GOULSTON & STORRS
EXECUTION COPY
-----------------
$1,000,000,000
CREDIT AGREEMENT
dated as of
August 3, 2000
among
Xxxx Xxxxxxx Financial Services, Inc.
Xxxx Xxxxxxx Life Insurance Company,
Xxxx Xxxxxxx Capital Corporation,
The Banks Listed Herein,
Fleet National Bank,
as Co-Administrative Agent,
The Chase Manhattan Bank,
as Co-Administrative Agent,
Citicorp USA, Inc.,
as Syndication Agent,
and
BankOne, NA
(Main Office Chicago),
as Documentation Agent
FleetBoston Xxxxxxxxx Xxxxxxxx Inc.,
and
Chase Securities, Inc.
as
Joint Book Managers and Joint Lead Arrangers
TABLE OF CONTENTS
ARTICLE I. DEFINITIONS................................................... 1
SECTION 1.01. Definitions............................................ 1
SECTION 1.02. Accounting Terms and Determinations.................... 12
SECTION 1.03. Types of Borrowings.................................... 13
ARTICLE II THE CREDITS................................................... 13
SECTION 2.01. Commitments to Lend.................................... 13
SECTION 2.02. Notice of Committed Borrowing.......................... 14
SECTION 2.03. Money Market Borrowings................................ 14
SECTION 2.04. Notice to Banks; Funding of Loans...................... 18
SECTION 2.05. Notes.................................................. 18
SECTION 2.06. Maturity of Loans...................................... 19
SECTION 2.07. Interest Rates......................................... 20
SECTION 2.08. Facility Fee........................................... 22
SECTION 2.09. Optional Termination or Reduction of Commitments....... 23
SECTION 2.09A. Optional Increase of Commitments....................... 23
SECTION 2.10. Method of Electing Interest Rates...................... 24
SECTION 2.11. Optional Prepayments................................... 25
SECTION 2.12. General Provisions as to Payments...................... 25
SECTION 2.13. Funding Losses......................................... 26
SECTION 2.14. Computation of Interest and Fees....................... 26
SECTION 2.15. Withholding Tax Exemption.............................. 27
SECTION 2.16. Regulation D Compensation.............................. 29
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ARTICLE III CONDITIONS.................................................... 30
SECTION 3.01. Effectiveness.......................................... 30
SECTION 3.02. Borrowings............................................. 31
ARTICLE IV REPRESENTATIONS AND WARRANTIES................................ 31
SECTION 4.01. Existence and Power.................................... 31
SECTION 4.02. Authorization; No Contravention........................ 32
SECTION 4.03. Binding Effect......................................... 32
SECTION 4.04. Title to Properties.................................... 32
SECTION 4.05. Financial Information.................................. 32
SECTION 4.06. Litigation............................................. 33
SECTION 4.07. Compliance with ERISA.................................. 33
SECTION 4.08. Compliance with Laws................................... 34
SECTION 4.09. Taxes.................................................. 34
SECTION 4.10. No Event of Default.................................... 34
SECTION 4.11. Not an Investment Company.............................. 34
SECTION 4.12. Full Disclosure........................................ 34
ARTICLE V COVENANTS..................................................... 35
SECTION 5.01. Information............................................ 35
SECTION 5.02. Maintenance of Property; Insurance..................... 38
SECTION 5.03. Conduct of Business and Maintenance of Existence....... 38
SECTION 5.04. Compliance with Laws................................... 39
SECTION 5.05. Compliance with ERISA.................................. 39
SECTION 5.06. Taxes.................................................. 39
SECTION 5.07. Subsidiary Debt........................................ 40
SECTION 5.08. Adjusted Statutory Surplus............................. 40
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SECTION 5.08A. Shareholders' Equity................................... 40
SECTION 5.09. Capitalization Ratio................................... 40
SECTION 5.10. JHFS and JHLIC Negative Pledge......................... 40
SECTION 5.11. JHCC Negative Pledge................................... 41
SECTION 5.12. Consolidations, Mergers and Sales of Assets............ 41
SECTION 5.13. Support Agreement; Company Assumption Agreement;
Guarantee Agreement...................... 42
SECTION 5.14. Use of Proceeds........................................ 43
ARTICLE VI DEFAULTS...................................................... 43
SECTION 6.01. Events of Default...................................... 43
SECTION 6.02. Notice of Default...................................... 46
ARTICLE VII THE AGENT..................................................... 46
SECTION 7.01. Appointment and Authorization.......................... 46
SECTION 7.02. Agent and Affiliates................................... 46
SECTION 7.03. Action by Agent........................................ 46
SECTION 7.04. Consultation with Experts.............................. 47
SECTION 7.05. Liability of Agent..................................... 47
SECTION 7.06. Indemnification........................................ 47
SECTION 7.07. Credit Decision........................................ 47
SECTION 7.08. Successor Agent........................................ 47
SECTION 7.09. Agent's Fee............................................ 48
ARTICLE VIII CHANGE IN CIRCUMSTANCES....................................... 48
SECTION 8.01. Basis for Determining Interest Rate
Inadequate or Unfair................................... 48
SECTION 8.02. Illegality............................................. 49
SECTION 8.03. Increased Cost and Reduced Return...................... 49
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SECTION 8.04. Base Rate Loans Substituted for
Affected Euro-Dollar Loans............................. 51
SECTION 8.05. Substitution of Bank................................... 51
ARTICLE IX MISCELLANEOUS................................................. 52
SECTION 9.01. Notices................................................ 52
SECTION 9.01A. Several Liability...................................... 52
SECTION 9.02. No Waivers............................................. 52
SECTION 9.03. Expenses; Documentary Taxes; Indemnification........... 52
SECTION 9.04. Sharing of Set-Offs.................................... 53
SECTION 9.05. Amendments and Waivers................................. 53
SECTION 9.06. Successors and Assigns................................. 54
SECTION 9.07. Collateral............................................. 56
SECTION 9.08. Waiver of Certain Claims............................... 56
SECTION 9.09. Termination of JHCC as a Borrower...................... 56
SECTION 9.10. Governing Law; Submission to Jurisdiction.............. 56
SECTION 9.11. Counterparts; Integration.............................. 57
SECTION 9.12. Waiver of Jury Trial................................... 57
SECTION 9.13 Interest Rate Limitation............................... 57
SECTION 9.14. JHLIC As Agent For Borrowers........................... 57
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Exhibit A-1 -- 364-Day Revolver Note
Exhibit A-2 -- Multi-Year Revolver Note
Exhibit B -- Company Assumption Agreement
Exhibit C -- Guarantee Agreement
Exhibit D -- Opinion of Xxxx X. Xxxxxxxx, Second Vice President and Counsel
of JHLIC
Exhibit E -- Opinion of Goulston & Storrs, P.C., Special Counsel for the
Agent
Exhibit F -- Assignment and Assumption Agreement
Exhibit G -- JHCC Termination Notice
Exhibit H -- Support Agreement
Exhibit I -- Money Market Quote Request
Exhibit J -- Invitation for Money Market Quotes
Exhibit K -- Money Market Quote
Exhibit L -- Pricing Grid
Exhibit M -- Allocation of Agent Responsibilities
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CREDIT AGREEMENT
AGREEMENT dated as of August 3, 2000 among XXXX XXXXXXX FINANCIAL
SERVICES, INC., XXXX XXXXXXX LIFE INSURANCE COMPANY, XXXX XXXXXXX CAPITAL
CORPORATION, the BANKS listed on the signature pages hereof, FLEET NATIONAL
BANK, as co-administrative agent, and THE CHASE MANHATTAN BANK, as co-
administrative agent.
W I T N E S S E T H:
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WHEREAS, the Borrowers (as hereinafter defined) desire to obtain
credit from the Banks (as hereinafter defined) pursuant to a 364-Day Revolving
Credit Facility (the "364-Day Revolver") and a Multi-Year Revolving Credit
Facility (the "Multi-Year Revolver" and, together with the 364-Day Revolver, the
"Facilities");
WHEREAS, the Banks desire to extend credit to the Borrowers pursuant
to the Facilities; and
WHEREAS, each Bank, in entering into this Agreement, expressly relies
on the Support Agreement (as hereinafter defined) pursuant to Section (6)
thereof;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. The following terms, as used herein, have
the following meanings:
"Adjusted Statutory Surplus" means, at any time, the sum of (i)
Statutory Surplus of JHLIC (calculated in the same manner as such Statutory
Surplus is calculated for purposes of the NAIC Statements, page 3, column 1,
line 38, or any successor to such line 38) plus (ii) Asset Valuation Reserve of
JHLIC (calculated in the same manner as such Asset Valuation Reserve is
calculated for purposes of the NAIC Statements, page 3, column 1, line 24.1, or
any successor to such line 24.1).
"Administrative Questionnaire" means, with respect to each Bank, an
administrative questionnaire in the form prepared by the Agent and submitted to
the Agent (with a copy to the Borrowers) duly completed by such Bank.
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"Agent" means Fleet and Chase, collectively, in their respective
capacities as co-administrative agents for the Banks hereunder, and their
respective successors in such capacity. References herein to the "Agent" shall
refer to Fleet, Chase or both of them as the context may require. The roles of
Fleet and Chase are set forth in the Allocation of Agent Responsibilities
attached hereto as Exhibit M, as the same may be amended from time to time.
"Applicable Euro-Dollar Margin" has the meaning set forth in Section
2.07(c).
"Applicable Lending Office" means, with respect to any Bank, (i) in
the case of its Base Rate Loans, its Base Rate Lending Office, (ii) in the case
of its Euro-Dollar Loans, its Euro-Dollar Lending Office and (iii) in the case
of its Money Market Loans, its Money Market Lending Office.
"Applicable Usage Fee" has the meaning set forth in Section 2.07(c).
"Assignee" has the meaning set forth in Section 9.06(c).
"Authorized Officers" means, with respect to any Borrower, individuals
described as such in the most recent certificate with respect thereto delivered
to the Agent in accordance with Section 9.01 by the Secretary or an Assistant
Secretary of such Borrower; provided that the Agent may conclusively rely on any
such certificate of a Borrower as to the Authorized Officers of such Borrower,
whether or not, at any applicable time, any individual identified as an
Authorized Officer of such Borrower in such certificate is, at such time, an
officer of such Borrower, until and unless the Agent shall have received a new
certificate from such Borrower which alters or supersedes such previous
certificate.
"Bank" means each bank listed on the signature pages hereof, each
Assignee which becomes a Bank pursuant to Section 9.06(c), and their respective
successors.
"Base Rate" means, for any day, a rate per annum equal to the higher
of (i) the rate of interest publicly announced by Chase at its head office in
New York, New York as its base rate for such day and (ii) the sum of 1/2 of 1%
plus the Federal Funds Effective Rate for such day.
"Base Rate Business Day" means any day except a Saturday, Sunday or
other day on which commercial banks in New York, New York are authorized by law
to close.
"Base Rate Lending Office" means, as to each Bank, its office located
at its address set forth in its Administrative Questionnaire (or identified in
its Administrative Questionnaire as its Base Rate Lending Office) or such other
office as such Bank may hereafter designate as its Base Rate Lending Office by
notice to the Borrowers and the Agent.
"Base Rate Loan" means (i) a Committed Loan which bears interest at
the Base Rate pursuant to the applicable Notice of Committed Borrowing or Notice
of Interest Rate Election or the provisions of Article VIII or (ii) an overdue
amount which was a Base Rate Loan immediately before it became overdue.
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"Benefit Arrangement" means at any time an employee benefit plan
within the meaning of Section 3(3) of ERISA which is not a Plan or a
Multiemployer Plan and which is maintained or otherwise contributed to by any
member of the ERISA Group.
"Borrower" means JHFS, JHLIC or JHCC, as the context may require, and
"Borrowers" means all of the foregoing; provided that if JHCC shall have been
terminated as a Borrower hereunder pursuant to Section 9.09, neither the term
"Borrower" nor the term "Borrowers" shall thereafter include or refer to JHCC;
provided further that neither the term "Borrower" nor the term "Borrowers" shall
include JHFS unless and until (a) JHFS has received public commercial paper
ratings from both S&P and Xxxxx'x of at least A-1 and P-1, respectively and (b)
it has delivered to the Agent resolutions of its Board of Directors specifically
authorizing it to enter into this Agreement and to make Borrowings hereunder.
"Borrowing" has the meaning set forth in Section 1.03.
"Chase" means The Chase Manhattan Bank, in its capacity as co-
administrative agent and, collectively with Fleet, as Agent hereunder.
"Commitment" or "Commitments" means, with respect to each Bank, the
amount(s) set forth opposite the name of such Bank on the signature pages hereof
under the headings "364-Day Commitments" and "Multi-Year Commitments," as such
amount(s) may be reduced from time to time pursuant to Section 2.09, increased
from time to time pursuant to Section 2.09A or terminated pursuant to Section
2.01 or 2.09.
"Committed Loan" means a Base Rate Loan or Euro-Dollar Loan made by a
Bank pursuant to Section 2.01; provided that, if any such loan or loans (or
portions thereof) are combined or subdivided pursuant to a Notice of Interest
Rate Election, the term "Committed Loan" shall refer to the combined principal
amount resulting from such combination or to each of the separate principal
amounts resulting from such subdivision, as the case may be.
"Company Assumption Agreement" means an agreement entered into by JHFS
or JHLIC for the benefit of the Agent, the Banks and the holders from time to
time of the Notes issued by JHCC, substantially in the form of Exhibit B hereto.
"Debt" of any Person means at any date, without duplication, (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person to pay the deferred purchase price of property or
services, except trade accounts payable arising in the ordinary course of
business, (iv) all obligations of such Person as lessee which are capitalized in
accordance with GAAP, (v) all obligations of such Person to purchase securities
(or other property) which arise out of or in connection with the sale of the
same or substantially similar securities (or other property), (vi) all non-
contingent obligations of such Person to reimburse any bank or other Person in
respect of amounts paid under a letter of credit or similar instrument, (vii)
all Debt of others secured by a Lien on the assets generally of such Person,
whether or not such Debt is assumed by such Person, (viii) all Debt of others
Guaranteed by such Person, and
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(ix) all redeemable preferred stock issued by such Person other than any such
preferred stock redeemable at the sole option of such Person; provided, that the
term Debt shall not include (y) obligations for which recourse for payment is
limited to specified assets of such Person and (z) obligations of a Person which
is an insurance company (1) which arise in connection with policies or contracts
of insurance, funding agreements and other similar contracts entered into in the
ordinary conduct of such Person's insurance business or (2) to the extent that
recourse for the payment of such obligations is limited to assets held in
separate accounts of such Person.
"Default" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"Designated Deposit Account" means (i) in the case of JHLIC, the
deposit account number 000-0-000000 maintained with Chase at the address of
Chase specified in or pursuant to Section 9.01 or such other deposit account
maintained with Chase at such address as JHLIC shall specify from time to time
in writing to the Agent, (ii) in the case of JHCC, such deposit account
maintained with Chase at such address as JHCC shall specify from time to time in
writing to the Agent, and (iii) in the case of JHFS, such deposit account
maintained with Chase at such address as JHFS shall specify from time to time in
writing to the Agent.
"Effective Date" means the date this Agreement becomes effective in
accordance with Section 3.01.
"Eligible Affiliate" means a Person (1) that is a Parent or subsidiary
of a Bank hereunder or has the same Parent as a Bank hereunder and (2) that is
(a) a commercial bank organized under the laws of the United States of America,
or any state thereof, and having total assets in excess of $1,000,000,000; (b) a
savings and loan association or savings bank organized under the laws of the
United States of America, or any state thereof, and having a tangible net worth
of at least $1,000,000,000; (c) a commercial bank organized under the laws of
any other country which is a member of the Organization for Economic Cooperation
and Development ("OECD"), or a political subdivision of any such country, and
having total assets in excess of $10,000,000,000, provided that such bank is
acting through a branch or agency located in the United States of America; or
(d) any other Person consented to by the Agent and the Borrower (such consent
not to be unreasonably withheld).
"Eligible Borrower" means (1) JHLIC, (2) JHCC, until such time as it
may be terminated as a Borrower hereunder in accordance with Section 9.09, and
(3) JHFS, from and after (a) its receipt of public commercial paper ratings from
both S&P and Xxxxx'x of at least A-1 and P-1, respectively, and (b) its delivery
to the Agent of resolutions of its Board of Directors specifically authorizing
it to enter into this Agreement and to make Borrowings hereunder.
"Environmental Laws" means any and all federal, state, local and
foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or other
governmental restrictions relating to the environment or to emissions,
discharges or releases of pollutants, contaminants, petroleum or petroleum
products, chemicals or industrial, toxic or hazardous substances or wastes into
the environment,
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including, without limitation, ambient air, surface water, ground water or land,
or otherwise relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of pollutants, contaminants,
petroleum or petroleum products, chemicals or industrial, toxic or hazardous
substances or wastes or the clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, or any successor statute.
"ERISA Group" means the Borrowers and all members of a controlled
group of corporations and all trades or businesses (whether or not incorporated)
under common control which, together with the Borrowers, are treated as a single
employer under Section 414 of the Internal Revenue Code, but only to the extent
that any Borrower could have liability under ERISA with respect to the actions
or inactions of such members.
"Euro-Dollar Business Day" means any Base Rate Business Day on which
commercial banks are open for international business (including dealings in
dollar deposits) in London or such other eurodollar interbank market as may be
selected by the Agent in its sole discretion acting in good faith.
"Euro-Dollar Lending Office" means, as to each Bank, its office,
branch or affiliate located at its address set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire as its Euro-
Dollar Lending Office) or such other office, branch or affiliate of such Bank as
it may hereafter designate as its Euro-Dollar Lending Office by notice to the
Borrowers and the Agent.
"Euro-Dollar Loan" means (i) a Committed Loan which bears interest at
a Euro-Dollar Rate pursuant to the applicable Notice of Committed Borrowing or
Notice of Interest Rate Election or (ii) an overdue amount which was a Euro-
Dollar Loan immediately before it became overdue.
"Euro-Dollar Rate" has the meaning set forth in Section 2.07(c).
"Euro-Dollar Reference Banks" means the principal Euro-Dollar Lending
Offices of such Banks as may be selected by the Agent in its sole discretion
acting in good faith.
"Euro-Dollar Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for a member bank of the Federal
Reserve System in New York, New York with deposits exceeding five billion
dollars in respect of "Eurocurrency liabilities" (or in respect of any other
category of liabilities which includes deposits by reference to which the
interest rate on Euro-Dollar Loans is determined or any category of extensions
of credit or other assets which includes loans by a non-United States office of
any Bank to United States residents).
"Event of Default" has the meaning set forth in Section 6.01.
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"Excluded Subsidiary" means (i) a limited partnership of which any
Subsidiary serves as general partner, a limited liability company of which any
Subsidiary serves as manager or over which it otherwise exercises control, or a
trust over which any Subsidiary exercises control, which limited partnership,
limited liability company or trust was formed primarily for the purpose of
making debt or equity investments in other entities and in which entities other
than the Borrowers and the Subsidiaries own, following the close of the
syndication period with respect thereto, 20% or more of the equity or beneficial
interest, as the case may be, and (ii) any Subsidiary the beneficial or equity
interest in which is directly or indirectly acquired by any Borrower in
connection with workouts, either in a bankruptcy proceeding or otherwise, of
investments previously made by such Borrower or any Subsidiary.
"Expiration" means, with respect to the 364-Day Revolver, the 364th
day after the Effective Date or, if extended in accordance with Section 2.06(b),
the 364th day after the immediately preceding Expiration.
"Facilities" has the meaning set forth in the preamble to this
Agreement.
"Facility Fee" has the meaning set forth in Section 2.08.
"Federal Funds Effective Rate" means, for any day, the rate per annum
(rounded upward, if necessary, to the nearest 1/100 of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as published for such
day by the Federal Reserve Bank of New York; provided that (i) if such day is
not a Base Rate Business Day, the Federal Funds Effective Rate for such day
shall be such rate on such transactions on the next preceding Base Rate Business
Day as so published on the next succeeding Base Rate Business Day, and (ii) if
no such rate is so published on such next succeeding Base Rate Business Day, the
Federal Funds Effective Rate for such day shall be the average of the quotations
for such day on such transactions received by the Agent from three Federal funds
brokers of recognized standing selected by the Agent.
"Final Maturity Date" has the meaning set forth in Section 2.06(a).
"Fixed Rate Loans" means Euro-Dollar Loans or Money Market Loans
(excluding Money Market Loans bearing interest at the Base Rate pursuant to
Section 8.01(a)).
"Fleet" means Fleet National Bank, in its capacity as co-
administrative agent and, collectively with Chase, as Agent hereunder.
"GAAP" means generally accepted accounting principles in the United
States of America, consistently applied.
"Granting Bank" has the meaning set forth in Section 9.06(f).
"Group of Loans" means at any time a group of Loans made to a Borrower
consisting of (i) all Committed Loans made to such Borrower which are Base Rate
Loans at such time or (ii) all Committed Loans made to such Borrower which are
Fixed Rate Loans having the
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same Interest Period and bearing interest at the same type of interest rate at
such time; provided that, if Committed Loans of any particular Bank made to such
Borrower are converted to or made as Base Rate Loans pursuant to Section 8.02 or
8.04, such Loans shall be included in the same Group or Groups of Loans from
time to time as they would have been in if they had not been so converted or
made.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt of any
other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such
Debt (whether arising by virtue of partnership arrangements, by agreement to
keep-well, to purchase assets, goods, securities or services, to take-or-pay, or
to maintain financial statement conditions or otherwise) or (ii) entered into
for the purpose of assuring in any other manner the obligee of such Debt of the
payment thereof or to protect such obligee against loss in respect thereof (in
whole or in part); provided that the term Guarantee shall not include
endorsements for collection or deposit in the ordinary course of business. The
term "Guarantee" used as a verb has a corresponding meaning.
"Guarantee Agreement" means an agreement entered into by JHFS or JHLIC
for the benefit of the Agent, the Banks and the holders from time to time of the
Notes issued by JHCC, substantially in the form of Exhibit C hereto.
"Interest Period" means: (1) with respect to each Euro-Dollar Loan, a
period commencing on the date of Borrowing specified in the applicable Notice of
Committed Borrowing or on the date specified in the applicable Notice of
Interest Rate Election and ending one, two, three or six months thereafter, as
the applicable Borrower may elect in the applicable Notice; and (2) with respect
to each Money Market Loan, the period commencing on the date of such Borrowing
and ending on the date specified in the applicable Notice of Money Market
Borrowing; provided in each case that:
(a) any Interest Period which would otherwise end on a day which is
not a Euro- Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in
another calendar month, in which case such Interest Period shall end on
the next preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar Business
Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall, subject to clause (c) below, end on the last Euro-Dollar
Business Day of a calendar month; and
(c) any Interest Period which would otherwise end after the
applicable Termination Date shall end on the applicable Termination Date;
"Internal Revenue Code" means the Internal Revenue Code of 1986 and
the regulations thereunder, all as amended and in effect from time to time.
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"JHCC" means Xxxx Xxxxxxx Capital Corporation, a Delaware corporation,
and its permitted successors.
"JHFS" means Xxxx Xxxxxxx Financial Services, Inc., a Delaware
corporation, and its permitted successors.
"JHLIC" means Xxxx Xxxxxxx Life Insurance Company, a Massachusetts
corporation (formerly known as Xxxx Xxxxxxx Mutual Life Insurance Company), and
its permitted successors.
"Level I Rating" means, with respect to any Borrower, (i) if S&P and/
or Xxxxx'x has assigned a rating to the senior unsecured long-term debt of such
Borrower, then a rating of at least AAA from S&P or at least Aaa from Xxxxx'x,
or (ii) if neither S&P nor Xxxxx'x has assigned a rating to the senior unsecured
long-term debt of such Borrower, then public commercial paper ratings of A-1+
from S&P or P-1 from Xxxxx'x.
"Level II Rating" means, with respect to any Borrower, (i) if S&P and
/or Xxxxx'x has assigned a rating to the senior unsecured long-term debt of such
Borrower, then a rating of at least AA- from S&P or at least Aa3 from Xxxxx'x,
or (ii) if neither S&P nor Xxxxx'x has assigned a rating to the senior unsecured
long-term debt of such Borrower, then public commercial paper ratings of A-1
from S&P or P-1 from Moody's.
"Level III Rating" means, with respect to any Borrower, (i) if S&P
and/or Moody's has assigned a rating to the senior unsecured long-term debt of
such Borrower, then a rating of at least A+ from S&P or at least A1 from
Moody's, or (ii) if neither S&P nor Moody's has assigned a rating to the senior
unsecured long-term debt of such Borrower, then public commercial paper ratings
of A-2 from S&P or P-2 from Moody's.
"Level IV Rating" means, with respect to any Borrower, (i) if S&P
and/or Moody's has assigned a rating to the senior unsecured long-term debt of
such Borrower, then ratings (if assigned) of below A+ from S&P and below A1 from
Moody's, or (ii) if neither S&P nor Moody's has assigned a rating to the senior
unsecured long-term debt of such Borrower, then public commercial paper ratings
of less than A-2 from S&P and less than P-2 from Moody's.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset.
For the purposes of this Agreement, any Borrower or any Subsidiary shall be
deemed to own subject to a Lien any asset which it has acquired or holds subject
to the interest of a vendor or lessor under any conditional sale agreement,
capital lease or other title retention agreement relating to such asset.
"Loan" means a Base Rate Loan, a Euro-Dollar Loan or a Money Market
Loan, and "Loans" means Base Rate Loans, Euro-Dollar Loans, Money Market Loans
or any combination of the foregoing.
"Material Adverse Effect" means a material adverse effect on the
ability of any Borrower to perform its obligations under this Agreement or the
Notes.
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"Material Debt" means (i) for purposes of Section 6.01(e), Debt (other
than the Notes or Permitted Collateralization Obligations) of one or any
combination of Borrowers, arising in one or more related or unrelated
transactions, in an aggregate principal amount in excess of (A) for purposes of
subsections 6.01(e) (i) (A) and 6.01(e) (ii), $75,000,000 and (B) for purposes
of subsection 6.01(e) (i) (B), $100,000,000 and (ii) for purposes of Section
6.01(f), Debt (other than Permitted Collateralization Obligations) of one or
more Subsidiaries of JHFS or JHLIC each of which is not a Borrower, arising in
one or more related or unrelated transactions, in an aggregate principal amount
in excess of $100,000,000; provided that for purposes of this definition, Debt
of JHLIC or any Subsidiary referred to in the exception contained in the
definition of "Permitted Collateralization Obligation" shall, at any date, be
deemed to be in an amount equal to the amount of such Debt then due.
"Material Plan" means at any time a Plan or Plans having aggregate
Unfunded Liabilities in excess of $100,000,000.
"Material Subsidiary" means, at any date, (i) unless JHCC shall have
been terminated as a Borrower hereunder pursuant to Section 9.09, JHCC and (ii)
any Subsidiary the principal activities of which consist of activities other
than the ownership or management of, or investment in, other Subsidiaries and
the assets of which (other than, in the case of any Subsidiary that is an
insurance company, assets held in separate accounts of such Subsidiary) as of
such date exceed 15% of JHLIC's assets (other than assets held in separate
accounts of JHLIC), as reflected on the most recent statutory financial
statements of JHLIC delivered or required to be delivered to the Banks pursuant
to Section 4.05(a)(i) or 5.01(a)(i).
"Money Market Lending Office" means, as to each Bank, its office,
branch or affiliate located at its address set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire as its Money
Market Lending Office) or such other office, branch or affiliate of such Bank as
it may hereafter designate as its Money Market Lending Office by notice to the
Borrowers and the Agent.
"Money Market Loan" means a loan to be made by a Bank pursuant to a
Notice of Money Market Borrowing (including such a loan bearing interest at the
Base Rate pursuant to Section 8.01(a)).
"Money Market Quote" means an offer by a Bank to make a Money Market
Loan in accordance with Section 2.03.
"Money Market Quote Request" has the meaning set forth in Section
2.03(b).
"Moody's" means Xxxxx'x Investors Service, Inc., and its successors.
"Multiemployer Plan" means at any time an employee pension benefit
plan within the meaning of Section 4001(a) (3) of ERISA to which any member of
the ERISA Group is then making or accruing an obligation to make contributions
or has within the preceding five plan
-9-
years made contributions, including for these purposes any Person which ceased
to be a member of the ERISA Group during such five year period.
"Multi-Year Revolver" has the meaning set forth in the preamble to
this Agreement.
"Multi-Year Termination Date" means the fifth anniversary of the
Effective Date.
"NAIC" means the National Association of Insurance Commissioners or
any entity succeeding to its function of advising insurance companies as to the
values to be assigned to assets of such insurance companies included within one
or more categories of such assets.
"Notes" means promissory notes of any Borrower, substantially in the
form of Exhibit A-1 and Exhibit A-2 hereto, evidencing the obligations of such
Borrower to repay the Loans made to it, and "Note" means any one of such
promissory notes issued hereunder.
