material License of
the Insurance Subsidiaries by any Governmental Authority or of receipt of
notice from any Governmental Authority notifying the Borrower of a
hearing (which is not withdrawn within ten (10) days) relating to such a
suspension, termination or revocation, including any request by a
Governmental Authority which commits the Borrower to take, or refrain
from taking, any action or which otherwise materially and adversely
affects the authority of the Borrower to conduct its business.
(v) Within five (5) Business Days of such notice, notice of any
pending or threatened investigation or regulatory proceeding (other than
routine periodic investigations or reviews) by any Governmental Authority
concerning the business, practices or operations of the Borrower,
including any agent or managing general agent thereof.
(vi) Promptly, such additional financial and other information as
the Administrative Agent may from time to time reasonably request.
(vii) Promptly, notice of any actual or, to the best of the
Borrower's knowledge, proposed material changes in the Insurance Code
governing the investment or dividend practices of any Insurance
Subsidiary.
29
(f) Compliance Certificates. Concurrently with the later to
occur of delivery to the Administrative Agent of the GAAP financial
statements and delivery to the Administrative Agent of the SAP financial
statements under Sections 8.1.1(a) and 8.1.1(c), for each Fiscal Quarter
and Fiscal Year of the Borrower, and at any other time no later than
thirty (30) Business Days following a written request of the
Administrative Agent, a duly completed Compliance Certificate, signed by
the chief financial officer or treasurer of the Borrower, containing,
among other things, a computation of, and showing compliance with, each
of the applicable financial ratios and restrictions contained in Sections
8.2.1 through 8.2.3, and to the effect that, to the best of such
officer's knowledge, as of such date no Default has occurred and is
continuing.
(g) Reports to SEC and to Shareholders. Promptly upon the
filing or making thereof (i) copies of each filing and report made by the
Borrower or any of its Subsidiaries with or to any securities exchange or
the Securities and Exchange Commission and (ii) of each communication
from the Borrower to shareholders generally; provided that only those
items described in clauses (i) and (ii) of this Section 8.1.1(g) which
are material to the interest of the Lenders hereunder shall be provided
to the Administrative Agent and the Lenders hereunder.
(h) Notice of Litigation, License and ERISA Matters. Upon
learning of the occurrence of any of the following, written notice
thereof, describing the same and the steps being taken by the Borrower
with respect thereto: (i) the institution of, or any adverse
determination in, any litigation, arbitration proceeding or governmental
proceeding (including any Internal Revenue Service or Department of Labor
proceeding with respect to any Plan or Welfare Plan) which could, if
adversely determined, be reasonably expected to have a Material Adverse
Effect on the Borrower, or on the Borrower and its Subsidiaries taken as
a whole and which is not Ordinary Course Litigation, (ii) the failure of
any Person in the Controlled Group to make a required contribution to any
Plan if such failure is sufficient to give rise to a Lien under section
302(f)(1) of ERISA, (iii) the institution of any steps by any entity in
the Controlled Group to withdraw from, or the institution of any steps by
the Borrower or any other Person to terminate under a distress
termination, any Plan or the taking of any action with respect to a Plan
which could result in the requirement that the Borrower or any of its
Subsidiaries furnish a bond or other security to such Plan, or the
occurrence of any event with respect to any Plan which could result in
the incurrence by the Borrower or any of its Subsidiaries of any material
liability (other than a liability for contributions or premiums), fine or
penalty, (iv) the commencement of any dispute which might lead to the
modification, transfer, revocation, suspension or termination of this
Agreement or any Loan Document or (v) any event which could be reasonably
expected to have a Material Adverse Effect on the Borrower, or on the
Borrower and its Subsidiaries taken as a whole.
(i) Other Information. From time to time such other information
concerning the Borrower or any Subsidiary as the Administrative Agent may
reasonably request.
8.1.2 Corporate Existence; Foreign Qualification. Do and cause to
be done at all times all things necessary to (a) maintain and preserve
the corporate existence of the
30
Borrower, (b) be, and ensure that each Subsidiary of the Borrower is,
duly qualified to do business and be in good standing as a foreign
corporation in each jurisdiction where the nature of its business makes
such qualification necessary, and (c) do or cause to be done all things
necessary to preserve and keep in full force and effect the Borrower's
corporate existence.
8.1.3 Books, Records and Inspections. (a) Maintain, and cause
each of its Subsidiaries to maintain, materially complete and accurate
books and records, (b) permit, and cause each of its Subsidiaries to
permit, access at reasonable times by the Administrative Agent to its
books and records, (c) permit, and cause each of its Subsidiaries to
permit, the Administrative Agent or its designated representative to
inspect at reasonable times its properties and operations, and (d)
permit, and cause each of its Subsidiaries to permit, the Administrative
Agent to discuss its business, operations and financial condition with
its officers.
8.1.4 Insurance. Maintain, and cause each of its Subsidiaries to
maintain, Insurance Policies to such extent and against such hazards and
liabilities as is required by law or customarily maintained by prudent
companies similarly situated.
8.1.5 Taxes and Liabilities. Pay, and cause each of its
Subsidiaries to pay, when due all material taxes, assessments and other
material liabilities except as contested in good faith and by appropriate
proceedings with respect to which reserves have been established, and are
being maintained, in accordance with GAAP if and so long as such contest
could not reasonably be expected to have a Material Adverse Effect on the
Borrower, or on the Borrower and its Subsidiaries taken as a whole.
8.1.6 Compliance with Laws. Comply, and cause each of its
Subsidiaries to comply, (a) with all federal, state and local laws, rules
and regulations related to its businesses (including, without limitation,
the establishment of all insurance reserves required to be established
under SAP and applicable laws restricting the investments of the
Borrower), and (b) with all Contractual Obligations binding upon such
entity, except where failure so to comply would not in the aggregate have
a Material Adverse Effect on the Borrower, or on the Borrower and its
Subsidiaries taken as a whole.
8.1.7 Conduct of Business. Engage on a consolidated basis with
its Subsidiaries primarily in the same business in which the Borrower and
its Subsidiaries are engaged on the date hereof.
SECTION 8.2 Negative Covenants. From and after the Effective Date.
8.2.1 Consolidated Debt to Total Capitalization. Not permit the
ratio of (a) the principal amount of Consolidated Debt to (b) the sum of
(i) Net Worth plus (ii) Consolidated Debt to exceed 0.35 to 1.0 at any
time prior to January 1, 2003, 0.325 to 1.0 at any time thereafter prior
to January 1, 2004 or 0.30 to 1.0 at any time thereafter.
8.2.2 Risk Based Capital. Not permit (a) the adjusted surplus (as
defined by the applicable Department's risk based capital guidelines) of
any of the Insurance Subsidiary to be less than 175% of such Insurance
Subsidiary's respective Company Action Xxxxx
00
(as defined by the applicable Department's risk based capital guidelines)
as of the end of each Fiscal Year, (b) the adjusted surplus (as defined
by the applicable Department's risk based capital guidelines) of the Life
Subsidiaries on a Combined basis to be less than 250% of Company Action
Level (as defined by the applicable Department's risk based capital
guidelines) as of the end of each Fiscal Year or (c) the adjusted surplus
(as defined in the applicable Department's risk based capital guidelines)
of the P/C Subsidiaries on a Combined basis to be less than 250% of
Company Action Level (as defined by the applicable Department's risk
based capital guidelines), as of the end of each Fiscal Year.
8.2.3 Interest Coverage Ratio. Not permit the Interest Coverage
Ratio as at any Fiscal Quarter end to be less than 4.0 to 1.0; provided
that this Section 8.2.3 shall not be deemed breached if the Borrower
shall apply to the applicable Department within 20 days of such Fiscal
Quarter end for permission to pay a special dividend in an amount when
added to the amount set forth in clause (a) of the definition of
"Interest Coverage Ratio" would cause such ratio to be complied with, and
such permission is granted within 45 days of such Fiscal Quarter end.
8.2.4 Mergers, Consolidations and Sales. Not, and not permit any
of its Subsidiaries to, (a) merge or consolidate, or purchase or
otherwise acquire all or substantially all of the assets or stock of any
class of, or any partnership or joint venture interest in, any other
Person, other than (i) the acquisition by Borrower of all or a portion of
the capital stock of Xxxxxx Xxxx Life Insurance Company from Allegiance
Life Insurance Company and (ii) mergers or acquisitions where the
corporate existence of the Borrower is not affected by such merger or
acquisition and, subsequent to such merger or acquisition, the Borrower
is in compliance with all the provisions of this Agreement and no Default
shall exist, or (b) sell, transfer, convey or lease all or any
substantial part of its assets or sell or assign with or without recourse
any receivables, other than any sale, transfer, conveyance or lease in
the ordinary course of business.
8.2.5 Regulations T, U and X. Not, and not permit any of its
Subsidiaries to, use or permit any proceeds of the Loans to be used,
either directly or indirectly, for the purpose, whether immediate,
incidental or ultimate, of purchasing or carrying margin stock, as
defined in Regulation U of the F.R.S. Board.
8.2.6 Other Agreements. Not, and not permit any of its
Subsidiaries to, enter into any agreement containing any provision which
would be violated or breached by the performance of obligations hereunder
or under any instrument or document delivered or to be delivered by it
hereunder or in connection herewith.
8.2.7 Transactions with Affiliates. Not, and not permit any
Subsidiary to, enter into, or cause, suffer or permit to exist, directly
or indirectly, any arrangement, transaction or contract with any of its
Affiliates unless such arrangement, transaction or contract is in the
ordinary course of business, reasonably intended to satisfy the
reasonable business requirements of the Borrower or such Subsidiary, and
on terms and conditions at least as favorable to the Borrower or such
Subsidiary as the terms and conditions which would apply in a similar
arrangement, transaction or contract with a Person or entity not an
Affiliate; provided that transactions between the Borrower and
32
any wholly-owned Subsidiary of the Borrower or between any wholly-owned
Subsidiaries of the Borrower shall be excluded from the restrictions set
forth in this Section 8.2.7.
8.2.8 Liens. Not, and not permit any of its Subsidiaries to,
create or permit to exist any Lien with respect to any assets now or
hereafter existing or acquired, except the following: (a) Liens for
current taxes not delinquent or for taxes being contested in good faith
and by appropriate proceedings and with respect to which adequate
reserves have been established, and are being maintained, in accordance
with GAAP, (b) Liens arising in the ordinary course of business or by
operation of law for sums being contested in good faith and by
appropriate proceedings and with respect to which adequate reserves have
been established, and are being maintained, in accordance with GAAP, or
for sums not due, and in either case not involving any deposits or
advances for borrowed money or the deferred purchase price of property or
services, (c) Liens in connection with the acquisition of fixed assets
after the date hereof and attaching only to the property being acquired,
(d) Liens incurred in the ordinary course of business in connection with
workers' compensation, unemployment insurance or other forms of
governmental insurance or benefits, (e) mechanics', workers',
materialmen's and other like Liens arising in the ordinary course of
business in respect of obligations which are not delinquent or which are
being contested in good faith and by appropriate proceedings and with
respect to which adequate reserves have been established, and are being
maintained, in accordance with GAAP, and (f) other Liens securing Debt
which Debt does not in the aggregate exceed $5,000,000; provided,
however, that, no Lien shall be permitted to exist on the shares
of stock of any of its Subsidiaries.
ARTICLE IX
CONDITIONS
SECTION 9.1 Conditions to Occurrence of the Effective Date. The
occurrence of the Effective Date shall be subject to receipt by the
Administrative Agent of all of the following, each duly executed and dated the
Effective Date (or such earlier date as shall be satisfactory to the
Administrative Agent), each in form and substance satisfactory to the
Administrative Agent (with sufficient copies for each Lender):
9.1.1 This Agreement and Certain Related Documents. This
Agreement, the Note and such other Loan Documents as are required to be
delivered by the terms of this Agreement.
9.1.2 Resolutions. Certified copies of resolutions of the Board
of Directors of the Borrower authorizing the execution, delivery and
performance, respectively, of those documents and matters required of it
with respect to this Agreement or the other Loan Documents.
9.1.3 Incumbency and Signatures. A certificate of an Authorized
Officer certifying the names of the individual or individuals authorized
to sign this Agreement and the other Loan Documents, together with a
sample of the true signature of each such
33
individual. (The Lenders may conclusively rely on each such certificate
until formally advised by a like certificate of any changes therein.)
9.1.4 Opinion of Counsel. The opinion of the general counsel of
the Borrower, addressed to the Administrative Agent and the Lenders, in
the form of Exhibit E.
9.1.5 Charter and By-Laws of the Borrower. Copies of the
corporate charter and by-laws of the Borrower certified by the Secretary
of the Borrower.
9.1.6 Insurance Proceedings. Certificate of an Authorized Officer
that there are no material insurance regulatory proceedings pending or
threatened against the Borrower in any state.
9.1.7 Material Adverse Change Certificate. An officer's
certificate, signed by an Authorized Officer, certifying that to such
officer's best knowledge, since December 31, 2001, no event has occurred
which individually or in the aggregate could reasonably be expected to
have a Material Adverse Effect on the Borrower, or on the Borrower and
its Subsidiaries taken as a whole.
9.1.8 Payment of Existing Credit Agreement. Evidence satisfactory
to the Administrative Agent that prior to or simultaneously with the
initial Borrowing under this Agreement all obligations of the Borrower
under that certain Credit Agreement dated as of December 31, 1996 among
the Borrower, various financial institutions and Bank of America, as
Administrative Agent, have been paid in full.
9.1.9 Other. Such other documents as the Administrative Agent may
reasonably request.
SECTION 9.2 Conditions to All Borrowings. The obligation of the
Lenders to make all Loans shall be subject to the prior or concurrent
satisfaction (in form and substance satisfactory to the Administrative Agent) of
each of the conditions precedent set forth below:
9.2.1 No Default. No Default shall have occurred and be
continuing or will result from the making of the Loans.
9.2.2 Warranties and Representations. (a) All warranties and
representations contained in this Agreement (other than Section 7.4
except in the case of the initial Borrowing and except that as to
Sections 7.1 and 7.10, Schedules 7.1 and 7.10 may be updated after the
initial Borrowing by the Borrower by written notice to the Administrative
Agent) shall be true and correct in all material respects as of the date
of any Loan, with the same effect as though made on the date of and
concurrently with the making of such Loan (except where such
representation speaks as of specified date) and (b) all covenants
contained herein and in such documents to be performed by each of the
parties thereto (other than the Administrative Agent or the Lenders)
prior to the date of any Loan shall have been performed.
9.2.3 Litigation. (a) No litigation (including, without
limitation, derivative actions), arbitration, governmental investigation
or proceeding or inquiry shall be, on the
34
date of any Loan, pending, or to the knowledge of the Borrower,
threatened which seeks to enjoin or otherwise prevent the consummation
of, or to recover any damages or to obtain material relief as a result
of, the transactions contemplated hereunder or, in the reasonable opinion
of the Required Lenders, could be reasonably expected to be materially
adverse to any of the parties to this Agreement and which is not Ordinary
Course Litigation, and (b) in the reasonable opinion of the Required
Lenders, no material adverse development shall have occurred in any
litigation (including, without limitation, derivative actions),
arbitration, government investigation or proceeding or inquiry disclosed
in Schedule 7.4 which is likely to have a Material Adverse Effect on the
Borrower, or on the Borrower and its Subsidiaries taken as a whole.
9.2.4 Fees. The fees referred to in Article V which are due and
payable on or prior to the Effective Date or the date of any Loan shall
have been paid to the Administrative Agent, where applicable, for the
benefit of the Lenders.
9.2.5 Borrowing Request. The Administrative Agent shall have
received a Borrowing Request in form and substance acceptable to the
Administrative Agent.
ARTICLE X
EVENTS OF DEFAULT AND THEIR EFFECT
SECTION 10.1 Events of Default. Each of the following shall
constitute an Event of Default under this Agreement:
10.1.1 Non-Payment of Loan. Default in the payment when due of any
principal on the Loans.
10.1.2 Non-Payment of Interest, Fees, etc. Default, and
continuance thereof for three (3) Business Days, in the payment when due
of interest on the Loans or of any other amount payable hereunder or
under the Loan Documents.
10.1.3 Non-Payment of Other Debt. (a) Default in the payment when
due (subject to any applicable grace period), whether by acceleration or
otherwise, of any other Debt of, or guaranteed by, the Borrower or any of
its Subsidiaries if the aggregate amount of Debt of the Borrower and/or
any of its Subsidiaries which is accelerated or due and payable, or which
may be accelerated or otherwise become due and payable, by reason of such
default or defaults is $10,000,000 or more, or (b) default in the
performance or observance of any obligation or condition with respect to
any such other Debt of, or guaranteed by, the Borrower and/or any of its
Subsidiaries if the effect of such default or defaults is to accelerate
the maturity of any such Debt of $10,000,000 or more in the aggregate or
to permit the holder or holders of such Debt of $10,000,000 or more in
the aggregate, or any trustee or agent for such holders, to cause such
Debt to become due and payable prior to its expressed maturity.
10.1.4 Other Material Obligations. Except for obligations covered
under other provisions of this Article X, default in the payment when
due, or in the performance or observance of, any material obligation of,
or material condition agreed to by, the
35
Borrower or any of its Subsidiaries with respect to any material purchase
or Lease Obligation (except only to the extent that the existence of any
such default is being contested by the Borrower in good faith and by
appropriate proceedings and the Borrower has established, and is
maintaining, adequate reserves therefor in accordance with GAAP) which
default continues for a period of 30 days.
10.1.5 Bankruptcy, Insolvency, etc. (a) (i) The Borrower becomes
insolvent or generally fails to pay, or admits in writing its inability
to pay, debts as they become due; or (ii) the Borrower applies for,
consents to, or acquiesces in the appointment of, a trustee, receiver or
other custodian or similar Person for the Borrower or any property of any
thereof, or makes a general assignment for the benefit of creditors; or
(iii) in the absence of such application, consent or acquiescence, a
trustee, receiver or other custodian or similar Person is appointed for
the Borrower or for a substantial part of the property of any thereof,
unless (A) the Borrower institutes appropriate proceedings to contest or
discharge such appointment within 30 days and thereafter continuously and
diligently prosecutes such proceedings and (B) such appointment is in
fact discharged within 60 days of such appointment; or (iv) any
bankruptcy, reorganization, debt arrangement, or other case or proceeding
under any bankruptcy or insolvency law, or any dissolution or liquidation
proceeding is commenced in respect of the Borrower, unless (A) such case
or proceeding is not commenced by the Borrower, (B) such case or
proceeding is not consented to or acquiesced in by the Borrower, (C) the
Borrower institutes appropriate proceedings to dismiss such case or
proceeding within 30 days and thereafter continuously and diligently
prosecutes such proceedings, and (D) such case or proceeding is in fact
dismissed within 60 days after the commencement thereof; or (E) the
Borrower takes any action to authorize, or in furtherance of, any of the
foregoing; or (b) (i) there shall be commenced against any Insurance
Subsidiary any case, proceeding or other action (A) under any existing or
future law of any jurisdiction, domestic or foreign, relating to
bankruptcy, insolvency, supervision, conservatorship, liquidation,
reorganization or relief of debtors, seeking to have an order for relief
entered with respect to it, or seeking to adjudicate it a bankrupt or
insolvent, or seeking reorganization, rehabilitation, conservation,
supervision, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its debts,
obligations or liabilities, or (B) seeking appointment of a receiver,
trustee, custodian, rehabilitator, conservator, supervisor, liquidator or
other similar official for it or for all or any substantial part of its
assets, in each case which (1) results in the entry of an order for
relief or any such adjudication or appointment or (2) remains
undismissed, undischarged or unbonded for a period of 60 days; or (ii)
there shall be commenced against any of such Subsidiaries any case,
proceeding or other action seeking issuance of a warrant of attachment,
execution, distraint or similar process against all or any substantial
part of its assets which results in the entry of an order for any such
relief which shall not have been vacated, discharged, or stayed or bonded
pending appeal within 60 days from the entry thereof; or (iii) any of
such Subsidiaries shall take any action in furtherance of, or indicating
its consent to, approval of, or acquiescence in, any of the acts set
forth in clause(b)(i) or (ii) above; or (iv) any Governmental Authority
shall issue any order of conservation, supervision or any other order of
like effect relating to any of such Subsidiaries.
36
10.1.6 Non-compliance With Certain Provisions. Failure of the
Borrower to comply with the provisions of each of Sections 8.1.1(d),
8.1.1(h), 8.2.1 through 8.2.4, 8.2.7 or 8.2.8.
10.1.7 Non-compliance With Other Provisions. Failure by the
Borrower to comply with or to perform any provision of this Agreement or
the other Loan Documents (and not constituting an Event of Default under
any of the other provisions of this Article X) and continuance of such
failure for 30 days after notice thereof from the Administrative Agent to
the Borrower.
10.1.8 Warranties and Representations. Any warranty or
representation made by or on behalf of the Borrower or any Subsidiary
herein is inaccurate or incorrect or is breached or false or misleading
in any material respect as of the date such warranty or representation is
made; or any schedule, certificate, financial statement, report, notice,
or other instrument furnished by or on behalf of Borrower or any
Subsidiary to the Administrative Agent or the Lenders is false or
misleading in any material respect on the date as of which the facts
therein set forth are stated or certified.
10.1.9 Employee Benefit Plans. A contribution failure occurs
with respect to any Plan sufficient to give rise to a Lien against the
Borrower or any of its Subsidiaries under section 302(f)(1) of ERISA (as
in effect on the Effective Date); or withdrawal by one or more companies
in the Controlled Group from one or more Multiemployer Plans to which it
or they have an obligation to contribute and the withdrawal liability
(without unaccrued interest) to multiemployer plans as a result of such
withdrawal or withdrawals (including any outstanding withdrawal liability
that the Controlled Group has incurred on the date of such withdrawal) is
material.
10.1.10 Change in Control. A Change in Control occurs.
10.1.11 Litigation. (a) There shall be entered against the
Borrower one or more judgments, awards or decrees, or orders of
attachment, garnishment or any other writ, which exceed ten percent (10%)
of Net Worth at any one time outstanding, excluding judgments, awards,
decrees, orders or writs (i) for which there is insurance, but only to
the extent there is actual insurance coverage, (ii) for which there is
indemnification (upon terms and from creditworthy indemnitors which are
satisfactory to Administrative Agent), but only to the extent there is
actual indemnification, (iii) which have been in force for less than the
applicable period for filing an appeal so long as execution is not levied
thereunder (or in respect of which the Borrower or its appropriate
Subsidiary shall at the time in good faith be prosecuting an appeal or
proceeding for review and in respect of which a stay of execution or
appropriate appeal bond shall have been obtained pending such appeal or
review), (iv) which constitute Ordinary Course Litigation, or (v) which
are reserved for, to the actual extent of reserves or (b) there has been
a final judgment or final judgments for the payment of money exceeding,
in the aggregate, ten percent (10%) of Net Worth rendered against the
Borrower or any of its Subsidiaries by a court of competent jurisdiction
and such judgment(s) remain undischarged for a period (during which
execution shall not be effectively stayed) of 60 days after such
judgment(s) become final and nonappealable.
37
10.1.12 Change in Law. Any change is made in the Insurance Code
which affects the dividend practices of any Insurance Subsidiary and
which is reasonably likely to have a Material Adverse Effect on the
ability of the Borrower to perform its obligations under the Agreement
and such circumstances shall continue for 120 days.
SECTION 10.2 Effect of Event of Default. If any Event of Default
described in Section 10.1.5 shall occur, the Loans and the Note and all other
Obligations shall become immediately due and payable, all without notice of any
kind; and, in the case of any other Event of Default, the Administrative Agent
may, and upon the written request of the Required Lenders shall, terminate the
Commitments hereunder and declare all or any portion of the Loans and all or
such portion of the Note and all other Obligations to be due and payable,
whereupon the Commitment shall terminate and all or such portion of the Loans
and all or such portion of the Note and all other Obligations shall become
immediately due and payable, all without further notice of any kind. The
Administrative Agent shall promptly advise the Borrower of any such declaration
but failure to do so shall not impair the effect of such declaration.
Notwithstanding the foregoing, the effect as an Event of Default of any event
described in Section 10.1.1 may not be waived except by consent of all of the
Lenders in writing.
ARTICLE XI
THE ADMINISTRATIVE AGENT
SECTION 11.1 Appointment and Authorization of Administrative
Agent. Each Lender hereby irrevocably appoints, designates and authorizes the
Administrative Agent to take such action on its behalf under the provisions of
this Agreement and each other Loan Document and to exercise such powers and
perform such duties as are expressly delegated to it by the terms of this
Agreement or any other Loan Document, together with such powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
contained elsewhere herein or in any other Loan Document, the Administrative
Agent shall not have any duties or responsibilities, except those expressly set
forth herein, nor shall the Administrative Agent have or be deemed to have any
fiduciary relationship with any Lender or participant, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or any other Loan Document or otherwise exist against the
Administrative Agent. Without limiting the generality of the foregoing sentence,
the use of the term "agent" herein and in the other Loan Documents with
reference to the Administrative Agent is not intended to connote any fiduciary
or other implied (or express) obligations arising under agency doctrine of any
applicable Law. Instead, such term is used merely as a matter of market custom,
and is intended to create or reflect only an administrative relationship between
independent contracting parties.
SECTION 11.2 Delegation of Duties. The Administrative Agent may
execute any of its duties under this Agreement or any other Loan Document by or
through agents, employees or attorneys-in-fact and shall be entitled to advice
of counsel and other consultants or experts concerning all matters pertaining to
such duties. The Administrative Agent shall not be responsible for the
negligence or misconduct of any agent or attorney-in-fact that it selects in the
absence of gross negligence or willful misconduct.
38
SECTION 11.3 Liability of Administrative Agent. No Agent-Related
Person shall (a) be liable for any action taken or omitted to be taken by any of
them under or in connection with this Agreement or any other Loan Document or
the transactions contemplated hereby (except for its own gross negligence or
willful misconduct in connection with its duties expressly set forth herein), or
(b) be responsible in any manner to any Lender or participant for any recital,
statement, representation or warranty made by any Loan Party or any officer
thereof, contained herein or in any other Loan Document, or in any certificate,
report, statement or other document referred to or provided for in, or received
by the Administrative Agent under or in connection with, this Agreement or any
other Loan Document, or the validity, effectiveness, genuineness, enforceability
or sufficiency of this Agreement or any other Loan Document, or for any failure
of any Loan Party or any other party to any Loan Document to perform its
obligations hereunder or thereunder. No Agent-Related Person shall be under any
obligation to any Lender or participant to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions
of, this Agreement or any other Loan Document, or to inspect the properties,
books or records of any Loan Party or any Affiliate thereof.
SECTION 11.4 Reliance by Administrative Agent.
(a) The Administrative Agent shall be entitled to rely, and shall
be fully protected in relying, upon any writing, communication,
signature, resolution, representation, notice, consent, certificate,
affidavit, letter, telegram, facsimile, telex or telephone message,
electronic mail message, statement or other document or conversation
believed by it to be genuine and correct and to have been signed, sent or
made by the proper Person or Persons, and upon advice and statements of
legal counsel (including counsel to any Loan Party), independent
accountants and other experts selected by the Administrative Agent. The
Administrative Agent shall be fully justified in failing or refusing to
take any action under any Loan Document unless it shall first receive
such advice or concurrence of the Required Lenders as it deems
appropriate and, if it so requests, it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense
which may be incurred by it by reason of taking or continuing to take any
such action. The Administrative Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement
or any other Loan Document in accordance with a request or consent of the
Required Lenders (or such greater number of Lenders as may be expressly
required hereby in any instance) and such request and any action taken or
failure to act pursuant thereto shall be binding upon all the Lender.
(b) For purposes of determining compliance with the conditions
specified in Section 9.11, each Lender that has signed this Agreement
shall be deemed to have consented to, approved or accepted or to be
satisfied with, each document or other matter required thereunder to be
consented to or approved by or acceptable or satisfactory to a Lender
unless the Administrative Agent shall have received notice from such
Lender prior to the proposed the date of Closing specifying its objection
thereto.
SECTION 11.5 Notice of Default. The Administrative Agent shall not
be deemed to have knowledge or notice of the occurrence of any Default, except
with respect to defaults in the payment of principal, interest and fees required
to be paid to the Administrative Agent for the account of the Lenders, unless
the Administrative Agent shall have received
39
written notice from a Lender or the Borrower referring to this Agreement,
describing such Default and stating that such notice is a "notice of default."
The Administrative Agent will notify the Lenders of its receipt of any such
notice. The Administrative Agent shall take such action with respect to such
Default as may be directed by the Required Lenders in accordance with Article X;
provided, however, that unless and until the Administrative Agent has received
any such direction, the Administrative Agent may (but shall not be obligated to)
take such action, or refrain from taking such action, with respect to such
Default as it shall deem advisable or in the best interest of the Lenders.
SECTION 11.6 Credit Decision; Disclosure of Information by
Administrative Agent. Each Lender acknowledges that no Agent-Related Person has
made any representation or warranty to it, and that no act by the Administrative
Agent hereafter taken, including any consent to and acceptance of any assignment
or review of the affairs of any Loan Party or any Affiliate thereof, shall be
deemed to constitute any representation or warranty by any Agent-Related Person
to any Lender as to any matter, including whether Agent-Related Persons have
disclosed material information in their possession. Each Lender represents to
the Administrative Agent that it has, independently and without reliance upon
any Agent-Related Person and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, prospects, operations, property, financial and other condition and
creditworthiness of the Loan Parties and their respective Subsidiaries, and all
applicable bank or other regulatory Laws relating to the transactions
contemplated hereby, and made its own decision to enter into this Agreement and
to extend credit to the Borrower hereunder. Each Lender also represents that it
will, independently and without reliance upon any Agent-Related Person and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking or
not taking action under this Agreement and the other Loan Documents, and to make
such investigations as it deems necessary to inform itself as to the business,
prospects, operations, property, financial and other condition and
creditworthiness of the Borrower. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the
Administrative Agent herein, the Administrative Agent shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the business, prospects, operations, property, financial and other
condition or creditworthiness of any of the Loan Parties or any of their
respective Affiliates which may come into the possession of any Agent-Related
Person.
SECTION 11.7 Indemnification of Administrative Agent. Whether or
not the transactions contemplated hereby are consummated, the Lenders shall
indemnify upon demand each Agent-Related Person (to the extent not reimbursed by
or on behalf of any Loan Party and without limiting the obligation of any Loan
Party to do so), pro rata, and hold harmless each Agent-Related Person from and
against any and all Indemnified Liabilities incurred by it; provided, however,
that no Lender shall be liable for the payment to any Agent-Related Person of
any portion of such Indemnified Liabilities to the extent determined in a final,
nonappealable judgment by a court of competent jurisdiction to have resulted
from such Agent-Related Person's own gross negligence or willful misconduct;
provided, however, that no action taken in accordance with the directions of the
Required Lenders shall be deemed to constitute gross negligence or willful
misconduct for purposes of this Section. Without limitation of the foregoing,
each Lender shall reimburse the Administrative Agent upon demand for its ratable
share of any costs or out-of-pocket expenses (including Attorney Costs) incurred
by the
40
Administrative Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement, any other Loan Document, or
any document contemplated by or referred to herein, to the extent that the
Administrative Agent is not reimbursed for such expenses by or on behalf of the
Borrower. The undertaking in this Section shall survive termination of the
combined Commitments, the payment of all other Obligations and the resignation
of the Administrative Agent.