"Notice of Borrowing" means a Notice of Committed Borrowing or a
Notice of Money Market Borrowing.
"Notice of Committed Borrowing" has the meaning set forth in
Section 2.02.
"Notice of Interest Rate Election" has the meaning set forth in
Section 2.10.
"Notice of Money Market Borrowing" has the meaning set forth in
Section 2.03(f).
"NRSRO" means any nationally recognized statistical rating
organization.
"Parent" means, with respect to any Bank, any Person controlling such
Bank.
"Participant" has the meaning set forth in Section 9.06(b)
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Permitted Collateralization Assets" means assets pledged to secure
Permitted Collateralization Obligations.
"Permitted Collateralization Obligation" means any obligation relating
to REMICs, pass-through obligations, collateralized mortgage obligations,
collateralized bond obligations or similar instruments, except an obligation of
JHFS, JHLIC or any Subsidiary (excluding any Subsidiary (other than JHCC, unless
JHCC shall have been terminated as a Borrower hereunder pursuant to Section
9.09) that is the issuer of the REMIC, pass-through obligation, collateralized
mortgage obligation, collateralized bond obligation or similar instrument) to
the extent that such obligation requires a cash payment by JHFS, JHLIC or such
Subsidiary, recourse for the payment of which is not limited to specific assets
of JHFS, JHLIC or
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such Subsidiary (excluding any obligation of JHFS, JHLIC or such Subsidiary (i)
to make advances in connection with the servicing of such REMIC, pass-through
obligation, collateralized mortgage obligation, collateralized bond obligation
or similar instrument or (ii) to repurchase collateral).
"Person" means an individual, a corporation, a partnership, an
association, a trust or any other entity or organization, including a government
or political subdivision or an agency or instrumentality thereof.
"Plan" means at any time an employee pension benefit plan (other than
a Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Internal Revenue Code and
either (i) is maintained, or contributed to, by any member of the ERISA Group
for employees of any member of the ERISA Group or (ii) has at any time within
the preceding five years been maintained, or contributed to, by any Person which
was at such time a member of the ERISA Group for employees of any Person which
was at such time a member of the ERISA Group.
"Quarterly Date" means the last Base Rate Business Day of each March,
June, September and December.
"Rating Level" means a Level I Rating, a Level II Rating, a Level III
Rating or a Level IV Rating, as the case may be.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Required Banks" means at any time Banks having at least 50% of the
aggregate amount of the Commitments or, if the Commitments shall have been
terminated, holding Notes evidencing at least 50% of the aggregate unpaid
principal amount of the Loans.
"S&P" means Standard & Poor's Corporation, and its successors.
"Senior Financial Officer" means (i) with respect to JHFS, the Chief
Financial Officer or the Treasurer of JHFS, (ii) with respect to JHLIC, the
Chief Financial Officer, the Controller or the Treasurer of JHLIC and (iii) with
respect to JHCC, the President, any Vice President or the Treasurer of JHCC.
"Signing Date" means the date upon which the Agent shall have received
counterparts hereof signed by each of the parties hereto (or, in the case of any
party as to which an executed counterpart shall not have been received, receipt
by the Agent in form satisfactory to it of telegraphic, telex or other written
confirmation from such party of the execution and delivery of a counterpart
hereof by such party).
"SPC" has the meaning set forth in Section 9.06(f).
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"Subsidiary" means any corporation or other entity of which securities
or other ownership interests having ordinary voting power to elect a majority of
the board of directors or other persons performing similar functions are at the
time directly or indirectly owned by any Borrower.
"Support Agreement" means the Support Agreement dated as of October
15, 1984 between JHLIC and JHCC, a copy of which is attached hereto as Exhibit
H, as the same may, subject to Section 5.13, be amended from time to time.
"Tax Group" means, for any applicable period, all Borrowers and all
corporations (within the meaning of the Internal Revenue Code) for the payment
of the federal income taxes of which any Borrower is jointly and severally
liable under the Internal Revenue Code for such period.
"Termination Date" means the "364-Day Termination Date" or the "Multi-
Year Termination Date," as applicable.
"364-Day Revolver" has the meaning set forth in the preamble to this
Agreement.
"364-Day Termination Date" means the 364th day after the Effective
Date or, if the maturity of the 364-Day Revolver shall have been extended
pursuant to Section 2.06(b) hereof, the 364th day after the immediately
preceding Expiration.
"Unfunded Liabilities" means, with respect to any Plan at any time,
the amount (if any) by which (i) the present value of all benefits under such
Plan exceeds (ii) the fair market value of all Plan assets allocable to such
benefits (excluding any accrued but unpaid contributions), all determined as of
the then most recent valuation date for such Plan, but only to the extent that
such excess represents a potential liability of a member of the ERISA Group to
the PBGC or any other Person under Title IV of ERISA.
"Utilization Ratio" has the meaning set forth in Section 2.07(c).
SECTION 1.02. Accounting Terms and Determinations. Unless otherwise
specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made and all financial statements
required to be delivered hereunder shall be prepared in accordance with, in the
case of the JHLIC or any of its insurance Subsidiaries, accounting practices
prescribed or permitted by insurance regulatory authorities and, in the case of
JHFS and JHCC and each non-insurance Subsidiary of the Borrowers, GAAP, in each
case as in effect from time to time, applied on a basis consistent (except, in
the case of JHLIC or any of its insurance Subsidiaries, for changes required by
insurance regulatory authorities and, in the case of JHFS and JHCC and each non-
insurance Subsidiary of the Borrowers, for changes concurred in by such
Borrower's independent public accountants) with the most recent comparable
financial statements thereof delivered to the Banks pursuant to Section 4.05(a)
or (b) or Section 5.01(a) or (b); provided that, if any Borrower notifies the
Agent that it wishes to amend any covenant in Article V to eliminate the effect
of any change in, in the case of JHLIC or any of its insurance Subsidiaries,
accounting practices prescribed or permitted
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by insurance regulatory authorities or, in the case of JHFS or JHCC or any non-
insurance Subsidiary of the Borrowers, GAAP, on the operation of such covenant
(or, in the case of practices prescribed by insurance regulatory authorities or
GAAP, as the case may be, if the Agent notifies the Borrowers that the Required
Banks wish to amend Article V for such purpose), then the Borrowers' compliance
with such covenant shall be determined on the basis of, in the case of JHLIC and
any of its insurance Subsidiaries, accounting practices prescribed or permitted
by insurance regulatory authorities and, in the case of JHFS and JHCC and any
non-insurance Subsidiary of the Borrowers, GAAP, in each case in effect
immediately before the relevant change in such accounting practices or
accounting principles, as the case may be, became effective, until either such
notice is withdrawn or such covenant is amended in a manner satisfactory to the
Borrowers and the Required Banks.
SECTION 1.03. Types of Borrowings. The term "Borrowing" denotes the
aggregation of Loans of one or more Banks to be made to a single Borrower
pursuant to Article II on a single date and for a single Interest Period.
Borrowings are classified for purposes of this Agreement either by reference to
the pricing of Loans comprising such Borrowing (i.e., a "Base Rate Borrowing" is
a Borrowing composed of "Base Rate Loans," a "Euro-Dollar Borrowing" is a
Borrowing composed of Euro-Dollar Loans and a "Money Market Borrowing" is a
Borrowing composed of Money Market Loans), or by reference to the provisions of
Article II under which participation therein is determined (i.e., a "Committed
Borrowing" is a Borrowing under Section 2.01 in which all Banks participate in
proportion to their Commitments, while a "Money Market Borrowing" is a Borrowing
under Section 2.03 in which the Bank participants are determined on the basis of
their bids in accordance therewith).
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments to Lend. Each Bank severally agrees, on
the terms and conditions set forth in this Agreement, to make loans to any
Borrower pursuant to this Section in respect of the 364-Day Revolver or the
Multi-Day Revolver, as the case may be, from time to time before the applicable
Termination Date in amounts such that the aggregate principal amount of
Committed Loans by such Bank at any one time outstanding to all Borrowers in
respect of such Facility shall not exceed the amount of its Commitment with
respect to such Facility. Each Borrowing under this Section shall be in an
aggregate principal amount of $25,000,000 or any larger multiple of $1,000,000
(except that any such Borrowing may be in the aggregate amount available in
accordance with Section 3.02(b)) and shall be made from the several Banks
ratably in proportion to their respective Commitments under the applicable
Facility, as specified in a Notice of Committed Borrowing. Within the foregoing
limits, any Borrower may borrow under this Section, repay, or to the extent
permitted by Section 2.11, prepay Loans and reborrow at any time before the
applicable Termination Date under this Section. The Commitments shall terminate
at the close of business on the applicable Termination Date.
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SECTION 2.02. Notice of Committed Borrowing. The applicable Borrower
shall give the Agent notice executed on behalf of such Borrower by its
Authorized Officers (a "Notice of Committed Borrowing"), not later than 10:00
A.M. (New York City time) on (x) the date of each Base Rate Borrowing and (y)
the third Euro-Dollar Business Day before each Euro-Dollar Borrowing,
specifying:
(a) the date of such Borrowing, which shall be a Base Rate Business
Day in the case of a Base Rate Borrowing or a Euro-Dollar Business Day in
the case of a Euro-Dollar Borrowing,
(b) the aggregate amount of such Borrowing,
(c) whether the Borrowing is to be made under the 364-Day Revolver or
the Multi-Year Revolver;
(d) whether the Loans comprising such Borrowing are to bear interest
initially at the Base Rate or at a Euro-Dollar Rate, and
(e) in the case of a Euro-Dollar Rate Borrowing, the duration of the
initial Interest Period applicable thereto, subject to the provisions of
the definition of Interest Period.
SECTION 2.03. Money Market Borrowings.
-----------------------
(a) The Money Market Option. In addition to Committed Borrowings
pursuant to Section 2.01, any Borrower may, as set forth in this Section,
request the Banks before the applicable Termination Date to make offers to make
Money Market Loans to such Borrower. The Banks may, but shall have no obligation
to, make such offers and such Borrower may, but shall have no obligation to,
accept any such offers in the manner set forth in this Section. The aggregate
Money Market Loans made by any one Bank under the Facilities at any one time
shall not exceed $150,000,000. Any Money Market Loan made by a Bank shall be
deemed usage of the applicable Facility for the purpose of determining the
Utilization Ratio, but such Money Market Loan shall not reduce such Bank's
obligation to lend its pro rata share of each remaining undrawn Facility.
(b) Money Market Quote Request. When a Borrower wishes to request
offers to make Money Market Loans under this Section, it shall transmit to the
Agent by telex or facsimile transmission a request executed on behalf of such
Borrower by its Authorized Officers (a "Money Market Quote Request")
substantially in the form of Exhibit I hereto so as to be received no later than
10:00 A.M. (New York City time) on the fifth Euro-Dollar Business Day prior to
the date of Borrowing proposed therein (or such other time or date as the
Borrowers and the Agent shall have mutually agreed and shall have notified to
the Banks not later than the date of the Money Market Quote Request for which
such change is to be effective) specifying:
(i) the proposed date of Borrowing, which shall be a day on
which commercial banks in the relevant market are open for business;
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(ii) the aggregate amount of such Borrowing, which shall be
$25,000,000 or a larger multiple of $1,000,000 (except that any such
Borrowing may be in the aggregate amount available in accordance with
Section 3.02(b));
(iii) whether the Borrowing is to be made under the 364-Day
Revolver or the Multi-Year Revolver;
(iv) the duration of the Interest Period applicable thereto,
subject to the provisions of the definition of Interest Period; and
(v) the type of interest rate for which Money Market Quotes are
requested.
A Money Market Quote Request that does not conform substantially to the format
of Exhibit I may be rejected in the Agent's sole discretion, and the Agent shall
promptly notify the requesting Borrower of such rejection by telex or facsimile
transmission.
(c) Invitation for Money Market Quotes. Promptly upon receipt of a
Money Market Quote Request that is not rejected as aforesaid, the Agent shall
send to the Banks by telex or facsimile transmission an invitation for Money
Market Quotes (an "Invitation for Money Market Quotes") substantially in the
form of Exhibit J hereto, which shall constitute an invitation by the requesting
Borrower to each Bank to submit Money Market Quotes offering to make the Money
Market Loans to which such Money Market Quote Request relates in accordance with
this Section.
(d) Submission and Contents of Money Market Quotes. (i) Each Bank
may submit a Money Market Quote containing an offer or offers to make Money
Market Loans in response to any Invitation for Money Market Quotes. Each Money
Market Quote must comply with the requirements of this subsection (d) and must
be submitted to the Agent by telex or facsimile transmission at its offices
specified in or pursuant to Section 9.01 not later than (x) 2:00 P.M. (New York
City time) on the fourth Euro-Dollar Business Day prior to the proposed date of
Borrowing (or such other time or date as the requesting Borrower and the Agent
shall have mutually agreed and shall have notified to the Banks not later than
the date of the Money Market Quote Request for which such change is to be
effective); provided that Money Market Quotes submitted by the Agent (or any
affiliate of the Agent) in the capacity of a Bank may be submitted, and may only
be submitted, if the Agent or such affiliate notifies the requesting Borrower of
the terms of the offer or offers contained therein not later than one hour prior
to the deadline for the other Banks. Subject to Articles III and VI, any Money
Market Quote so made shall be irrevocable except with the written consent of the
Agent given on the instructions of the requesting Borrower.
(ii) Each Money Market Quote shall be in substantially the form of
Exhibit K hereto and shall in any case specify:
(A) the proposed date of Borrowing;
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(B) the principal amount of the Money Market Loan for which each
such offer is being made, which principal amount (w) may be greater
than or less than the Commitment of the quoting Bank under the
applicable Facility, (x) must be $5,000,000 or a larger multiple of
$1,000,000, (y) may not exceed the principal amount of Money Market
Loans for which offers were requested and (z) may be subject to an
aggregate limitation as to the principal amount of Money Market Loans
for which offers being made by such quoting Bank may be accepted;
(C) the interest rate offered for each such Money Market Loan by
the quoting Bank; and
(D) the identity of the quoting Bank.
A Money Market Quote may set forth up to five separate offers by the quoting
Bank with respect to each Interest Period specified in the related Invitation
for Money Market Quotes.
(iii) Any Money Market Quote shall be disregarded if it:
(A) is not substantially in conformity with Exhibit K hereto or
does not specify all of the information required by subsection
(d)(ii);
(B) contains qualifying, conditional or similar language (other
than as contemplated in subclause (d)(ii)(B)(z);
(C) proposes terms other than or in addition to those set forth
in the applicable Invitation for Money Market Quotes; or
(D) arrives after the time set forth in subsection (d)(i).
The Agent shall notify the quoting Bank of such nonconforming Money Market Quote
as soon as practicable.
(iv) If a Bank shall elect not to submit a Money Market Quote, such
Bank shall so notify the Agent by telex or facsimile transmission at its offices
specified in or pursuant to Section 9.01 not later than 2:00 P.M. (New York City
time) on the fourth Euro-Dollar Business Day prior to the proposed date of
Borrowing (or such other time or date as the requesting Borrower and the Agent
shall have mutually agreed and shall have notified to the Banks not later than
the date of the Money Market Quote Request for which such change is to be
effective); provided, however, that failure by any Bank to give such notice
shall not cause such Bank to be obligated to make any Money Market Loan as part
of such Borrowing.
(e) Notice to Borrower. The Agent shall promptly notify the
requesting Borrower of the terms (x) of any Money Market Quote submitted by a
Bank that is in accordance with subsection (d) and (y) of any Money Market Quote
that amends, modifies or is otherwise inconsistent with a previous Money Market
Quote submitted by such Bank with respect to the same Money Market Quote
Request. Any such subsequent Money Market Quote shall be disregarded by the
Agent unless such subsequent Money Market Quote is submitted solely to
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correct a manifest error in such former Money Market Quote. The Agent's notice
to the requesting Borrower shall specify (A) the aggregate principal amount of
Money Market Loans for which offers have been received for each Interest Period
specified in the related Money Market Quote Request, (B) the respective
principal amounts and interest rates, as the case may be, so offered and (C) if
applicable, limitations on the aggregate principal amount of Money Market Loans
for which offers in any single Money Market Quote may be accepted.
(f) Acceptance and Notice by Borrower. Not later than 10:00 A.M. (New
York City time) on the third Euro-Dollar Business Day prior to the proposed date
of Borrowing (or such other time or date as the Borrowers and the Agent shall
have mutually agreed and shall have notified to the Banks not later than the
date of the Money Market Quote Request for which such change is to be
effective), the requesting Borrower shall notify the Agent in writing executed
on behalf of such Borrower by its Authorized Officers of its acceptance or non-
acceptance of one or more of the offers so notified to it pursuant to subsection
(e). In the case of acceptance, such notice (a "Notice of Money Market
Borrowing") shall specify the aggregate principal amount of offers for each
Interest Period that are accepted. The requesting Borrower may accept any Money
Market Quote in whole or in part; provided that:
(i) the aggregate principal amount of each Money Market
Borrowing may not exceed the applicable amount set forth in the
related Money Market Quote Request;
(ii) the principal amount of each Money Market Borrowing must be
$25,000,000 or a larger multiple of $1,000,000 (except that any such
Borrowing may be in the aggregate amount available in accordance with
Section 3.02(b));
(iii) acceptance of offers may only be made on the basis of
ascending interest rates; and
(iv) the requesting Borrower may not accept any offer that is
described in subsection 2.03(d)(iii) or that otherwise fails to
comply with the requirements of this Agreement.
A Notice of Money Market Borrowing given by the requesting Borrower shall be
irrevocable. The failure by the requesting Borrower to provide the Agent with
timely notice of acceptance or non-acceptance shall be deemed to be a rejection
of all Money Market Quotes referred to above.
(g) Allocation by Agent. If offers are made by two or more Banks with
the same interest rates for a greater aggregate principal amount than the amount
in respect of which such offers are accepted for the related Interest Period,
the principal amount of Money Market Loans in respect of which such offers are
accepted shall be allocated by the Agent among such Banks as nearly as possible
(in multiples of $1,000,000, as the Agent may deem appropriate) in proportion to
the aggregate principal amounts of such offers. Determinations by the Agent of
the amounts of Money Market Loans shall be conclusive in the absence of manifest
error.
(h) Notice to Quoting Banks. The Agent shall promptly notify each
quoting Bank whether or not its Money Market Quote has been accepted (and if so,
in what amount and at
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what interest rate) by facsimile transmission sent by the Agent, and each
successful quoting Bank will thereupon become bound, subject to the other
applicable conditions hereof, to make the Money Market Loan in respect of which
its Money Market Quote has been accepted.
(i) Multiple Money Market Quote Requests. A Money Market Quote
Request shall not be made within five Euro-Dollar Business Days after the date
of any previous Money Market Quote Request.
SECTION 2.04. Notice to Banks; Funding of Loans.
---------------------------------
(a) Upon receipt of a Notice of Borrowing, the Agent shall promptly
notify each Bank of the contents thereof and of such Bank's share (if any) of
such Borrowing and such Notice of Borrowing shall not thereafter be revocable by
the Borrower.
(b) Not later than 2:00 P.M. (New York City time) on the date of each
Borrowing, each Bank participating therein shall make available its share of
such Borrowing, in Federal or other funds immediately available in New York, New
York, to Chase at its address specified in or pursuant to Section 9.01. Unless
Chase determines that any applicable condition specified in Article III has not
been satisfied, Chase will deposit the funds so received from the Banks on the
day received in the applicable Borrower's Designated Deposit Account.
(c) Unless the Agent shall have received notice from a Bank prior to
the date of (or, in the case of a Base Rate Borrowing, prior to 11:00 A.M. (New
York City time) on the date of) any Borrowing that such Bank will not make
available to the Agent such Bank's share of such Borrowing, the Agent may assume
that such Bank has made such share available to the Agent on the date of such
Borrowing in accordance with subsection (b) of this Section 2.04 and the Agent
may, in reliance upon such assumption, make available to the applicable Borrower
on such date a corresponding amount. If and to the extent that such Bank shall
not have so made such share available to the Agent, such Bank and the applicable
Borrower severally agree to repay to the Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to such Borrower until the date such amount is
repaid to the Agent, at (i) in the case of such Borrower, a rate per annum equal
to the higher of the Federal Funds Effective Rate and the interest rate
applicable thereto pursuant to Section 2.07 and (ii) in the case of such Bank,
the Federal Funds Effective Rate. If such Bank shall repay to the Agent such
corresponding amount, such amount so repaid shall constitute such Bank's Loan
included in such Borrowing for purposes of this Agreement.
SECTION 2.05. Notes. (a) The Loans of each Bank to each Borrower
shall be evidenced by (i) one Note of such Borrower payable to the order of such
Bank for the account of its Applicable Lending Office in an amount equal to the
aggregate unpaid principal amount of such Bank's Loans to such Borrower pursuant
to the 364-Day Revolver and (ii) one Note of such Borrower payable to the order
of such Bank for the account of its Applicable Lending Office in an amount equal
to the aggregate unpaid principal amount of such Bank's Loans to such Borrower
pursuant to the Multi-Year Revolver.
-18-
(b) Each Bank may, by notice to the Borrowers and the Agent, request
that its Loans of a particular type to a Borrower be evidenced by a separate
Note of such Borrower in an amount equal to the aggregate unpaid principal
amount of such Loans, in which case any Note then held by such Bank that would
otherwise evidence Loans of such type shall be appropriately modified to reflect
the fact that it does not evidence Loans of such type. Each such Note shall be
in substantially the form of Exhibit A-1 or Exhibit A-2 hereto, as the case may
be, with appropriate modifications to reflect the fact that it evidences solely
Loans of the relevant type. Each reference in this Agreement to a "Note" or the
"Notes" of such Bank shall be deemed to refer to and include any or all of such
Notes, as the context may require.
(c) Upon receipt of each Bank's Notes pursuant to Section 3.01(b), the
Agent shall deliver such Notes by hand or overnight courier to such Bank. Each
Bank shall record the date and amount of each Loan made by it to a Borrower and
the date and amount of each payment of principal made by such Borrower with
respect thereto, and prior to any transfer of its Note of a Borrower, shall
endorse on the schedule forming a part thereof appropriate notations to evidence
the foregoing information with respect to each such Loan to such Borrower then
outstanding; provided that the failure of any Bank to make any such recordation
or endorsement shall not affect the obligations of such Borrower hereunder or
under the Notes. Each Bank is hereby irrevocably authorized by each Borrower so
to endorse the Note of such Borrower and to attach to and make a part of the
Note of such Borrower a continuation of any such schedule as and when required.
(d) Upon receipt of an affidavit of an officer of a Bank as to the
loss, theft, destruction or mutilation of a Note and, in the case of any such
loss, theft, destruction or mutilation, upon cancellation of such Note, and such
Bank's unsecured agreement of indemnity concerning any claim under such canceled
Note, the applicable Borrower will issue, in lieu thereof, a replacement Note in
the same principal amount thereof and otherwise of like tenor.
SECTION 2.06. Maturity of Loans. (a) Each Committed Loan included in
any Committed Borrowing under the Multi-Year Revolver shall mature, and the
principal amount thereof shall be due and payable, on the Multi-Year Termination
Date. Each Committed Loan included in any Committed Borrowing under the 364-Day
Revolver shall mature, and the principal amount thereof shall be due and
payable, on the date (the "Final Maturity Date"), which at the Borrowers' option
shall be the later of (i) the last Expiration, as determined in accordance with
Section 2.06(b), or (ii) the first anniversary of such Expiration. If the
Borrowers choose the first anniversary of the last Expiration of the 364-Day
Revolver as the Final Maturity Date, no additional Borrowings shall be permitted
under the 364-Day Revolver between such Expiration and the Final Maturity Date.
(b) The Borrowers may request one or more 364-day extensions of the
Expiration of the 364-Day Revolver by delivering written notice thereof to the
Agent no more than 60 and no less than 45 days before the then current
Expiration. The Banks, in their sole discretion, may but shall not be obligated
to agree to each such extension. The Banks shall advise the Borrowers of their
respective decisions 30 days prior to the applicable Expiration, and if more
than 50% of the Banks agree to extend, the 364-Day Revolver Termination Date
will be extended until the 364th day after the then current Expiration. Non-
consenting Banks shall exit
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the Facility, and the outstandings on their respective Commitments under such
Facility shall be paid by the Borrowers, on the 364-Day Revolver Termination
Date as in effect prior to such extension. The 364-Day Revolver will
automatically be reduced by the non-consenting Banks' Commitments under such
Facility, but such non-consenting Banks may be replaced by the Borrowers at any
time prior to maturity with the assistance of and upon consultation with the
Agent.
(c) The Multi-Year Termination Date shall not be extended except in
accordance with the provisions of Section 9.05 hereof.
(d) Each Money Market Loan included in any Money Market Borrowing
shall mature, and the principal amount thereof shall be due and payable, on the
last day of the Interest Period applicable to such Borrowing.
SECTION 2.07. Interest Rates. (a) Each Base Rate Loan shall bear
interest on the outstanding principal amount thereof, for each day from the date
such Loan is made until it becomes due, at a rate per annum equal to the Base
Rate for such day. Such interest shall be payable quarterly in arrears on each
Quarterly Date, on the applicable Termination Date, and on the date such Base
Rate Loan is converted to a Euro-Dollar Loan.
(b) Intentionally omitted.
(c) Each Euro-Dollar Loan shall bear interest on the outstanding
principal amount thereof, for each day during each Interest Period applicable
thereto, at a rate per annum equal to the sum of the Applicable Euro-Dollar
Margin applicable on such day plus the Euro-Dollar Rate applicable for such
Interest Period plus the Applicable Usage Fee. Such interest shall be payable
for each Interest Period on the last day thereof and, if such Interest Period is
longer than three months, at intervals of three months after the first day
thereof.
"Applicable Euro-Dollar Margin" means, for any day on which such
margin is calculated, the Applicable Euro-Dollar Margin set forth in the Ratings
Levels on the Pricing Grid attached as Exhibit L hereto that corresponds to the
Rating Level of the particular Eligible Borrower on such day. Only the Rating
Level of the particular Eligible Borrower shall apply to the Borrowings of such
Eligible Borrower. The Rating Level of each such Eligible Borrower shall be
determined as follows:
(i) if S&P and/or Xxxxx'x has assigned a rating to the senior
unsecured long- term debt of such Eligible Borrower, then the Rating Level
of such Eligible Borrower shall be determined based on the highest senior
unsecured long- term debt rating of such Eligible Borrower; and
(ii) if neither S&P nor Xxxxx'x has assigned a rating to the senior
unsecured long-term debt of such Eligible Borrower, then the Rating Level
of such Eligible Borrower shall be determined based on the highest public
commercial paper rating of such Eligible Borrower as provided by S&P or
Xxxxx'x.
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The "Euro-Dollar Rate" shall mean, as applicable to any Euro-Dollar
Loan (or any Money Market Loan based on a Euro-Dollar Rate), the rate per annum
(rounded upward, if necessary, to the nearest 1/32 of one percent) as determined
on the basis of the offered rates for deposits in U.S. dollars, for a period of
time comparable to such Euro-Dollar Loan which appears on the Telerate page 3750
as of 11:00 a.m. London time on the day that is two (2) Euro-Dollar Business
Days preceding the first day of such Euro-Dollar Loan; provided, however, if the
rate described above does not appear on the Telerate System on any applicable
interest determination date, the Euro-Dollar Rate shall be the rate (rounded
upwards as described above, if necessary) for deposits in U.S. dollars for a
period substantially equal to the Interest Period on the Reuters Page "LIBO" (or
such other page as may replace the LIBO Page on that service for the purpose of
displaying such rates), as of 11:00 a.m. (London time), on the day that is two
(2) Euro-Dollar Days prior to the beginning of such Interest Period.
If both the Telerate and Reuters system are unavailable, then the rate
for that date will be determined on the basis of the offered rates for deposits
in U.S. dollars for a period of time comparable to such Euro-Dollar Loan which
are offered by four major banks in the London interbank market, or such other
eurodollar interbank market as may be selected by the Agent in its sole
discretion acting in good faith, at approximately 11:00 a.m. London time or
local time of such other market, on the day that is two (2) Euro-Dollar Business
Days preceding the first day of such Euro-Dollar Loan as selected by the Agent.