SECTION 11.8 Administrative Agent in its Individual Capacity. Bank of
America and its Affiliates may make loans to, issue letters of credit for the
account of, accept deposits from, acquire equity interests in and generally
engage in any kind of banking, trust, financial advisory, underwriting or other
business with each of the Loan Parties and their respective Affiliates as though
Bank of America were not the Administrative Agent hereunder and without notice
to or consent of the Lenders. The Lenders acknowledge that, pursuant to such
activities, Bank of America or its Affiliates may receive information regarding
any Loan Party or its Affiliates (including information that may be subject to
confidentiality obligations in favor of such Loan Party or such Affiliate) and
acknowledge that the Administrative Agent shall be under no obligation to
provide such information to them. With respect to its Loans, Bank of America
shall have the same rights and powers under this Agreement as any other Lender
and may exercise such rights and powers as though it were not the Administrative
Agent, and the terms "Lender" and "Lenders" include Bank of America in its
individual capacity.
SECTION 11.9 Successor Administrative Agent. The Administrative Agent
may resign as Administrative Agent upon 30 days' notice to the Lenders. If the
Administrative Agent resigns under this Agreement, the Required Lenders shall
appoint from among the Lenders a successor administrative agent for the Lenders,
which successor administrative agent shall be consented to by the Borrower at
all times other than during the existence of an Event of Default (which consent
of the Borrower shall not be unreasonably withheld or delayed). If no successor
administrative agent is appointed prior to the effective date of the resignation
of the Administrative Agent, the Administrative Agent may appoint, after
consulting with the Lenders and the Borrower, a successor administrative agent
from among the Lenders. Upon the acceptance of its appointment as successor
administrative agent hereunder, the Person acting as such successor
administrative agent shall succeed to all the rights, powers and duties of the
retiring Administrative Agent and the term "Administrative Agent shall mean such
successor administrative 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 Article XI and Sections 13.4 and
13.5 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
administrative 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 Lenders shall perform all of the duties of
the Administrative Agent hereunder until such time, if any, as the Required
Lenders appoint a successor agent as provided for above.
SECTION 11.10 Administrative Agent May File Proofs of Claim. In case of
the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement,
41
adjustment, composition or other judicial proceeding relative to any Loan Party,
the Administrative Agent (irrespective of whether the principal of any Loan
shall then be due and payable as herein expressed or by declaration or otherwise
and irrespective of whether the Administrative Agent shall have made any demand
on the Borrower) shall be entitled and empowered, by intervention in such
proceeding or otherwise
(a) to file and prove a claim for the whole amount of the
principal and interest owing and unpaid in respect of the Loans and all
other Obligations that are owing and unpaid and to file such other
documents as may be necessary or advisable in order to have the claims of
the Lenders and the Administrative Agent (including any claim for the
reasonable compensation, expenses, disbursements and advances of the
Lenders and the Administrative Agent and their respective agents and
counsel and all other amounts due the Lenders and the Administrative
Agent under Article V and Section 13.4 allowed in such judicial
proceeding; and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender to make such payments to the Administrative Agent and, in the event
that the Administrative Agent shall consent to the making of such payments
directly to the Lenders, to pay to the Administrative Agent any amount due for
the reasonable compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under Article V and Section 13.4.
Nothing contained herein shall be deemed to authorize the Administrative
Agent to authorize or consent to or accept or adopt on behalf of any Lender any
plan of reorganization, arrangement, adjustment or composition affecting the
Obligations or the rights of any Lender or to authorize the Administrative Agent
to vote in respect of the claim of any Lender in any such proceeding.
ARTICLE XII
ASSIGNMENTS AND PARTICIPATIONS
SECTION 12.1 Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that the Borrower may
not assign or otherwise transfer any of its rights or obligations hereunder
without the prior written consent of each Lender and no Lender may assign or
otherwise transfer any of its rights or obligations hereunder except (i) to an
Eligible Assignee in accordance with the provisions of Section 12.2, (ii) by way
of participation in accordance with the provisions of Section 12.4, or (iii) by
way of pledge or assignment of a security interest subject to the restrictions
of Section 12.6 (and any other attempted assignment or transfer by any party
hereto shall be null and void). Nothing in this Agreement, expressed or implied,
shall be construed to confer upon any Person (other than the parties hereto,
their respective successors and assigns permitted hereby, Participants to the
extent provided in
42
subsection (d) of this Section and, to the extent expressly contemplated hereby,
the Indemnitees) any legal or equitable right, remedy or claim under or by
reason of this Agreement.
SECTION 12.2 Assignments. Any Lender may at any time assign to one or
more Eligible Assignees all or a portion of its rights and obligations under
this Agreement (including all or a portion of its Commitment and the Loans at
the time owing to it); provided that (i) except in the case of an assignment of
the entire remaining amount of the assigning Lender's Commitment and the Loans
at the time owing to it or in the case of an assignment to a Lender or an
Affiliate of a Lender or an Approved Fund (as defined in subsection (g) of this
Section) with respect to a Lender, the aggregate amount of the Commitment (which
for this purpose includes Loans outstanding thereunder) subject to each such
assignment, determined as of the date the Assignment and Assumption with respect
to such assignment is delivered to the Administrative Agent or, if "Trade Date"
is specified in the Assignment and Assumption, as of the Trade Date, shall not
be less than $5,000,000 unless each of the Administrative Agent and, so long as
no Event of Default has occurred and is continuing, the Borrower otherwise
consents (each such consent not to be unreasonably withheld or delayed); (ii)
each partial assignment shall be made as an assignment of a proportionate part
of all the assigning Lender's rights and obligations under this Agreement with
respect to the Loans or the Commitment assigned; (iii) any assignment of a
Commitment must be approved by the Administrative Agent unless the Person that
is the proposed assignee is itself a Lender (whether or not the proposed
assignee would otherwise qualify as an Eligible Assignee); and (iv) the parties
to each assignment shall execute and deliver to the Administrative Agent an
Assignment and Assumption, together with a processing and recordation fee of
$3,500. Subject to acceptance and recording thereof by the Administrative Agent
pursuant to subsection (c) of this Section, from and after the effective date
specified in each Assignment and Assumption, the Eligible Assignee thereunder
shall be a party to this Agreement and, to the extent of the interest assigned
by such Assignment and Assumption, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the extent
of the interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 6.1, 6.4, 13.4 and 13.5 with respect
to facts and circumstances occurring prior to the effective date of such
assignment). Upon request, the Borrower (at its expense) shall execute and
deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of
rights or obligations under this Agreement that does not comply with this
subsection shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with
subsection (d) of this Section.
SECTION 12.3 Register. The Administrative Agent, acting solely for this
purpose as an agent of the Borrower, shall maintain at the Administrative
Agent's Office a copy of each Assignment and Assumption delivered to it and a
register for the recordation of the names and addresses of the Lenders, and the
Commitments of, and principal amounts of the Loans owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). The entries in
the Register shall be conclusive, and the Borrower, the Administrative Agent and
the Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the
43
contrary. The Register shall be available for inspection by the Borrower and any
Lender, at any reasonable time and from time to time upon reasonable prior
notice.
SECTION 12.4 Participations. Any Lender may at any time, without the
consent of, or notice to, the Borrower or the Administrative Agent, sell
participations to any Person (other than a natural person or the Borrower or any
of the Borrower's Affiliates or Subsidiaries) (each, a "Participant") in all or
a portion of such Lender's rights and/or obligations under this Agreement
(including all or a portion of its Commitment and/or the Loans owing to it);
provided that (i) such Lender's obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (iii) the Borrower, the
Administrative Agent and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, waiver or other modification
requiring consent of all Lenders that directly affects such Participant. Subject
to subsection (e) of this Section, the Borrower agrees that each Participant
shall be entitled to the benefits of Sections 6.1 and 6.4 to the same extent as
if it were a Lender and had acquired its interest by assignment pursuant to
subsection (b) of this Section. To the extent permitted by law, each Participant
also shall be entitled to the benefits of Section 3.5 as though it were a
Lender, provided such Participant agrees to be subject to Section 3.5 as though
it were a Lender.
SECTION 12.5 Greater Payment. A Participant shall not be entitled to
receive any greater payment under Section 6.4 or 6.4 than the applicable Lender
would have been entitled to receive with respect to the participation sold to
such Participant, unless the sale of the participation to such Participant is
made with the Borrower's prior written consent. A Participant that would be a
Lender not organized in the United States shall not be entitled to the benefits
of Section 6.1 unless the Borrower is notified of the participation sold to such
Participant and such Participant agrees, for the benefit of the Borrower, to
comply with Section 6.4 as though it were a Lender.
SECTION 12.6 Pledge. Any Lender may at any time pledge or assign a
security interest in all or any portion of its rights under this Agreement
(including under its Note, if any) to secure obligations of such Lender,
including any pledge or assignment to secure obligations to a Federal Reserve
Bank; provided that no such pledge or assignment shall release such Lender from
any of its obligations hereunder or substitute any such pledgee or assignee for
such Lender as a party hereto.
SECTION 12.7 Definitions. As used herein, the following terms have the
following meanings:
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a Lender; (c)
an Approved Fund; and (d) any other Person (other than a natural person)
approved by (i) the Administrative Agent, and (ii) unless an Event of Default
has occurred and is continuing, the Borrower (each such approval not to be
unreasonably withheld or
44
delayed); provided that notwithstanding the foregoing, "Eligible
Assignee" shall not include the Borrower or any of the Borrower's
Affiliates or Subsidiaries.
"Fund" means any Person (other than a natural person) that is (or
will be) engaged in making, purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in the ordinary course
of its business.
"Approved Fund" means any Fund that is administered or managed by
(a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an
Affiliate of an entity that administers or manages a Lender.
ARTICLE XIII
GENERAL
SECTION 13.1 Waiver; Amendments. No delay on the part of the
Administrative Agent or any Lender or any holder of a Note or other Obligation
in the exercise of any right, power or remedy shall operate as a waiver thereof,
nor shall any single or partial exercise by any of them of any right, power or
remedy preclude other or further exercise thereof, or the exercise of any other
right, power or remedy. No amendment, modification or waiver of, or consent with
respect to, any provision of this Agreement or the Note or any Loan Document
shall in any event be effective unless the same shall be in writing and signed
and delivered by the Borrower and the Required Lenders and acknowledged by the
Administrative Agent and then any such amendment, modification, waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given. Notwithstanding the foregoing, no amendment,
modification, waiver or consent which would do any of the following shall be
effective unless in writing and signed by the Borrower and each of the Lenders
and acknowledged by the Administrative Agent: (a) extend the due date for, or
reduce the amount of, any payment or prepayment of principal of or interest on
any Loan (or reduce the principal amount of or rate of interest on any Loan) or
any fees; (b) change the definition of Required Lenders or subject any Lender to
any additional obligations including, without limitation, any increase in the
Commitment Amount; (c) waive any of the conditions precedent set forth in
Article IX (other than Sections 9.1.5, 9.1.6, 9.1.7, and 9.1.8), or (d) amend
this Section 13.1, Section 10.2 with regard to the waiver of an Event of Default
under Section 10.1.1 or 13.9. Notwithstanding the foregoing, no provisions of
Article XI shall be amended, modified or waived without the written consent the
Administrative Agent.
SECTION 13.2 Confirmations. The Borrower and the Administrative
Agent (or any holder of a Note) agree from time to time, upon written request
received by it from the other, to confirm to the other in writing the aggregate
unpaid principal amount of the Loan then outstanding under such Note.
SECTION 13.3 Notices and Other Communications; Facsimile Copies.
(a) General. Unless otherwise expressly provided herein, all
notices and other communications provided for hereunder shall be in
in writing (including by facsimile transmission). All such written
notices shall be mailed, faxed or delivered to the
45
applicable address, facsimile number or (subject to subsection (c) below)
electronic mail address, and all notices and other communications
expressly permitted hereunder to be given by telephone shall be made to
the applicable telephone number, as follows:
(i) if to the Borrower or the Administrative Agent, to the
address, facsimile number, electronic mail address or telephone
number specified for such Person on Schedule 13.3 or to such other
address, facsimile number, electronic mail address or telephone
number as shall be designated by such party in a notice to the
other parties; and
(ii) if to any other Lender, to the address, facsimile
number, electronic mail address or telephone number specified in
its Administrative Questionnaire or to such other address,
facsimile number, electronic mail address or telephone number as
shall be designated by such party in a notice to the Borrower and
the Administrative Agent.
All such notices and other communications shall be deemed to be given or made
upon the earlier to occur of (i) actual receipt by the relevant party hereto and
(ii) (A) if delivered by hand or by courier, when signed for by or on behalf of
the relevant party hereto; (B) if delivered by mail, four Business Days after
deposit in the mails, postage prepaid; (C) if delivered by facsimile, when sent
and receipt has been confirmed by telephone; and (D) if delivered by electronic
mail (which form of delivery is subject to the provisions of subsection (c)
below), when delivered; provided, however, that notices and other communications
to the Administrative Agent pursuant to Article II shall not be effective until
actually received by such Person. In no event shall a voicemail message be
effective as a notice, communication or confirmation hereunder.
(b) Effectiveness of Facsimile Documents and Signatures. Loan
Documents may be transmitted and/or signed by facsimile. The
effectiveness of any such documents and signatures shall, subject to
applicable Law, have the same force and effect as manually-signed
originals and shall be binding on the Borrower, the Administrative Agent
and the Lenders. The Administrative Agent may also require that any such
documents and signatures be confirmed by a manually-signed original
thereof; provided, however, that the failure to request or deliver the
same shall not limit the effectiveness of any facsimile document or
signature.
(c) Limited Use of Electronic Mail. Electronic mail and Internet
and intranet websites may be used only to distribute routine
communications, such as financial statements and other information as
provided in Section 8.1, and to distribute Loan Documents for execution
by the parties thereto, and may not be used for any other purpose.
(d) Reliance by Administrative Agent and Lenders. The
Administrative Agent and the Lenders shall be entitled to rely and act
upon any notices (including telephonic Borrowing Requests and
Continuation/Conversion Notices) purportedly given by or on behalf of the
Borrower even if (i) such notices were not made in a manner specified
herein, were incomplete or were not preceded or followed by any other
form of notice specified herein, or (ii) the terms thereof, as understood
by the recipient, varied
46
from any confirmation thereof. The Borrower shall indemnify each
Agent-Related Person and each Lender from all losses, costs, expenses and
liabilities resulting from the reliance by such Person on each notice
purportedly given by or on behalf of the Borrower. All telephonic notices
to and other communications with the Administrative Agent may be recorded
by the Administrative Agent, and each of the parties hereto hereby
consents to such recording.
SECTION 13.4 Attorney Costs, Expenses and Taxes. The Borrower
agrees to pay or reimburse the Administrative Agent and each Lender for all
costs and expenses incurred in connection with the enforcement, attempted
enforcement, or preservation of any rights or remedies under this Agreement or
the other Loan Documents (including all such costs and expenses incurred during
any "workout" or restructuring in respect of the Obligations and during any
legal proceeding, including any proceeding under any bankruptcy or insolvency
laws), including all Attorney Costs. The foregoing costs and expenses shall
include all search, filing, recording, title insurance and appraisal charges and
fees and taxes related thereto, and other out-of-pocket expenses incurred by the
Administrative Agent and the cost of independent public accountants and other
outside experts retained by the Administrative Agent or any Lender. All amounts
due under this Section 13.4 shall be payable within ten Business Days after
demand therefor. The agreements in this Section shall survive the termination of
the aggregate Commitments and repayment of all other Obligations.
SECTION 13.5 Indemnification by the Borrower. Whether or not the
transactions contemplated hereby are consummated, the Borrower shall indemnify
and hold harmless each Agent-Related Person, each Lender and their respective
Affiliates, directors, officers, employees, counsel, agents and
attorneys-in-fact (collectively the "Indemnitees") from and against any and all
liabilities, obligations, losses, damages, penalties, claims, demands, actions,
judgments, suits, costs, expenses and disbursements (including Attorney Costs)
of any kind or nature whatsoever which may at any time be imposed on, incurred
by or asserted against any such Indemnitee in any way relating to or arising out
of or in connection with (a) the execution, delivery, enforcement, performance
or administration of any Loan Document or any other agreement, letter or
instrument delivered in connection with the transactions contemplated thereby or
the consummation of the transactions contemplated thereby, (b) any Commitment or
Loan or the use or proposed use of the proceeds therefrom or (c) any actual or
prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory (including
any investigation of, preparation for, or defense of any pending or threatened
claim, investigation, litigation or proceeding) and regardless of whether any
Indemnitee is a party thereto (all the foregoing, collectively, the "Indemnified
Liabilities"); provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such liabilities, obligations, losses, damages,
penalties, claims, demands, actions, judgments, suits, costs, expenses or
disbursements are determined by a court of competent jurisdiction by final and
nonappealable judgment to have resulted from the gross negligence or willful
misconduct of such Indemnitee. No Indemnitee shall be liable for any damages
arising from the use by others of any information or other materials obtained
through IntraLinks or other similar information transmission systems in
connection with this Agreement, nor shall any Indemnitee have any liability for
any indirect or consequential damages relating to this Agreement or any other
Loan Document or arising out of its activities in connection herewith or
therewith (whether before or after the Closing Date). All amounts due under this
Section 13.5 shall be payable within ten
47
Business Days after demand therefor. The agreements in this Section shall
survive the resignation of the Administrative Agent, the replacement of any
Lender, the termination of the aggregate Commitments and the repayment,
satisfaction or discharge of all the other Obligations.
SECTION 13.6 Survival of Representations and Warranties. All
representations and warranties made hereunder and in any other Loan Document or
other document delivered pursuant hereto or thereto or in connection herewith or
therewith shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by the
Administrative Agent and each Lender, regardless of any investigation made by
the Administrative Agent or any Lender or on their behalf and notwithstanding
that the Administrative Agent or any Lender may have had notice or knowledge of
any Default at the time of any Loan, and shall continue in full force and effect
as long as any Loan or any other Obligation hereunder shall remain unpaid or
unsatisfied.
SECTION 13.7 GOVERNING LAW. THIS AGREEMENT, THE LOAN DOCUMENTS AND
THE NOTE SHALL BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE
STATE OF ILLINOIS WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES. WHENEVER
POSSIBLE EACH PROVISION OF THIS AGREEMENT SHALL BE INTERPRETED IN SUCH MANNER AS
TO BE EFFECTIVE AND VALID UNDER APPLICABLE LAW, BUT IF ANY PROVISION OF THIS
AGREEMENT SHALL BE PROHIBITED BY OR INVALID UNDER APPLICABLE LAW, SUCH PROVISION
SHALL BE INEFFECTIVE TO THE EXTENT OF SUCH PROHIBITION OR INVALIDITY, WITHOUT
INVALIDATING THE REMAINDER OF SUCH PROVISION OR THE REMAINING PROVISIONS OF THIS
AGREEMENT. ALL OBLIGATIONS OF THE BORROWER AND RIGHTS OF ANY LENDER EXPRESSED
HEREIN OR IN THE LOAN DOCUMENTS SHALL BE IN ADDITION TO AND NOT IN LIMITATION OF
THOSE PROVIDED BY APPLICABLE LAW OR IN ANY OTHER WRITTEN INSTRUMENT OR AGREEMENT
RELATING TO ANY OF THE OBLIGATIONS.
SECTION 13.8 JURY TRIAL. EACH PARTY HEREBY EXPRESSLY WAIVES ANY
RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHTS UNDER THIS AGREEMENT OR ANY OF THE LOAN DOCUMENTS TO WHICH IT IS A PARTY,
OR UNDER ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY
IN THE FUTURE BE DELIVERED IN CONNECTION THEREWITH OR ARISING FROM ANY
RELATIONSHIP EXISTING IN CONNECTION WITH THIS AGREEMENT OR ANY LOAN DOCUMENTS,
AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND
NOT BEFORE A JURY.
SECTION 13.9 Successors and Assigns. This Agreement shall be
binding upon Borrower, the Administrative Agent, the Lenders and their
respective successors and assigns, and shall inure to the benefit of the
Borrower, the Administrative Agent, the Lenders and their respective successors
and assigns; provided, however, that the Borrower shall have no right to assign
its rights or delegate its duties under this Agreement. This Agreement and the
Loan Documents contain the entire agreement of the parties hereto with respect
to the matters covered hereby.
48
Delivered at Chicago, Illinois, as of the day and year first above
written.
XXXXXX XXXX EDUCATORS CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
Title: Executive V.P. & Chief Financial Officer
By: /s/ Xxx Xxxxxxxx
Title: Corporate Secretary & General Counsel
BANK OF AMERICA, N.A., as Administrative
Agent and Lender
By: /s/ Xxxxx Xxxxxx
Title: Vice President
SCHEDULE 2.1
COMMITMENTS
Lender Commitment
Bank of America, N.A. $25,000,000
SCHEDULE 7.1
* - Notes state of domicile
A.12/K.2.
(TIC redomesticated from Delaware to Illinois 12-23-88. HMIC redomesticated from
Florida to Illinois 12-23-88.)
CERTIFICATES OF AUTHORITY BY STATE AND DATE ISSUED
-----------------------------------------------------------------------------------------------------------------------------------
STATE HMIC TIC HMP&CIC HMLIC XXXX HMEBCC HMSC ELICA
===================================================================================================================================
Alabama 12-19-66 04-18-73 Pending 12-15-58 06-28-85 X
-----------------------------------------------------------------------------------------------------------------------------------
Alaska 01-31-64 03-26-73 12-22-87 02-02-62 03-09-01 X
-----------------------------------------------------------------------------------------------------------------------------------
Arizona 05-27-59 11-12-74 06-09-80 07-15-59 08-21-57 10-28-86 X 03-18-64*
-----------------------------------------------------------------------------------------------------------------------------------
Arkansas 01-31-64 10-06-77 11-19-75 05-06-50 09-13-88 X
-----------------------------------------------------------------------------------------------------------------------------------
California 01-31-64 03-25-65* 08-18-67 12-22-00 X
-----------------------------------------------------------------------------------------------------------------------------------
Colorado 06-05-64 09-05-73 11-13-81 11-02-56 12-31-84 12-04-87 X
-----------------------------------------------------------------------------------------------------------------------------------
Connecticut 06-28-74 11-18-99 11-18-99 11-20-78 11-25-86 X
-----------------------------------------------------------------------------------------------------------------------------------
Delaware 06-02-59 03-02-71 09-25-98 12-08-55 09-18-86 X
-----------------------------------------------------------------------------------------------------------------------------------
Dist. of Col. 08-20-59 01-30-73 05-01-97 12-03-65 pending X
-----------------------------------------------------------------------------------------------------------------------------------
Florida 12-23-63 08-19-76 07-16-62 08-15-66 11-07-85 X
-----------------------------------------------------------------------------------------------------------------------------------
Georgia 01-31-64 02-09-78 Pending 04-05-61 03-30-83 X
-----------------------------------------------------------------------------------------------------------------------------------
Hawaii 08-25-87 02-01-85
-----------------------------------------------------------------------------------------------------------------------------------
Idaho 12-16-68 04-16-73 05-26-88 05-09-60 12-07-87 X
-----------------------------------------------------------------------------------------------------------------------------------
Illinois 01-31-64* 03-09-77* 04-25-75 08-09-49* 12-31-84* 10-19-79* 08-13-73*
-----------------------------------------------------------------------------------------------------------------------------------
Indiana 05-01-68 12-01-77 01-15-98 05-01-57 12-19-00 X
-----------------------------------------------------------------------------------------------------------------------------------
Iowa 12-29-64 05-04-73 11-26-74 08-01-52 05-15-85 X
-----------------------------------------------------------------------------------------------------------------------------------
Kansas 01-31-64 09-13-96 12/21/00 00-00-00 12-29-87 X
-----------------------------------------------------------------------------------------------------------------------------------
Kentucky 01-31-64 08-02-64 11-01-99 02-21-69 12-20-00 X
-----------------------------------------------------------------------------------------------------------------------------------
Louisiana 12-23-58 11-14-73 09-30-99 05-16-61 09-03-85 X
-----------------------------------------------------------------------------------------------------------------------------------
Maine 06-01-70 05-04-88 12-30-98 09-02-60 12-16-85 X
-----------------------------------------------------------------------------------------------------------------------------------
Maryland 01-10-68 10-29-91 03-31-98 06-26-56 12-16-85 X
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Page 2
-----------------------------------------------------------------------------------------------------------------
STATE HMIC TIC HMP&CIC HMLIC XXXX HMEBCC HMSC ELICA
=================================================================================================================
Massachusetts 10-25-68 02-12-81 09-09-68 pending X
-----------------------------------------------------------------------------------------------------------------
Michigan 03-19-59 12-14-77 02-23-99 10-27-59 12-21-00 X
-----------------------------------------------------------------------------------------------------------------
Minnesota 02-11-64 06-01-74 08-19-98 10-08-56 12-16-85 X
-----------------------------------------------------------------------------------------------------------------
Mississippi 06-01-58 07-19-74 06-01-97 10- -61 07-26-85 X
-----------------------------------------------------------------------------------------------------------------
Missouri 03-01-64 07-19-88 11-25-74 06-27-60 12-16-86 X
-----------------------------------------------------------------------------------------------------------------
Montana 01-31-64 06-01-73 02-26-88 01-02-54 12-16-87 X
-----------------------------------------------------------------------------------------------------------------
Nebraska 08-30-60 12-15-76 06-24-97 10-29-59 09-28-61 09-18-86 X
-----------------------------------------------------------------------------------------------------------------
Nevada 02-12-68 06-14-99 06-17-99 05-10-60 02-04-83 02-25-87 X
-----------------------------------------------------------------------------------------------------------------
New Hampshire 04-09-69 11-15-76 03-19-01 07-13-61 12-15-86 X
-----------------------------------------------------------------------------------------------------------------
New Jersey Cancelled 12-22-00 X
05-30-96
-----------------------------------------------------------------------------------------------------------------
New Mexico 03-01-64 08-15-73 Pending 05-21-56 02-03-87 X
-----------------------------------------------------------------------------------------------------------------
New York 01-31-64 Pending 03-27-00 pending X
-----------------------------------------------------------------------------------------------------------------
North Carolina 10-18-68 07-01-74 03-05-98 07-10-59 04-21-83 X
-----------------------------------------------------------------------------------------------------------------
North Dakota 05-08-62 03-22-73 06-21-88 05-29-62 09-23-86 X
-----------------------------------------------------------------------------------------------------------------
Ohio 02-07-64 12-03-84 12-31-96 12-02-59 10-09-84 12-28-00 X
-----------------------------------------------------------------------------------------------------------------
Oklahoma 03-01-68 11-25-74 11-07-74 12-07-60 08-02-66 12-07-87 X
-----------------------------------------------------------------------------------------------------------------
Oregon 07-15-70 09-01-73 11-15-74 11-01-53 06-05-57 12-08-87 X
-----------------------------------------------------------------------------------------------------------------
Pennsylvania 12-29-63 04-16-81 12-20-99 09-01-49 01-09-01 X
-----------------------------------------------------------------------------------------------------------------
Rhode Island 01-23-70 12-13-73 01-12-98 09-05-61 11-24-86 09-10-73
-----------------------------------------------------------------------------------------------------------------
South Carolina 10-02-58 02-08-74 05-04-82 08-14-61 09-06-83 X
-----------------------------------------------------------------------------------------------------------------
South Dakota 05-01-62 01-22-74 09-14-88 08-03-53 10-23-86 X
-----------------------------------------------------------------------------------------------------------------
Tennessee 01-31-64 09-07-77 11-19-97 03-28-56 01-14-83 X
-----------------------------------------------------------------------------------------------------------------
Texas 01-31-64 12-29-78 05-29-75 07-14-60 06-26-68 08-02-85 09-10-73
-----------------------------------------------------------------------------------------------------------------
Page 3
------------------------------------------------------------------------------------------------------
STATE HMIC TIC HMP&CIC HMLIC XXXX HMEBCC HMSC ELICA
======================================================================================================
Utah 03-01-64 06-14-73 04-05-88 11-22-55 12-20-00 X
------------------------------------------------------------------------------------------------------
Vermont 10-01-68 08-25-99 08-25-97 04-18-56 12-19-00 X
------------------------------------------------------------------------------------------------------
Virginia 02-03-64 03-19-91 03-30-99 04-18-56 06-21-83 X
------------------------------------------------------------------------------------------------------
Washington 02-10-64 12-28-73 12-31-98 11-13-58 09-20-57 12-24-87 X
------------------------------------------------------------------------------------------------------
West Virginia 01-23-64 10-23-89 03-29-99 12-28-60 08-08-85 X
------------------------------------------------------------------------------------------------------
Wisconsin 01-31-64 09-14-73 06-27-74 11-22-68 08-01-85 X
------------------------------------------------------------------------------------------------------
Wyoming 12-24-58 07-23-87 01-18-88 03-24-53 12-10-87 X
------------------------------------------------------------------------------------------------------
Puerto Rico 08-15-00
------------------------------------------------------------------------------------------------------
HMIC: Xxxxxx Xxxx Insurance Company
TIC: Teachers Insurance Company
HMP&CIC: Xxxxxx Xxxx Property & Casualty Insurance Company
HMLIC: Xxxxxx Xxxx Life Insurance Company
XXXX: Allegiance Life Insurance Company
HMEBCC: Xxxxxx Xxxx Educator Benefits Consulting Corporation
HMSC: Xxxxxx Xxxx Service Corporation
ELICA: Educators Life Insurance Company of America
Page 4
SCHEDULE 7.2 (a)
SAP EXCEPTIONS
None
Page 5
SCHEDULE 7.2 (e)
ADVERSE CHANGES AND DIVIDENDS
None
SCHEDULE 7.4
LITIGATION
None
SCHEDULE 7.10
SUBSIDIARIES
AIC Acquisition Corporation
Allegiance Life Insurance Company
Association & Consumer Marketing Services Corp.
Educators Life Insurance Company of America
Xxxxxx Xxxx Balanced Fund, Inc.
Xxxxxx Xxxx Equity Fund, Inc.
Xxxxxx Xxxx Investment Fund, Inc.
Xxxxxx Xxxx Short-Term Fund, Inc.
Xxxxxx Xxxx Insurance Company
Xxxxxx Xxxx Investors, Inc.
Xxxxxx Xxxx Life Insurance Company
Xxxxxx Xxxx Property & Casualty Insurance Company
Xxxxxx Xxxx Service Corporation
Senior Marketing Insurance Service Corporation
Teachers Insurance Company
Well-Care, Inc.
SCHEDULE 7.11
INSURANCE COMPANY LICENSES
Property & Casualty
State Lines Authorized
Subsidiary
Xxxxxx Xxxx Insurance Alabama Property; Miscellaneous Casualty,
Company excluding Official Surety Bonds.