The principal London office of each of the four major London banks will be
requested to provide a quotation of its U.S. dollar deposit offered rate. If at
least two such quotations are provided, the rate for that date will be the
arithmetic mean of the quotations. If fewer than two quotations are provided as
requested, the rate for that date will be determined on the basis of the rates
quoted for loans in U.S. dollars to leading European banks for a period of time
comparable to such Euro-Dollar Loan offered by major banks in New York City at
approximately 11:00 a.m. New York City time, on the day that is two (2) Euro-
Dollar Business Days preceding the first day of such Euro-Dollar Loan. In the
event that the Agent is unable to obtain any such quotation as provided above,
it will be deemed that the Euro-Dollar Rate for purposes of a Euro-Dollar Loan
cannot be determined. In the event that the Board of Governors of the Federal
Reserve System shall impose a Euro-Dollar Reserve Percentage with respect to
Euro-Dollar Rate deposits of the Banks, then for any period during which such
Euro-Dollar Reserve Percentage shall apply, the Euro-Dollar Rate shall be equal
to the amount determined above divided by an amount equal to 1 minus the Euro-
Dollar Reserve Percentage.
The "Applicable Usage Fee" shall be payable only with respect to Euro-
Dollar Loans outstanding hereunder for each day on which a payment of interest
on a Euro-Dollar Loan is due and the Utilization Ratio is greater than
0.50:1.00. The "Utilization Ratio" means the ratio of (i) the aggregate
principal amount of the Loans outstanding under both Facilities on the day such
interest payment is due to (ii) the aggregate amount of Commitments under both
Facilities on the day such interest payment is due. The Applicable Usage Fee
shall be determined by the Rating Level of the Eligible Borrower that yields the
highest Applicable Usage Fee. Applicable Usage Fees shall be payable quarterly
in arrears on each Quarterly Date and on the applicable Termination Date.
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(d) Any overdue principal of or interest on any Euro-Dollar Loan shall
bear interest, payable on demand, for each day from and including the date
payment thereof was due to but excluding the date of actual payment, at a rate
per annum equal to the sum of 2% plus the Applicable Euro-Dollar Margin
applicable on such day plus the higher of (i) the Euro-Dollar Rate applicable to
such Loan and (ii) the average (rounded upward, if necessary, to the next higher
1/32 of 1%) of the respective rates per annum at which one day (or, if such
amount due remains unpaid more than three Euro-Dollar Business Days, then for
such other period of time not longer than three months as the Agent may select)
deposits in dollars in an amount approximately equal to such overdue payment due
to each of the Euro-Dollar Reference Banks are offered to such Euro-Dollar
Reference Bank in the London interbank market or such other eurodollar interbank
market as may be selected by the Agent in its sole discretion acting in good
faith for the applicable period determined as provided above (or, if the
circumstances described in clause (a) or (b) of Section 8.01 shall exist, at a
rate per annum equal to the sum of 2% plus the rate applicable to Base Rate
Loans for such day).
(e) Subject to Section 8.01(a), each Money Market Loan shall bear
interest on the outstanding principal amount thereof, for each day during the
Interest Period applicable thereto, at a rate per annum equal to the interest
rate quoted by the Bank making such Loan in accordance with Section 2.03. Such
interest shall be payable for each Interest Period on the last day thereof and,
if such Interest Period is longer than three months, at intervals of three
months after the first day thereof.
(f) The Agent shall determine each interest rate applicable to the
Loans hereunder. The Agent shall give prompt notice to the applicable Borrower
and the participating Banks by telex or facsimile of each rate of interest so
determined, and its determination thereof shall be conclusive in the absence of
manifest error.
(g) Each Euro-Dollar Reference Bank agrees to use its best efforts to
furnish quotations to the Agent as contemplated by this Section. If any Euro-
Dollar Reference Bank does not furnish a timely quotation, the Agent shall
determine the relevant interest rate on the basis of the quotation or quotations
furnished by the remaining Euro-Dollar Reference Bank or Banks or, if none of
such quotations is available on a timely basis, the provisions of Section 8.01
shall apply.
SECTION 2.08. Facility Fee. The Borrowers shall pay to the Agent for
the account of the Banks ratably a facility fee ("Facility Fee") with respect to
each Facility at the rate determined in accordance with the Pricing Grid
attached as Exhibit L hereto. Such Facility Fee shall accrue from and including
the Signing Date to but excluding the last to occur of the Expiration of the
364-Day Revolver and the expiration of the Multi-Year Revolver (or, if later,
the date the Loans shall be repaid in their entirety), on the total amount of
Commitments under the 364-Day Revolver and the Multi-Year Revolver,
respectively. Accrued fees under this Section shall be payable quarterly in
arrears on each Quarterly Date and upon the date of termination of the
Commitments in their entirety (and, if later, the date the Loans shall be repaid
in their entirety). The Facility Fee relating to each Facility shall be
calculated based on the average daily total commitment amount of such Facility
and shall be determined by the Rating
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Level of the Eligible Borrower that yields the highest Facility Fee with respect
to such Facility. The obligation of the Borrowers to pay Facility Fees shall be
joint and several.
SECTION 2.09. Optional Termination or Reduction of Commitments. (a)
At any time prior to the Termination Date, the Borrowers may, upon at least
three Base Rate Business Days' notice to the Agent, (i) terminate the
Commitments in full at any time, if no Loans are outstanding at such time, or
(ii) ratably reduce from time to time by (A) an aggregate amount of $25,000,000,
(B) any larger multiple of $25,000,000 or (C) the full amount thereof, the
aggregate amount of the Commitments in excess of the aggregate outstanding
principal amount of the Loans.
(b) Upon receipt of a notice of termination or reduction pursuant to
this Section, the Agent shall promptly notify each Bank of the contents thereof
and of such Bank's ratable share of such reduction and such notice shall not
thereafter be revocable by either Borrower.
SECTION 2.09A. Optional Increase of Commitments. (a) At any time
prior to the last Expiration of the 364-Day Revolver, as determined in
accordance with Section 2.06(b), but in no event more than once during any
consecutive twelve month period, the Borrowers shall have the right to increase
the aggregate Commitments under the 364-Day Revolver in integral multiples of
$25,000,000, but not to exceed $250,000,000 in the aggregate, by adding to the
Agreement one or more other Banks, or by increasing the Commitments under the
364-Day Revolver of one or more existing Banks, in each case with the approval
of the Agent, which approval shall not be unreasonably withheld. No existing
Bank's Commitment under the 364-Day Revolver shall be increased without such
Bank's written consent. The Borrowers shall not have the right to increase the
364-Day Revolver during the period, if any, from the last Expiration of the
364-Day Revolver, as determined in accordance with Section 2.06(b), to the Final
Maturity, as determined in accordance with Section 2.06(a).
(b) At any time prior to the Multi-Year Termination Date, but in no
event more than once during any consecutive twelve month period, the Borrowers
shall have the right to increase the aggregate Commitments under the Multi-Year
Revolver in integral multiples of $25,000,000, but not to exceed $250,000,000 in
the aggregate, by adding to the Agreement one or more other Banks, or by
increasing the Commitments of one or more existing Bank, in each case with the
approval of the Agent, which approval shall not be unreasonably withheld. No
existing Bank's Commitment under the Multi-Year Revolver shall be increased
without such Bank's written consent.
(c) Notwithstanding the rights of the Borrowers specified in Section
2.09A(a) and Section 2.09A(b), the increase in the aggregate Commitments under
either the 364-Day Revolver or the Multi-Year Revolver shall be effective only
if, with respect to each such increase:
(i) the Borrowers shall have given the Agent notice of any such
increase at least three Base Rate Business Days prior to the date on which
such increased commitment is to be effective (the "Increased Commitment
Date");
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(ii) no Event of Default shall have occurred and be continuing as
of the date of the notice referred to in the foregoing clause (i) or on
the Increased Commitment Date; and
(iii) on the Increased Commitment Date, JHFS's public commercial
paper rating and JHLIC's senior unsecured long-term debt rating from S&P
or Xxxxx'x are each no lower than one Rating Level below the corresponding
rating from S&P or Xxxxx'x, in the case of JHFS, in effect on the day JHFS
becomes an Eligible Borrower, and, in the case of JHLIC, in effect on the
Effective Date.
SECTION 2.10. Method of Electing Interest Rates. (a) The Loans included
in each Committed Borrowing shall bear interest initially at the type of rate
specified by the applicable Borrower in the applicable Notice of Committed
Borrowing. Thereafter, such Borrower may from time to time elect to change or
continue the type of interest rate borne by each Group of Loans made to such
Borrower (subject in each case to the provisions of Article VIII), as follows:
(i) if such Loans are Base Rate Loans, such Borrower may elect
to convert such Loans to Euro-Dollar Loans as of any Euro-Dollar Business
Day; and
(ii) if such Loans are Euro-Dollar Loans, such Borrower may elect
to convert such Loans to Base Rate Loans or elect to continue such Loans
as Euro-Dollar Loans for an additional Interest Period, in each case
effective on the last day of the then current Interest Period applicable
to such Loans.
Each such election shall be made by delivering a notice executed on behalf of
the applicable Borrower by its Authorized Officers (a "Notice of Interest Rate
Election") to the Agent at least three Euro-Dollar Business Days before the
conversion or continuation selected in such notice is to be effective (unless
the relevant Loans are to be continued as Base Rate Loans of the same type for
an additional Interest Period, in which case such notice shall be delivered to
the Agent at least three Base Rate Business Days before such conversion or
continuation is to be effective). A Notice of Interest Rate Election may, if it
so specifies, apply to only a portion of the aggregate principal amount of the
relevant Group of Loans; provided that (i) such portion is allocated ratably
among the Loans comprising such Group and (ii) the portion to which such Notice
applies, and the remaining portion to which it does not apply, are each
$25,000,000 or any larger multiple of $1,000,000.
(b) Each Notice of Interest Rate Election shall specify:
(i) the Group of Loans (or portion thereof) to which such notice
applies;
(ii) the date on which the conversion or continuation selected in such
notice is to be effective, which shall comply with the applicable clause
of subsection (a) above;
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(iii) if the Loans comprising such Group are to be converted, the new
type of Loans and, if such new Loans are Euro-Dollar Loans, the duration
of the initial Interest Period applicable thereto; and
(iv) if such Loans are to be continued as Euro-Dollar Loans for an
additional Interest Period, the duration of such additional Interest
Period.
Each Interest Period specified in a Notice of Interest Rate Election shall
comply with the provisions of the definition of Interest Period.
(c) Upon receipt of a Notice of Interest Rate Election from a Borrower
pursuant to subsection (a) above, the Agent shall promptly notify each Bank of
the contents thereof and such notice shall not thereafter be revocable by such
Borrower. If a Borrower fails to deliver a timely Notice of Interest Rate
Election to the Agent for any Group of Euro-Dollar Loans made to such Borrower,
such Loans shall be converted into Base Rate Loans on the last day of the then
current Interest Period applicable thereto.
SECTION 2.11. Optional Prepayments. (a) A Borrower may, upon at
least one Base Rate Business Day's notice to the Agent, prepay a Group of Base
Rate Loans (or a Money Market Loan bearing interest at the Base Rate pursuant to
Section 8.01(a)) made to such Borrower in whole at any time, or from time to
time in part in amounts aggregating $25,000,000 or any larger multiple of
$1,000,000, by paying the principal amount to be prepaid together with accrued
interest thereon to the date of prepayment. Each such optional prepayment shall
be applied to prepay ratably the Loans of the several Banks included in such
Group or Borrowing.
(b) A Borrower may, upon at least three Euro-Dollar Business Days'
notice to the Agent, prepay a Group of Euro-Dollar Loans made to such Borrower
on the last day of any Interest Period applicable to such Group, in whole at any
time, or from time to time in part in amounts aggregating $25,000,000 or any
larger multiple of $1,000,000, by paying the principal amount to be prepaid
together with accrued interest thereon to the date of prepayment. Each such
optional prepayment shall be applied to prepay ratably the Loans of the several
Banks included in such Group.
(c) Except as provided in subsection (a) above, a Borrower may not
prepay all or any portion of the principal amount of any Money Market Loan prior
to the maturity thereof; provided, however, that a Borrower may prepay an
individual Bank's portion of the principal amount of any Money Market Loan with
the consent of such Bank.
(d) Upon receipt of a notice of prepayment pursuant to this Section,
the Agent shall promptly notify each Bank of the contents thereof and of such
Bank's ratable share (if any) of such prepayment and such notice shall not
thereafter be revocable by either Borrower.
SECTION 2.12. General Provisions as to Payments.
---------------------------------
(a) The Borrowers shall make each payment of principal of, and
interest on, the Loans and of fees hereunder, not later than 12:00 Noon (New
York City time) on the date
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when due, in Federal or other funds immediately available in New York, New York,
to Chase at its address referred to in Section 9.01. The Agent will promptly
distribute to each Bank its ratable share of each such payment received by the
Agent for the account of the Banks. Whenever any payment of principal of, or
interest on, the Base Rate Loans or of fees shall be due on a day which is not a
Base Rate Business Day, the date for payment thereof shall be extended to the
next succeeding Base Rate Business Day. Whenever any payment of principal of, or
interest on, the Euro-Dollar Loans shall be due on a day which is not a
Euro-Dollar Business Day, the date for payment thereof shall be extended to the
next succeeding Euro-Dollar Business Day unless such Euro-Dollar Business Day
falls in another calendar month, in which case the date for payment thereof
shall be the next preceding Euro-Dollar Business Day. Whenever any payment of
principal of, or interest on, the Money Market Loans shall be due on a day which
is not a Euro-Dollar Business Day, the date for payment thereof shall be
extended to the next succeeding Euro-Dollar Business Day unless such Euro-Dollar
Business Day falls in another calendar month, in which case the date for payment
thereof shall be the next preceding Euro-Dollar Business Day. If the date for
any payment of principal is extended by operation of law or otherwise, interest
thereon shall be payable for such extended time.
(b) Unless the Agent shall have received notice from a Borrower prior
to the date on which any payment is due from such Borrower to the Banks
hereunder that such Borrower will not make such payment in full, the Agent may
assume that such Borrower has made such payment in full to the Agent on such
date and the Agent may, in reliance upon such assumption, cause to be
distributed to each Bank on such due date an amount equal to the amount, if any,
then due such Bank from such Borrower. If and to the extent that such Borrower
shall not have so made such payment, each Bank shall repay to the Agent
forthwith on demand such amount, if any, distributed to such Bank together with
interest thereon, for each day from the date such amount is distributed to such
Bank until the date such Bank repays such amount to the Agent, at the Federal
Funds Effective Rate.
SECTION 2.13. Funding Losses. If a Borrower makes any payment of
principal with respect to any Euro-Dollar Loan or any Euro-Dollar Loan is
converted to a Base Rate Loan (pursuant to Article VI or VIII or otherwise) on
any day other than the last day of an Interest Period applicable thereto, or the
end of an applicable period fixed pursuant to Section 2.07(d), or if a Borrower
fails to borrow or prepay any Euro-Dollar Loans after notice has been given to
any Bank in accordance with Section 2.04(a) or 2.11(d), as applicable, such
Borrower shall reimburse each Bank within 15 days after demand for any resulting
loss or expense incurred by it (or by an existing or prospective Participant in
the related Loan), including (without limitation) any loss incurred in
obtaining, liquidating or employing deposits from third parties, but excluding
loss of margin for the period after any such payment or conversion or failure to
borrow or prepay, provided that such Bank shall have delivered to such Borrower
a certificate signed by an officer of such Bank with knowledge of and
responsibility for such matters which sets forth the amount of such loss or
expense and a reasonable explanation of the basis therefor, which certificate
shall be conclusive in the absence of manifest error.
SECTION 2.14. Computation of Interest and Fees. (a) Interest on
Base Rate Loans, Money Market Loans, Facility Fee, Applicable Usage Fee and
other fee calculations shall be computed on the basis of a year of 365 days (or
366 days in a leap year) and paid for the
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actual number of days elapsed (including the first day but excluding the last
day). Interest on Euro-Dollar Loans shall be computed on the basis of a year of
360 days and paid for the actual number of days elapsed (including the first day
but excluding the last day).
(b) Any overdue principal of or interest on any Base Rate Loan and
Money Market Loan, respectively, shall bear interest, payable on demand, for
each day until paid at a rate per annum equal to 2% plus the interest rate
otherwise applicable to Base Rate Loans and Money Market Loans, respectively,
for such day. Any overdue principal of or interest on any Euro-Dollar Loans
shall bear interest, payable on demand, for each day until paid at the rate
specified in Section 2.07(d).
(c) From and after an Event of Default, the interest rate applicable
to each Base Rate Loan, Euro-Dollar Loan and Money Market Loan shall be
increased by 200 basis points over the interest rate otherwise applicable
without regard to any overdue, default or penalty interest or charges; provided,
however, that in no event shall the total interest rate after a Default or Event
of Default be increased by more than 200 basis points on account of this
provision in combination with any other provision of this Agreement, including
without limitation Sections 2.07(d) and 2.14(b).
SECTION 2.15. Withholding Tax Exemption. (a) At least five Base
Rate Business Days prior to the first date on which interest or fees are payable
by any Borrower hereunder for the account of any Bank, each Bank that is not
incorporated under the laws of the United States of America or a state thereof
agrees that it will deliver to each of the Borrowers and the Agent two duly
completed copies of United States Internal Revenue Service Forms X-0 XXX, X-0
ECI or W-8 IMY, as applicable (or successor forms), certifying in each case that
such Bank is entitled to receive payments from each Borrower under this
Agreement and the Notes without deduction or withholding of any United States
federal income taxes. Each Bank which so delivers a Form X-0 XXX, X-0 ECI or W-
8 IMY further undertakes to deliver to each of the Borrowers and the Agent two
additional copies of such form (or a successor form) on or before the date that
such form expires or becomes obsolete or after the occurrence of any event
requiring a change in the most recent form so delivered by it, and such
amendments thereto or extensions or renewals thereof as may be reasonably
requested by the Borrowers or the Agent, in each case certifying that such Bank
is entitled to receive payments from each Borrower under this Agreement and the
Notes without deduction or withholding of any United States federal income
taxes, unless an event (including, without limitation, any change in any treaty,
law or regulation or in the interpretation or administration thereof) has
occurred prior to the date on which any such delivery would otherwise be
required which renders all such forms inapplicable or which would prevent such
Bank from duly completing and delivering any such form with respect to it and
such Bank advises the Borrowers and the Agent that it is not capable of
receiving such payments without any deduction or withholding of United States
federal income tax.
(b) Payments Free and Clear. Any and all payments by the Borrowers
under this Agreement or the Notes shall be made free and clear of and without
deduction for any and all present or future taxes, franchise or excise taxes,
levies, imposts, deductions, charges or withholding imposed by the United
States, and all liabilities with respect thereto excluding, (i) in
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the case of each Bank and the Agent, income and franchise taxes on net income
(including any so-called branch profits taxes) imposed by the jurisdiction under
the laws of which such Bank or the Agent (as the case may be) is organized or
is, or should be (as evidenced by a final, non-appealable determination by the
relevant taxing authority or other governmental authority), qualified to do
business or any political subdivision thereof and (ii) in the case of each Bank,
income and franchise taxes on net income (including any so-called branch profits
taxes) imposed by the jurisdiction of such Bank's lending office or any
political subdivision thereof (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities being hereinafter referred to
as "Non- Excluded Taxes"). If any Borrower shall be required by law to deduct
any Non- Excluded Taxes from or in respect of any sum payable under this
Agreement or any Note to any Bank or the Agent, (A) the sum payable shall be
increased as may be necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section
2.15) such Bank or the Agent (as the case may be) receives an amount equal to
the amount such party would have received had no such deductions been made, (B)
such Borrower shall make such deductions, and (C) such Borrower shall pay the
full amount deducted to the relevant taxing authority or other authority in
accordance with applicable law. Amounts payable under this Section 2.15 shall
not duplicate amounts payable under Section 8.03 of this Agreement.
(c) Indemnity. Each Borrower shall indemnify each Bank and the Agent
for the full amount of Non-Excluded Taxes (including, without limitation, any
Non- Excluded Taxes imposed by any jurisdiction on amounts payable under this
Section 2.15) paid by such Bank or the Agent (as the case may be) and any
liability (including penalties, interest and expenses) arising therefrom or with
respect thereto, whether or not such Non-Excluded Taxes were correctly or
legally assessed. Such indemnification shall be made within 30 days from the
date such Bank or the Agent (as the case may be) makes written demand therefor.
(d) For any period with respect to which a Bank has failed to provide
any Borrower with the appropriate form described in Subsection 2.15(a) above
(other than if such failure is due to a change in law occurring subsequent to
the date on which a form originally was required to be provided, or if such form
otherwise is not required under Subsection 2.15(a) above), such Bank shall not
be entitled to any additional payments from such Borrower under Section 2.15
with respect to Non-Excluded Taxes imposed by the United States by reason of
such failure; provided, however, that should a Bank become subject to Non-
Excluded Taxes because of its failure to deliver a form required hereunder, such
Borrower shall take such steps as the Bank reasonably shall request to assist
the Bank to recover such Non-Excluded Taxes.
(e) Each Bank or the Agent, as applicable, shall make reasonable
efforts to claim any allowable refund or credit with respect to any Non-Excluded
Taxes. If a Bank or the Agent receives a refund in respect to any Non-Excluded
Taxes as to which it has been indemnified by any Borrower or with respect to
which such Borrower has paid additional amounts pursuant to Section 2.15, it
shall, if no Event of Default has occurred and is continuing, within 30 days
from the date of such receipt pay over the amount of such refund to such
Borrower, net of all reasonable out-of-pocket expenses of such Bank or the Agent
and without interest (other than interest paid by the relevant taxation
authority with respect to such refund); provided that such Borrower, upon the
written request of such Bank of the Agent, agrees to repay
-28-
promptly the amount paid over to such Borrower to such Bank or the Agent in the
event such Bank or the Agent is required to repay such refund to such taxation
authority.
(f) Each Bank will promptly notify the Borrowers and the Agent of any
event of which it has knowledge, occurring after the date hereof, which will
entitle such Bank to compensation pursuant to this Section 2.15 and will
designate a different Applicable Lending Office if such designation will avoid
the need for, or reduce the amount of, such compensation and will not, in the
judgment of such Bank, be otherwise disadvantageous to such Bank. A certificate
of any Bank claiming compensation under this Section 2.15 and setting forth the
additional amount or amounts to be paid to it hereunder that is signed by an
officer of such Bank with knowledge of and responsibility for such matters and
that sets forth such amount or amounts and a reasonable explanation of the basis
therefor shall be conclusive in the absence of manifest error. In determining
such amount, such Bank may use any reasonable averaging and attribution methods.
SECTION 2.16. Regulation D Compensation. For so long as any Bank is
required, or is requested by any applicable regulatory authority, to maintain
and does maintain reserves against "Eurocurrency liabilities" (or any other
category of liabilities which includes deposits by reference to which the
interest rate on Euro-Dollar Loans or Money Market Loans based on a Euro-Dollar
Rate is determined or any category of extensions of credit or other assets which
includes loans by a non-United States office of such Bank to United States
residents), and as a result the cost to such Bank (or its Euro-Dollar Lending
Office or Money Market Lending Office, as the case may be) of making or
maintaining its Euro-Dollar Loans or Money Market Loans is increased, then such
Bank may require the applicable Borrower to pay, contemporaneously with each
payment of interest on the Euro-Dollar Loans or Money Market Loans made to such
Borrower, additional interest on the related Euro-Dollar Loan or Money Market
Loan of such Bank for each day on which such Bank maintains such reserves at a
rate per annum up to but not exceeding the excess of (i) (A) the Euro-Dollar
Rate applicable to such Loan divided by (B) one minus the Euro-Dollar Reserve
Percentage for such day over (ii) the Euro-Dollar Rate applicable to such Loan.
Any Bank wishing to require payment of such additional interest (x) shall so
notify the applicable Borrower and the Agent, in which case such additional
interest on the Euro-Dollar Loans and Money Market Loans of such Bank shall be
payable to such Bank at the place indicated in such notice with respect to each
Interest Period commencing at least three Euro-Dollar Business Days after the
giving of such notice and (y) shall furnish to the applicable Borrower at least
five Euro-Dollar Business Days prior to each date on which interest is payable
on the Euro-Dollar Loans or Money Market Loans made to the applicable Borrower a
certificate signed by an officer of such Bank with knowledge of and
responsibility for such matters setting forth the amount to which such Bank is
then entitled from such Borrower under this Section (which shall be consistent
with such Bank's good faith estimate of the level at which the related reserves
are maintained by it) and a reasonable explanation of the basis therefor. Each
such certificate shall be accompanied by such information as the applicable
Borrower may reasonably request as to the computation set forth therein.
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ARTICLE III
CONDITIONS
SECTION 3.01. Effectiveness. This Agreement shall become effective
on the date that each of the following conditions shall have been satisfied (or
waived in accordance with Section 9.05):
(a) receipt by the Agent of counterparts hereof signed by each of the
parties hereto (or, in the case of any party as to which an executed
counterpart shall not have been received, receipt by the Agent in form
satisfactory to it of telegraphic, telex or other written confirmation
from such party of the execution and delivery of a counterpart hereof by
such party);
(b) receipt by the Agent for the account of each Bank of a duly
executed Note of each Borrower for each Facility dated on or before the
Effective Date complying with the provisions of Section 2.05;
(c) the fact that all amounts payable by the Borrowers on or before
the Effective Date (including the fees then payable, if any, pursuant to
Section 2.08) shall have been paid in full;
(d) receipt by the Agent of a copy of the Support Agreement,
certified by JHLIC to be a true and complete copy thereof and to then be
in full force and effect;
(e) receipt by the Agent of an opinion of Xxxx X. Xxxxxxxx, Second
Vice President and Counsel of JHLIC, substantially in the form of Exhibit
D hereto and covering such additional matters relating to the transactions
contemplated hereby as the Required Banks may reasonably request;
(f) receipt by the Agent of an opinion of Goulston & Storrs, P.C.,
special counsel for the Agent, substantially in the form of Exhibit E
hereto and covering such additional matters relating to the transactions
contemplated hereby as the Required Banks may reasonably request;
(g) receipt by the Agent of all documents it may reasonably request
relating to the existence of each Borrower, the corporate authority for
and the validity of this Agreement and the Notes, and any other matters
relevant hereto, all in form and substance satisfactory to the Agent; and
(h) receipt by the Agent of satisfactory evidence of termination of
both the existing $500,000,000 revolving credit agented by BankBoston,
N.A. and the existing $500,000,000 revolving credit agented by Xxxxxx
Guaranty Trust Company of New York;
provided that this Agreement shall not become effective or be binding on any
party hereto unless all of the foregoing conditions are satisfied not later than
August 3, 2000. The Agent shall
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promptly notify the Borrowers and the Banks of the Effective Date, and such
notice shall be conclusive and binding on all parties hereto.
SECTION 3.02. Borrowings. The obligation of any Bank to make a Loan
on the occasion of any Borrowing is subject to the satisfaction of the following
conditions:
(a) receipt by the Agent of a Notice of Borrowing as required by
Section 2.02 or Section 2.03, as the case may be;
(b) the fact that, immediately after such Borrowing, the aggregate
outstanding principal amount of the Loans will not exceed the aggregate
amount of the Commitments under the applicable Facility;
(c) the fact that, immediately before and after such Borrowing, no
Default shall have occurred and be continuing;
(d) the fact that the representations and warranties of each Borrower
contained in this Agreement and, if JHFS or JHLIC shall have executed and
delivered a Company Assumption Agreement or a Guarantee Agreement, in such
Company Assumption Agreement or Guarantee Agreement, as the case may be,
shall be true on and as of the date of such Borrowing; and
(e) the fact that (i) the Support Agreement shall not have been
terminated pursuant to Section (8) thereof or otherwise and (ii) a notice
of termination pursuant to Section (9) of the Support Agreement shall not
have been given by either party thereto, unless, in either case, JHFS or
JHLIC shall have, prior thereto, executed and delivered a Company
Assumption Agreement or a Guarantee Agreement or JHCC shall have been
terminated as a Borrower hereunder pursuant to Section 9.09.
Each Borrowing hereunder shall be deemed to be a representation and warranty by
the Borrowers on the date of such Borrowing as to the facts specified in clauses
(b), (c), (d) and (e) of this Section.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Each Borrower severally represents and warrants, but only with respect
to itself, that:
SECTION 4.01. Existence and Power. (a) It is a corporation duly
incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation, and has all powers and all material governmental
licenses, authorizations, consents and approvals required to carry on its
business as now conducted. (b) Each Material Subsidiary of such Borrower is a
corporation duly incorporated, validly existing and in good standing under the
laws of its jurisdiction of incorporation, and has all corporate powers and all
material
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governmental licenses, authorizations, consents and approvals required to carry
on its business as now conducted.
SECTION 4.02. Authorization; No Contravention. The execution,
delivery and performance by such Borrower of this Agreement, the Support
Agreement (to the extent a party thereto) and its Notes are within such
Borrower's powers, have been duly authorized by all necessary action, require no
action by or in respect of, or filing with, any governmental body, agency or
official and do not contravene, or constitute a default under, any provision of
applicable law or regulation or such Borrower's charter or by-laws or of any
agreement, judgment, injunction, order, decree or other instrument binding upon
such Borrower or result in or require the creation or imposition of any Lien on
any asset of JHFS, JHLIC or any Material Subsidiary of such Borrower.