Alaska Property (as 21.12.060); Casualty (as
21.12.070) All Clauses (1-14); Surety
(as 21.12.080); Marine, Wet Marine &
Transportation (as 21.12.090).
Arizona Casualty without Worker's Compensation;
Marine and Transportation; Property;
Vehicle.
Arkansas Property; Marine; Casualty; Workmen's
Compensation
California Fire; Marine; Plate Glass; Liability;
Boiler and Machinery; Burglary;
Sprinkler; Automobile; and
Miscellaneous.
Colorado (21) Plate Glass; (22) Steam Boiler,
Machinery; (23) Burglary and Theft;
(24) Fidelity and Surety; (25) Motor
Vehicle-Full Coverage; (26) Worker's
Compensation; (27) Liability; (28)
Personal Property Floaters; (41) Fire &
Lighting; (42) Extended Coverage; (44)
Earthquake; (46) Aircraft; (47) Inland
Marine; (48) Ocean Marine; (54)
Homeowners Multiple Peril; (55)
Commercial Multiple Peril; (56) Farm
Owners Multiple Peril.
Connecticut Fire, Extended Coverage and Other
Allied Lines; Homeowners Multiple
Peril; Inland Marine; Auto Liability
(B.I. and P.D.); Auto Physical Damage;
Reinsurance.
Delaware Property; Marine & Transportation;
Casualty, including: Vehicle,
Liability, Burglary & Theft, Personal
Property Floater, Glass, Boiler &
Machinery, Leakage & Fire
Extinguisher Equipment, Elevator,
Livestock, and Miscellaneous.
District of (1) Fire; (16) Worker's Compensation;
Columbia (17) Other Liability; (19.2) Other
Private Passenger Auto; (19.4) Other
Commercial Auto Liability; (2.1) Allied
Lines; (21.1) Private Passenger Auto
Physical Damage; (21.2) Commercial Auto
Physical Damage; (22) Aircraft (all
perils); (23) Fidelity; (24) Surety;
(25) Glass; (26) Burglary and Theft;
(27) Boiler and Machinery; (3)
Farmowners Multiple Peril; (4)
Homeowners Multiple Peril; (5.1)
Commercial Multiple Peril; (8) Ocean
Marine; (9) Inland Marine; (PC)
Property and Casualty.
Florida 010 Fire; 020 Allied Lines; 040
Homeowners Multi Peril; 050 Commercial
Multi Peril; 080 Ocean Marine; 090
Inland Marine; 170 Other Liability; 192
Auto Casualty; 211 Ppa Physical Damage;
220 Aircraft; 230 Fidelity; 240 Surety;
450 Accident and Health; 540 Mobile
Home Multi Peril.
Georgia Property; Marine and Transportation;
Casualty (excluding Worker's
Compensation).
Idaho Property; Marine & Transportation;
Casualty - excluding Workers'
Compensation; Surety.
Illinois Casualty, Fidelity, Surety, as provided
in Clauses (a), (b), (c), (d), (e),
(f), (g), (h), (i), (j) of Class 2 and
Fire and Marine as provided in Clauses
(a), (b), (c), (d), (e), (f), (g), (h)
of Class 3 in accordance with 215 ILCS
5/4.
Indiana Multi Line Property and Casualty as
provided in Class II (a) (b) (c) (e)
(f) (g) (h) (i) (j) (l) and Class III
(a) (b) (c) (d) in accordance with IC
27-1-5-1.
Iowa Fire; Extended coverage; Other allied
lines; Homeowners multiple peril
10
(Inc. B.I.); Commercial multiple peril;
Earthquake; Growing crops; Ocean
marine; Inland marine; Accident only
(Individual); Accident and health
(Individual); Hospital and Medical
Expense (Individual); Group Accident
and Health; Non-cancellable Accident
and Health; Workers' Compensation;
Liability other than Auto (B.I.);
Liability other than Auto (P.D.); Auto
Liability (B.I.); Auto Liability
(P.D.); Auto Physical Damage; Aircraft
Physical Damage; Fidelity; Surety;
Glass; Burglary and Theft; Boiler and
Machinery.
Kansas Fire; Windstorm & Hail; Extended
Coverage; Sprinkler Leakage; Business
Interruption; Inland Marine; Automobile
Physical Damage; Homeowners Policies;
Accident & Health; Automobile
Liability; General Liability; Glass;
Burglary; Theft & Robbery; Malpractice
Liability; Aircraft Liability.
Kentucky Multiple Line - Property, Casualty,
Marine and Transportation.
Louisiana Vehicle; Liability; Workmen's
Compensation; Burglary and Forgery;
Glass; Fire and Extended Coverage;
Steam Boiler and Sprinkler Leakage;
Marine and Transportation (Inland
Marine); Miscellaneous.
Maine Fire; Allied Lines; Homeowners Multiple
Peril; Inland Marine; Earthquake; Other
Liability; Auto Liability; Auto
Physical Damage.
Maryland Workers' Compensation - Sections 1-
101(k), 19-101, 19-402; Casualty (not
including Vehicle Liability, Mortgage
Guaranty & Workers' Compensation) -
Section 1-101(k); Health - Section
1-101(q); Property and Marine
(excluding Wet Marine and
Transportation) - Section 1-101(ee);
Surety - Section 1-101(mm); Vehicle
Liability - Sections 1-101 (k), 19-101,
11
19-502, 19-503, 19-504.
Massachusetts Fire; Burglary; Robbery and Theft;
Repair - Replacement; Inland Marine
Only; Liability other than Auto; Auto
Liability; Glass;; Water Damage and
Sprinkler Leakage.
Michigan Disability; Property; Ocean Marine;
Inland Marine; Automobile Insurance -
limited; Casualty: Steam Boiler,
Flywheel & Machinery; Casualty:
Automobile; Casualty: Workers'
Compensation; Casualty: Liability;
Casualty: Plate Glass; Casualty:
Sprinkler and Water Damage; Casualty:
Burglary and Theft; Casualty:
Livestock; Casualty: Malpractice;
Disability coverage supplemental to
Auto Insurance; Surety & Fidelity in
accordance with Sections 606, 610, 614,
616, 620, 624, 625 and 628 of Chapter 6
of P.A. 218.
Minnesota Property, Liability, Accident and
Health, Surety and Casualty as
specified in Minnesota Statutes,
Section 60A.06, Subdivision 1, Clauses
1, 2A, 2B, 3, 5A, 5B, 6, 8, 9A, 9B, 9C,
9D, 12, 13, 14.
Mississippi (01) Fire and Allied Lines; (03)
Casualty/Liability; (04) Fidelity; (05)
Surety; (06) Workers' Compensation;
(07) Boiler and Machinery;; (08) Plate
Glass; (13) Inland Marine; (14) Ocean
Marine; (26) Auto Phy Damage/Liability;
(30 Home/Form Owners.
Missouri (B1) Property; (B2) Liability; (B3)
Fidelity and Surety; (B5)
Miscellaneous.
Montana Property; Casualty; Marine.
Nebraska 05 Property Insurance; 07 Glass
Insurance; 08 Burglary and Theft
Insurance; 09 Boiler and Machinery
Insurance; 10 Liability Insurance; 11
Worker's Comp & Employer's Liability;
12 Vehicle Insurance; 13
12
Fidelity Insurance; 14 Surety
Insurance; and18 Marine Insurance as
described in Section 44-201 of the
Statutes of Nebraska.
Nevada Property; Casualty; Surety.
New Hampshire Property & Casualty lines in
accordance with paragraphs I, II, V,
VI of State Statutes.
New Mexico General Casualty and/or Surety;
Property and/or Marine &
Transportation; and Vehicle Insurance.
New York Accident and health, fire,
miscellaneous property, water damage,
burglary and theft, glass boiler and
machinery, collision, personal injury
liability, property damage liability,
workers' compensation and employers'
liability, fidelity and surety, motor
vehicle and aircraft physical damage,
and marine and inland marine (inland
only) insurance, as specified in
paragraph(s) 3, 4, 5, 6, 7, 8, 9, 12,
13, 14, 15, 16, 19, and 20 of Section
1113(a) of the New York Insurance Law
to the extent permitted by certified
copy of the Company's charter document
on file with the Department.
North Carolina (04) Fire; (05a) Extended Coverage;
(06a) Commercial Water Damage; (07)
Burglary and Theft; (08) Glass; (09)
Boiler and Machinery; (10) Elevator;
(11) Animal; (12a) Automobile
Collision; (12b) Other Collision;
(13a) Personal Injury Liability -
Automobile; (13b) Personal Injury
Liability - Other; (14a) Property
Damage Liability - Automobile; (14b)
Property Damage Liability - Other;
(15) Workmen's Compensation &
Employer's Liability; (16) Fidelity
and Surety; (19a) Motor Vehicle and
Aircraft - Property Damage; (19b)
Motor
13
Vehicle and Aircraft - Fire; (19c)
Motor Vehicle and Aircraft - Theft;
(19d) Motor Vehicle and Aircraft -
Comprehensive; (19e) Motor Vehicle and
Aircraft - Collision; (20a) Inland
Marine; and (21) Marine Protection and
Indemnity, as defined in N.C.G.S.
58-7-15.
North Dakota Accident and Health; Casualty;
Property.
Ohio Allied Lines; Earthquake; Fire; Inland
Marine; Multiple Peril - Commercial;
Multiple Peril - Homeowners; Other
Liability; Private Passenger Auto -
Liab.; Private Passenger Auto - Other;
Private Passenger - Phys Damage
Oklahoma Property; Casualty; Marine; Vehicle.
Oregon Property; Casualty (excluding Workers'
Compensation); Marine and
Transportation.
Pennsylvania Auto Liability; Burglary and Theft;
Fidelity and Surety; Inland Marine and
Physical Damage; Other Liability;
Worker's Compensation; Boiler and
Machinery; Elevator; Glass; Ocean
Marine; Property and Allied Lines.
Puerto Rico Casualty insurance.
Rhode Island Fire and Allied Lines; Homeowners; SMP
Programs as approved; Inland Marine;
Automobile Physical Damage including
Collision; Automobile Bodily Injury
and Property Damage; Aircraft; Plate
Glass; Burglary; General Liability;
Fidelity and Surety; Workmen's
Compensation and Employer's Liability;
Accident and Sickness.
South Carolina 22 - Property; 23 - Casualty; 25 -
Marine.
South Dakota Fire & Allied Lines; Inland & Ocean
Marine; Bodily Injury (No Auto);
Property Damage (No Auto); Bodily
Injury (Auto); Property Damage (Auto);
Physical Damage (Auto);
14
Glass; Burglary & Theft.
Tennessee Property; Casualty; Vehicle; Surety
Texas Fire; Allied Coverages; Hail-growing
crops only; Rain; Inland Marine; Ocean
Marine; Aircraft--Liability & Physical
Damage; Employers' Liability;
Automobile--Liability & Physical
Damage; Liability other than
Automobile; Fidelity & Surely; Glass;
Burglary & Theft; Boiler & Machinery;
Livestock.
Utah Disability; Property; Surety;
Liability (incl. veh., excl. dis.);
Marine and Transport; Workers'
Compensation; Vehicle Liability;
Professional Liability (incl med mal).
Vermont The insurance business authorized by
the Company's Charter in accordance
with the laws of the State of Vermont
(see Illinois).
Virginia Fire; Miscellaneous Property; Farm
Multiple Peril; Homeowners Multiple
Peril; Ocean Marine; Inland Marine;
Liability other than Auto; Automobile
Liability; Automobile Physical Damage;
Aircraft Liability; Air Physical
Damage; Glass; Burglary and Theft;
Boiler and Machinery; Water Damage.
Washington Property; Marine and Transportation;
General Casualty; Surety.
West Virginia Business of Insurance as defined in
Chapter 33, Article 1, Section 10(c)
Fire; Article 1, Section 10(d) Marine;
Article 1, Section 10(e) Casualty; and
Article 1, Section 10(f)(1)(2)&(3)
Surety.
Wisconsin (1) Fire; (2) Marine; (4) Disability;
(5) Liability; (6) Steam Boiler; (7)
Fidelity; (10) Burglary, (11) Plate
Glass; (12) Sprinkler Leakage; (13)
Elevator; (14) Livestock; (15)
Automobile; (17) Other Casualty; (18)
Medical Payments Insurance.
Wyoming Multiple Lines.
15
Xxxxxx Xxxx Property & Alaska Property (AS 21.12.060); Casualty (AS
Casualty Insurance 21.12.070) All Clauses (except 3 and
Company 6-13); Company Marine, Wet Marine and
Transportation (AS 21.12.090).
Arizona Property; Vehicle; Casualty (excluding
Workers' Compensation; Boiler and
Machinery; Leakage and Fire
Extinguishing Equipment; Credit,
Malpractice and Miscellaneous Casualty
Insurances).
Arkansas Casualty (a)
California Fire; Marine; Plate Glass; Liability;
Burglary; Automobile; Aircraft and
Miscellaneous
Colorado Multiple Line - Credit (Casualty,
Accident & Health); General Property;
General Casualty' Motor Vehicle
(Property).
Connecticut Fire, Extended Coverage and Other
Allied Lines; Homeowners Multiple
Peril; Inland Marine; Liability other
than Auto (B.I. and P.D.); Auto
Liability (B.I. and P.D.); Auto
Physical Damage.
Delaware Property; Marine & Transportation;
Casualty, including: Vehicle,
Liability, Personal Property Floater
and Miscellaneous.
District of (1) Fire; (12) Earthquake; (19.2)
Columbia Other Private Passenger Auto; (21.1)
Private Passenger Auto Physical
Damage; (4) Homeowners Multiple Peril;
(9) InlandMarine; (PC) Property and
Casualty.
Idaho Casualty, Excluding Workers
Compensation; Property.
Illinois Casualty, Fidelity, Surety, as
provided in Clauses (b), (c), (i) of
Class 2 of the Insurance Code.
Indiana Multi Line Property and Casualty as
provided in Class II (f), (h), (l) and
Class III (a) and (d) of the Indiana
Insurance Code.
Iowa Auto liability (B.I.); Auto liability
16
(P.D.); Auto physical damage.
Kansas Fire; Windstorm & Hail; Extended
Coverage; Earthquake; Inland Marine;
Automobile Physical Damage; Homeowners
Policies; Automobile Liability,
General Liability.
Kentucky Property; Marine and Transportation;
and Casualty (vehicle, liability,
burglary and theft, and personal
property floater) Insurance.
Louisiana Vehicle; Liability; Burglary &
Forgery; Glass; Fire & Extended
Coverage; Steam Boiler & Sprinkler
Leakage; Marine & Transportation
(inland marine); and Miscellaneous.
Maine Fire; Allied Lines; Homeowners
Multiple Peril; Inland Marine;
Earthquake; Auto Liability; Auto
Physical Damage.
Maryland (P) Property and Marine (excluding Wet
Marine and Transportation) - Section 1
- 101 (ee); (C) Casualty (not
including Vehicle Liability, Mortgage
Guaranty & Worker's Compensation-
Section 1-101 (k); and (V) Vehicle
Liability - Sections 1-101(k); 19-101,
19-502, 19-503, 19-504.
Michigan Property; Inland Marine; Automobile
Insurance - limited; Casualty:
Workers' Compensation; Casualty:
Liability; Casualty: Automobile;
Disability coverage supplemental to
Auto Insurance.
Minnesota Property, Liability, Accident and
Health, Surety, and Casualty as
specified in Minnesota Statutes,
Section 60A.06, Subdivision 1,
Clause(s) 1, 2A, 2B, 3, 5A, 5B, 6, 8,
9A, 9B, 9C, 9D, 12, 13, 14.
Mississippi Fire and Allied Lines;
Casualty/Liability; Auto Physical
Damage/Liability; Home/Farm Owners.
Missouri Liability; Miscellaneous; Property.
Montana Property; Casualty; Marine.
Nebraska Property; Liability; Vehicle; Marine;
17
Miscellaneous.
Nevada Property and Casualty.
New Hampshire Property & Casualty in accordance with
paragraphs I, II, V, VI of the State
Statutes.
New York Fire; Miscellaneous Property; Water
Damage; Burglary and Theft; Glass;
Boiler and Machinery; Collision;
Personal Injury Liability; Property
Damage Liability; Workers'
Compensation and Employers' Liability;
Credit; Motor Vehicle and Aircraft
Physical Damage; Marine and Inland
Marine; Marine Protection and
Indemnity Insurance; as specified in
paragraphs 4, 5, 6, 7, 8, 9, 12, 13,
14, 15, 17, 19, 20, and 21 of Section
1113(a) of the New York Insurance Law
. and also such workers' compensation
insurance as may be incident to
coverages contemplated under
paragraphs 20 and 21 of Section
1113(a), including insurances
described in the Longshoremen's and
Harbor Workers' Compensation Act
(Public Law No. 803, 69 Cong. As
amended; 33 USC Section 901 et. Seq.
as amended) to the extent permitted by
certified copy of its charter
documents on file in this Department.
North Carolina
Fire
Fire; Miscellaneous Property, Extended
Coverage; Water Damage (including
Sprinkler Leakage) Residential;
Burglary and Theft; Glass; Collision,
Automobile and other; Marine, Inland.
Casualty
Personal Injury Liability, Automobile
and Other; Property Damage Liability,
Automobile and Other; Motor Vehicle
and Aircraft, Property Damage, Fire,
Theft, Comprehensive,
18
Collision; Marine Protection and
Indemnity.
North Dakota Casualty; Property as defined in Title
26.1 of the insurance Laws of ND.
Ohio Allied Lines; Earthquake; Fire; Inland
Marine; Multiple Peril - Homeowners;
Other liability; Private Passenger
Auto-Liability; Private Passenger Auto
- Other; Private Passenger - Physical
Damage.
Oklahoma Property & Casualty
Oregon Casualty (excluding Workers'
Compensation.
Pennsylvania Auto Liability; Inland Marine and
Physical Damage; Property and Allied
Lines; Burglary and Theft; Other
Liability
Rhode Island Fire; Allied Lines; Homeowners
Multiple Peril; Inland Marine;
Earthquake, Other Liability; Full
Coverage Automobile.
South Carolina Property; Casualty.
South Dakota Fire & Allied Lines; Inland & Ocean
Marine; Bodily Injury (No Auto);
Property Damage (No Auto); Bodily
Injury (Auto); Property Damage (Auto);
Physical Damage (Auto).
Tennessee Property; Casualty; Vehicle.
Texas Fire; Allied Coverages; Inland Marine;
Automobile--Liability & Physical
Damage; Liability other than
Automobile; Glass and Burglary &
Theft.
Utah Property; Liability; Marine &
Transport.
Vermont Insurance business authorized by the
Company's Charter in accordance with
the Laws of the State of Vermont. (See
Illinois)
Virginia Fire; Miscellaneous Property;
Homeowners Multiple Peril; Inland
Marine; Liability other than Auto;
Automobile Liability; Automobile
Physical Damage; Glass; Burglary and
Theft.
Washington Property; Marine & Transportation;
19
Vehicle; General Casualty.
West Virginia Business of Insurance as defined in
Chapter 33
Article 1, Section 10(c) Fire
Article 1, Section 10(d) Marine
Article 1, Section 10(e) Casualty
Article 1, Section 10(f) (1), (2), &
(3) Surety.
Wisconsin Disability Insurance; Liability and
Incidental Medical Expense Insurance;
Automobile and Aircraft Insurance.
Wyoming Multiple Lines
Alabama Property; Miscellaneous Casualty
(excluding Official Surety Bonds).
Teachers Insurance
Company Alaska Disability (as 21.12.050); Property
(as 21.12.060); Casualty (as
21.12.070) all clauses (1-14); Surety
(as 21.12.080); and Marine, Wet Marine
& Transportation (as 21.12.090).
Arizona Disability; Property; Casualty
(excluding Workers' Compensation);
Vehicle; Marine and Transportation.
Arkansas Disability; Property; Casualty
(excluding workmen's compensation);
and, Marine.
Colorado Accident and Health; Livestock; Plate
Glass; Steam Boiler, Machinery;
Burglary and Theft; Fidelity and
Surety; Motor Vehicle-Full Coverage;
Workmen's Compensation; Liability;
Personal Property Floaters; Mortgage;
Credit; Credit - A&H Franchise A&H;
Fire & Lighting; Extended Coverage;
Hail on Growing Crops; Earthquake;
Motor Vehicle-Full Coverage; Aircraft;
Inland Marine; Ocean Marine.
Connecticut Fire, Extended Coverage, and Other
Allied Lines; Homeowners Multiple
Peril: Inland Marine; Liability other
than Auto (B.I. and P.D.); Auto
20
Liability (B.I. and P.D.); and,
Auto Physical Damage.
Delaware Health; Credit Health; Property;
Surety; Marine & Transportation;
Casualty, including: Vehicle,
Liability, Burglary & Theft,
Personal Property Floater, Glass,
Boiler & Machinery, Credit,
Workmen's Compensation &
Employers' Liability, Leakage &
Fire Extinguisher Equipment,
Malpractice, Elevator, Congenital
Defects, Livestock,
Entertainments and Miscellaneous.
District of Fire; Earthquake; Group Accident
Columbia and Health; Non-Renewable for
Stated Reason; Other Liability;
Other Private Passenger Auto;
Allied Lines; Private Passenger
Auto Physical Damage; Commercial
Auto Physical Damage; Aircraft
(all perils); Fidelity; Surety;
Glass; Burglary and Theft; Boiler
and Machinery; Credit; Farmowners
Multiple Peril; Homeowners
Multiple Peril; Commercial
Multiple Peril; Ocean Marine;
Inland Marine; and, Property and
Casualty.
Florida Fire; Allied Lines; Homeowners
Multi Peril; Commercial Multi
Peril; Inland Marine; Other
Liability; Auto Casualty; Ppa
Physical Damage; Boiler and
Machinery; Mobile Home Multi
Peril.
Georgia Property; Marine and
Transportation; Casualty
(excluding Workers'
Compensation).
Idaho Disability; Property; Marine &
Transportation; Casualty
(excluding Workers'
Compensation); Surety
Illinois Casualty, Fidelity, Surety, as
provided in clauses (a), (b),
(c), (d), (e), (f), (g), (h),
(i), (j) of Class 2 and Fire and
Marine as provided in clauses
(a), (b), (c), (d), (e), (f),
(g), (h) of Class 3, in
accordance with 215
21
ILCS 5/4.
Indiana Multi-Line Property and Casualty
as provided in Class II (a), (b),
(c), (d), (e), (f), (h), (l) and
Class III (a), (b), (c), (d) in
accordance with IC 27-1-5-1.
Iowa Fire; Extended Coverage; Other
allied lines; Homeowners Multiple
Peril (Inc. B.I.); Commercial
Multiple Peril; Earthquake;
Growing Crops; Ocean Marine;
Inland Marine; Accident only
(Individual); Accident and Health
(Individual); Hospital and
Medical Expense (Individual);
Group Accident and Health;
Non-Cancellable Accident and
Health; Workers' Compensation;
Liability other than Auto (B.I.);
Liability other than Auto (P.D.);
Auto Liability (B.I.); Auto
Liability (P.D.); Auto Physical
Damage; Aircraft Physical Damage;
Fidelity; Surety; Glass; Burglary
and Theft; Boiler and Machinery.
Kansas Fire; Windstorm & Hail; Extended
Coverage; Earthquake; Inland
Marine; Automobile Physical
Damage; Homeowners Policies;
Automobile Liability.
Kentucky Multiple Line - Property,
Casualty and Marine &
Transportation insurance
Louisiana Vehicle; Liability; Workmen's
Compensation; Glass; Burglary and
Forgery; Fidelity and Surety;
Fire and Extended Coverage; Steam
Boiler and Sprinkler Leakage;
Crop and Livestock; Marine and
transportation (Inland Marine);
Miscellaneous.
Maine Fire; Allied Lines; Homeowners
Multiple Peril; Inland Marine;
Earthquake; Auto Liability; Auto
Physical Damage.
Maryland Casualty (not including Vehicle
Liability, Mortgage Guaranty &
Worker's Compensation) - Section
1-
22
101(k); Property and Marine
(excluding Wet Marine and
Transportation) - Section
1-101(ee); Vehicle Liability -
Sections 1-101(k), 19-101,
19-502, 19-503, 19-504.
Massachusetts Fire; Variable Annuity
Authorization; Inland Marine
Only; Dwellings; Commercial
Property; Liability other than
Auto; Auto Liability.
Michigan Property; Inland Marine;
Automobile Insurance - limited;
Casualty: Liability; Casualty:
Automobile; Disability coverage
supplemental to Auto Insurance,
as defined in Sections 610, 616,
620, 624 and 625 of Chapter 6 of
P.A. 218.
Minnesota Property, Liability, Accident and
Health, Surety, and Casualty as
specified in Minnesota Statutes,
Section 60A.06, Subdivision 1,
clauses 1, 2A, 2B, 3, 5A, 5B, 6,
8, 9A, 9B, 9C, 9D, 10, 11, 12, 13
and 14.
Mississippi Fire and Allied Lines;
Casualty/Liability; Fidelity;
Surety; Workers' Compensation;
Boiler and Machinery; Plate
Glass; Inland Marine; Ocean
Marine; Accident & Health; Auto
Phy Damage/Liab; Home/Farm
Owners.
Missouri Property ((S)379.010.1(1), RSMo);
Liability ((S)379.010.1(2),
RSMo); Accident and Health
((S)379.010.1(4), RSMo);
Miscellaneous ((S)379.010.1(5),
RSMo).
Montana Disability; Property; Casualty;
Surety; Marine.
Nebraska 05 Property Insurance; 07 Glass
Insurance; 08 Burglary and Theft
Insurance; 09 Boiler and
Machinery Insurance; 10 Liability
Insurance; 11 Worker's Comp &
Employer's Liability; 12 Vehicle
Insurance; and, 18 Marine
Insurance, in accordance with
Section 44-201 of the Statutes of
Nebraska.
23
Nevada Property and Casualty (excluding
Workmen's Compensation).
New Hampshire Property and Casualty lines in
accordance with paragraphs I, II,
V, VI of State Statutes.
New Mexico General Casualty and/or Surety;
Property and/or Marine &
Transportation; Vehicle
Insurance.
New York Accident and health; fire;
miscellaneous property; water
damage; burglary and theft;
glass; boiler and machinery;
elevator; collision; personal
injury liability; property damage
liability; workers' compensation
and employers' liability;
fidelity and surety; credit;
motor vehicle and aircraft
physical damage; marine and
inland marine and marine
protection and indemnity
insurance, as specified in
paragraphs 3, 4, 5, 6, 7, 8, 9,
10, 12, 13, 14, 15, 16, 17, 19,
20 and 21 of Section 1113(a) of
the New York Insurance Law and
also such workers' compensation
insurance as may be incident to
coverages contemplated under
paragraphs 20 and 21 of Section
1113(a), including insurances
described in Longshoremen's and
Harbor Workers' Compensation Act
(Public Law No. 803, 69 Cong. as
amended; 33 USC Section 901 et.
seq. as amended) to the extent
permitted by certified copy of
its charter document on file with
the Department.
North Carolina (04) Fire; (05a) Extended
Coverage; (05b) Growing Crops;
(06a) Commercial Water Damage
(including sprinkler leakage);
(06b) Residential Water Damage
(including sprinkler leakage);
(07) Burglary and Theft; (08)
Glass; (09) Boiler and Machinery;
(10) Elevator; (11) Animal; (12a)
Automobile Collision; (12b) Other
Collision; (13a)
24
Automobile Personal Injury
Liability; (13b) Other Personal
Injury Liability; (14a)
Automobile Property Damage
Liability; (14b) Other Property
Damage Liability; (15) Workmen's
Compensation and Employer's
Liability; (21) Marine Protection
and Indemnity, as defined in
N.C.G.S. 58-7-15.
North Dakota Accident & Health, Casualty and
Property, as defined in Title
26.1 of the North Dakota
insurance laws.
Ohio Allied Lines, Earthquake, Fire,
Inland Marine, Multiple Peril -
Commercial, Multiple Peril -
Homeowners, Other Liability,
Private Passenger Auto - Liab.,
Private Passenger Auto - Other
and Private Passenger - Phys
Damage, as defined in Section
3929.01(A) of Ohio laws.
Oklahoma Accident & Health; Property;
Casualty; Marine; Vehicle;
Surety.
Oregon Property; Casualty (excluding
Workers' Compensation); Marine
and Transportation; Surety;
Health.
Pennsylvania Auto Liability 40-5-102(c)(11);
Fidelity and Surety
40-5-102(c)(1); Inland Marine and
Physical Damage 40-5-102(b)(2);
Other Liability 40-5-102(c)(4);
Property and Allied Lines
40-5-102(b)(1); Burglary and
Theft 40-5-102(c)(6); Glass
40-5-102(c)(3); Ocean Marine
40-5-102(b)(3); Personal Property
Floater 40-5-102(c)(13).
Rhode Island Property; Casualty; Surety;
Marine and Transportation.
South Carolina Accident & Health; Property;
Casualty; Surety; Marine.
South Dakota Health; Fire & Allied Lines;
Inland & Ocean Marine; Worker's
Compensation; Bodily Injury (No
Auto); Property Damage (No Auto);
Bodily Injury (Auto); Property
Damage (Auto); Physical Damage
(Auto); Fidelity & Surety Bonds;
25
Glass; Burglary & Theft; Boiler &
Machinery; Aircraft; Credit
(Mortgage Guaranty); Crop Hail;
Livestock.
Tennessee Property; Casualty; Vehicle;
Surety.
Texas Fire; Allied Coverages; Inland
Marine; Automobile--Liability &
Physical Damage; Liability other
than Automobile; Glass and
Burglary & Theft.
Utah Disability; Property; Surety;
Liability (incl. veh., excl.
dis.); Marine and Transport;
Workers' Compensation; Vehicle
Liability; Professional Liability
(incl. med. mal.).
Vermont The insurance business authorized
by the Company's Charter in
accordance with the laws of the
State of Vermont (see Illinois).
Virginia Fire; Miscellaneous Property;
Homeowners Multiple Peril; Inland
Marine; Liability other than
Auto; Automobile Liability;
Automobile Physical Damage.
Washington Property; Marine &
Transportation; Vehicle; General
Casualty; Surety
West Virginia Business of Insurance as defined
in Chapter 33, Article 1, Section
10(c) Fire; Article 1, Section
10(d) Marine; and Article 1,
Section 10(e) Casualty.
Wisconsin Fire, inland marine and other
property; Ocean marine insurance;
Casualty disability insurance;
Liability and nonauto medical
insurance; Auto and aircraft
insurance; Fidelity insurance;
Surety insurance; Credit
insurance; Workers compensation
insurance; Miscellaneous
insurance.
Wyoming Multiple Lines.
Xxxxxx Xxxx Lloyds Management Texas Fire; Allied Coverages; Inland
Corporation Marine; Liability other than
Automobile and Reinsurance on all
26
lines authorized to be written on
a direct basis.
Life
Allegiance Life Insurance Arizona Disability; Life.
Company
Colorado General Life; Accident and
Health; Annuities; Credit;
Variable Contracts.