SECTION 4.03. Binding Effect. Each of this Agreement and, unless
JHFS or JHLIC shall have executed and delivered a Company Assumption Agreement
or a Guarantee Agreement, the Support Agreement constitutes a valid and binding
agreement of such Borrower, to the extent a party thereto, and the Notes of such
Borrower, when executed and delivered in accordance with this Agreement, will
constitute valid and binding obligations of such Borrower.
SECTION 4.04. Title to Properties. Such Borrower has good and
marketable title to its properties, assets and rights of every name and nature
now purported to be owned by it, the absence of which would have a Material
Adverse Effect with respect to such Borrower, free from all liens prohibited by
this Agreement, except for those defects in title and Liens that would not have
a Material Adverse Effect.
SECTION 4.05. Financial Information.
---------------------
(a) (i) The Annual Statement of JHLIC as of December 31, 1999, as
filed with the Insurance Department of the Commonwealth of Massachusetts,
together with the related exhibits, schedules and explanations therein contained
or thereto annexed, copies of which have been delivered or made available to
each of the Banks, are a full and true statement of all assets and liabilities
and of the condition and affairs of JHLIC as of such date and of its income and
deductions therefrom for the year then ended (within the meaning of applicable
regulations and practices of the Insurance Department of the Commonwealth of
Massachusetts), and such Annual Statement is accompanied by an opinion of the
Corporate Actuary of JHLIC to the effect that the amounts carried in the balance
sheet of JHLIC contained therein of certain actuarial items (A) are computed in
accordance with commonly accepted actuarial standards consistently applied and
are fairly stated in accordance with sound actuarial principles, (B) are based
on actuarial assumptions which are in accordance with or stronger than those
called for in policy provisions, (C) meet the requirements of the insurance laws
of Massachusetts, (D) make a good and sufficient provision for all unmatured
obligations of JHLIC guaranteed under the terms of the policies included in such
items, (E) are computed on the basis of assumptions consistent with those used
in computing the corresponding items in the Annual Statement as of the preceding
year end (except as required or permitted under applicable regulations of the
Insurance Department of the Commonwealth of Massachusetts) and (F) include
provision for all actuarial reserves and related statement items which ought to
be established; and (ii) the audited statutory
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basis statements of financial position of JHLIC as of December 31, 1999 and the
related summary of operations and changes in policyholders' contingency reserves
and statement of cash flows for the fiscal year then ended, reported on by Ernst
& Young, a copy of which has been, in each case, delivered or made available to
each of the Banks, fairly present, in conformity with GAAP and reporting
practices prescribed or permitted by insurance regulatory authorities, the
financial position of JHLIC at such date and the results of operations and
changes in policyholders' contingency reserves and cash flows of JHLIC for such
year.
(b) The audited balance sheet of JHCC as of December 31, 1999 and the
related statements of income and retained earnings and cash flows for the fiscal
year then ended, reported on by Ernst & Young, a copy of which has been, in each
case, delivered or made available to each of the Banks, fairly present, in
conformity with GAAP, the financial position of JHCC as of such date and its
results of operations and cash flows for such fiscal year.
(c) The unaudited consolidated balance sheet of JHFS and its
consolidated subsidiaries as of March 31, 2000 and the related consolidated
statements of operations, shareholder's equity and cash flows for the fiscal
quarter then ended, a copy of which has been, in each case, delivered or made
available to each of the Banks, fairly present, in conformity with GAAP, the
consolidated financial position of JHFS and its consolidated subsidiaries as of
such date and the consolidated results of operations and cash flows of JHFS and
its consolidated subsidiaries for such fiscal quarter.
(d) Except as disclosed in JHFS' Form 10-K for the year ended
December 31, 1999 or JHFS' Form 10-Q for the quarter ended March 31, 2000, from
but excluding December 31, 1999 through the Effective Date, there has been no
material adverse change in the business, financial position, results of
operations or prospects of such Borrower.
SECTION 4.06. Litigation. There is no action, suit or proceeding
pending against, or to the knowledge of such Borrower threatened against or
affecting, it or any of its Subsidiaries before any court or arbitrator or any
governmental body, agency or official (i) which, except as disclosed in JHFS'
Form 10-K for the year ended December 31, 1999 or JHFS' Form 10-Q for the
quarter ended March 31, 2000, if adversely determined, would have a Material
Adverse Effect or a material adverse effect on the ability of such Borrower, to
the extent a party thereto, to perform its respective obligations under the
Support Agreement or (ii) which in any manner draws into question the validity
or enforceability of this Agreement, the Support Agreement or any of the Notes
or, if it has been executed and delivered, the Company Assumption Agreement or
the Guarantee Agreement.
SECTION 4.07. Compliance with ERISA. (a) Each of such Borrower and its
Subsidiaries, to the extent a member of the ERISA Group, has (i) fulfilled its
obligations under the minimum funding standards of ERISA and the Internal
Revenue Code with respect to each Plan and (ii) is in compliance in all material
respects with the presently applicable provisions of ERISA and the Internal
Revenue Code with respect to each Plan and (b) no such member of the ERISA Group
has (i) sought a waiver of the minimum funding standard under Section 412 of the
Internal Revenue Code in respect of any Plan, (ii) failed to make any
contribution or payment to any Plan or Multiemployer Plan or in respect of any
Benefit Arrangement, or made any
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amendment to any Plan or Benefit Arrangement, which has resulted or could result
in the imposition of a Lien or the posting of a bond or other security under
ERISA or the Internal Revenue Code or (iii) incurred any liability under Title
IV of ERISA other than a liability to the PBGC for premiums under Section 4007
of ERISA, except where any failure to fulfill such obligations or comply with
such provisions referred to in clause (a) above or any such waiver, failure or
liability referred to in clause (b) above would not, alone or in the aggregate,
have a Material Adverse Effect.
SECTION 4.08. Compliance with Laws. Such Borrower and each Material
Subsidiary of such Borrower is in compliance with all applicable laws,
including, without limitation, all Environmental Laws, except where any failure
to comply with any such laws would not, alone or in the aggregate, have a
Material Adverse Effect.
SECTION 4.09. Taxes. Each of such Borrower and its Subsidiaries, to
the extent a member of the Tax Group, has filed all United States Federal income
tax returns and all other material tax returns which are required to be filed by
it and has paid all taxes due pursuant to such returns or pursuant to any
assessment received by any such member of the Tax Group, except where (i) a
failure to file any such returns or pay any such taxes would not, alone or in
the aggregate, have a Material Adverse Effect or (ii) such taxes are being
contested in good faith by proper legal proceedings and adequate reserves have
been established and are being maintained with respect thereto.
SECTION 4.10. No Event of Default. No Default or Event of Default
has occurred and is continuing.
SECTION 4.11. Not an Investment Company. In the case of JHFS and
JHLIC, it is not an investment company within the meaning of the Investment
Company Act of 1940, as amended. In the case of JHCC, it has been exempted from
all provisions of the Investment Company Act of 1940, as amended, including,
without limitation, those relating to the offering and sale of securities by
JHCC, by order of the Securities and Exchange Commission dated June 26, 1984
issued pursuant to Section 6(c) of such Act, and such order remains in full
force and effect and has not in any way been modified or amended.
SECTION 4.12. Full Disclosure. All information heretofore furnished
or made available by such Borrower to all the Banks for purposes of or in
connection with this Agreement or any transaction contemplated hereby is, and
all such information hereafter furnished by such Borrower to all the Banks will
be, true and accurate in all material respects on the date as of which such
information is stated or certified. As of the Effective Date, such Borrower has
disclosed to the Banks in writing any and all matters concerning such Borrower
(other than general economic, political and insurance-industry-wide conditions)
which could reasonably be expected to result in a Material Adverse Effect or
which materially and adversely affect or could reasonably be expected to affect
materially and adversely (to the extent such Borrower can now reasonably
foresee) the ability of such Borrower, to the extent a party thereto, to perform
its obligations under the Support Agreement. As of the Effective Date, such
Borrower has disclosed to the Banks in writing any and all matters concerning
such Borrower (other than general economic, political and insurance-industry-
wide conditions) which materially and adversely
-34-
affect or could reasonably be expected to affect materially and adversely (to
the extent such Borrower can reasonably foresee as of the Effective Date) the
business, results of operations or financial condition of either (a) JHFS and
the Material Subsidiaries, taken as a whole, or (b) JHLIC and the Material
Subsidiaries, taken as a whole.
ARTICLE V
COVENANTS
Each Borrower severally agrees only with respect to itself that,
so long as any Bank has any Commitment hereunder or any amount payable under any
Note remains unpaid:
SECTION 5.01. Information. Each Borrower, to the extent applicable to
such Borrower, will deliver or make available to each of the Banks:
(a) as soon as available and in any event within 120 days after the
end of each fiscal year of JHLIC,
(i) the Annual Statement of JHLIC as of the end of such fiscal
year, as filed with (and in the form required under applicable law
and regulations of) the Insurance Department of the Commonwealth of
Massachusetts (x) accompanied by an opinion of the Corporate Actuary
of JHLIC covering amounts carried on the balance sheet of certain
actuarial items of JHLIC in the form required under applicable law
and regulations of the Insurance Department of the Commonwealth of
Massachusetts and (y) certified, to his or her knowledge, by a Senior
Financial Officer of JHLIC on behalf of JHLIC as to consistency with
respect to accounting policies and that such Annual Statement is a
full and true statement of all the assets and liabilities and of the
condition and affairs of JHLIC as of the end of such fiscal year and
of its income and deductions therefrom for such fiscal year (within
the meaning of applicable regulations and practices of the Insurance
Department of the Commonwealth of Massachusetts); and
(ii) the audited statutory basis statements of financial position
of JHLIC as of the end of such fiscal year and the related audited
summary of operations and changes in policyholders' contingency
reserves and statement of cash flows for such fiscal year, setting
forth in each case in comparative form the figures for the previous
fiscal year, all reported on by Ernst & Young or other independent
public accountants of nationally recognized standing, and accompanied
by the opinion thereon by such auditor;
(b) unless JHCC shall have been terminated as a Borrower hereunder
pursuant to Section 9.09, as soon as available and in any event within 120 days
after the end of each fiscal year of JHCC, the audited balance sheet of JHCC as
of the end of such fiscal year and the related audited statements of income and
retained earnings and cash flows for such fiscal year, setting forth in each
case in comparative form the figures for the previous fiscal year, all reported
on by
-35-
Ernst & Young or other independent public accountants of nationally recognized
standing, and accompanied by the opinion thereon by such auditor;
(c) as soon as available and in any event within 60 days after the end
of each of the first three quarters of each fiscal year of JHLIC, the Quarterly
Statement of JHLIC as of the end of such quarter, as filed with the Insurance
Department of the Commonwealth of Massachusetts, certified, to his or her
knowledge (subject to year-end adjustments) on behalf of JHLIC by a Senior
Financial Officer of JHLIC as to consistency with respect to accounting policies
and that such Quarterly Statement is a full and true statement of all the assets
and liabilities and of the condition and affairs of JHLIC as of the end of such
quarter, and of its income and deductions therefrom for such quarter and for the
portion of JHLIC's fiscal year ended at the end of such quarter (within the
meaning of applicable regulations and practices of the Insurance Department of
the Commonwealth of Massachusetts);
(d) unless JHCC shall have been terminated as a Borrower hereunder
pursuant to Section 9.09, as soon as available and in any event within 60 days
after the end of each of the first three quarters of each fiscal year of JHCC,
the unaudited balance sheet of JHCC as of the end of such quarter and the
related unaudited statements of income for the portion of JHCC's fiscal year
ended at the end of such quarter, all certified (subject to normal year-end
adjustments) as to, in all material respects, fairness of presentation, GAAP and
consistency, in each case by a Senior Financial Officer of JHCC to his or her
knowledge;
(e) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (c) above, a certificate of a Senior
Financial Officer of JHLIC (i) setting forth in reasonable detail the
calculations required to establish whether JHLIC and JHCC were in compliance
with the requirements of Sections 5.08 and 5.09 on the date of such financial
statements and (ii) stating whether to his or her knowledge any Default exists
on the date of such certificate and, if any Default then exists, setting forth
the details thereof and the action which JHLIC and JHCC are taking or propose to
take with respect thereto;
(f) from and after the time JHFS has become an Eligible Borrower, as
soon as available and in any event within 120 days after the end of each fiscal
year of JHFS, the audited consolidated balance sheet of JHFS and its
consolidated subsidiaries as of the end of such fiscal year and the related
audited statements of income and retained earnings and cash flows for such
fiscal year, setting forth in each case in comparative form the figures for the
previous fiscal year, all reported on by Ernst & Young or other independent
public accountants of nationally recognized standing, and accompanied by the
opinion thereon by such auditor;
(g) from and after the time JHFS has become an Eligible Borrower, as
soon as available and in any event within 60 days after the end of each of the
first three quarters of each fiscal year of JHFS, the unaudited consolidated
balance sheet of JHFS and its consolidated subsidiaries as of the end of such
quarter and the related unaudited statements of income for the portion of JHFS's
fiscal year ended at the end of such quarter, all certified (subject to normal
year-end adjustments) as to, in all material respects, fairness of presentation,
GAAP and consistency, in each case by a Senior Financial Officer of JHFS to his
or her knowledge;
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(h) from and after the time JHFS has become an Eligible Borrower and
only after such time as JHFS prepares and distributes or makes available to its
lenders generally the following financial statements:
(i) as soon as available and in any event within 60 days after
the end of each of the first three quarters of each fiscal year of
JHFS, the unaudited consolidated balance sheet of JHFS, not including
its Subsidiaries, as of the end of such quarter and the related
unaudited statements of income for the portion of JHFS's fiscal year
ended at the end of such quarter, all certified (subject to normal
year-end adjustments) as to, in all material respects, fairness of
presentation, GAAP and consistency, in each case by a Senior Financial
Officer of JHFS to his or her knowledge; and
(ii) as soon as available and in any event within 120 days after
the end of each fiscal year of JHFS, the audited consolidated balance
sheet of JHFS, not including its Subsidiaries, as of the end of such
fiscal year and the related audited statements of income and retained
earnings and cash flows for such fiscal year, setting forth in each
case in comparative form the figures for the previous fiscal year, all
reported on by Ernst & Young or other independent public accountants
of nationally recognized standing, and accompanied by the opinion
thereon by such auditor;
(i) within 15 days after any Senior Financial Officer of any Borrower
obtains knowledge of any Default, if such Default is then continuing, a
certificate of a Senior Financial Officer of such Borrower setting forth the
details thereof and the action which the Borrowers are taking or propose to take
with respect thereto;
(j) promptly upon the mailing thereof to the policyholders of JHLIC
generally and to the shareholders of JHFS, copies of all financial statements,
reports and proxy statements so mailed;
(k) promptly upon the filing thereof, (i) in addition to the Annual
Statement and Quarterly Statement referred to in clauses (a) (i) and (c) above,
copies of all other financial statements of JHLIC filed with the Insurance
Department of the Commonwealth of Massachusetts, and (ii) copies of all
registration statements (other than the exhibits thereto and any registration
statements on Form S-8 or its equivalent) and all reports on Forms 10-K, 10-Q
and 8-K (or their equivalents), if any, which JHFS, JHLIC or, unless JHCC shall
have been terminated as a Borrower hereunder pursuant to Section 9.09, JHCC
shall have filed with the Securities and Exchange Commission with respect to
debt securities or preferred or common stock issued by JHFS, JHLIC or JHCC, as
the case may be;
(l) if and when such Borrower or its Subsidiaries, to the extent a
member of the ERISA Group, (i) gives or is required to give notice to the PBGC
of any "reportable event" (as defined in Section 4043 of ERISA) with respect to
any Plan which might constitute grounds for a termination of such Plan under
Title IV of ERISA, or knows that the plan administrator of any Plan has given or
is required to give notice of any such reportable event, a copy of the notice
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of such reportable event given or required to be given to the PBGC; (ii)
receives notice of complete or partial withdrawal liability under Title IV of
ERISA or notice that any Multiemployer Plan is in reorganization, is insolvent
or has been terminated, a copy of such notice; (iii) receives notice from the
PBGC under Title IV of ERISA of an intent to terminate, impose liability (other
than for premiums under Section 4007 of ERISA) in respect of, or appoint a
trustee to administer any Plan, a copy of such notice; (iv) applies for a waiver
of the minimum funding standard under Section 412 of the Internal Revenue Code,
a copy of such application; (v) gives notice of intent to terminate any Plan
under Section 4041(c) of ERISA, a copy of such notice and other information
filed with the PBGC; (vi) gives notice of withdrawal from any Plan pursuant to
Section 4063 of ERISA, a copy of such notice; or (vii) fails to make any payment
or contribution to any Plan or Multiemployer Plan or in respect of any Benefit
Arrangement or makes any amendment to any Plan or Benefit Arrangement which has
resulted or could result in the imposition of a Lien or the posting of a bond or
other security, a certificate of a Senior Financial Officer of such Borrower, to
his or her knowledge, setting forth details as to such occurrence and action, if
any, which such Borrower or the applicable member of the ERISA Group is required
or proposes to take; and
(m) from time to time such additional information regarding the
financial position, results of operations or business of such Borrower as the
Agent, at the request of any Bank, may reasonably request.
SECTION 5.02. Maintenance of Property; Insurance.
----------------------------------
(a) Such Borrower will keep, and such Borrower will cause each
Material Subsidiary of such Borrower to keep, all property material to their
respective businesses in good working order and condition, ordinary wear and
tear excepted.
(b) Such Borrower will maintain, and such Borrower will cause each
Material Subsidiary of such Borrower to maintain (in the name of such Borrower
or in such Material Subsidiary's own name, as applicable), with financially
sound and responsible insurance companies, insurance on all their respective
properties and against such other risks, in each case in at least such amounts
(and with such risk retentions) as are usually insured against by companies of
established repute engaged in the same or a similar business.
SECTION 5.03. Conduct of Business and Maintenance of Existence. Such
Borrower will continue, and such Borrower will cause each Material Subsidiary of
such Borrower to continue, to engage in business of the same general type as now
conducted by such Borrower and such Material Subsidiary, as the case may be, and
such Borrower will preserve, renew and keep in full force and effect, and such
Borrower will cause each Material Subsidiary of such Borrower to preserve, renew
and keep in full force and effect, its existence and its rights, privileges and
franchises which are material to the conduct of such business; provided that
nothing in this Section shall prohibit:
(a) any consolidation or merger of any Borrower permitted under
Section 5.12(i);
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(b) any sale, lease or transfer of assets by JHCC permitted under
Section 5.12(ii);
(c) the consolidation or merger of a Material Subsidiary (other than
JHCC, unless JHCC shall have been terminated as a Borrower hereunder pursuant to
Section 9.09) with or into another Person, if, after giving effect thereto, no
Default shall have occurred and be continuing;
(d) the termination of the existence of a Material Subsidiary:
(i) pursuant to clause (a) or (c) above;
(ii) in the case of JHCC (if JHCC is at such time a Borrower), if
JHFS or JHLIC shall have executed and delivered a Company
Assumption Agreement; or
(iii) in the case of any other Material Subsidiary (and, if JHCC
has been terminated as a Borrower hereunder pursuant to Section
9.09 and is at the applicable time a Material Subsidiary, JHCC),
if after giving effect thereto, no Default shall have occurred
and be continuing.
SECTION 5.04. Compliance with Laws. Such Borrower will comply, and
such Borrower will cause each Material Subsidiary of such Borrower to comply, in
all material respects with all applicable laws, ordinances, rules, regulations
and requirements of governmental authorities (including, without limitation,
Environmental Laws and the rules, regulations and requirements thereunder),
except where a failure to comply therewith would not, alone or in the aggregate,
have a Material Adverse Effect.
SECTION 5.05. Compliance with ERISA. Such Borrower will fulfill, and
such Borrower will cause each member of the ERISA Group that is a Subsidiary of
such Borrower to fulfill, its obligations under the minimum funding standards of
ERISA and the Internal Revenue Code with respect to each Plan, and such Borrower
will comply, and such Borrower will cause each member of the ERISA Group that is
a Subsidiary of such Borrower to comply, with all applicable provisions of ERISA
and the Internal Revenue Code with respect to each Plan, except where such
failure or non-compliance, alone or in the aggregate, would not have a Material
Adverse Effect.
SECTION 5.06. Taxes. Such Borrower and its Subsidiaries, to the
extent a member of the Tax Group, will file all United States Federal income tax
returns and all other material tax returns which are required to be filed by it
and will pay all taxes due pursuant to such returns or pursuant to any
assessment received by it, except where (i) a failure to file any such returns
or pay any such taxes would not, alone or in the aggregate, have a Material
Adverse Effect or (ii) such taxes are being contested in good faith by proper
legal proceedings and adequate reserves have been established and are being
maintained with respect thereto.
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SECTION 5.07. Subsidiary Debt. No Borrower will permit any Subsidiary
of such Borrower (excluding in the case of JHFS, JHLIC) to incur, assume or at
any time be liable with respect to any Debt except:
(a) Debt of JHLIC and JHCC under this Agreement and the Notes;
(b) Debt, the proceeds of which are on-lent to JHLIC or JHFS;
(c) Debt owing to JHLIC or JHFS or any other Subsidiary of JHLIC
or JHFS or any combination thereof;
(d) Permitted Collateralization Obligations;
(e) Debt of Excluded Subsidiaries; and
(f) Debt not otherwise permitted by the foregoing clauses of this
Section so long as the aggregate principal amount of such Debt
outstanding of all such Subsidiaries at any time, together with
the aggregate principal amount then outstanding of Debt secured
by Liens permitted by clause (j) of Section 5.10, does not exceed
$6,000,000,000.
SECTION 5.08. Adjusted Statutory Surplus. JHLIC will not, at any
time, permit Adjusted Statutory Surplus to be less than $3,750,000,000.
SECTION 5.08A. Shareholders' Equity. JHFS will not, at any time,
permit GAAP total shareholders' equity as would be or is shown on JHFS'
consolidated balance sheet as of such time prepared in accordance with GAAP
(after excluding unrealized appreciation and depreciation on certain investments
pursuant to FAS 115) to be less than $3,800,000,000.
SECTION 5.09. Capitalization Ratio. JHFS will not, at any time,
permit the ratio of (a) total GAAP short- and long-term debt to (b) GAAP total
shareholders' equity (after excluding unrealized appreciation and depreciation
on certain investments pursuant to FAS 115) plus total GAAP short- and long-term
debt, in each case as would be or is shown on JHFS' consolidated balance sheet
as of such time prepared in accordance with GAAP, to be greater than 0.40:1:00.
SECTION 5.10. JHFS and JHLIC Negative Pledge. Neither JHFS nor JHLIC
shall create, assume or suffer to exist any Lien on any asset now owned or
hereafter acquired by it (other than assets held in separate accounts of JHLIC),
except:
(a) any Lien on any asset securing Debt or securing any obligation for
which recourse for payment is limited to such asset, in each case incurred or
assumed for the purpose of financing all or any part of the cost of acquiring
such asset, provided that such Lien attaches to such asset concurrently with or
within 90 days after the acquisition thereof;
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(b) any Lien on any asset of any corporation existing at the time such
corporation is merged or consolidated with or into JHFS or JHLIC and not created
in contemplation of such event;
(c) any Lien existing on any asset prior to the acquisition thereof by
JHFS or JHLIC and not created in contemplation of such acquisition;
(d) any Lien arising out of the refinancing, extension, renewal or
refunding of any Debt secured by any Lien permitted by any of the foregoing
clauses of this Section, provided that such Debt is not increased and is not
secured by any additional assets;
(e) Liens on Permitted Collateralization Assets;
(f) Liens, if any, arising out of loans of securities, in the ordinary
course of the investment business of JHFS or JHLIC;
(g) any Liens arising in connection with policies or contracts of
insurance, funding agreements and other similar contracts entered into in the
ordinary conduct of the insurance business of JHLIC;
(h) easements, rights-of-way and similar Liens on real property that
do not in the aggregate materially impair use of such property by JHFS or JHLIC;
(i) Liens not otherwise permitted by the foregoing clauses of this
Section which (i) do not secure Debt and (ii) do not secure obligations in an
aggregate amount exceeding $5,000,000,000; and
(j) Liens that secure Debt and that are not otherwise permitted by the
foregoing clauses of this Section, so long as the aggregate principal amount at
any time outstanding of the Debt secured thereby (together with the aggregate
principal amount then outstanding of Debt permitted by clause (f) of Section
5.07) does not exceed $6,000,000,000.
SECTION 5.11. JHCC Negative Pledge. Unless JHCC shall have been
terminated as a Borrower hereunder pursuant to Section 9.09, JHCC will not
create, assume or suffer to exist any Lien that secures Debt on any asset now
owned or hereafter acquired by it unless it shall make or cause to be made
effective provision whereby the obligations of JHCC hereunder and under its
Notes shall be secured equally and ratably with all other obligations secured
thereby; and, if such provision is not made, and notwithstanding that such
failure constitutes an Event of Default, an equitable Lien, equally and ratably
securing the obligations of JHCC hereunder and under its Notes, shall exist, to
the extent permitted by law, on such asset.
SECTION 5.12. Consolidations, Mergers and Sales of Assets. No
Borrower will (i) consolidate or merge with or into any other Person, except
that:
(a) JHCC may consolidate or merge with or into (A) JHFS or JHLIC if
JHFS or JHLIC, as the case may be, is the surviving corporation or (B) another
Subsidiary if (1) JHCC
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is the surviving corporation or (2) (x) prior thereto, JHFS or JHLIC shall have
executed and delivered a Company Assumption Agreement or (y) the Subsidiary that
is the surviving corporation shall assume all of the obligations of JHCC
hereunder and under the Notes and either (I) JHLIC agrees in writing that such
Subsidiary shall have all of the benefits of the Support Agreement and that all
of the obligations of such Subsidiary hereunder and under the Notes shall
constitute Covered Credit (as defined in Section (5) of the Support Agreement)
and that the Agent, each of the Banks and each holder from time to time of any
Note issued by JHCC and assumed by such Subsidiary or issued by such Subsidiary
shall constitute a Covered Creditor (as so defined) or (II) JHFS or JHLIC
executes a Guarantee Agreement modified in such manner as shall be satisfactory
to the Required Banks to reflect the fact that such Subsidiary shall thereafter
be a Borrower hereunder; provided that after giving effect thereto, no Default
shall have occurred and be continuing; and
(b) JHFS or JHLIC may consolidate or merge with or into any other
Person so long as such Borrower shall be the surviving corporation and, after
giving effect thereto, no Default shall have occurred and be continuing; or
(ii) sell, lease or otherwise transfer, directly or indirectly, all or
substantially all of its assets to any other Person except, in the case of JHCC,
to JHLIC or JHFS.
SECTION 5.13. Support Agreement; Company Assumption Agreement;
------------------------------------------------
Guarantee Agreement.
--------------------
(a) No term or provision of the Support Agreement shall be amended,
modified, waived or supplemented, and the Support Agreement shall not be
terminated, novated or otherwise changed, without the express prior written
consent of the Required Banks unless, prior thereto, JHFS or JHLIC shall have
executed and delivered a Company Assumption Agreement or a Guarantee Agreement
or JHCC shall have been terminated as a Borrower hereunder pursuant to Section
9.09.
(b) JHLIC and JHCC hereby expressly agree with each other, the Agent,
the Banks and the holders from time to time of the Notes that (i) the benefits
of the Support Agreement shall extend to the Banks, the Agent and the holders
from time to time of the Notes with respect to all obligations of JHCC hereunder
or under the Notes, in either case whether now existing or hereafter arising,
(ii) all of the obligations of JHCC hereunder or under the Notes, in either case
whether now existing or hereafter arising, constitute Covered Credit (as defined
in Section (5) of the Support Agreement) and the Agent, each of the Banks and
each holder from time to time of any Note issued by JHCC constitutes a Covered
Creditor (as so defined) and (iii) so long as any Bank has any Commitment
hereunder, JHLIC will not terminate the Support Agreement, pursuant to Section
(8) or (9) thereof or otherwise, unless, prior thereto, JHFS or JHLIC shall have
executed and delivered a Company Assumption Agreement or a Guarantee Agreement
or JHCC shall have been terminated as a Borrower hereunder pursuant to Section
9.09.
(c) If JHFS or JHLIC shall have executed and delivered a Company
Assumption Agreement or a Guarantee Agreement, no term or provision of such
Company
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Assumption Agreement or Guarantee Agreement, as the case may be, shall be
amended, modified, waived or supplemented, and such Company Assumption Agreement
or Guarantee Agreement, as the case may be, shall not be terminated, novated or
otherwise changed, without the express prior written consent of the Required
Banks.
SECTION 5.14. Use of Proceeds.
---------------
(a) The proceeds of the Loans made under this Agreement will be used
for general corporate purposes.
(b) None of such proceeds will be used, directly or indirectly, for
the purpose, whether immediate, incidental or ultimate, of buying or carrying
any "margin stock", within the meaning of Regulation U, in violation of the
Securities Exchange Act of 1934, as amended, or the applicable margin
regulations of the Board of Governors of the Federal Reserve System, in each
case as in effect from time to time, and following the application by the
applicable Borrower of such proceeds, the value of all "margin stock" owned by
such Borrower (other than, in the case where JHLIC is the Borrower, "margin
stock" held in separate accounts of the JHLIC) will not exceed 25% of the assets
of such Borrower (other than, in the case where JHLIC is the Borrower, assets
held in separate accounts of JHLIC).
ARTICLE VI
DEFAULTS
SECTION 6.01. Events of Default. If one or more of the following
events ("Events of Default") shall have occurred and be continuing:
(a) any Borrower shall fail to pay when due any principal of any Loan
made to such Borrower, or shall fail to pay within five days of the due date
thereof any interest, fees or other amount payable hereunder or under the Notes
executed by such Borrower;
(b) any Borrower shall fail to observe or perform any covenant
contained in Sections 5.07 through 5.13, inclusive, and 5.14(b);
(c) any Borrower shall fail to observe or perform any covenant or
agreement contained in this Agreement (other than those covered by clause (a) or
(b) above) for 30 days after written notice thereof has been given to such
Borrower by the Agent at the request of any Bank and for an additional 60 days
thereafter if such Borrower or any other Borrower is diligently proceeding to
cure such failure;
(d) any representation or warranty made, or deemed made pursuant to
Section 3.02, by any Borrower hereunder shall prove to have been incorrect in a
material respect as of the date when made, or deemed made pursuant to Section
3.02, and shall continue to be incorrect in a material respect at the time it is
discovered to have been incorrect;
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(e) (i) any event or condition shall occur and continue which (A)
results in the acceleration of the maturity of any Material Debt of the
Borrowers prior to the date such Material Debt would otherwise be due and
payable, which acceleration has not been waived, revoked, rescinded or annulled,
or (B) enables (without further notice or opportunity to cure) the holder or
holders of any such Material Debt or any Person acting on such holder's or
holders' behalf to accelerate the maturity thereof or (ii) the principal amount
of any such Material Debt shall otherwise be due in full and not paid;
(f) any event or condition shall occur and continue which results in
the acceleration of the maturity of any Material Debt of any Subsidiaries (other
than JHCC, unless JHCC shall have been terminated as a Borrower hereunder
pursuant to Section 9.09, or any Excluded Subsidiary), prior to the date such
Material Debt would otherwise be due and payable, which acceleration has not
been waived, revoked, rescinded or annulled, or the principal amount of any such
Material Debt shall otherwise be due in full and not paid;
(g) the Support Agreement shall cease for any reason to be in full
force and effect or either party thereto shall so assert in writing, unless,
prior thereto, JHFS or JHLIC shall have executed and delivered a Company
Assumption Agreement or a Guarantee Agreement or JHCC shall have been terminated
as a Borrower hereunder pursuant to Section 9.09;
(h) any Borrower shall fail for any reason to remain in compliance
with the terms of, or perform its obligations under, the Support Agreement,
unless, prior thereto, JHFS or JHLIC shall have executed and delivered a Company
Assumption Agreement or a Guarantee Agreement or JHCC shall have been terminated
as a Borrower hereunder pursuant to Section 9.09;
(i) any Borrower or any Material Subsidiary shall commence a
voluntary case or other proceeding seeking liquidation, rehabilitation,
conservatorship, reorganization or other relief with respect to itself or its
debts under any bankruptcy, insolvency or other similar law now or hereafter in
effect or seeking the appointment of a trustee, receiver, liquidator,
rehabilitator, conservator, custodian or other similar official of it or any
substantial part of its property, or shall consent to any such relief or to the
appointment of or taking possession by any such official in an involuntary case
or other proceeding commenced against it, or shall make a general assignment for
the benefit of creditors, or shall fail generally to pay its debts as they
become due, or shall take any corporate action to authorize any of the
foregoing;
(j) an involuntary case or other proceeding shall be commenced
against any Borrower or any Material Subsidiary seeking liquidation,
rehabilitation, conservatorship, reorganization or other relief with respect to
it or its debts under any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, rehabilitator, conservator, custodian or other similar official of
it or any substantial part of its property, and such involuntary case or other
proceeding shall remain undismissed and unstayed for a period of 90 days; or an
order for relief shall
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be entered against any Borrower or any Material Subsidiary under the federal
bankruptcy laws as now or hereafter in effect;
(k) any member or members of the ERISA Group shall fail to pay when
due an amount or amounts aggregating in excess of $100,000,000 which it or they
shall have become liable to pay under Title IV of ERISA with respect to a Plan;
or notice of intent to terminate a Material Plan shall be filed under Title IV
of ERISA by any member of the ERISA Group, any plan administrator or any
combination of the foregoing; or the PBGC shall institute proceedings under
Title IV of ERISA to terminate, to impose liability (other than for premiums
under Section 4007 of ERISA) in respect of, or to cause a trustee to be
appointed to administer any Material Plan; or a condition shall exist by reason
of which the PBGC would be entitled to obtain a decree adjudicating that any
Material Plan must be terminated; or there shall occur a complete or partial
withdrawal from, or a default, within the meaning of Section 4219(c) (5) of
ERISA, with respect to, one or more Multiemployer Plans which could cause one or
more members of the ERISA Group to incur current payment obligations in excess
of $100,000,000 in the aggregate;
(l) one or more judgments or orders for the payment of money in
excess of $250,000,000 in the aggregate shall be rendered against any Borrower
or any Material Subsidiary and such judgments or orders shall continue
unsatisfied and unstayed for a period of 10 days;
(m) any Person or group of related Persons shall have obtained the
right to vote more than 30% of the voting rights for the election of directors
of JHFS;
(n) JHLIC shall cease for any reason to be a wholly-owned Subsidiary
of JHFS;
(o) JHCC shall cease for any reason to be a wholly owned Subsidiary
of JHLIC, unless (i) JHCC shall have been consolidated or merged with or into
JHLIC, or JHFS or JHLIC shall have executed and delivered a Company Assumption
Agreement, in either case in accordance with the terms hereof, or (ii) JHCC
shall have been terminated as a Borrower hereunder pursuant to Section 9.09;
(p) if JHFS or JHLIC shall have executed and delivered a Company
Assumption Agreement or a Guarantee Agreement, such Company Assumption Agreement
or Guarantee Agreement, as the case may be, shall cease for any reason to be in
full force and effect or JHFS or JHLIC shall so assert in writing; or
(q) if JHFS or JHLIC shall have executed and delivered a Company
Assumption Agreement or a Guarantee Agreement, JHFS or JHLIC shall fail for any
reason to remain in compliance with the terms of, or perform its obligations
under, such Company Assumption Agreement or Guarantee Agreement, as the case may
be;
then, and in every such event, the Agent shall (i) if requested by Banks having
more than 50% in aggregate amount of the Commitments, by notice to the Borrowers
terminate the Commitments
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and they shall thereupon terminate, and (ii) if requested by Banks holding Notes
evidencing more than 50% in aggregate principal amount of the Loans, by notice
to the Borrowers declare the Notes (together with accrued interest thereon) to
be, and the Notes (together with accrued interest thereon) shall thereupon
become, immediately due and payable without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by each Borrower;
provided that in the case of any of the Events of Default specified in clause
(i) or (j) above with respect to any Borrower, without any notice to any
Borrower or any other act by the Agent or the Banks, the Commitments shall
thereupon terminate and the Notes (together with accrued interest thereon) shall
become immediately due and payable without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by each Borrower.
SECTION 6.02. Notice of Default. The Agent shall give notice to the
defaulting Borrower under Section 6.01(c) promptly upon being requested to do so
by any Bank and shall thereupon notify all the Banks thereof.
ARTICLE VII
THE AGENT
SECTION 7.01. Appointment and Authorization. Fleet and Chase shall
serve jointly as Agent under this Agreement. Each Bank irrevocably appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers under this Agreement and the Notes as are delegated to the Agent by
the terms hereof or thereof, together with all such powers as are reasonably
incidental thereto. Any notice or payment required to be delivered to the Agent
hereunder shall be delivered to Fleet or Chase as specified in the allocation of
Agent responsibilities set forth in Exhibit M hereto and shall be deemed duly
given if delivered in accordance with Exhibit M and Section 9.01. If any such
notice or payment is not specified in Exhibit M, then it shall, in the case of
notices, be given to both Fleet and Chase and, in the case of payments, be paid
to Chase. The Agent may amend Exhibit M from time to time by delivery of proper
notice to the Borrowers and the Banks; provided that such amendment shall not
impose any additional burden on the Borrowers other than requiring notices to be
delivered to both Fleet and Chase.
SECTION 7.02. Agent and Affiliates. Each of Fleet and Chase (and any
successor by merger to either such company) shall have the same rights and
powers under this Agreement as any other Bank and may exercise or refrain from
exercising the same as though it were not the Agent, and each of Fleet and Chase
(and any successor by merger to either such company) and its affiliates may
accept deposits from, lend money to, and generally engage in any kind of
business with JHFS, JHLIC or any Subsidiary or any affiliate of any thereof as
if it were not the Agent hereunder.
SECTION 7.03. Action by Agent. The obligations of the Agent
hereunder are only those expressly set forth herein. Without limiting the
generality of the foregoing, the Agent shall not be required to take any action
with respect to any Default, except as expressly provided in Article VI.
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SECTION 7.04. Consultation with Experts. The Agent may consult with
legal counsel, independent public accountants and other experts selected by it
and shall not be liable for any action taken or omitted to be taken by it in
good faith in accordance with the advice of such counsel, accountants or
experts.
SECTION 7.05. Liability of Agent. Neither the Agent nor any of its
directors, officers, agents or employees shall be liable for any action taken or
not taken by it in connection herewith (i) with the consent or at the request of
the Required Banks or (ii) in the absence of its own gross negligence or willful
misconduct. Neither the Agent nor any of its directors, officers, agents or
employees shall be responsible for or have any duty to ascertain, inquire into
or verify (i) any statement, warranty or representation made in connection with
this Agreement or any borrowing hereunder; (ii) the performance or observance of
any of the covenants or agreements of either Borrower; (iii) the satisfaction of
any condition specified in Article III, except receipt of items required to be
delivered to the Agent; or (iv) the validity, effectiveness or genuineness of
this Agreement, the Notes or any other instrument or writing furnished in
connection herewith. The Agent shall not incur any liability by acting in
reliance upon any notice, consent, certificate, statement or other writing
(which may be a bank wire, telex, facsimile transmission or similar writing)
believed by it to be genuine or to be signed by the proper party or parties.
SECTION 7.06. Indemnification. Each Bank shall, ratably in
accordance with its Commitment, indemnify the Agent (to the extent not
reimbursed by the Borrowers) against any cost, expense (including counsel fees
and disbursements), claim, demand, action, loss or liability (except such as
result from the Agent's gross negligence or willful misconduct) that the Agent
may suffer or incur in connection with this Agreement or any action taken or
omitted by the Agent hereunder.
SECTION 7.07. Credit Decision. Each Bank acknowledges that it has,
independently and without reliance upon the Agent or any other Bank, and based
on such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Bank also
acknowledges that it will, independently and without reliance upon the Agent or
any other Bank, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking any action under this Agreement.
SECTION 7.08. Successor Agent. Any Person serving as Agent hereunder
may resign at any time by giving written notice thereof to the Banks and the
Borrowers. If, at the time of such resignation, another Person is serving as
co-administrative agent hereunder, then such Person shall become the sole Agent.
Upon becoming the sole Agent, such sole Agent shall thereupon succeed to and
become vested with all the rights and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and obligations hereunder,
whether or not such rights, duties or obligations are set forth on Exhibit M
hereto. If, at the time of such resignation, no other Person is serving as co-
administrative agent hereunder, then the Required Banks shall have the right to
appoint a successor Agent. If no successor Agent shall have been so appointed
by the Required Banks, and shall have accepted such appointment, within 30 days
after the retiring Agent gives notice of resignation, then the retiring Agent
may, on behalf of the
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Banks, appoint a successor Agent, which shall be a commercial bank organized or
licensed under the laws of the United States of America or of any State thereof
and having a combined capital and surplus of at least $50,000,000. Upon the
acceptance of its appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the rights
and duties of the retiring Agent, and the retiring Agent shall be discharged
from its duties and obligations hereunder. After any retiring Agent's
resignation hereunder as Agent, the provisions of this Article shall inure to
its benefit as to any actions taken or omitted to be taken by it while it was
Agent.
SECTION 7.09. Agent's Fee. The Borrowers shall pay to the Agent for
its own account fees in the amounts and at the times previously agreed upon in
writing between the Borrowers and the Agent.
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
SECTION 8.01. Basis for Determining Interest Rate Inadequate or
Unfair. If on or prior to the first day of any Interest Period for any Euro-
Dollar Loan or Money Market Loan based on a Euro-Dollar Rate:
(a) the Agent is advised by the Euro-Dollar Reference Banks that
deposits in dollars (in the applicable amounts) are not being offered to
the Euro-Dollar Reference Banks in the relevant market for such Interest
Period, or
(b) Banks having 50% or more of the aggregate principal amount of the
affected Loans advise the Agent that the Euro-Dollar Rate, as determined by
the Agent, will not adequately and fairly reflect the cost to such Banks of
funding their Euro-Dollar Loans for such Interest Period,
the Agent shall forthwith give notice thereof to the Borrowers and the Banks,
whereupon until the Agent notifies the Borrowers that the circumstances giving
rise to such suspension no longer exist, (i) the obligations of the Banks to
make Euro-Dollar Loans, or to convert outstanding Loans into Euro-Dollar Loans,
shall be suspended and (ii) each outstanding Euro-Dollar Loan shall be converted
into a Base Rate Loan on the last day of the then current Interest Period
applicable thereto. Unless a Borrower notifies the Agent at least two Base Rate
Business Days before the date of any Euro-Dollar Borrowing for which a Notice of
Borrowing has previously been given by such Borrower that it elects not to
borrow on such date, (x) if such Fixed Rate Borrowing is a Committed Borrowing,
such Borrowing shall instead be made as a Base Rate Borrowing and (y) if such
Fixed Rate Borrowing is a Money Market Borrowing based on a Euro-Dollar Rate,
the Money Market Loans comprising such Borrowing shall bear interest for each
day from and including the first day to but excluding the last day of the
Interest Period applicable thereto at the Base Rate for such day.
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SECTION 8.02. Illegality. If, on or after the date of this
Agreement, the adoption of any applicable law, rule or regulation, or any change
therein, or any change in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Bank (or its
Euro-Dollar Lending Office) with any request or directive (whether or not having
the force of law) of any such authority, central bank or comparable agency shall
make it unlawful or impossible for any Bank (or its Euro-Dollar Lending Office)
to make, maintain or fund its Euro-Dollar Loans to any Borrower and such Bank
shall so notify the Agent, the Agent shall forthwith give notice thereof to the
other Banks and the Borrowers, whereupon until such Bank notifies such Borrower
and the Agent that the circumstances giving rise to such suspension no longer
exist, the obligation of such Bank to make Euro-Dollar Loans to such Borrower,
or to convert outstanding Loans made to such Borrower into Euro-Dollar Loans,
shall be suspended. Before giving any notice to the Agent pursuant to this
Section, such Bank shall designate a different Euro-Dollar Lending Office if
such designation will avoid the need for giving such notice and will not, in the
judgment of such Bank, be otherwise disadvantageous to such Bank. If such notice
is given or a comparable notice is given by a Bank with respect to the
maintenance or funding of its Money Market Loans based on a Euro-Dollar Rate,
(a) each Euro-Dollar Loan of such Bank made to such Borrower then outstanding
shall be converted to a Base Rate Loan either (i) on the last day of the then
current Interest Period applicable to such Euro-Dollar Loan if such Bank may
lawfully continue to maintain and fund such Euro-Dollar Loan to such day or (ii)
immediately if such Bank shall determine that it may not lawfully continue to
maintain and fund such Euro-Dollar Loan to such day and (b) if such Bank shall
determine that it may not lawfully continue to maintain and fund any of its
Money Market Loans based on a Euro-Dollar Rate, each such Money Market Loan of
such Bank shall bear interest from and including the date of such notice to but
excluding the last day of the Interest Period applicable thereto at the Base
Rate for such day.
SECTION 8.03. Increased Cost and Reduced Return.
---------------------------------
(a) If on or after (x) the date hereof, in the case of any Committed
Loan or any obligation to make Committed Loans or (y) the date of the related
Money Market Quote, in the case of any Money Market Loan, the adoption of any
applicable law, rule, regulation or treaty, or any change therein, or any change
in the interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Bank (or its Applicable Lending
Office) with any request or directive (whether or not having the force of law)
of any such authority, central bank or comparable agency:
(i) shall subject any Bank (or its Applicable Lending Office) to any
tax, duty or other charge with respect to its Fixed Rate Loans, its Notes
or its obligation to make Fixed Rate Loans, or shall change the basis of
taxation of payments to any Bank (or its Applicable Lending Office) of the
principal of or interest on its Fixed Rate Loans or any other amounts due
under this Agreement in respect of its Fixed Rate Loans or its obligation
to make Fixed Rate Loans (except for changes in the rate of tax imposed, or
the imposition of tax, on the overall net income of such Bank or its
Applicable Lending
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Office imposed by the jurisdiction in which such Bank's principal executive
office or Applicable Lending Office is located); or
(ii) shall impose, modify or deem applicable any reserve (including,
without limitation, any such requirement imposed by the Board of Governors
of the Federal Reserve System, but excluding with respect to any
Euro-Dollar Loan or Money Market Loan based on a Euro-Dollar Rate any such
requirement with respect to which such Bank is entitled to compensation
during the relevant Interest Period under Section 2.16), special deposit,
insurance assessment or similar requirement against assets of, deposits
with or for the account of, or credit extended by, any Bank (or its
Applicable Lending Office) or shall impose on any Bank (or its Applicable
Lending Office) or on the United States market for certificates of deposit
or the London interbank market or other eurodollar interbank market
selected by the Agent any other condition affecting its Fixed Rate Loans,
its Notes or its obligation to make Fixed Rate Loans;
and the result of any of the foregoing is to increase the cost to such Bank (or
its Applicable Lending Office) of making or maintaining any Fixed Rate Loan, or
to reduce the amount of any sum received or receivable by such Bank (or its
Applicable Lending Office) under this Agreement or under its Note with respect
thereto, by an amount deemed by such Bank to be material, then, within 15 days
after demand by such Bank (with a copy to the Agent), the applicable Borrower
shall pay to such Bank such additional amount or amounts as will compensate such
Bank for such increased cost or reduction; provided, that nothing herein shall
be intended to allow a Bank or the Agent to be compensated for taxes excluded
from Non-Excluded Taxes pursuant to Section 2.15(b)(i) and (ii).
(b) Without duplication of any amounts paid under subsection (a) above
or amounts for which any Bank is entitled to compensation during the relevant
Interest Period under Section 2.16, if any Bank shall have determined that,
after the date hereof, the adoption of any applicable law, rule or regulation
regarding capital adequacy, or any change therein, or any change in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or any request or directive regarding capital adequacy (whether or not
having the force of law) of any such authority, central bank or comparable
agency, has or would have the effect of reducing the rate of return on capital
of such Bank (or its Parent) as a consequence of such Bank's obligations
hereunder to a level below that which such Bank (or its Parent) could have
achieved but for such adoption, change, request or directive (taking into
consideration its policies with respect to capital adequacy) by an amount deemed
by such Bank to be material, then from time to time, within 15 days after demand
by such Bank (with a copy to the Agent), the applicable Borrower shall pay to
such Bank such additional amount or amounts as will compensate such Bank (or its
Parent) for such reduction.
(c) Each Bank will promptly notify the Borrowers and the Agent of any
event of which it has knowledge, occurring after the date hereof, which will
entitle such Bank to compensation pursuant to this Section and will designate a
different Applicable Lending Office if such designation will avoid the need for,
or reduce the amount of, such compensation and will not, in the judgment of such
Bank, be otherwise disadvantageous to such Bank. A certificate of
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any Bank claiming compensation under this Section and setting forth the
additional amount or amounts to be paid to it hereunder that is signed by an
officer of such Bank with knowledge of and responsibility for such matters and
that sets forth such amount or amounts and a reasonable explanation of the basis
therefor shall be conclusive in the absence of manifest error. In determining
such amount, such Bank may use any reasonable averaging and attribution methods.
SECTION 8.04. Base Rate Loans Substituted for Affected Euro-Dollar
Loans. If (i) the obligation of any Bank to make or maintain Euro-Dollar Loans
to any Borrower has been suspended pursuant to Section 8.02 or (ii) any Bank has
demanded compensation under Section 8.03(a) or 2.16 and such Borrower shall, by
at least five Euro-Dollar Business Days' prior notice to such Bank through the
Agent, have elected that the provisions of this Section shall apply to such
Bank, then, unless and until such Bank notifies such Borrower that the
circumstances giving rise to such suspension or demand for compensation no
longer apply:
(a) all Loans to such Borrower which would otherwise be made by such
Bank as (or continued as or converted into) Euro-Dollar Loans shall instead be
Base Rate Loans (on which interest and principal shall be payable
contemporaneously with the related Euro-Dollar Loans of the other Banks), and
(b) after each of its Euro-Dollar Loans to such Borrower has been
repaid (or converted to a Base Rate Loan), all payments of principal which would
otherwise be applied to repay such Euro-Dollar Loans shall be applied to repay
its Base Rate Loans instead.
If such Bank notifies such Borrower that the circumstances giving rise
to such notice no longer apply, the principal amount of each such Base Rate Loan
shall be subject to the provisions of Section 2.10 in the same manner as the
Euro-Dollar Loans in the Group of Loans in which such Base Rate Loan is
included, effective as of the first day of the next succeeding Interest Period
applicable thereto.
SECTION 8.05. Substitution of Bank. If (i) the obligation of any
Bank to make Euro-Dollar Loans to any Borrower has been suspended pursuant to
Section 8.02 or (ii) any Bank has demanded compensation from any Borrower under
Section 8.03, 2.15 or 2.16, the Borrowers shall have the right (a) with the
assistance of and upon consultation with the Agent, to seek a substitute bank or
banks (which may be one or more of the Banks) to purchase the Notes and assume
all of the Commitments of such Bank or (b) to terminate all of the Commitments
of such Bank; provided that after giving effect to such termination, the
aggregate Commitments terminated pursuant to this subsection (b) do not exceed
20% of the initial aggregate amount of the Commitments (with appropriate
adjustments to take account of optional reductions of Commitments pursuant to
Section 2.09).
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ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices. All notices, requests and other
communications to any party hereunder shall be in writing (including bank wire,
telex, facsimile transmission or similar writing) and shall be given to such
party: (x) in the case of any Borrower or the Agent, at its address or telex or
facsimile transmission number set forth on the signature pages hereof, (y) in
the case of any Bank, at its address or telex or facsimile transmission number
set forth in its Administrative Questionnaire or (z) in the case of any party,
such other address or telex or facsimile transmission number as such party may
hereafter specify for the purpose by notice to the Agent and the Borrowers.
Each such notice, request or other communication shall be effective (i) if given
by telex, when such telex is transmitted to the telex number specified in or
pursuant to this Section and the appropriate answer back is received, (ii) if
given by mail, 72 hours after such communication is deposited in the mails with
first class postage prepaid, addressed as aforesaid, (iii) if given by facsimile
transmission, when received provided that the sender on the same day sends a
confirming copy of such notice by a recognized overnight delivery service (with
charges prepaid), or (iv) if given by any other means, when delivered at the
address specified in or pursuant to this Section; provided that notices to the
Agent under Article II or Article VIII, certificates as to the Authorized
Officers of any Borrower and notices designating a new Designated Deposit
Account shall not be effective until received. In delivering notices to the
Agent, the Borrowers and the Banks shall comply with the Allocation of Agent
Responsibilities set forth in Exhibit M and, to the extent Exhibit M may be
silent or ambiguous, shall deliver notices to both Fleet and Chase. Notices
delivered by the Borrowers to the Agent shall be delivered by JHLIC and, notices
delivered by the Agent to the Borrowers may be delivered solely to JHLIC, in
accordance with Section 9.14 hereof.
SECTION 9.01A. Several Liability. Except as otherwise specified in
this Section 9.01A, the obligations of each Borrower under this Agreement shall
be several and not joint. Each Borrower shall only be liable under any Note if
it has executed and delivered such Note to a Bank; provided, however, that if
any Borrower draws a Loan under either of the Facilities and on-lends or
transfers all or any portion of the proceeds thereof to another Borrower, then
such receiving Borrower shall be liable for the obligations under such related
Note, on a joint and several basis with the Borrower making the draw, but only
to the extent of the amount of proceeds on-lent or transferred to such receiving
Borrower.
SECTION 9.02. No Waivers. No failure or delay by the Agent or any
Bank in exercising any right, power or privilege hereunder or under any Note
shall operate as a waiver thereof nor shall any single or partial exercise
thereof preclude any other or further exercise hereof or the exercise of any
other right, power or privilege. The rights and remedies herein provided shall
be cumulative and not exclusive of any rights or remedies provided by law.
SECTION 9.03. Expenses; Documentary Taxes; Indemnification. (a) The
Borrowers shall pay (i) all reasonable and documented out-of-pocket expenses of
the Agent, including all reasonable and documented fees and disbursements of
special counsel for the Agent, in connection with the preparation of this
Agreement, any waiver or consent hereunder or
-52-
any amendment hereof or any Default or alleged Default hereunder and (ii) if an
Event of Default occurs, all reasonable and documented out-of-pocket expenses
incurred by the Agent and each Bank, including reasonable fees and disbursements
of counsel, in connection with such Event of Default and collection, bankruptcy,
insolvency and other enforcement proceedings resulting therefrom. The Borrowers
will indemnify each Bank against any transfer taxes, documentary taxes,
assessments or charges made by any governmental authority by reason of the
execution and delivery of this Agreement or the original issuance of any Note.
(b) Each of JHFS and JHLIC agrees to indemnify the Agent and each Bank
and hold the Agent and each Bank harmless from and against any and all
liabilities, losses, damages, costs and expenses of any kind, including, without
limitation, the reasonable and documented fees and disbursements of counsel,
which may be incurred by any Bank or by the Agent in connection with its actions
as Agent hereunder in connection with any investigative, administrative or
judicial proceeding (whether or not the Agent or such Bank shall be designated a
party thereto) relating to or arising out of this Agreement or any actual or
proposed use of proceeds of Loans hereunder; provided that neither the Agent nor
any Bank shall have the right to be indemnified hereunder for its own gross
negligence or willful misconduct as determined by a court of competent
jurisdiction.
SECTION 9.04. Sharing of Set-Offs. Each Bank agrees that if it
shall, by exercising any right of set-off or counterclaim or otherwise, receive
payment of a proportion of the aggregate amount of principal and interest due
with respect to any Note of a Borrower held by it which is greater than the
proportion received by any other Bank in respect of the aggregate amount of
principal and interest due with respect to any Note of such Borrower held by
such other Bank, the Bank receiving such proportionately greater payment shall
purchase such participations in the Notes of such Borrower held by the other
Banks, and such other adjustments shall be made, as may be required so that all
such payments of principal and interest with respect to the Notes of such
Borrower held by the Banks shall be shared by the Banks pro rata; provided that
nothing in this Section shall impair the right of any Bank to exercise any right
of set-off or counterclaim it may have and to apply the amount subject to such
exercise to the payment of indebtedness of such Borrower other than its
indebtedness under the Notes. Each Borrower agrees, to the fullest extent it
may effectively do so under applicable law, that any holder of a participation
in a Note of such Borrower, whether or not acquired pursuant to the foregoing
arrangements, may exercise rights of set-off or counterclaim and other rights
with respect to such participation as fully as if such holder of a participation
were a direct creditor of such Borrower in the amount of such participation.
SECTION 9.05. Amendments and Waivers. Any provision of this
Agreement or the Notes may be amended or waived if, but only if, such amendment
or waiver is in writing and is signed by each Borrower and the Required Banks
(and, if the rights or duties of the Agent are affected thereby, by the Agent);
provided that no such amendment or waiver shall, unless signed by all the Banks,
(i) increase or decrease the Commitment of any Bank under either Facility
(except for a ratable decrease in the Commitments of all Banks) or subject any
Bank to any additional obligation, (ii) reduce the principal of or rate of
interest on any Loan or any fees hereunder, (iii) postpone the date fixed for
any payment of principal of or interest on any Loan or any fees hereunder or for
any reduction or termination of any Commitment under either Facility,
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(iv) change the percentage of the Commitments under either Facility or of the
aggregate unpaid principal amount of the Notes, or the number of Banks, which
shall be required for the Banks or any of them to take any action under this
Section or any other provision of this Agreement or (v) change any of the
provisions of Article VII concerning the Agent's rights, powers and obligations.
SECTION 9.06. Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, except that (other than as
permitted by this Agreement) no Borrower may assign or otherwise transfer any of
its rights under this Agreement without the prior written consent of all Banks.
(b) Any Bank may at any time and without the consent of or notice to
the Borrowers grant to one or more banks or other institutions (each a
"Participant") participating interests in its Commitment under either Facility
or any or all of its Loans. In the event of any such grant by a Bank of a
participating interest to a Participant, whether or not upon notice to the
Borrowers and the Agent, such Bank shall remain responsible for the performance
of its obligations hereunder, and the Borrowers and the Agent shall continue to
deal solely and directly with such Bank in connection with such Bank's rights
and obligations under this Agreement. Any agreement pursuant to which any Bank
may grant such a participating interest shall provide that such Bank shall
retain the sole right and responsibility to enforce the obligations of the
Borrowers hereunder including, without limitation, the right to approve any
amendment, modification or waiver of any provision of this Agreement; provided
that such participation agreement may provide that such Bank will not agree to
any modification, amendment or waiver of this Agreement described in clause (i),
(ii) or (iii) of Section 9.05 without the consent of the Participant. Each
Borrower agrees that each Participant shall, to the extent provided in its
participation agreement, be entitled to the benefits of Article VIII and Section
2.16 with respect to its participating interest. An assignment or other
transfer which is not permitted by subsection (c) or (d) below shall be given
effect for purposes of this Agreement only to the extent of a participating
interest granted in accordance with this subsection (b).
(c) Any Bank may at any time assign to one or more banks or other
institutions (each an "Assignee") all, or a proportionate part of all, of its
rights and obligations under this Agreement and the Notes of each Borrower, and
such Assignee shall assume such rights and obligations, pursuant to an
Assignment and Assumption Agreement in substantially the form of Exhibit F
hereto executed by such Assignee and such transferor Bank, with (and subject to)
the subscribed consent of the Borrowers and the Agent (which consent shall not,
in any such case, be unreasonably withheld); provided that (i) no such consent
shall be required if such Assignee is, prior to such assignment, a Bank
hereunder or an Eligible Affiliate of such Bank, (ii) any such assignment shall
be in respect of a portion of such transferor Bank's Commitment under the
applicable Facility in an amount equal to or greater than $5,000,000 or, if a
Bank has a Commitment under such Facility which is less than $5,000,000, such
assignment shall be in respect of all of the Commitment of the transferor Bank
under the applicable Facility, (iii) any such assignment may, but need not,
include rights of the transferor Bank in respect of outstanding Money Market
Loans, and (iv) no such consent shall be required from the Borrowers if an Event
of Default has occurred. Subject to the foregoing, upon execution and delivery
of
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such instrument and payment by such Assignee to such transferor Bank of an
amount equal to the purchase price agreed between such transferor Bank and such
Assignee, such Assignee shall be a Bank party to this Agreement and shall have
all the rights and obligations of a Bank with a Commitment (together, if such
Assignee is, prior to such assignment, a Bank hereunder, with such Assignee's
previously existing Commitment hereunder) as set forth in such instrument of
assumption, and the transferor Bank shall be released from its obligations
hereunder to a corresponding extent, and no further consent or action by any
party shall be required. Upon the consummation of any assignment pursuant to
this subsection (c), the transferor Bank, the Agent and the Borrowers shall make
appropriate arrangements so that, if required, new Notes are issued to the
Assignee. In connection with any such assignment, the transferor Bank shall pay
to the Agent an administrative fee for processing such assignment in the amount
of $3,500. If the Assignee is not incorporated under the laws of the United
States of America or a state thereof, it shall, prior to the first date on which
interest or fees are payable hereunder for its account, deliver to the Borrowers
and the Agent certification as to exemption from deduction or withholding of any
United States federal income taxes in accordance with Section 2.15.
(d) Any Bank may at any time pledge or assign all or any portion of
its rights under this Agreement and its Notes to a Federal Reserve Bank without
any notice to or consent of any Person hereunder. No such pledge or assignment
shall release the transferor Bank from its obligations hereunder.
(e) No Assignee, Participant or other transferee of any Bank's rights
shall be entitled to receive any greater payment under Section 2.16 or 8.03 than
such Bank would have been entitled to receive with respect to the rights
transferred, unless such transfer is made with the Borrowers' prior written
consent or by reason of the provisions of Section 8.02 or 8.03 requiring such
Bank to designate a different Applicable Lending Office under certain
circumstances or at a time when the circumstances giving rise to such greater
payment did not exist.
(f) Notwithstanding anything to the contrary contained herein, any
Bank (a "Granting Bank") may without paying any processing fee therefor grant to
a special purpose funding vehicle (an "SPC"), identified as such in writing from
time to time by the Granting Bank to the Agent and the Borrower, the option to
provide to the Borrower all or any part of any advance that such Granting Bank
would otherwise be obligated to make to the Borrower pursuant to this Agreement;
provided that (i) an SPC shall be a Subsidiary or other affiliate of such
Granting Bank, (ii) nothing herein shall constitute a commitment by any SPC to
make any advance, and (iii) nothing herein shall relieve the Granting Bank of
any of its obligations under this Agreement and, if an SPC elects not to
exercise such option or otherwise fails to provide all or any part of such
advance, the Granting Bank shall be obligated to make such advance pursuant to
the terms hereof. An SPC shall not become a Bank hereunder or possess rights to
vote, rights to receive notice, or any other rights under this Agreement. The
making of an advance by an SPC hereunder shall utilize the Commitment of the
Granting Bank to the same extent, and as if, such advance were made by such
Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for
any indemnity or similar payment obligation under this Agreement (all liability
for which shall remain with the Granting Bank). In furtherance of the
foregoing, each party hereto hereby agrees (which agreement shall survive the
termination of this Agreement) that,
-55-
prior to the date that is one year and one day after the payment in full of all
outstanding commercial paper or other senior indebtedness of any SPC, it will
not institute against, or join any other person instituting against, such SPC
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings under the laws of the United States or any State thereof. In
addition, notwithstanding anything to the contrary contained in this Section
9.06(f), any SPC may (i) with notice to, but without the prior written consent
of, the Borrower and the Agent and without paying any processing fee therefor,
assign all or a portion of its interests in any advances to the Granting Bank,
(ii) with the prior written consent of the Borrower and the Agent and without
paying any processing fee therefor, assign all or a portion of its interests in
any advances to any financial institution providing liquidity and/or credit
support to or for the account of such SPC to support the funding or maintenance
of advances and (iii) disclose on a confidential basis any non-public
information relating to its advances to any rating agency, commercial paper
dealer or provider of any surety, guarantee or credit or liquidity enhancement
to such SPC. This section may not be amended without the written consent of the
SPC.
SECTION 9.07. Collateral. Each of the Banks represents to the Agent
and each of the other Banks that it in good faith is not relying upon any
"margin stock" (as defined in Regulation U) as collateral in the extension or
maintenance of the credit provided for in this Agreement.
SECTION 9.08. Waiver of Certain Claims. Each Borrower hereby
expressly waives any claim, cause of action or remedy of such Borrower against
the Agent, any Bank or any Participant arising out of or relating to, directly
or indirectly, (i) any failure by any Bank to make any Loan or (ii) any failure
by the Agent or any Bank to comply with any interest rate election, in any such
case on account of or attributable to the fact that the applicable Notice of
Borrowing, Money Market Quote Request or Notice of Interest Rate Election, as
the case may be, was not signed by the Authorized Officers of such Borrower.
SECTION 9.09. Termination of JHCC as a Borrower. The Borrowers may,
at any time (i) at which there shall be no Loans outstanding to JHCC or (ii)
after JHFS or JHLIC shall have executed and delivered a Company Assumption
Agreement, upon written notice thereof to the Agent, executed on behalf of JHFS
or JHLIC and JHCC and substantially in the form of Exhibit G hereto, terminate
JHCC as a Borrower hereunder. Immediately upon the receipt by the Agent of such
notice, all commitments of the Banks to make Loans to JHCC, and all rights of
JHCC hereunder, shall terminate and JHCC shall immediately cease to be a
Borrower hereunder; provided that, unless JHFS or JHLIC shall have executed and
delivered a Company Assumption Agreement, all obligations of JHCC as a Borrower
hereunder arising in respect of any period in which JHCC was, or on account of
any action or inaction by JHCC as, a Borrower hereunder shall survive such
termination and if JHFS or JHLIC shall have executed and delivered a Company
Assumption Agreement, the liability of JHCC (but not of JHFS or JHLIC, as the
case may be) with respect to such obligations shall terminate.
SECTION 9.10. Governing Law; Submission to Jurisdiction. THIS
AGREEMENT AND EACH NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS. EACH BORROWER HEREBY SUBMITS TO
THE NONEXCLUSIVE JURISDICTION OF
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THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS AND OF ANY
MASSACHUSETTS STATE COURT SITTING IN SUFFOLK COUNTY FOR PURPOSES OF ALL LEGAL
PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY. EACH BORROWER IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING
OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT
ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM.
SECTION 9.11. Counterparts; Integration. This Agreement may be
signed in any number of counterparts, each of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement constitutes the entire agreement and understanding
among the parties hereto and supersedes any and all prior agreements and
understandings, oral or written, relating to the subject matter hereof (other
than the agreement referred to in Section 7.09).
SECTION 9.12. Waiver of Jury Trial. EACH OF THE BORROWERS, THE AGENT
AND THE BANKS HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN
ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 9.13 Interest Rate Limitation. All agreements between the
Borrowers and the Banks are hereby expressly limited so that in no contingency
or event whatsoever, whether by reason of acceleration of maturity of the
indebtedness evidenced by this Agreement, the Notes or otherwise, shall the
amount paid or agreed to be paid to the Banks for the use or forbearance of such
indebtedness exceed the maximum permissible under applicable law. As used
herein, the term "applicable law" shall mean the law in effect as of the
Effective Date; provided, however, that in the event there is a change in the
law which results in a higher permissible rate of interest, then this Agreement,
the Notes and all other loan documents shall be governed by such new law as of
its effective date. In this regard, it is expressly agreed that it is the
intent of the Borrowers and the Banks in the execution, delivery and acceptance
of this Agreement and the Notes to contract in strict compliance with the laws
of the Commonwealth of Massachusetts from time to time in effect. If, under or
from any circumstances whatsoever, fulfillment of any provision of this
Agreement, the Notes or any other loan documents at the time of performance of
such provision shall be due, shall involve transcending the limit of such
validity prescribed by applicable law, then the obligation to be fulfilled shall
automatically be reduced to the limits of such validity, and if under or from
any circumstances whatsoever the Banks should ever receive as interest an amount
which would exceed the highest lawful rate, such amount which would be excessive
interest shall be applied to the reduction of the principal balance evidenced by
this Agreement, the Notes and the other loan documents and not to the payment of
interest. This provision shall control every other provision of all agreements
between the Borrowers and the Banks.
SECTION 9.14. JHLIC As Agent For Borrowers. Each of JHFS and JHCC
hereby appoints JHLIC as its agent with respect to the receiving and giving of
any notices, requests,
-57-
instructions, reports, schedules, revisions, financial statements or any other
written or oral communications hereunder. The Agent and each Bank are hereby
entitled to rely on any communication given or transmitted by JHLIC as if such
communication were given or transmitted by the Borrower on whose behalf such
communication is given or transmitted; provided, however, that any communication
given or transmitted directly to the Agent or any Bank by any Borrower shall be
binding with respect to such Borrower. Any communication given or transmitted by
the Agent or any Bank to JHLIC shall be deemed given and transmitted to all
Borrowers, provided that any such communication shall specify the identity of
the Borrower(s) to which such communication is being given.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
XXXX XXXXXXX FINANCIAL XXXX XXXXXXX LIFE INSURANCE COMPANY
SERVICES, INC.
By: ____________________________ By: ___________________________________
Title: _________________________ Title: _______________________________
By: ____________________________ By: ___________________________________
Title: _________________________ Title: ________________________________
000 Xxxxxxxxx Xxxxxx, T-56 000 Xxxxxxxxx Xxxxxx, X-00
Xxxxxx, Xxxxxxxxxxxxx 00000 Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Treasurer Attention: Treasurer
Fax: (000) 000-0000 Fax: (000) 000-0000
Telex number: 62021772 Telex number: 62021772
with a copy to: with a copy to:
Xxxx Xxxxxxx Financial Services, Inc. Xxxx Xxxxxxx Financial Services, Inc.
000 Xxxxxxxxx Xxxxxx 000 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000 Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Investment Law Attention: Investment Law
Fax: (000) 000-0000 Fax: (000) 000-0000
XXXX XXXXXXX CAPITAL CORPORATION
By: ___________________________________
Title: ________________________________
By: ___________________________________
Title: ________________________________
000 Xxxxxxxxx Xxxxxx, X-00
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Treasurer
Fax: (000) 000-0000
Telex number: 62021772
with a copy to:
Xxxx Xxxxxxx Financial Services, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Investment Law
Fax: (000) 000-0000
-59-
364-Day Multi-Year
Commitments Commitments
------------ -----------
$40,000,000 $ 40,000,000 FLEET NATIONAL BANK
("Co-Administrative Agent")
By:__________________________
Title:_______________________
$40,000,000 $ 40,000,000 THE CHASE MANHATTAN BANK
("Co-Administrative Agent")
By:__________________________
Title:_______________________
$40,000,000 $ 40,000,000 CITICORP USA, INC.
("Syndication Agent")
By:__________________________
Title:_______________________
$40,000,000 $ 40,000,000 BANKONE, NA
(MAIN OFFICE CHICAGO)
("Documentation Agent")
By:__________________________
Title:_______________________
$30,312,500 $ 30,312,500 BARCLAYS BANK PLC
By:__________________________
Title:_______________________
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364-Day Multi-Year
Commitments Commitments
------------ -----------
$30,312,500 $ 30,312,500 BNP PARIBAS
By:__________________________
Title:_______________________
By:__________________________
Title:_______________________
$30,312,500 $ 30,312,500 COMERICA BANK
By:__________________________
Title:_______________________
$30,312,500 $ 30,312,500 CREDIT SUISSE FIRST BOSTON
By:__________________________
Title:_______________________
By:__________________________
Title:_______________________
$30,312,500 $ 30,312,500 DEUTSCHE BANK AG, NEW YORK
AND/OR CAYMAN ISLAND BRANCHES
By:__________________________
Title:_______________________
By:__________________________
Title:_______________________
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364-Day Multi-Year
Commitments Commitments
------------ -----------
$30,312,500 $ 30,312,500 ROYAL BANK OF CANADA
By:__________________________
Title:_______________________
$30,312,500 $ 30,312,500 THE BANK OF NOVA SCOTIA
By:__________________________
Title:_______________________
$30,312,500 $ 30,312,500 WACHOVIA BANK, N.A.
By:__________________________
Title:_______________________
$22,500,000 $ 22,500,000 BANK OF AMERICA, N.A.
By:__________________________
Title:_______________________
$22,500,000 $ 22,500,000 STATE STREET BANK AND TRUST COMPANY
By:__________________________
Title:_______________________
$22,500,000 $ 22,500,000 WESTDEUTSCHE LANDESBANK GIROZENTRALE,
NEW YORK BRANCH
By:__________________________
Title:_______________________
By:__________________________
Title:_______________________
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364-Day Multi-Year
Commitments Commitments
------------ -----------
$20,000,000 $ 20,000,000 THE NORTHERN TRUST COMPANY
By:__________________________
Title:_______________________
$10,000,000 $ 10,000,000 THE BANK OF NEW YORK
By:__________________________
Title:_______________________
________________ ________________
Total 364-Day Total Multi-Year
Commitments Commitments
$500,000,000 $500,000,000
FLEET NATIONAL BANK, as Agent
By:______________________________________________
Title: Managing Director, Financial Institutions
Division
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxxx X. Xxxxxxx
Facsimile transmission number: (000) 000-0000
Telex number: 4996527
THE CHASE MANHATTAN BANK, as Agent
By:_______________________________________________
Title: Vice President
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxxxx
Facsimile transmission number: (000) 000-0000
Telex number: ___________
-00-
XXXXXXX X-0
364-DAY REVOLVER NOTE
Boston, Massachusetts
August 3, 2000
For value received, [Xxxx Xxxxxxx Financial Services, Inc., a Delaware
corporation] [Xxxx Xxxxxxx Life Insurance Company, a Massachusetts corporation]
[Xxxx Xxxxxxx Capital Corporation, a Delaware corporation] (the "Borrower"),
promises to pay to the order of ________________________________ (the "Bank"),
for the account of its Applicable Lending Office, the unpaid principal amount of
each Loan made by the Bank to the Borrower pursuant to the Credit Agreement
dated as of August 3, 2000 among the Borrower, certain affiliates of the
Borrower, the banks listed on the signature pages thereof and each of Fleet
National Bank and The Chase Manhattan Bank, as Agent (as the same may be amended
from time to time, the "Credit Agreement") on the Termination Date provided, or
as otherwise provided, in the Credit Agreement. The Borrower promises to pay
interest on the unpaid principal amount of each such Loan on the dates and at
the rate or rates provided for in the Credit Agreement. All such payments of
principal and interest shall be made in lawful money of the United States in
Federal or other immediately available funds at the office of The Chase
Manhattan Bank, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx.
All Loans made by the Bank and all repayments of the principal thereof
shall be recorded by the Bank and, prior to any transfer hereof, appropriate
notations to evidence the foregoing information with respect to each such Loan
then outstanding shall be endorsed by the Bank on the schedule attached hereto,
or on a continuation of such schedule attached to and made a part hereof;
provided that the failure of the Bank to make any such recordation or
endorsement shall not affect the obligations of the Borrower hereunder or under
the Credit Agreement.
THE BORROWER AND THE BANK MUTUALLY HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM BASED
HEREON, ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS NOTE OR ANY OTHER LOAN
DOCUMENTS CONTEMPLATED TO BE EXECUTED IN CONNECTION HEREWITH OR ANY COURSE OF
CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS
OF ANY PARTY. THIS WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR THE BANK TO
ACCEPT THIS NOTE AND MAKE THE LOAN.
A-1
This note is one of the Notes referred to in the Credit Agreement. Terms
defined in the Credit Agreement are used herein with the same meanings.
Reference is made to the Credit Agreement for provisions for the prepayment
hereof and the acceleration of the maturity hereof.
[XXXX XXXXXXX FINANCIAL SERVICES, INC.]
[XXXX XXXXXXX LIFE INSURANCE COMPANY]
[XXXX XXXXXXX CAPITAL CORPORATION]
By______________________________________
Title:
By______________________________________
Title:
A-2
Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
______________________________________________________________________________
Amount of
Amount of Principal Notation
Date Loan Repaid Made by
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
X-0
XXXXXXX X-0
MULTI-YEAR REVOLVER NOTE
Boston, Massachusetts
August 3, 2000
For value received, [Xxxx Xxxxxxx Financial Services, Inc., a Delaware
corporation] [Xxxx Xxxxxxx Life Insurance Company, a Massachusetts corporation]
[Xxxx Xxxxxxx Capital Corporation, a Delaware corporation] (the "Borrower"),
promises to pay to the order of ________________________________ (the "Bank"),
for the account of its Applicable Lending Office, the unpaid principal amount of
each Loan made by the Bank to the Borrower pursuant to the Credit Agreement
dated as of August 3, 2000 among the Borrower, certain affiliates of the
Borrower, the banks listed on the signature pages thereof and each of Fleet
National Bank and The Chase Manhattan Bank, as Agent (as the same may be amended
from time to time, the "Credit Agreement") on the Termination Date provided, or
as otherwise provided, in the Credit Agreement. The Borrower promises to pay
interest on the unpaid principal amount of each such Loan on the dates and at
the rate or rates provided for in the Credit Agreement. All such payments of
principal and interest shall be made in lawful money of the United States in
Federal or other immediately available funds at the office of The Chase
Manhattan Bank, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx.
All Loans made by the Bank and all repayments of the principal thereof
shall be recorded by the Bank and, prior to any transfer hereof, appropriate
notations to evidence the foregoing information with respect to each such Loan
then outstanding shall be endorsed by the Bank on the schedule attached hereto,
or on a continuation of such schedule attached to and made a part hereof;
provided that the failure of the Bank to make any such recordation or
endorsement shall not affect the obligations of the Borrower hereunder or under
the Credit Agreement.
THE BORROWER AND THE BANK MUTUALLY HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM BASED
HEREON, ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS NOTE OR ANY OTHER LOAN
DOCUMENTS CONTEMPLATED TO BE EXECUTED IN CONNECTION HEREWITH OR ANY COURSE OF
CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS
OF ANY PARTY. THIS WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR THE BANK TO
ACCEPT THIS NOTE AND MAKE THE LOAN.
A-1
This note is one of the Notes referred to in the Credit Agreement. Terms
defined in the Credit Agreement are used herein with the same meanings.
Reference is made to the Credit Agreement for provisions for the prepayment
hereof and the acceleration of the maturity hereof.
[XXXX XXXXXXX FINANCIAL SERVICES, INC.]
[XXXX XXXXXXX LIFE INSURANCE COMPANY]
[XXXX XXXXXXX CAPITAL CORPORATION]
By______________________________________
Title:
By______________________________________
Title:
A-2
Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
______________________________________________________________________________
Amount of
Amount of Principal Notation
Date Loan Repaid Made by
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
A-3
EXHIBIT B
COMPANY ASSUMPTION AGREEMENT
----------------------------
AGREEMENT, dated as of _____________, _____, made by [XXXX XXXXXXX
FINANCIAL SERVICES, INC., a Delaware corporation] [XXXX XXXXXXX LIFE INSURANCE
COMPANY, a Massachusetts corporation] (the "Company"), in favor of the Banks and
the Agent party to the Credit Agreement referred to herein and the holders from
time to time of the Notes issued by JHCC (as defined below) thereunder.
W I T N E S S E T H:
--------------------
WHEREAS, Xxxx Xxxxxxx Capital Corporation ("JHCC") is a party to a Credit
Agreement (as amended from time to time, the "Credit Agreement") dated as of
August 3, 2000 among the Company, JHCC, the Banks listed on the signature pages
thereof and each of Fleet National Bank and The Chase Manhattan Bank, as co-
administrative agents (collectively, the "Agent");
WHEREAS, the Company owns, directly or indirectly, all of the common stock
of JHCC; and
[WHEREAS, as of the date hereof [describe transaction by which JHCC's
corporate existence is being terminated] [describe merger or consolidation of
JHCC into another Subsidiary], and under Section [5.03] [5.12] of the Credit
Agreement it is a condition to such [termination] [merger] [consolidation] that
the Company execute and deliver this Agreement;]
[WHEREAS, the Support Agreement, dated as of October 15, 1984 between JHCC
and JHLIC (the "Support Agreement") is being terminated as of the date hereof,
and under Section 5.13 of the Credit Agreement it is a condition to such
termination that the Company execute and deliver this Agreement;]
[WHEREAS, the Borrowers desire to terminate JHCC as a Borrower under the
Credit Agreement as of the date hereof, and under Section 9.09 of the Credit
Agreement it is a condition to such termination that the Company execute and
deliver this Agreement;]
NOW THEREFORE, in consideration of the premises the Company hereby agrees
as follows:
SECTION 1. Definitions. Capitalized terms used and not otherwise defined
herein shall have the respective meanings given them in the Credit Agreement.
SECTION 2. Assumption. The Company hereby unconditionally and irrevocably
assumes, as principal obligor, all of the obligations of JHCC under the Credit
Agreement and the Notes issued by JHCC thereunder, including, without
limitation, the obligations of JHCC to pay in full
B-1
when due (whether at stated maturity, upon acceleration or otherwise) the
principal of and interest on such Notes and all other amounts payable by JHCC
under the Credit Agreement.
SECTION 3. Representations and Warranties. The Company hereby represents
------------------------------
and warrants that:
(a) Authorization; No Contravention. The execution, delivery and
performance by the Company of this Agreement are within the Company's powers,
have been duly authorized by all necessary action, require no action by or in
respect of, or filing with, any governmental body, agency or official and do not
contravene, or constitute a default under, any provision of applicable law or
regulation, as amended from time to time, or the by-laws of the Company or of
any agreement, judgment, injunction, order, decree or other instrument binding
upon the Company or result in or require the creation or imposition of any Lien
on any asset of the Company or any Material Subsidiary.
(b) Binding Effect. This Agreement constitutes a valid and binding
agreement of the Company.
SECTION 4. Notices. All notices and other communications provided for or
permitted hereunder shall be made as specified in Section 9.01 of the Credit
Agreement.
SECTION 5. Priority. The obligations of the Company under this Agreement,
and the obligations assumed by the Company hereunder, are unsecured and rank
equally with other unsecured and unsubordinated obligations of the Company[,
subject to the requirements of Section 180F, Chapter 175, of the Massachusetts
General Laws as to priorities of distribution in any liquidation proceedings
begun in Massachusetts against an insolvent Massachusetts insurer].
SECTION 6. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the Commonwealth of Massachusetts.
SECTION 7. Severability. Any provision of this Agreement which is
illegal, invalid, prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such illegality, invalidity,
prohibition or unenforceability without invalidating the remaining provisions
hereof and any such illegality, invalidity, prohibition or unenforceability in
any jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction.
SECTION 8. Entire Agreement. This Agreement and the Credit Agreement
embody the entire agreement of the Company with respect to the subject matter
hereof and supersede any prior written or oral agreements and understandings
relating to the subject matter hereof.
B-2
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed and delivered by its officers thereunto duly authorized as of the date
first above written.
[XXXX XXXXXXX FINANCIAL SERVICES, INC.]
[XXXX XXXXXXX LIFE INSURANCE COMPANY]
By:_____________________________________
Authorized Officer
By:_____________________________________
Authorized Officer
B-3
EXHIBIT C
GUARANTEE AGREEMENT
-------------------
GUARANTEE AGREEMENT, dated as of _____________, _____, made by [XXXX
XXXXXXX FINANCIAL SERVICES, INC., a Delaware corporation] [XXXX XXXXXXX LIFE
INSURANCE COMPANY, a Massachusetts corporation] (the "Company"), in favor of the
Banks and the Agent party to the Credit Agreement referred to herein and the
holders from time to time of the Notes issued by JHCC (as defined below)
thereunder.
W I T N E S S E T H:
--------------------
WHEREAS, Xxxx Xxxxxxx Capital Corporation ("JHCC") is a party to a Credit
Agreement (as amended from time to time, the "Credit Agreement") dated as of
August 3, 2000 among the Company, JHCC, the Banks listed on the signature pages
thereof and each of Fleet National Bank and The Chase Manhattan Bank, as co-
administrative agents (collectively, the "Agent");
WHEREAS, the Company owns directly or indirectly, all of the common stock
of JHCC; and
WHEREAS, the Support Agreement, dated as of October 15, 1984 between JHLIC
and JHCC (the "Support Agreement") is being terminated as of the date hereof,
and under Section 5.13 of the Credit Agreement it is a condition to such
termination that the Company execute and deliver this Guaranty Agreement;
NOW THEREFORE, in consideration of the premises, the Company hereby agrees
as follows:
SECTION 1. Definitions. Capitalized terms used and not otherwise defined
herein shall have the respective meanings given them in the Credit Agreement.
SECTION 2. Guarantee. The Company hereby unconditionally and irrevocably
guarantees as principal and not merely as surety the full and punctual payment
when due (whether at stated maturity, upon acceleration or otherwise) of the
principal of and interest on each Note issued by JHCC under the Credit Agreement
and the full and punctual payment of all other amounts payable by JHCC under the
Credit Agreement.
SECTION 3. Guarantee Absolute. The Company agrees that the guarantee
contained in this Guarantee Agreement is a guarantee of payment and not of
collection or collectibility, and that the obligations of the Company hereunder
shall be primary, absolute and unconditional and, without limiting the
generality of the foregoing, shall not be released, discharged or otherwise
affected by:
C-1
(i) any extension, renewal, settlement, compromise, waiver or release
in respect of any obligation of JHCC under the Credit Agreement or any
Note, by operation of law or otherwise;
(ii) any modification or amendment of or supplement to the Credit
Agreement or any Note;
(iii) any release, non-perfection or invalidity of any direct or
indirect security for any obligation of JHCC under the Credit Agreement or
any Note;
(iv) any change in the corporate existence, structure or ownership of
JHCC, or any insolvency, bankruptcy, reorganization or other similar
proceeding affecting JHCC or its assets or any resulting release or
discharge of any obligation of JHCC contained in the Credit Agreement or
any Note;
(v) the existence of any claim, set-off or other rights which the
Company may have at any time against JHCC, the Agent, any Bank or any other
Person, whether in connection herewith or any unrelated transactions,
provided that nothing herein shall prevent the assertion of any such claim
by separate suit or compulsory counterclaim or with respect to obligations
of the Company other than obligations hereunder;
(vi) any invalidity or unenforceability relating to or against JHCC
for any reason of the Credit Agreement or any Note, or any provision of
applicable law or regulation purporting to prohibit the payment by JHCC of
the principal of or interest on any Note or any other amount payable by
JHCC under the Credit Agreement; or
(vii) any other act or omission to act or delay of any kind by JHCC,
the Agent, any Bank or any other Person or any other circumstance
whatsoever which might, but for the provisions of this paragraph,
constitute a legal or equitable discharge of the Company's obligations
hereunder.
SECTION 4. Representations and Warranties. The Company hereby represents
and warrants that:
(a) Authorization; No Contravention. The execution, delivery and
performance by the Company of this Guarantee Agreement are within the Company's
powers, have been duly authorized by all necessary action, require no action by
or in respect of, or filing with, any governmental body, agency or official and
do not contravene, or constitute a default under, any provision of applicable
law or regulation, as amended from time to time, or the by-laws of the Company
or of any agreement, judgment, injunction, order, decree or other instrument
binding upon the Company or result in or require the creation or imposition of
any Lien on any asset of the Company or any Material Subsidiary.
(b) Binding Effect. This Guarantee Agreement constitutes a valid and
binding agreement of the Company.
C-2
SECTION 5. Manner of Payment. Payment by the Company hereunder shall be
made in such funds, to such Persons and at such times and places as are
specified for corresponding payments under the Credit Agreement.
SECTION 6. Enforcement of Guarantee. In no event shall any Bank, the
Agent or any other Person have any obligation to proceed against JHCC or any
other Person or any property that may be pledged to secure the obligations of
JHCC under the Credit Agreement or the Notes before seeking satisfaction from
the Company.
SECTION 7. Waiver. The Company hereby irrevocably waives promptness,
diligence, acceptance hereof, presentment, demand, protest and any and all other
notice not provided for herein and any requirement that at any time any Bank,
the Agent or any other Person exhaust any right or take any action against JHCC
or any other Person and any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge, release or defense of the Company or
that might otherwise limit recourse against the Company.
SECTION 8. Waiver of Subrogation. The Company irrevocably waives any and
all rights to which it may be entitled, by operation of law or otherwise, upon
making any payment hereunder to be subrogated to the rights of the payee against
JHCC with respect to such payment or otherwise to be reimbursed, indemnified or
exonerated by JHCC in respect thereof.
SECTION 9. Notices. All notices and other communications provided for or
permitted hereunder shall be made as specified in Section 9.01 of the Credit
Agreement.
SECTION 10. No Waiver; Remedies. No failure on the part of any Bank or
the Agent to exercise, and no delay in exercising, any right hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right hereunder preclude any other or further exercise thereof or the exercise
of any other right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
SECTION 11. Continuing Guarantee; Reinstatement in Certain Circumstances.
The guarantee contained in this Guarantee Agreement is a continuing guarantee
and the Company's obligations hereunder shall (i) unless the Company shall have
executed and delivered a Company Assumption Agreement or JHCC shall have
consolidated with or merged into the Company in accordance with Section
5.12(i)(a)(A) of the Credit Agreement, remain in full force and effect until the
indefeasible payment in full of the principal of and interest on the notes
issued by JHCC and all other amounts payable by JHCC under the Credit Agreement
and the expiration or earlier termination of the Commitments with respect to
JHCC under the Credit Agreement, (ii) be binding upon the Company and its
successors and assigns, and (iii) inure to the benefit of and be enforceable by
the Banks, the Agent and the holders from time to time of the Notes issued by
JHCC and their respective successors, transferees and assigns. If at any time
any payment of any of the principal of or interest on any Note or any other
amount payable by JHCC under the Credit Agreement is rescinded or must otherwise
be restored or returned upon the insolvency, bankruptcy or reorganization of
JHCC or otherwise, the Company's obligations hereunder with respect to such
payment shall be reinstated as though such payment had been due but not made at
such time.
C-3
SECTION 12. Stay of Acceleration. If acceleration of the time for payment
of any amount payable by JHCC under the Credit Agreement or the Notes is stayed
upon the insolvency, bankruptcy or reorganization of JHCC, all such amounts
otherwise subject to acceleration under the terms of the Credit Agreement shall
nonetheless be payable by the Company hereunder forthwith on demand by the Agent
made at the request of the requisite proportion of the Banks specified in
Article VI of the Credit Agreement.
SECTION 13. Priority. The obligations of the Company under this Guarantee
Agreement are unsecured and rank equally with other unsecured and unsubordinated
obligations of the Company[, subject to the requirements of Section 180F,
Chapter 175, of the Massachusetts General Laws as to priorities of distribution
in any liquidation proceedings begun in Massachusetts against an insolvent
Massachusetts insurer].
SECTION 14. Governing Law. This Guarantee Agreement shall be governed by,
and construed in accordance with, the laws of the Commonwealth of Massachusetts.
SECTION 15. Severability. Any provision of this Guarantee Agreement which
is illegal, invalid, prohibited or unenforceable in any jurisdiction shall, as
to such jurisdiction, be ineffective to the extent of such illegality,
invalidity, prohibition or unenforceability without invalidating the remaining
provisions hereof and any such illegality, invalidity, prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 16. Entire Agreement. This Guarantee Agreement and the Credit
Agreement embody the entire agreement of the Company with respect to the subject
matter hereof and supersede any prior written or oral agreements and
understandings relating to the subject matter hereof and thereof.
IN WITNESS WHEREOF, the Company has caused this Guarantee Agreement to be
duly executed and delivered by its officers thereunto duly authorized as of the
date first above written.
[XXXX XXXXXXX FINANCIAL SERVICES, INC.]
[XXXX XXXXXXX LIFE INSURANCE COMPANY]
By:_____________________________________
Authorized Officer
By:_____________________________________
Authorized Officer
C-4
EXHIBIT D
OPINION OF
XXXX X. XXXXXXXX,
SECOND VICE PRESIDENT AND
COUNSEL OF JHLIC, FOR THE BORROWERS
-----------------------------------
August 3, 2000
The Banks and the Agent listed
on the signature pages of the below-
referenced Credit Agreement
C/o Fleet National Bank
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Ladies and Gentlemen:
I am Second Vice President and Counsel of Xxxx Xxxxxxx Life Insurance
Company and have acted as counsel for Xxxx Xxxxxxx Financial Services, Inc., a
Delaware corporation ("JHFS"), Xxxx Xxxxxxx Life Insurance Company, a
Massachusetts corporation and a direct, wholly-owned subsidiary of JHFS ("Xxxx
Xxxxxxx"), and Xxxx Xxxxxxx Capital Corporation, a Delaware corporation and an
indirect, wholly-owned subsidiary of Xxxx Xxxxxxx ("JHCC"), in connection with
the negotiation, execution and delivery by JHFS, Xxxx Xxxxxxx and JHCC of the
Credit Agreement, dated as of August ___, 2000 (the "Credit Agreement") among
JHFS, Xxxx Xxxxxxx, JHCC, the Banks listed on signature pages of such Credit
Agreement (the "Banks") and Fleet National Bank and The Chase Manhattan Bank, as
Co-Administrative Agents(together, the "Agent") and the execution and issuance
thereunder of the Notes by JHFS (the "JHFS Notes"), Xxxx Xxxxxxx (the "Xxxx
Xxxxxxx Notes") and JHCC (the "JHCC Notes"; and together with the JHFS Notes and
the Xxxx Xxxxxxx Notes, the "Notes").
All terms capitalized herein which are not otherwise defined have the
meanings attributed thereto in the Credit Agreement.
In so acting, I have reviewed, among other things, the Credit
Agreement, the Notes and the Support Agreement and such other documents as I
have deemed necessary or appropriate as a basis for the opinions expressed
below. In my examination, I have assumed the genuineness of all signatures
(other than signatures of officers of JHFS, Xxxx Xxxxxxx and JHCC), the
authenticity of all documents submitted to me as
D-1
originals (other than the Credit Agreement, the Support Agreement and the
Notes), the conformity to original documents of all documents submitted to me as
certified or photostatic copies, and the authenticity of the originals of such
copies. I have relied upon, and assumed the accuracy of, the representations and
warranties as to factual matters contained in and made pursuant to the Credit
Agreement and the Support Agreement, relied upon the originals or copies
certified, or otherwise identified to my satisfaction, of such records,
documents, certificates and other instruments, and made such other
investigations, as in my judgment, are necessary or appropriate to enable me to
render the opinions below.
Subject to the foregoing and the qualifications discussed below, I am
of the following opinion:
1. JHFS. JHFS is a corporation duly incorporated, validly existing and in
good standing under the laws of the State of Delaware, and has all
corporate powers and, to my knowledge, all material governmental
licenses, consents and approvals required to carry on its business as
now conducted and to execute and deliver the Credit Agreement and the
JHFS Notes.
2. Xxxx Xxxxxxx. Xxxx Xxxxxxx is a corporation duly incorporated,
validly existing and in good standing under the laws of the
Commonwealth of Massachusetts, and has all corporate powers, and to my
knowledge, all material governmental licenses, consents and approvals
required to carry on its business as now conducted and to execute and
deliver the Credit Agreement, the Xxxx Xxxxxxx Notes and the Support
Agreement.
3. JHCC. JHCC is a corporation duly incorporated, validly existing and
in good standing under the laws of the State of Delaware, and has all
corporate powers and, to my knowledge, all material governmental
licenses, consents and approvals required to carry on its business as
now conducted and to execute and deliver the Credit Agreement, the
JHCC Notes and the Support Agreement.
4. The Credit Agreement. The Credit Agreement has been duly authorized,
executed and delivered by each of JHFS, Xxxx Xxxxxxx and JHCC, and
constitutes the legal, valid and binding obligation of JHFS, Xxxx
Xxxxxxx and JHCC, enforceable against JHFS, Xxxx Xxxxxxx and JHCC, as
the case may be, in accordance with its terms.
5. The JHFS Notes. Pursuant to the authority granted pursuant to Section
8.04 of the JHFS By-Laws and the Action By Chief Executive Officer
dated July 27, 2000, the JHFS Notes have been duly authorized,
executed and delivered by JHFS, and each of the JHFS Notes issued on
the date hereof is a legal, valid and binding obligation of JHFS,
enforceable against JHFS in accordance with its terms.
D-2
6. The Xxxx Xxxxxxx Notes. The Xxxx Xxxxxxx Notes have been duly
authorized, executed and delivered by Xxxx Xxxxxxx, and each Xxxx
Xxxxxxx Note issued on the date hereof is a legal, valid and binding
obligation of Xxxx Xxxxxxx, enforceable against Xxxx Xxxxxxx in
accordance with its terms.
7. The JHCC Notes. The JHCC Notes have been duly authorized, executed
and delivered by JHCC, and each JHCC Note issued on the date hereof is
a legal, valid and binding obligation of JHCC, enforceable against
JHCC in accordance with its terms.
8. Ranking. (a) The obligations of JHFS under the Credit Agreement and
the JHFS Notes will rank equally with other unsecured and
unsubordinated obligations of JHFS, (b) the obligations of Xxxx
Xxxxxxx under the Credit Agreement, the Xxxx Xxxxxxx Notes and the
Support Agreement will rank equally with other unsecured and
unsubordinated obligations of Xxxx Xxxxxxx, subject to the
requirements of section one hundred and eighty F of Chapter 175 of the
Massachusetts General Laws, which section establishes priorities of
distribution in any liquidation proceeding begun in the Commonwealth
of Massachusetts against an insolvent Massachusetts insurer, and (c)
the obligations of JHCC under the Credit Agreement and the JHCC Notes
will rank equally with other unsecured and unsubordinated obligations
of JHCC.
9. Support Agreement. The Support Agreement has been duly authorized,
executed and delivered by Xxxx Xxxxxxx and JHCC and constitutes the
legal, valid and binding obligation of Xxxx Xxxxxxx and JHCC
enforceable against Xxxx Xxxxxxx or JHCC, as the case may be, in
accordance with its terms, and the provisions thereof which purport to
create a direct right of the holders of any JHCC Notes to enforce Xxxx
Xxxxxxx'x obligations under the Support Agreement in the event of
JHCC's failure to meet its obligations under the JHCC Notes are
legally effective for such purpose.
10. Governmental Consents. To my knowledge, no consent or action of, or
filing with, any governmental or public regulatory body or authority,
including, without limitation, the Executive Office of Consumer
Affairs and Business Regulation, Division of Insurance, of the
Commonwealth of Massachusetts, is required to authorize, or is
otherwise required in connection with, the execution, delivery and
performance by JHFS, Xxxx Xxxxxxx or JHCC of the Credit Agreement, or
by Xxxx Xxxxxxx or JHCC of the Support Agreement or their respective
obligations thereunder, or by JHFS of the JHFS Notes, Xxxx Xxxxxxx of
the Xxxx Xxxxxxx Notes or JHCC of the JHCC Notes or their respective
obligations thereunder.
D-3
11. Conflict with Instruments, Etc. Neither the execution and delivery by
JHFS, Xxxx Xxxxxxx and JHCC of the Credit Agreement, JHFS of the JHFS
Notes, Xxxx Xxxxxxx of the Xxxx Xxxxxxx Notes, JHCC of the JHCC Notes,
or Xxxx Xxxxxxx and JHCC of the Support Agreement, nor the fulfillment
of, nor compliance with, the terms and provisions thereof will, (a) to
my knowledge, violate any law or any regulation, order, writ,
injunction or decree of any court or governmental instrumentality or
result in any breach of any of the terms, conditions or provisions of,
or (b) constitute a default under, or result in the creation or
imposition of, any mortgage, lien, charge or encumbrance of any nature
whatsoever upon any of the properties or assets of JHFS, Xxxx Xxxxxxx
or JHCC pursuant to the terms of, (i) the Certificates of
Incorporation or the By-Laws of JHFS, Xxxx Xxxxxxx or JHCC, as the
case may be, or (ii) to my knowledge, any mortgage, indenture,
agreement or instrument to which JHFS, Xxxx Xxxxxxx or JHCC is a party
or by which it is bound.
12. Litigation. Except as disclosed in JHFS' Form 10-K for the year ended
December 31, 1999 or JHFS' Form 10-Q for the quarter ended March 31,
2000, to my knowledge, there is no action, suit or proceeding pending
or threatened against or affecting JHFS, Xxxx Xxxxxxx or JHCC before
any court or arbitrator or any governmental body, agency or official
(i) which, if adversely determined, would have a Material Adverse
Effect or a material adverse effect on the ability of either Xxxx
Xxxxxxx or JHCC to perform their respective obligations under the
Support Agreement or (ii) which in any manner draws into question the
validity or enforceability of the Credit Agreement, the Support
Agreement or any of the Notes.
13. Not an Investment Company. Neither JHFS nor Xxxx Xxxxxxx is an
investment company within the meaning of the Investment Company Act of
1940, as amended. JHCC has been exempted from all provisions of the
Investment Company Act of 1940, as amended, including, without
limitation, those relating to the offering and sale of securities by
JHCC, by order of the Securities and Exchange Commission dated June
26, 1984 issued pursuant to Section 6(c) of such Act, and to my
knowledge such order remains in full force and effect and has not in
any way been modified or amended. However, I bring to your attention
that the Securities and Exchange Commission staff issued a no-action
letter dated March 5, 1986 in which such staff agreed not to recommend
to the Commission that it take any enforcement action against JHCC if
JHCC invests in certain investments other than those stated in the
application for such order.
The opinions expressed above are subject to the following
qualifications:
(a) I express no opinion as to any laws other than the laws of the
Commonwealth of Massachusetts, the Federal laws of the United States
of
D-4
America and, to the extent set forth in the foregoing opinions with
respect to JHFS and JHCC, the corporate laws of the State of Delaware;
(b) I express no opinion as to the enforceability of Section 9.12 of the
Credit Agreement;
(c) My opinions set forth herein as to the validity and binding effect and
enforceability are specifically qualified to the extent that the
validity and binding effect and enforceability of any obligations of
each of JHFS, Xxxx Xxxxxxx and JHCC under the Credit Agreement and the
Notes and Xxxx Xxxxxxx and JHCC under the Support Agreement may be
subject to or limited by (i) applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium and other statutory
or decisional laws, heretofore or hereafter enacted or in effect,
affecting the rights and remedies of creditors generally, (ii) with
respect to the enforceability of the Credit Agreement, the Xxxx
Xxxxxxx Notes and the Support Agreement against Xxxx Xxxxxxx, such
enforceability may be further limited by the requirements of section
one hundred and eighty F of Chapter 175 of the Massachusetts General
Laws, which section establishes priorities of distribution in any
liquidation proceeding begun in the Commonwealth of Massachusetts
against an insolvent Massachusetts insurer, (iii) the exercise of
judicial or administrative discretion in accordance with general
equitable principles, (iv) the application by courts of competent
jurisdiction of laws containing provisions determined to have a
paramount public interest, (v) each Bank's implied duty of good faith,
and (vi) the availability or enforceability of particular remedies, of
exculpatory provisions and of waivers contained in the Credit
Agreement or the Notes or in the Support Agreement, which particular
remedies, exculpatory provisions and waivers of rights may be limited
by equitable principles or applicable laws, rules, regulations, court
decisions and constitutional requirements.
(d) I have assumed the requisite corporate power and authority on the part
of the Agent and the Banks to enter into the Credit Agreement and to
make Loans thereunder and the due authorization, execution and
delivery of the Credit Agreement by the Agent and the Banks;
(e) I express no opinion as to the effect on the opinions herein stated of
(i) the compliance or noncompliance by the Agent or any Bank with any
state, Federal or other laws or regulations applicable to it or (ii)
the legal or regulatory status or the nature of the business of the
Agent or any Bank;
(f) In rendering the opinions expressed in paragraphs (1), (2) and (3)
above concerning the due incorporation, valid existence and good
standing of JHFS, JHLIC and JHCC, I have relied exclusively on good
standing certificates obtained by CT Corporation.
D-5
(g) Whenever any opinion expressed herein is based upon "my knowledge",
such knowledge is limited to information obtained by me from a general
inquiry to the extent I believed necessary of the members of the Law
Sector of Xxxx Xxxxxxx, which has general legal responsibility for
JHFS, Xxxx Xxxxxxx and JHCC and which inquiry only inquired as to the
actual knowledge of such members of the Law Sector without further
investigation or inquiry. Xxxx Xxxxxxx'x Law Sector regularly
performs legal services for both JHFS and JHCC.
(h) No opinion is expressed herein as to federal or state laws or
regulations relating to (i) securities, (ii) taxation, (iii) forum
selection or consent to jurisdiction (both as to personal jurisdiction
and subject matter jurisdiction, (iv) the environment, (v) usury, or
(vi) the Employee Retirement Income Security Act of 1974, as amended.
This opinion is furnished by me in my capacity as Second Vice
President and Counsel of Xxxx Xxxxxxx to you for your sole benefit pursuant to
Section 3.01(e) of the Credit Agreement. Goulston & Storrs may rely on this
opinion as if it were addressed to them. No Person other than you and Goulston
& Storrs is entitled to rely on this opinion without my prior written consent.
This opinion is limited to the matters stated herein, and no opinion is implied
or may be inferred beyond the matters expressly stated herein. This opinion
does not address facts and circumstances or changes in law arising after the
date hereof and I assume no responsibility to inform you of any such changes
that may come to my attention.
Very truly yours,
Xxxx X. Xxxxxxxx
Second Vice President and Counsel
D-6
EXHIBIT E
OPINION OF
GOULSTON & STORRS, P.C., SPECIAL COUNSEL
FOR THE AGENT
----------------------------------------
August 3, 2000
To the Banks and the Agent
Referred to Below
c/o Fleet National Bank, as Agent
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Dear Sirs:
We have participated in the preparation of the Credit Agreement (the
"Credit Agreement") dated as of August 3, 2000 among Xxxx Xxxxxxx Financial
Services, Inc., a Delaware corporation, Xxxx Xxxxxxx Life Insurance Company, a
Massachusetts corporation, and Xxxx Xxxxxxx Capital Corporation, a Delaware
corporation (each, a "Borrower"), the banks listed on the signature pages
thereof (the "Banks") and each of Fleet National Bank and The Chase Manhattan
Bank, as co-administrative agent (the "Agent"), and have acted as special
counsel for the Agent for the purpose of rendering this opinion pursuant to
Section 3.01(f) of the Credit Agreement. Terms defined in the Credit Agreement
are used herein as therein defined.
We have made such examination of law and have examined such
certificates, documents, and opinions of counsel for each Borrower as we have
deemed necessary for the purposes of this opinion.
Upon the basis of the foregoing, we are of the opinion that the Credit
Agreement constitutes a valid and binding agreement of each Borrower and that
the Notes of each Borrower constitute valid and binding obligations of such
Borrower.
Our opinions set forth herein are subject to the following limitations and
qualifications:
A. In our examination and in rendering this opinion, we have assumed the
genuineness of all signatures (other than officers of Fleet National
Bank), the legal capacity of natural
E-1
persons, the power and authority of all natural persons, the
authenticity and completeness of all documents submitted to us as
originals, the conformity to original documents of all documents
submitted to us as certified or photostatic copies, the authenticity of
the originals of such latter documents and the accuracy and
completeness of information or documents furnished to us with respect
to the Credit Agreement and the Notes.
B. In rendering this opinion, we have relied without any independent
investigation on the opinion of Xxxx X. Xxxxxxxx, Second Vice President
and Counsel of JHLIC, delivered to you on the date hereof, to the
effect that each Borrower has all requisite power and authority and has
taken all necessary corporate or other action to authorize it to
execute, deliver and perform the Credit Agreement and any other related
documents as may be executed in connection therewith to which it is a
party and to effect the transactions contemplated thereby; that each
Borrower has executed and delivered the Credit Agreement and such other
related documents; and that the same constitute legal, valid and
binding obligations of such Borrower. We have also assumed that each
Bank has all requisite power and authority and has taken all necessary
corporate or other action to authorize it to execute, deliver and
perform the Credit Agreement and any other related documents as may be
executed in connection therewith to which it is a party and to effect
the transactions contemplated thereby; that each Bank has executed and
delivered the Credit Agreement and such other related documents; and
that the same constitute legal, valid and binding obligations of such
Bank. Our opinion does not take account of, and we express no opinion
with respect to, (i) any requirement of law which may be applicable to
any Borrower, the Agent, or the Banks by reason of the legal or
regulatory status of any Borrower, the Agent or any Bank or by reason
of any other facts particularly pertaining to such Borrower, Agent or
Bank, or (ii) any approval or consent arising out of any contract or
agreement (other than the Credit Agreement) to which such Borrower,
Agent or Bank is a party or by which it is bound.
C. Our opinions set forth herein as to the validity and binding effect are
specifically qualified to the extent that the validity and binding
effect of any obligations of each Borrower under the Credit Agreement
and the Notes may be subject to or limited by (i) applicable
bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium and other statutory or decisional laws, heretofore or
hereafter enacted or in effect, affecting the rights and remedies of
creditors generally, (ii) the exercise of judicial or administrative
discretion in accordance with general equitable principles, (iii) the
application by courts of competent jurisdiction of laws containing
provisions determined to have a paramount public interest, (iv) each
Bank's implied duty of good faith, and (v) the availability or
enforceability of particular remedies, of exculpatory provisions and of
waivers contained in the Credit Agreement or the Notes, which
particular remedies, exculpatory
E-2
provisions and waivers of rights may be limited by equitable principles
or applicable laws, rules, regulations, court decisions and
constitutional requirements.
D. This opinion is limited to the legal matters explicitly addressed
herein and does not extend, by implication or otherwise, to any other
matter. This opinion is not subject to, and shall not be governed by
or interpreted in accordance with, the Third-Party Legal Opinion Report
(including the Legal Opinion Accord and the "guidelines" set forth
therein) of the ABA Section of Business Law (1991).
E. We are not passing upon and do not assume any responsibility for the
accuracy, sufficiency, completeness or fairness of any statements,
representations, warranties, descriptions, information or financial
data supplied to the Agent or the Banks with respect to the Credit
Agreement or the Notes or the transactions contemplated thereby or for
the fairness of such transactions themselves, and we make no
representation that we have independently verified the accuracy,
sufficiency, completeness or fairness of any of the foregoing.
F. We are members of the Bar of the Commonwealth of Massachusetts and the
foregoing opinion is limited to the laws of the Commonwealth of
Massachusetts and the federal laws of the United States of America.
Insofar as this opinion involves matters arising under the law of the
State of Delaware, we have relied without any independent investigation
on the opinion of Xxxx X. Xxxxxxxx, Second Vice President and Counsel
of JHLIC, delivered to you on the date hereof. In giving the foregoing
opinion, we express no opinion as to the effect (if any) of any law of
any jurisdiction (except the Commonwealth of Massachusetts) in which
any Bank is located which limits the rate of interest that such Bank
may charge or collect.
This opinion is rendered solely to you in connection with the above matter.
This opinion may not be relied upon by you for any other purpose or relied upon
by or furnished to any other Person without our prior written consent.
Very truly yours,
E-3
EXHIBIT F
ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of _______________, _____ among [ASSIGNOR] (the
"Assignor"), [ASSIGNEE] (the "Assignee"), XXXX XXXXXXX FINANCIAL SERVICES, INC.
("JHFS"), XXXX XXXXXXX LIFE INSURANCE COMPANY ("JHLIC"), XXXX XXXXXXX CAPITAL
CORPORATION ("JHCC") and each of FLEET NATIONAL BANK and THE CHASE MANHATTAN
BANK, as co-administrative agent (collectively, the "Agent").
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, this Assignment and Assumption Agreement (the "Agreement") relates
to the Credit Agreement dated as of August 3, 2000 among JHFS, JHLIC, JHCC
(JHFS, JHLIC and JHCC, collectively, the "Borrowers" and each, a "Borrower"),
the Assignor and the other Banks party thereto, as Banks, and the Agent (the
"Credit Agreement");
WHEREAS, as provided under the Credit Agreement, the Assignor has a
Commitment to make Loans to the Borrowers in an aggregate principal amount at
any time outstanding not to exceed $_____________;
WHEREAS, Committed Loans made to the Borrowers by the Assignor under the
Credit Agreement in the aggregate principal amount of $___________ are
outstanding at the date hereof; and
WHEREAS, the Assignor proposes to assign to the Assignee all of the rights
of the Assignor under the Credit Agreement in respect of a portion of its
commitment thereunder in an amount equal to $____________ (the "Assigned
Amount"), together with a corresponding portion of its outstanding Committed
Loans, and the Assignee proposes to accept assignment of such rights and assume
the corresponding obligations from the Assignor on such terms;
NOW THEREFORE, in consideration of the foregoing and the mutual agreements
contained herein, the parties hereto agree as follows:
SECTION 1. Definitions. All capitalized terms not otherwise defined herein
shall have the respective meanings set forth in the Credit Agreement.
SECTION 2. Assignment. The Assignor hereby assigns and sells to the
Assignee all of the rights of the Assignor under the Credit Agreement to the
extent of the Assigned Amount, and the Assignee hereby accepts such assignment
from the Assignor and assumes all of the obligations of the Assignor under the
Credit Agreement to the extent of the Assigned Amount, including the purchase
from the Assignor of the
F-1
corresponding portion of the principal amount of the Committed Loans made by the
Assignor outstanding at the date hereof. Upon the execution and delivery hereof
by the Assignor, the Assignee, each Borrower and the Agent and the payment of
the amounts specified in Section 3 required to be paid on the date hereof (i)
the Assignee shall, as of the date hereof, succeed to the rights and be
obligated to perform the obligations of a Bank under the Credit Agreement with a
Commitment in an amount equal to the Assigned Amount, and (ii) the Commitment of
the Assignor shall, as of the date hereof, be reduced by a like amount and the
Assignor released from its obligations under the Credit Agreement to the extent
such obligations have been assumed by the Assignee. The assignment provided for
herein shall be without recourse to the Assignor.
SECTION 3. Payments. As consideration for the assignment and sale
--------
contemplated in Section 2 hereof, the Assignee shall pay to the Assignor on the
date hereof in Federal funds the amount separately agreed between them. It is
understood that participation and facility fees accrued to the date hereof are
for the account of the Assignor and facility fees accruing from and including
the date hereof in respect of the Assigned Amount are for the account of the
Assignee. Each of the Assignor and the Assignee hereby agrees that if it
receives any amount under the Credit Agreement which is for the account of the
other party hereto, it shall receive the same for the account of such other
party to the extent of such other party's interest therein and shall promptly
pay the same to such other party.
SECTION 4. Consent of the Borrowers and the Agent. Except as provided in
--------------------------------------
Section 9.06(c) of the Credit Agreement, this Agreement is conditioned upon the
consent of the Borrowers and the Agent pursuant to such Section 9.06(c). The
execution of this Agreement by each Borrower and the Agent is evidence of this
consent. Pursuant to Section 9.06(c) each Borrower agrees to execute and
deliver a Note payable to the order of the Assignee to evidence the assignment
and assumption provided for herein.
SECTION 5. Non-Reliance on Assignor. The Assignor makes no representation
------------------------
or warranty in connection with, and shall have no responsibility with respect
to, the solvency, financial condition, or statements of any Borrower, or the
validity and enforceability of the obligations of any Borrower in respect of the
Credit Agreement or any Note. The Assignee acknowledges that it has,
independently and without reliance on the Assignor, and based on such documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement and will continue to be responsible for
making its own independent appraisal of the business, affairs and financial
condition of the Borrowers.
SECTION 6. Governing Law. This Agreement shall be governed by and
-------------
construed in accordance with the laws of the Commonwealth of Massachusetts.
SECTION 7. Counterparts. This Agreement may be signed in any number of
------------
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
F-2
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
and delivered by their duly authorized officers as of the date first above
written.
[ASSIGNOR]
By: ________________________________
Title:
[ASSIGNEE]
By: ________________________________
Title:
XXXX XXXXXXX FINANCIAL SERVICES, INC.
By ________________________________
Authorized Officer
By ________________________________
Authorized Officer
XXXX XXXXXXX LIFE INSURANCE COMPANY
By ________________________________
Authorized Officer
By ________________________________
Authorized Officer
XXXX XXXXXXX CAPITAL CORPORATION
By ________________________________
Authorized Officer
By ________________________________
Authorized Officer
F-3
FLEET NATIONAL BANK, as Agent
By ________________________________
Title:
THE CHASE MANHATTAN BANK, as Agent
By ________________________________
Title:
F-4
EXHIBIT G
JHCC TERMINATION NOTICE
-----------------------
[Date]
To: Fleet National Bank and
The Chase Manhattan Bank (collectively, the "Agent")
From: Xxxx Xxxxxxx Financial Services, Inc. ("JHFS")
Xxxx Xxxxxxx Life Insurance Company ("JHLIC")
and Xxxx Xxxxxxx Capital Corporation ("JHCC")
Re: Credit Agreement (the "Credit Agreement")
dated as of August 3, 2000 among JHFS, JHLIC,
JHCC, the Banks listed on the signature pages
thereof and the Agent
-----------------------------------------------------
We hereby give notice pursuant to Section 9.09 of the Credit Agreement that,
effective as of the date hereof, JHCC is terminated as a Borrower under the
Credit Agreement and all commitments by the Banks to make Loans to JHCC under
the Credit Agreement are hereby terminated.
We hereby certify that the termination of JHCC as a Borrower under the
Credit Agreement complies with Section 9.09 of the Credit Agreement for the
reasons set forth below:
[1. There are no Loans outstanding to JHCC.
2. All obligations of JHCC as a Borrower under the Credit Agreement
arising in respect of any period in which JHCC was, or on account of any action
of inaction of JHCC as, a Borrower under the Credit Agreement shall survive the
termination effected by this notice.]*
[1. Either JHFS or JHLIC has executed and delivered a Company Assumption
Agreement].
-----------------------
* Include this language if no Company Assumption Agreement has been executed
and delivered.
G-1
Terms used herein have the meanings assigned to them in the Credit
Agreement.
XXXX XXXXXXX FINANCIAL SERVICES, INC.
By ___________________________________
Authorized Officer
By ___________________________________
Authorized Officer
XXXX XXXXXXX LIFE INSURANCE COMPANY
By ___________________________________
Authorized Officer
By ___________________________________
Authorized Officer
XXXX XXXXXXX CAPITAL CORPORATION
By ___________________________________
Authorized Officer
By ___________________________________
Authorized Officer
G-2
EXHIBIT H
SUPPORT AGREEMENT, dated as of October 15, 1984 between XXXX XXXXXXX MUTUAL
LIFE INSURANCE COMPANY, a Massachusetts corporation ("Xxxx Xxxxxxx"), and XXXX
XXXXXXX CAPITAL CORPORATION, a Delaware corporation ("Capital").
WHEREAS, Xxxx Xxxxxxx owns, through Xxxx Xxxxxxx Subsidiaries, Inc., a
Delaware corporation and a wholly-owned subsidiary of Xxxx Xxxxxxx, and
presently intends to continue to own, either directly or through one or more
wholly-owned subsidiaries, all of the outstanding shares of the capital stock of
Capital having general voting power; and
WHEREAS, it is in the interests of both Xxxx Xxxxxxx and Capital and in
furtherance of Capital's corporate purposes that Capital be able to borrow money
from banks, other financial institutions and others, including borrowings in the
form of Commercial Paper (as hereinafter defined), and to incur such borrowings
at the most favorable prevailing rates and terms, and in this regard Capital has
requested Xxxx Xxxxxxx to enter into this Agreement; and
WHEREAS, Capital intends to issue, from time to time, its short-term notes
having maturities not exceeding nine months from their dates of issue (such
notes herein referred to as "Commercial Paper") and to sell its Commercial
Paper in the commercial paper market, and to incur, from time to time, other
indebtedness for borrowed money, all in furtherance of its corporate purposes;
and
WHEREAS, Capital also intends to guarantee indebtedness for borrowed money
(including such indebtedness in the form of bonds, notes and other transferable
securities) incurred from time to time by Xxxx Xxxxxxx Overseas Finance N.V. and
other direct or indirect subsidiaries of Xxxx Xxxxxxx (herein collectively
referred to as "Xxxx Xxxxxxx companies"); and
WHEREAS, Capital intends that the proceeds of any such borrowings incurred
by it be used to make loans to Xxxx Xxxxxxx and the Xxxx Xxxxxxx companies; and
WHEREAS, in furtherance of the foregoing objectives, Xxxx Xxxxxxx and
Capital are entering into this Agreement for the express benefit of the holder
or holders of the Commercial Paper of Capital, and, if and to the extent Xxxx
Xxxxxxx may hereafter specifically agree in writing, the holder or holders of
other indebtedness for borrowed money of Capital and the holder or holders of
indebtedness for borrowed money incurred by one or more of the Xxxx Xxxxxxx
companies which has been guaranteed by Capital.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, Xxxx
Xxxxxxx and Capital hereby agree as follows:
(1) Stock Ownership. Xxxx Xxxxxxx, during the term of this Agreement, will
---------------
continue to own, either directly or through one or more wholly-owned
subsidiaries, the legal title to and beneficial interest in all outstanding
shares of the capital stock of Capital having general voting power, and will
not directly or indirectly pledge or in any way encumber or otherwise
dispose of any such shares of stock.
(2) Maintenance of Tangible Net Worth. Xxxx Xxxxxxx, during the term of this
---------------------------------
Agreement, will take such action as may be required to enable Capital to
have and maintain a "Tangible Net Worth" of at least $1,000,000. The term
"Tangible Net Worth" shall mean an amount equal to the capital stock and
surplus (including paid-in or capital surplus) accounts of Capital after
deducting therefrom the book amount of all intangible assets of Capital,
all determined in accordance with generally accepted accounting principles,
except that any Subordinated Loan made by Xxxx Xxxxxxx or by any one or more
of the Xxxx Xxxxxxx companies to Capital shall be considered part of such
capital stock and surplus accounts. The term "Subordinated Loan" shall mean
any loan or advance made to Capital by Xxxx Xxxxxxx or by any of the Xxxx
Xxxxxxx companies which by its terms is subordinated in right of payment
to all obligations for borrowed money issued or guaranteed by Capital,
except Subordinated Loans.
(3) Officer's Certificate; Payments to Capital. If at any time Capital shall
------------------------------------------
determine that its Tangible Net Worth shall be less than $1,000,000, Capital
shall promptly deliver to Xxxx Xxxxxxx a certificate of the President or any
Vice President or the Treasurer of Capital ("Officer's Certificate") setting
forth the Tangible Net Worth of Capital as of the date of said certificate
and the amount of the payment ("Deficiency Amount") required to be made
under Section (2) in order to enable Capital to have the amount of Tangible
Net Worth provided for in Section (2), all in reasonable detail and
determined in accordance with Section (2). Xxxx Xxxxxxx shall pay, or shall
cause to be paid, subject to subsequent adjustment as provided for in
Section (4), to Capital an amount equal to the Deficiency Amount immediately
upon receipt of the Officer's Certificate. Any such payment shall be in the
form of a capital contribution, the purchase of additional shares of capital
stock of Capital or the making of Subordinated Loans, as Xxxx Xxxxxxx shall
determine.
(4) Adjustment of Deficiency Amount. Xxxx Xxxxxxx shall not be deemed to have
-------------------------------
accepted an asserted Deficiency Amount certified to it under Section (3), if
within ten (10) days after receipt of such certification, it shall give
Capital written notice of its objections thereto and the reasons therefor
("Objection Notice"), provided that the giving of such Objection Notice
shall not relieve Xxxx Xxxxxxx of its obligation to pay, or cause to be
paid, to Capital an amount equal to the asserted Deficiency Amount in
accordance with Section (3). If such Objection Notice is given, Xxxx Xxxxxxx
and Capital will attempt in good faith to agree upon the amount of such
deficiency. If Xxxx Xxxxxxx and Capital cannot so agree within ten (10) days
after the Objection Notice is given, then Xxxx Xxxxxxx and Capital agree
that Ernst & Whinney shall be requested to deliver to Xxxx Xxxxxxx and
Capital, within thirty (30) days after the Objection Notice is given, a
letter from Ernst & Whinney to Xxxx Xxxxxxx and Capital (A) stating the
actual deficiency as of the date of the Officer's Certificate setting forth
the asserted Deficiency Amount, as computed by Ernst & Whinney from the
books and records of Capital, (B) demonstrating in reasonable detail the
manner in which such actual deficiency was computed, and (C) stating that
such computation was made in accordance with the terms of this Agreement.
Such computation of the actual deficiency shall be binding and conclusive
upon Xxxx Xxxxxxx and Capital. If the amount of the actual deficiency as
finally determined under this Section (4) is different from the asserted
Deficiency Amount, then the amount of the Deficiency Amount asserted under
Section (3) shall be adjusted by refunds from Capital, or additional
payments to Capital in the manner provided in Section (3), as may be
required. Xxxx Xxxxxxx and Capital shall bear equally any fees and
disbursements incurred by Ernst & Whinney in rendering any letter in
accordance with the terms of this Section (4). Xxxx Xxxxxxx and Capital
agree that other mutually acceptable nationally recognized certified public
accounting firms may be substituted for Ernst & Whinney.
(5) Benefit of Agreement: This Agreement is made for the express benefit of the
--------------------
holder or holders from time to time of Capital's Commercial Paper and, if
and to the extent that Xxxx Xxxxxxx may hereafter agree with Capital in
writing to expressly extend the benefits of this Agreement to the holder or
holders of other indebtedness for borrowed money of Capital or the holder
or holders of indebtedness for borrowed money incurred by one or more of
the Xxxx Xxxxxxx companies which has been guaranteed by Capital, such
holder or holders as may be specifically described in any such writing, and
nothing in this Agreement shall be construed otherwise (such Commercial
Paper, such other indebtedness of Capital and such indebtedness guaranteed
by Capital being herein referred to as "Covered Credit"; such holder or
holders being herein referred to as "Covered Creditors"). Capital agrees
that it will not incur any indebtedness for borrowed money, other than with
respect to Commercial Paper and Subordinated Loans, or guarantee any
indebtedness incurred by one or more of the Xxxx Xxxxxxx companies, unless
and until Xxxx Xxxxxxx shall have expressly agreed in writing that such
indebtedness for borrowed money or such indebtedness guaranteed by Capital,
as the case may be, shall be Covered Credit and the holder or holders of
such indebtedness shall be Covered Creditors.
(6) Enforcement of Agreement. Capital agrees for the benefit of Covered
------------------------
Creditors that it will timely take any and all action under this Agreement
necessary to require Xxxx Xxxxxxx to perform its obligations under this
Agreement. Capital and Xxxx Xxxxxxx further agree that, if and to the extent
that Capital shall fail to take such action, any Covered Creditor may do so.
Xxxx Xxxxxxx hereby makes a continuing offer to each person who, in reliance
on this Agreement and prior to the termination of this Agreement, becomes a
Covered Creditor, to perform its obligations under Section (2) of this
Agreement. Such offer shall be deemed to be accepted by the act of such
person becoming a Covered Creditor and shall give rise to a direct right of
action on the part of such person against Xxxx Xxxxxxx to enforce Xxxx
Xxxxxxx'x obligations under Section (2) of this Agreement in the event of
Capital's failure to do so.
(7) Not a Guaranty. This Agreement is not intended to be and is not, and nothing
--------------
herein contained and nothing done by Xxxx Xxxxxxx pursuant to this Agreement
shall be deemed to constitute, a guaranty by Xxxx Xxxxxxx of the payment of
the interest or principal of any obligations, indebtedness or liability of
any kind or character and howsoever evidenced or arising of Capital or any
of the other Xxxx Xxxxxxx companies to any person or persons whomsoever.
(8) Termination By Deposit of Funds. If and to the extent that Xxxx Xxxxxxx
-------------------------------
shall deposit, or shall cause to be deposited, in trust at a bank or trust
company organized under the laws of any State of the United States or a
national banking association, in any such case having capital stock, surplus
and undivided profits aggregating at least $50,000,000 (hereinafter referred
to as the "Depositary"), money, or direct obligations of, or obligations
secured fully by direct obligations of, or obligations unconditionally
guaranteed as to payment of principal and interest by, the United States of
America, the principal of and interest on which when due will provide funds
in amount sufficient to pay when due and payable the principal of, and
premium, if any, and interest on, all Covered Credit which is outstanding as
of the close of business on the date of such deposit, and, if such deposit
shall be accompanied by an irrevocable written direction from Xxxx Xxxxxxx
to the Depositary to apply such deposit to the payment of the principal of,
and premium, if any, and interest on, such Covered Credit as and when the
same shall become due and payable, then this Agreement shall forthwith
terminate and be of no further force and effect.
(9) Amendment, Modification; Termination By Notice. This Agreement may be
----------------------------------------------
amended or modified only by an agreement in writing executed by both of the
parties hereto, and, in addition to the termination provisions of Section
(8), this Agreement may be terminated by either party hereto by written
notice given to the other party not less than thirty (30) days in advance
of the date specified in such notice for such termination ("Cut-off Date");
provided, however, that no such amendment or modification, and no such
termination shall relieve Xxxx Xxxxxxx of any of its obligations under this
Agreement or in any way affect adversely the rights of Covered Creditors
under this Agreement, unless and until all Covered Credit which is
outstanding as of the close of business on the effective date of such
amendment or modification or the Cut-off Date shall either (A) have been
paid in full or (B) have been unconditionally guaranteed as to payment of
principal, premium, if any, and interest by Xxxx Xxxxxxx pursuant to an
agreement entered into between Xxxx Xxxxxxx and Capital for the benefit of
Covered Creditors.
(10) Communications. All communications provided for herein shall be delivered,
--------------
or mailed (by first class mail, postage prepaid), addressed (A) if to Xxxx
Xxxxxxx, to Xxxx Xxxxxxx Mutual Life Insurance Company, Xxxx Xxxxxxx Xxxxx,
X.X. Xxx 000, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: Vice President and
---------
Treasurer, or (B) if to Capital, to Xxxx Xxxxxxx Capital Corporation, Xxxx
Xxxxxxx Xxxxx, X.X. Xxx 000, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention:
---------
President.
(11) Other. This Agreement is intended to take effect as a sealed instrument.
-----
This Agreement shall be binding upon Xxxx Xxxxxxx, its successors and
assigns, and shall inure to the benefit of Capital, its successors and
assigns. This Agreement constitutes the entire agreement of Xxxx Xxxxxxx
and Capital with respect to the subject matter hereof. The headings of
this Agreement are for reference only and shall not affect the meaning
hereof. This Agreement shall be governed by, and construed and enforced in
accordance with, the laws of the Commonwealth of Massachusetts.
IN WITNESS WHEREOF, Xxxx Xxxxxxx and Capital have caused this Agreement to
be executed and delivered by their respective officers thereunto duly authorized
as of the date first above written.
XXXX XXXXXXX MUTUAL LIFE
INSURANCE COMPANY
By
----------------------------------
By
----------------------------------
XXXX XXXXXXX CAPITAL CORPORATION
By
----------------------------------
By
----------------------------------
H-1
EXHIBIT I
FORM OF MONEY MARKET QUOTE REQUEST
----------------------------------
[Date]
To: Fleet National Bank and The Chase Manhattan Bank (the "Agent")
From: [Xxxx Xxxxxxx Financial Services, Inc.]
[Xxxx Xxxxxxx Life Insurance Company]
[Xxxx Xxxxxxx Capital Corporation]
(the "Borrower")
Re: Credit Agreement (the "Credit Agreement") dated as of August 3, 2000
among the Borrower, Xxxx Xxxxxxx Financial Services, Inc., Xxxx Xxxxxxx
Life Insurance Company, Xxxx Xxxxxxx Capital Corporation, the Banks
listed on the signature pages thereof and the Agent
The undersigned Borrower hereby gives notice pursuant to Section 2.03 of the
Credit Agreement that it requests Money Market Quotes for the following proposed
Money Market Borrowing(s):
Date of Borrowing: _____________________________
Facility: ______________________________________
Principal Amount* Interest Period**
---------------- ---------------
$
Such Money Market Quotes should offer an interest rate based on [a margin
over or under the Euro-Dollar Rate] [an absolute rate].
Terms used herein have the meanings assigned to them in the Credit
Agreement.
[XXXX XXXXXXX FINANCIAL SERVICES, INC.]
[XXXX XXXXXXX LIFE INSURANCE COMPANY]
[XXXX XXXXXXX CAPITAL CORPORATION]
By ___________________________________
Authorized Officer
By ___________________________________
Authorized Officer
I-1
___________
* Amount must be $25,000,000 or a larger multiple of $1,000,000 (or the amount
available in accordance with Section 3.02(b) of the Credit Agreement).
** Not less than one month for a Money Market Loan based on a Euro-Dollar Rate
or not less than 14 days for a Money Market Loan based on an absolute rate),
subject to the provisions of the definition of Interest Period.
I-2
EXHIBIT J
FORM OF INVITATION FOR MONEY MARKET QUOTES
------------------------------------------
To: [Name of Bank]
Re: Invitation for Money Market Quotes to
[Xxxx Xxxxxxx Financial Services, Inc.]
[Xxxx Xxxxxxx Life Insurance Company]
[Xxxx Xxxxxxx Capital Corporation]
(the "Borrower")
Pursuant to Section 2.03 of the Credit Agreement dated as of August 3, 2000
among the Borrower, [Xxxx Xxxxxxx Financial Services, Inc.] [Xxxx Xxxxxxx Life
Insurance Company] [Xxxx Xxxxxxx Capital Corporation], the Banks parties thereto
and the undersigned, as Agent, we are pleased, on behalf of the Borrower, to
invite you to submit Money Market Quotes to the Borrower for the following
proposed Money Market Borrowing(s):
Date of Borrowing: _______________________
Facility: ________________________________
Principal Amount Interest Period
---------------- ---------------
$
Such Money Market Quotes should offer an interest rate based on [a margin
over or under the Euro-Dollar Rate] [an absolute rate].
Please respond to this invitation by no later than 2:00 P.M. (New York City
Time) on [date].
[FLEET NATIONAL BANK]
[THE CHASE MANHATTAN BANK]
By _______________________________
Authorized Officer
J-1
EXHIBIT K
FORM OF MONEY MARKET QUOTE
--------------------------
To: Fleet National Bank and The Chase Manhattan Bank (the "Agent")
Re: Money Market Quote to
[Xxxx Xxxxxxx Financial Services, Inc.]
[Xxxx Xxxxxxx Life Insurance Company]
[Xxxx Xxxxxxx Capital Corporation]
(the "Borrower")
In response to your invitation on behalf of the Borrower dated ___________
__, 200_, we hereby make the following Money Market Quote on the following
terms:
1. Quoting Bank:________________________
2. Person to contact at Quoting Bank: _____________________________
3. Date of Borrowing: _____________________ *
4. Facility: _______________________ *
5. We hereby offer to make Money Market Loan(s) in the following principal
amounts, for the following Interest Periods and at the following rates:
Principal Interest Interest Rate
Amount** Period*** [margin****] [absolute rate*****]
--------- --------- ----------------------------------
$
[Provided, that the aggregate principal amount of Money Market Loans for which
the above offers may be accepted shall not exceed $____________.]**
___________________
* As specified in the related Invitation.
** Principal amount bid for each Interest Period may not exceed principal amount
requested. Specify aggregate limitation if the sum of the individual offers
exceeds the amount the Bank is willing to lend. Bids must be made for
$5,000,000 or a larger multiple of $1,000,000.
(notes continued on following page)
K-1
We understand and agree that the offer(s) set forth above, subject to the
satisfaction of the applicable conditions set forth in the Credit Agreement
dated as of August 3, 2000 among the Borrower, [Xxxx Xxxxxxx Financial Services,
Inc.] [Xxxx Xxxxxxx Life Insurance Company] [Xxxx Xxxxxxx Capital Corporation],
the Banks listed on the signature pages thereof and yourselves, as Agent,
irrevocably obligates us to make the Money Market Loan(s) for which any
officer(s) are accepted, in whole or in part.
Very truly yours,
[NAME OF BANK]
Dated: _________________ By: __________________________
Authorized Officer
__________
*** Not less than one month or not less than 14 days, as specified in the
related Invitation. No more than five bids are permitted for each Interest
Period.
**** Margin over or under the Euro-Dollar Rate determined for the applicable
Interest Period. Specify percentage (to the nearest 1/10,000 of 1%) and specify
whether "PLUS" or "MINUS".
***** Specify rate of interest per annum (to the nearest 1/10,000th of 1%).
K-2
EXHIBIT L
SENIOR UNSECURED LONG TERM DEBT RATINGS - 364-DAY REVOLVER
Facility Applicable Drawn Cost Applicable
Rating S & P or Moody's Fee (bps.) Euro-Dollar ([less/equal] Usage All-In
Level Rating Margin (bps.) 50% usage)(bps.) Fee (bps.) Drawn Cost
----------------------------------------------------------------------------------------------------------------------------
I [greater/equal]AAA/
[greater/equal]Aaa 4.0 13.5 17.5 5.0 22.5
----------------------------------------------------------------------------------------------------------------------------
II [greater/equal]AA-/
[greater/equal]Aa3 5.0 15.0 20.0 5.0 25.0
----------------------------------------------------------------------------------------------------------------------------
III [greater/equal]A+/
[greater/equal]A1 6.0 19.0 25.0 5.0 30.0
----------------------------------------------------------------------------------------------------------------------------
IV [less than]A+/
[less than]A1 7.0 23.0 30.0 5.0 35.0
----------------------------------------------------------------------------------------------------------------------------
SENIOR UNSECURED LONG TERM DEBT RATINGS - MULTI-YEAR REVOLVER
Facility Applicable Drawn Cost Applicable
Rating S & P or Moody's Fee (bps.) Euro-Dollar ([less/equal] Usage All-In
Level Rating Margin (bps.) 50% usage)(bps.) Fee (bps.) Drawn Cost
----------------------------------------------------------------------------------------------------------------------------
I [greater/equal]AAA/
[greater/equal]Aaa 6.0 11.5 17.5 5.0 22.5
----------------------------------------------------------------------------------------------------------------------------
II [greater/equal]AA-/
[greater/equal]Aa3 7.0 13.0 20.0 5.0 25.0
----------------------------------------------------------------------------------------------------------------------------
III [greater/equal]A+/
[greater/equal]A1 8.0 17.0 25.0 5.0 30.0
----------------------------------------------------------------------------------------------------------------------------
IV [less than]A+/
[less than]A1 9.0 21.0 30.0 5.0 35.0
----------------------------------------------------------------------------------------------------------------------------
COMMERCIAL PAPER RATINGS - 364-DAY REVOLVER
Facility Applicable Drawn Cost Applicable
Rating S & P or Moody's Fee (bps.) Euro-Dollar ([less/equal] Usage All-In
Level Rating Margin (bps.) 50% usage)(bps.) Fee (bps.) Drawn Cost
----------------------------------------------------------------------------------------------------------------------------
I A-1+/P-1 5.0 12.5 17.5 5.0 22.5
----------------------------------------------------------------------------------------------------------------------------
II A-1/P-1 5.0 20.0 25.0 5.0 30.0
----------------------------------------------------------------------------------------------------------------------------
III A-2/P-2 8.0 27.0 35.0 10.0 45.0
----------------------------------------------------------------------------------------------------------------------------
IV [less than]A-2/
[less than]P-2 12.5 37.5 50.0 12.5 62.5
----------------------------------------------------------------------------------------------------------------------------
COMMERCIAL PAPER RATINGS - MULTI-YEAR REVOLVER
Facility Applicable Drawn Cost Applicable
Rating S & P or Moody's Fee (bps.) Euro-Dollar ([less/equal] Usage All-In
Level Rating Margin (bps.) 50% usage)(bps.) Fee (bps.) Drawn Cost
----------------------------------------------------------------------------------------------------------------------------
I A-1+/P-1 7.0 10.5 17.5 5.0 22.5
----------------------------------------------------------------------------------------------------------------------------
II A-1/P-1 7.0 18.0 25.0 5.0 30.0
----------------------------------------------------------------------------------------------------------------------------
III A-2/P-2 10.0 25.0 35.0 10.0 45.0
----------------------------------------------------------------------------------------------------------------------------
IV [less than]A-2/
[less than]P-2 15.0 35.0 50.0 12.5 62.5
----------------------------------------------------------------------------------------------------------------------------
The Ratings Level of each Eligible Borrower shall be determined as follows: (i)
if S&P or Moody's have assigned ratings to the senior unsecured long term debt
of such Eligible Borrower, the highest of such ratings, or (ii) if neither S&P
or Moody's have assigned ratings to the senior unsecured debt of such Eligible
Borrower, then the highest short term Commercial Paper rating of such Eligible
Borrower as provided by S&P or Moody's.
Applicable Euro-Dollar Margins shall be determined first according to the
Ratings Level of the Eligible Borrower making the borrowing.
The Applicable Usage Fee shall be determined by Rating Level of the Eligible
Borrower which yields the highest Applicable Usage Fee. The Applicable Usage Fee
shall apply only to Euro-Dollar Loans.
The Facility Fee shall be determined by the Rating Level of the Eligible
Borrower which yields the highest Facility Fee.
L-1
EXHIBIT M
THE CHASE MANHATTAN BANK
FLEET NATIONAL BANK
and certain other lenders
$500,000,000 364-DAY REVOLVING CREDIT FACILITY
$500,000,000 MULTI-YEAR REVOLVING CREDIT FACILITY
TO
XXXX XXXXXXX FINANCIAL SERVICES, INC.
AND/OR
XXXX XXXXXXX LIFE INSURANCE COMPANY
AND/OR
XXXX XXXXXXX CAPITAL CORPORATION
ALLOCATION OF ADMINISTRATIVE AGENT RESPONSIBILITIES
---------------------------------------------------
The Chase Manhattan Bank ("Chase") and Fleet National Bank ("Fleet")
shall each serve as Co-Administrative Agent with respect to the credit
facilities referred to above. Chase and Fleet shall allocate the Administrative
Agent responsibilities between them as indicated below.
AGENT RESPONSIBILITY SECTION REFERENCE AGENT BANK
----------------------------------------------------------------------------------------------------------
Delivery of notices to (S)1.02 (accounting practices) Chase
the Borrowers (S)2.03(b) (rejection of nonconforming Money Market Chase
Quote Request)
(S)2.03(e) (notice re Money Market Quotes) Chase
(S)2.09A (consent to increase in commitment) Chase & Fleet
(S)3.01 (notice of Effective Date) Fleet
(S)5.01(m) (requests for financial information) Chase & Fleet
(S)(S)6.01(c), 6.02 (default notices) Chase & Fleet
(S)6.01 (acceleration notices) Chase & Fleet
(S)8.01(b) (Euro-Dollar Rate is inadequate or unfair) Chase
(S)8.02 (illegality) Chase
----------------------------------------------------------------------------------------------------------
Receipt of notices from (S)1.02 (accounting practices) Chase
the Borrowers (S)2.02 (Notice of Committed Borrowing) Chase
(S)2.03(b) (Money Market Quote Request) Chase
(S)2.03(f) (Notice of Money Market Borrowing) Chase
(S)2.06(a) (notice of Final Maturity Date) Chase & Fleet
(S)2.06(b) (request for extension of 364-Day Revolver Chase & Fleet
Termination Date)
(S)2.09(a) (termination or reduction of commitments) Chase & Fleet
(S)2.09A (request for increase in 364-Day Commitment