Florida Life; Group Life and Annuities;
Accident and Health.
Hawaii Life; Disability.
Illinois Life; Accident and Health.
Nebraska Life; Sickness and Accident
Nevada Life; Health; Variable Annuities.
Ohio Life; Health; Annuities.
Oklahoma Life; Accident and Health.
Oregon Life; Health,
Texas Life; Accident and Health.
Washington Life; Disability.
Educators Life Insurance Arizona Life and Disability Reinsurance
Company of America
Xxxxxx Xxxx Life Insurance Alabama Life, Disability and Annuities.
Company Alaska Life, Annuities and Disability
Insurance as defined in Title 21,
Sections 21.12.040 = 21.12.055 of
the Alaska Statutes.
Arizona Disability; Life; Variable
Annuities.
Arkansas Life; Disability; Variable
Contracts.
California Life and Disability.
Colorado Life (Ordinary, Group Life,
Accident & Health, Annuity
Contracts, Variable Annuities,
Franchise-Life, Franchise-A&H,
Group A&H).
Connecticut Accident and Health; Life
Non-Participating; Variable
Annuities.
Delaware Life; Variable Annuities; Health
District of Group Accident & Health; Group
Columbia Annuities; Group Life and Health;
Individual Accident and Health;
Individual Annuities; Individual
Life; Life and Health.
Florida Life; Variable Annuities; Group
Life and Annuities; Accident and
Health.
Georgia Life; Accident; Sickness
(including
27
Variable Annuity)
Hawaii Life; Disability.
Idaho Life; Disability.
Illinois Life (including Variable
Contracts); Accident & Health
Indiana Class 1 (a), (b), (c)
Iowa Accident Only (Individual);
Accident and Health (Individual);
Hospital and Medical Expense
(Individual); Group Accident and
Health; Non-cancellable Accident
and Health; Life (includes Credit
Life, Variable Life, Annuities,
Variable Annuities and Group).
Kansas Life; Accident and Health.
Kentucky Life; Health; Variable Annuities.
Louisiana Life; Health and Accident.
Maine Life (including Credit Life);
Health (including Credit Health);
Variable Annuities.
Maryland Variable Annuities; Health; Life,
including Annuities and Health
(except Variable Life and
Variable Annuities).
Massachusetts Life - All Kinds; Variable
Annuity Authorization; Accident -
All Kinds; Health - All Kinds.
Michigan Life and Annuities; Disability;
Variable Annuities.
Minnesota An insurance company for the
lines of insurance specified in
Minnesota Statutes, Section
60A.06, Subdivision 1, Clause 4
(including Variable Contracts).
Mississippi Life; Accident and Health;
Variable Contracts.
Missouri Life and Health which includes
Life, Annuities and Endowments;
Accident and Health; Variable
Contracts.
Montana Life; Disability.
Nebraska Life; Variable Annuities;
Sickness and Accident.
Nevada Life; Health; Variable Annuities.
New Hampshire Life; Accident and Health.;
Variable Products.
New Mexico Life; Health; Variable Annuities.
North Carolina Life, including Industrial Sick
Benefit
28
Insurance; Annuities, including
Annuities and Variable Annuities;
Accident and Health, including
Hospitalization (Cancelable and
Non-cancelable).
North Dakota Life and Annuity; Accident and
Health; Variable Life and
Annuities.
Ohio Life; Health; Annuities.
Oklahoma Life; Accident & Health;
Variable.
Oregon Life; Health.
Pennsylvania Accident and Health; Separate
Account Annuities; Life and
Annuities.
Rhode Island Life; Accident and Health;
Annuities including Variable
Annuities.
South Carolina Life; Variable Annuity; Accident
and Health.
South Dakota Life; Health; Variable Annuities.
Tennessee Life; Variable Contracts;
Disability.
Texas Life; Health and Accident;
Variable Annuities.
Utah Life; Annuity' Variable
Life/Annuity; Disability.
Vermont Insurance business authorized by
its Charter in accordance with
the Laws of the State of Vermont.
Virginia Life; Annuities; Variable
Annuities; Accident and Sickness.
Washington Life; Disability.
West Virginia Life; Accident & Sickness;
Variable Annuities.
Wisconsin Life Insurance and Annuities
(Nonparticipating); Variable Life
Insurance and Variable Annuities;
Disability Insurance.
Wyoming Life; Disability; Annuity.
29
SCHEDULE 7.12
TAXES
None
SCHEDULE 13.3
ADDRESSES
1. Notices to Xxxxxx Xxxx Educators Corporation should be sent to:
Xxx Xxxxxxxx
Vice President, General Counsel and Corporate Secretary
Xxxxxx Xxxx Educators Corporation
0 Xxxxxx Xxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxx 00000-0000
Phone: (000) 000-0000
Fax: (000) 000-0000
2. Notices to Bank of America, N.A. as Lender should be sent to:
Xxxxx Xxxxxx
Bank of America, N.A.
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
3. Notices to Bank of America, N.A. as Administrative Agent should be sent to:
Xxxxx Xxxxx
Bank of America, N.A.
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
EXHIBIT A
FORM OF BORROWING REQUEST
Bank of America, N.A.,
as Administrative Agent
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxx
Re: Xxxxxx Xxxx Educators Corporation
Gentlemen and Ladies:
This Borrowing Request is delivered to you pursuant to Section 2.3 of
that certain Credit Agreement, dated as of May ___, 2002 (as amended, modified,
supplemented, restated, refunded or renewed from time to time and in effect, the
"Credit Agreement"), among Xxxxxx Xxxx Educators Corporation, a Delaware
corporation (the "Borrower"), various financial institutions which are, or may
become, parties thereto (the "Lenders"), and Bank of America, N.A., as
Administrative Agent for the Lenders. Unless otherwise defined herein or the
context otherwise requires, capitalized terms used herein have the meanings
provided in the Credit Agreement.
The Borrower hereby requests that a Borrowing be made in the aggregate
principal amount of $________ on _____, 20__ as a [Eurodollar Loan having an
Interest Period of _____ months] [Base Rate Loan].
The Borrower hereby certifies and warrants that (a) that no Default
under any of the Loan Documents has occurred and is continuing or, after giving
effect to the Borrowing requested hereby, will have occurred and be continuing;
(b) all representations and warranties contained in the Credit Agreement [(other
than Section 7.4)]* and the other Loan Documents are true and correct in all
material respects on the date of this Borrowing Request and (except as otherwise
disclosed in writing to the Administrative Agent and the Lenders prior to the
date of such Borrowing) shall be true and correct in all material respects on
the date of the Borrowing requested hereunder with the same effect as though
made on the date of and concurrently with such Borrowing Request and such
Borrowing hereunder (except where such representation or warranty speaks as of
specified date); and (c) all covenants contained in the Credit Agreement and the
other Loan Documents to be performed by each of the parties thereto (other than
the Administrative Agent or the Lenders) have been performed in all material
respects and, prior to the date of the Borrowing requested hereunder, will be
performed in all material respects.
Please disburse the proceeds of the Borrowing requested hereby as
follows:
________________
* Delete for the initial Borrowing.
The Borrower has caused this Borrowing Request to be executed and
delivered, and the certification and warranties contained herein to be made, by
its duly Authorized Officers this __ day of __________, 20__.
XXXXXX XXXX EDUCATORS CORPORATION
By _________________________________
Name Printed _______________________
Title ______________________________
By _________________________________
Name Printed _______________________
Title ______________________________
EXHIBIT B
NOTE
U.S. $25,000,000 Chicago, Illinois
May ___, 2002
The undersigned, FOR VALUE RECEIVED, promises to pay to the order of
BANK OF AMERICA, N.A., as Administrative Agent for the ratable benefit of the
Lenders, at its principal office at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx
00000, TWENTY FIVE MILLION DOLLARS ($25,000,000) or, if less, the aggregate
unpaid principal amount of all Loans made by the Lenders to the undersigned
pursuant to that certain Credit Agreement, dated as of May ___, 2002 (as
amended, modified, supplemented, restated, refunded or renewed from time to time
and in effect, the "Credit Agreement") among the undersigned, various financial
institutions which are, or may become, parties thereto and Bank of America,
N.A., as Administrative Agent for the Lenders, as shown either in the schedule
attached hereto (and any continuation thereof) or in the records of the payee.
Unless otherwise defined herein or the context otherwise requires, capitalized
terms used herein shall have the meanings provided in the Credit Agreement.
The unpaid principal amount hereof from time to time outstanding shall
bear interest from the date hereof at the rates, and such interest shall be
payable at the times, set forth in the Credit Agreement. Payments of both
principal and interest are to be made in lawful money of the United States of
America.
This Note is the Note described in, and is subject to the terms and
provisions of, the Credit Agreement. Reference is hereby made to the Credit
Agreement for a statement of the maturity of the Loans, the prepayment rights
and obligations of the undersigned, the nature and extent of the collateral
security and the rights of the parties to the Loan Documents in respect of such
collateral security, and for a statement of the terms and conditions under which
the due date of this Note may be accelerated.
In addition to and not in limitation of the foregoing and the
provisions of the Credit Agreement, the undersigned further agrees, subject only
to any limitation imposed by applicable law, to pay all expenses, including
reasonable attorneys' fees and legal expenses, incurred by the holder of this
Note in endeavoring to collect any amounts payable hereunder which are not paid
when due, whether by acceleration or otherwise.
All parties hereto, whether as makers, endorsers, or otherwise,
severally waive presentment for payment, demand, protest and notice of dishonor.
THIS NOTE HAS BEEN DELIVERED IN CHICAGO, ILLINOIS AND SHALL BE DEEMED
TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF
ILLINOIS.
XXXXXX XXXX EDUCATORS CORPORATION
By _____________________________________
Title __________________________________
By _____________________________________
Title __________________________________
LOANS AND PRINCIPAL PAYMENTS
Amount of Amount of Unpaid Principal
Loan Made Principal Repaid Balance
--------- ---------------- -------
Interest
Base Eurodollar Period (if Base Eurodollar Base Eurodollar Notation
Date Rate Rate applicable) Rate Rate Rate Rate Made By
---- ---- ---- ----------- ---- ---- ---- ---- -------
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
EXHIBIT C
FORM OF CONTINUATION/CONVERSION NOTICE
Bank of America, N.A.,
as Administrative Agent
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxx
Re: Xxxxxx Xxxx Educators Corporation
Ladies and Gentlemen:
This Continuation/Conversion Notice (the "Notice") is delivered to you
pursuant to Section 4.5 of that certain Credit Agreement, dated as of May ___,
2002 (as amended, modified, supplemented, restated, refunded or renewed from
time to time and in effect, the "Credit Agreement"), among Xxxxxx Xxxx Educators
Corporation, a Delaware corporation (the "Borrower"), various financial
institutions which are or may become parties thereto (the "Lenders") and Bank of
America, N.A., as Administrative Agent for the Lenders. Unless otherwise defined
herein or the context otherwise requires, capitalized terms used herein shall
have the meanings provided in the Credit Agreement.
The Borrower hereby requests that:
1. on __________, 20__, $________ of the presently outstanding
principal amount of the Loans originally made on ______, 20__, currently
being maintained as Base Rate Loans, be converted from Base Rate Loans into
Eurodollar Loans; and
2. on __________, 20__, $________ of the presently outstanding
principal amount of the Loans originally made on ______, 20__ currently
being maintained as a Eurodollar Loan, be [continued as] [Eurodollar Loans
having an Interest Period of months] [converted into] [Base Rate Loans].
The Borrower hereby certifies and warrants that no Default has
occurred and is continuing or, after giving effect to the continuation and/or
conversion of any Loan requested hereby, will have occurred and be continuing.
The Borrower has caused this Notice to be executed and delivered, and
the certification and warranties contained herein to be made, by its duly
Authorized Officer this _____ day of __________, 20__.
XXXXXX XXXX EDUCATORS CORPORATION
By _________________________________
Name Printed _______________________
Title ______________________________
By _________________________________
Name Printed _______________________
Title ______________________________
EXHIBIT D
FORM OF COMPLIANCE CERTIFICATE
Date: ________, 20__
TO: Bank of America, N.A.,
as Administrative Agent, and
the Lenders under the
Credit Agreement referred
to below
Re: Xxxxxx Xxxx Educators Corporation
Please refer to that certain Credit Agreement (as heretofore amended,
modified, supplemented, restated, refunded or renewed and as currently in
effect, herein called the "Agreement"), dated as of May ___, 2002, among Xxxxxx
Xxxx Educators Corporation (the "Borrower"), the Lenders referred to therein,
and Bank of America, N.A., as Administrative Agent.
Terms defined in the Agreement shall have the same meanings when used
herein.
In accordance with Section 8.1.1(f) of the Agreement, the Borrower hereby
certifies that the statements and calculations set forth below are true and
correct as of _______, 20__ (the "Calculation Date"):
I. Section 8.2.1 - Consolidated Debt to Capital.
A. Consolidated Debt $___________
B. Net Worth $___________
C. Sum of Item A plus Item B $___________
D. Ratio of Item A to Item C ____________
[Item D is not permitted to exceed 0.35 to 1.0 at any time prior to January
1, 2003, 0.325 to 1.0 at any time thereafter prior to January 1, 2004 or
0.30 to 1.0 at any time thereafter.]
II. Section 8.2.2 - Risk Based Capital.
A. Adjusted surplus for each Insurance Subsidiary
(list separately) $___________
B. Company Action Level for each Insurance Subsidiary
(list separately) $___________
[Item A for any Insurance Subsidiary is not permitted to be less than 175%
of Item B for such Insurance Subsidiary as of the end of each Fiscal Year.
Item A for the Life Subsidiaries on a Combined basis is not permitted to be
less than 250% of Item B for the Life Subsidiaries as of the end of each
Fiscal Year. Item A for the P/C Subsidiaries on a Combined basis is not
permitted to be less than 250% of Item B for the P/C Subsidiaries as of the
end of each Fiscal Year.]
III. Section 8.2.3 - Interest Coverage Ratio.
A. Combined dividends permitted to be paid by the
Insurance Subsidiaries to the Borrower on the
Calculation Date under applicable law without
approval of the Department $___________
B. Future Interest Expense for the next four Fiscal
Quarters:
C. Ratio of Item A to Item B ____________
[Item C is not permitted to be less than 4.0 to 1.0 at any Fiscal Quarter
end unless the Borrower has applied to the applicable Department within 20
days of such Fiscal Quarter end for permission to pay a special dividend in
an amount that when added to the amount set forth in clause (a) of the
definition of Interest Coverage Ratio, would cause such ratio to be
complied with, and such permission is granted within 45 days of such Fiscal
Quarter end.]
There have been no changes in the Executive Officers or Directors of the
Borrower since the last Compliance Certificate [except as described below.]
The undersigned officer further certifies that, to the best of his/her
knowledge, no Default had occurred and was continuing as of the Calculation
Date.
XXXXXX XXXX EDUCATORS
CORPORATION
By ______________________________
**
Title ___________________________
_________________________
** To be executed by the chief financial officer or treasurer of the Borrower.
EXHIBIT E
FORM OF OPINION OF BORROWER'S COUNSEL
May ___, 2002
To: Bank of America, N.A., as
Administrative Agent, and
the Lenders referred to below
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Re: Xxxxxx Xxxx Educators Corporation
Ladies and Gentlemen:
I refer to that certain Credit Agreement, dated as of May ___, 2002 (the
"Credit Agreement"), between Xxxxxx Xxxx Educators Corporation, a Delaware
corporation (the "Borrower"), various financial institutions which are, or may
become, parties thereto (the "Lenders") and Bank of America, N.A., as
Administrative Agent for the Lenders (the "Administrative Agent"). I am the
General Counsel of the Borrower and have represented the Borrower in connection
with the preparation, execution and delivery of the Credit Agreement and the
transactions contemplated thereby.
This opinion is delivered to you pursuant to Section 9.1.4 of the Credit
Agreement. Capitalized terms not otherwise defined herein shall have the
definitions assigned to such terms in the Credit Agreement, unless the context
otherwise requires.
I have examined such matters of law and such certificates, documents and
records of public officials and of officers of the Borrower and its Subsidiaries
as I have deemed necessary for purposes of this opinion, including, but not
limited to, the Credit Agreement and the other Loan Documents. As to questions
of fact material to such opinions, I have relied on certificates of officers of
the Borrower and its Subsidiaries.
In rendering this opinion, I have made the following assumptions:
(a) All documents submitted to or reviewed by me are accurate and complete
and if not originals are true and correct copies of the originals. The
signatures on each of such documents by the parties thereto (other
than the Borrower) are genuine. Each individual who signed such
documents on behalf of any Person (other than the Borrower) had the
legal capacity to do so. All individuals who signed such documents on
behalf of a corporation (other than the Borrower) were duly authorized
to do so.
(b) The Lenders and the Administrative Agent have the corporate power and
authority to execute and deliver the Credit Agreement and other Loan
Documents to which they are parties and to perform their obligations
under the Credit Agreement and the other Loan Documents.
(c) The execution and delivery by the Administrative Agent and the Lenders
of the Credit Agreement and the other Loan Documents to which they are
parties have been duly authorized by all requisite corporate action
and such documents have been duly executed and delivered by the
Administrative Agent and the Lenders.
Based upon the foregoing and subject to the limitations, qualifications and
exceptions set forth herein, I am of opinion that:
1. Each of the Borrower and each Subsidiary (i) is a corporation duly
organized, validly existing and in good standing under the laws of its
state of incorporation, (ii) is duly qualified to do business and in
good standing in each jurisdiction where, because of the nature of its
activities or properties, such qualification is required, which
jurisdictions are set forth with respect to the Borrower and each
Subsidiary on Schedule 7.10 of the Credit Agreement , (iii) has the
requisite corporate power and authority and the right to own and
operate its properties, to lease the property it operate under lease,
and to conduct its business as now and proposed to be conducted and
(iv) has obtained all material licenses, permits, consents or
approvals from or by, and has made all filings with, and given all
notices to, all Governmental Authorities having jurisdiction, to the
extent required for such ownership, operation and conduct (including,
without limitation, the consummation of the transactions contemplated
by the Credit Agreement and the other Loan Documents) as to each of
the foregoing except where the failure to do so would not have a
Material Adverse Effect on the Borrower and its Subsidiaries taken as
a whole.
2. The execution, delivery and performance by the Borrower of the Credit
Agreement and the consummation of the transactions contemplated
thereby are within its corporate powers and have been duly authorized
by all necessary corporate action (including, without limitation,
shareholder approval, if required).
3. Each of the Borrower and its Subsidiaries has received all material
governmental and other consents and approvals (if any shall be
required) necessary for such execution, delivery and performance, and
such execution, delivery and performance do not and will not
contravene or conflict with, or create a Lien or right of termination
or acceleration under, any Requirement of Law or Contractual
Obligation binding upon the Borrower or such Subsidiaries.
4. The Credit Agreement and the other Loan Documents to which it is a
party have been executed by the Borrower and constitute the legal,
binding and enforceable obligations of Borrower enforceable against
the Borrower in accordance with their respective terms.
5. Other than Xxxxxx Xxxx Investors, Inc., neither the Borrower nor any
of its Subsidiaries is an "investment company" or a company
"controlled by an investment company", within the meaning of the
Investment Company Act of 1940, as amended.
6. (a) Except as set forth in Schedule 7.4 of the Credit Agreement and
(b) except for claims which are covered by Insurance Policies,
coverage for which has not been denied in writing, or which relate to
Ordinary Course Litigation, no claim, litigation (including, without
limitation, derivative actions), arbitration, governmental
investigation or proceeding or inquiry is pending or threatened
against the Borrower or any of its Subsidiaries (i) which would, if
adversely determined, have a Material Adverse Effect on the Borrower
or its Subsidiaries taken as a whole or (ii) which relates to any of
the transactions contemplated hereby, and there is no basis known to
the Borrower for any of the foregoing.
The opinions expressed herein are limited (i) to the extent that general
equitable principles limit the availability of equitable remedies, including but
not limited to the remedy of specific performance, injunctive relief, the
appointment of a receiver, and rights of acceleration; and (ii) to the extent
that the enforceability of the Credit Agreement and the other Loan Documents is
limited by applicable bankruptcy, insolvency, and other debtor relief laws of
general applicability.
This opinion is based on my knowledge of the law and facts as of the date
hereof. I assume no duty to update or supplement this opinion to reflect any
facts or circumstances which may hereafter come to my attention or to reflect
any changes in any law which may hereafter occur or become effective.
Respectfully submitted,
________________________________
EXHIBIT F
FORM OF
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Agreement"), dated as of
the date set forth in Item 1 (each reference to an "Item" herein shall be deemed
to refer to such Item on Schedule I hereto), is made by the party designated as
the Assignor on the signature pages hereto (the "Assignor") to the Person
designated as the Assignee on the signature pages hereto (the "Assignee").
W I T N E S E T H:
The Assignor has entered into a Credit Agreement, dated as of May ___, 2002
(as such agreement may be amended, supplemented, amended and restated or
otherwise modified from time to time, the "Credit Agreement"), among Xxxxxx Xxxx
Educators Corporation, a Delaware corporation (the "Borrower"), certain
financial institutions as are or may become parties thereto, including the
Assignor (collectively, the "Lenders"), and Bank of America, N.A., as
administrative agent (the "Administrative Agent") for the Lenders, under which
the Assignor has agreed to make Loans in the amounts of up to the amount set
forth in Item 2 (such amount equals the current Commitment of the Assignor and
may have been, or may be, reduced by Section 2.1.1 of the Credit Agreement and
by other assignments by or to the Assignor, and will be reduced by the
assignment under this Agreement) and the Lenders have agreed to make Loans in
the amounts of up to the current aggregate Commitment Amount set forth in Item
3. Such Loans are sometimes hereinafter referred to as the "Advances" or each,
an "Advance". Unless otherwise defined, all terms used herein have the meanings
provided in the Credit Agreement.
In consideration of the premises and the mutual covenants contained herein,
the Assignor and the Assignee hereby covenant and agree as follows:
1. Assignment and Assumption. Subject to the terms and conditions of this
Agreement, the Assignor and the Assignee agree that:
(a) the Assignor hereby sells, transfers, assigns and delegates to
the Assignee, in consideration of the Assignee's entering into this
Agreement and the Assignee's payment to the Assignor of the amount set
forth in Item 4; and
(b) the Assignee hereby purchases, assumes and undertakes from the
Assignor, without recourse and without representation or warranty of any
kind (except as expressly provided in this Agreement),
a share (equal to the Funding Percentage set forth in Item 5 expressed as a
percentage of the aggregate Commitment Amount of the Lenders) of the Assignor's
Commitment, Advances, rights, benefits, obligations, liabilities and indemnities
under and in connection with the Credit Agreement and all of the Advances,
including without limitation the right to receive payment of principal and
interest on such percentage of the Assignor's Advances, and the obligation to
fund
all future Advances in respect of such assignment, and to indemnify the
Administrative Agent or any other party under the Credit Agreement and to pay
all other amounts payable by a Lender (in its respective percentage of the
aggregate obligations of the Lenders) under or in connection with the Credit
Agreement but not including any fees except as otherwise agreed by the Assignor
and the Assignee.
The interest of the Assignor under the Credit Agreement (including the
portion of the Assignor's Advances and all such Commitments, Advances, rights,
benefits, obligations, liabilities and indemnities) which the Assignee purchases
and assumes hereunder is hereinafter referred to as its "Assigned Share". The
day upon which the Assignee shall make the payment described in the prior
paragraph is hereinafter referred to as the "Funding Date". Upon completion of
the assignment hereunder, the Assignor will have the revised share of the total
Commitment Amount as of the Lenders and Funding Percentage set forth in Item 6.
2. Future Payments. The Assignor shall notify the Administrative Agent to
make all payments with respect to the Assigned Share after the Funding Date
directly to the Assignee. The Assignor and Assignee agree and acknowledge that
all payments of interest, commitment fees and other fees accrued up to, but not
including, the Funding Date are the property of the Assignor, and not the
Assignee. The Assignee shall, upon payment of any interest, commitment fees or
other fees, remit to the Assignor all of such interest, commitment fees and
other fees accrued up to, but not including, the Funding Date.
3. No Warranty or Recourse. The sale, transfer, assignment and delegation
of the Assigned Share is made without warranty or recourse against the Assignor
of any kind, except that the Assignor warrants that it has not sold or otherwise
transferred any other interest in the Assigned Share to any other party. The
Assignor may, however, have sold and may hereafter sell participations in, or
may have assigned or may hereafter assign, portions of its interest in the
Advances and the Credit Agreement.
4. Covenants and Warranties. To induce each other to enter into this
Agreement, each of the Assignee and the Assignor warrants and covenants with
respect to itself that:
(a) Existence and Organization. It is, in each case, the type of
institution, and duly organized under the laws of the jurisdiction, set
forth in Item 7.
(b) Authority and Authorization. It is duly authorized to execute,
deliver and perform its obligations under this Agreement and all acts and
conditions required to be done and performed and to have occurred prior to
the execution and delivery of, and performance of its obligations under,
this Agreement have been done and performed and have occurred in compliance
with all applicable laws.
(c) No Conflict. The execution and delivery of, and performance of
its obligations under, this Agreement do not conflict with any provision of
law or of the charter or by-laws (or equivalent constituent documents) of
such party, or of any agreement binding upon it; and
(d) Valid and Binding. This Agreement constitutes the legal, valid
and binding obligation of such party enforceable against such party in
accordance with its terms.
5. Covenants and Warranties by the Assignee. To induce the Assignor to
enter into this Agreement, the Assignee warrants and covenants that (a) it is
purchasing and assuming the Assigned Share in the course of making loans in the
ordinary course of its business, and (b) it has, independently and without
reliance upon the Assignor, the Administrative Agent or any other Lender, and
based upon such financial statements and other documents and information as it
has deemed appropriate, made its own credit analysis and decision to enter into
this Agreement. The Assignee acknowledges that the Assignor, the Administrative
Agent or any other Lender have not made and do not make any representations or
warranties or assume any responsibility with respect to the validity,
genuineness, enforceability or collectibility of the Advances, the Credit
Agreement or any related instrument, document or agreement. The Assignee
warrants and covenants that it is an Eligible Assignee.
6. Payments to the Assignor. All amounts payable to the Assignor in U.S.
Dollars shall be paid by transfer of federal funds to the Assignor as set forth
in Item 9.
7. Other Transactions. The Assignee shall have no interest in any
property in the Assignor's possession or control, or in any deposit held or
other indebtedness owing by the Assignor, which may be or become collateral for
or otherwise be available for payment of the Advances by reason of the general
description of secured obligations contained in any security agreement or other
agreement or instrument held by the Assignor or by reason of the right of
set-off, counterclaim or otherwise, except that if such interest is provided for
in provisions of the Credit Agreement regarding sharing of set-off, the Assignee
shall have the same rights as any other Lender that is a party to the Credit
Agreement. The Assignor and its affiliates may accept deposits from, lend money
to, act as trustee under indentures for and generally engage in any kind of
business with the Borrower, and any person who may do business with or own
securities of the Borrower or any of its Subsidiaries. The Assignee shall have
no interest in any property taken as security for any other loan or any other
credits extended to the Borrower or any of its Subsidiaries by the Assignor.
8. Expenses. In the event of any action to enforce the provisions of this
Agreement against a party hereto, the prevailing party shall be entitled to
recover all costs and expenses incurred in connection therewith, including
without limitation, attorneys' fees and expenses.
9. Successors and Assigns. This Agreement shall inure the benefit of and
be binding upon the successors and assigns of the Assignor and the Assignee.
10. Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF ILLINOIS.
11. Amendments, Changes and Modifications. This Agreement may not be
amended, changed, modified, altered, or terminated except by an agreement in
writing signed by the
Assignor and the Assignee (or their permitted successors or assigns) and the
consent of the Borrower (which shall not be unreasonably withheld).
12. Withholding Taxes. The Assignee (a) represents and warrants to the
Assignor, the Administrative Agent and the Borrower that under applicable law
and treaties no tax will be required to be withheld by the Assignor with respect
to any payments to be made to the Assignee hereunder, (b) agrees to furnish (if
it is organized under the laws of any jurisdiction other than the United States
or any State thereof and if it is not otherwise prohibited or prevented by
applicable law or court order) to the Assignor, the Administrative Agent and the
Borrower upon the effectiveness of this Agreement, either U.S. Internal Revenue
Service Form W-8 BEN or U.S. Internal Revenue Service Form W-8 ECI, and agrees
to provide (if not otherwise prohibited or prevented by applicable law or court
order) new Forms W-8 BEN or W-8 ECI upon (1) the expiration or obsolescence of
any previously delivered Form W-8 BEN or Form W-8 ECI or comparable statements
in accordance with applicable U.S. law and regulations and amendments thereto,
duly executed and completed by the Assignee, and (ii) in any event, in the case
of Form W-8 BEN, on each calendar year following the Funding Date, and, in the
case of Form W-8 ECI, at the end of each three-year period following the Funding
Date, and (c) agrees to comply with all applicable U.S. laws and regulations
with regard to such withholding tax exemption.
13. Entire Agreement. This Agreement sets forth the entire understanding
of the parties (except for any side letter between the Assignor and the Assignee
with reference to fees and other items) and supersedes any and all prior
agreements, arrangements, and understandings relating to the subject matter
hereof. No representation, promise, inducement or statement of intent has been
made by any party which is not embodied in this Agreement, and no party shall be
bound by or liable for any alleged representation, promise, inducement or
statement of intention not expressly set forth herein.
14. Counterparts. This Agreement may be executed by the parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed to be an original and all of which taken together shall constitute one
and the same agreement.
IN WITNESS WHEREOF, each party hereto has caused this Agreement to be
executed on its behalf by its duly Authorized Officer as of the day and year
first above written.
ASSIGNOR:
By:_________________________________________
____________________________________________
(print name)
Title: _____________________________________
Address: __________________________
__________________________
__________________________
ASSIGNEE:
By:_________________________________________
____________________________________________
(print name)
Title: _____________________________________
Address: __________________________
__________________________
__________________________
Consented to this __ day of ________, 20__
BANK OF AMERICA, N.A.,
as Administrative Agent
By:_________________________________________
____________________________________________
(print name)
Title: _____________________________________
Consented to this __ day of ________, 20__
XXXXXX XXXX EDUCATORS CORPORATION
By:_________________________________________
____________________________________________
(print name)
Title: _____________________________________
By:_________________________________________
____________________________________________
(print name)
Title: _____________________________________
SCHEDULE I TO
ASSIGNMENT AND ASSUMPTION AGREEMENT
Item No.
1. Date of Assignment:
2. Current Commitment Amount and Funding Percentage of Assignor prior to
Assignment:
3. Current Aggregate Commitment Amount:
4. Amount of Initial Payment to Assignor:
5. Amount of Commitment Assigned to Assignee Hereunder:
6. Assignee's Funding Percentage Hereunder:
7. Assignor's Commitment Amount and Funding Percentage after Assignment
to Assignee Hereunder:
8. Type of Institution and Jurisdiction of Organization:
(a) of Assignor:
(b) of Assignee
9. Information Regarding Payments to the Assignor:
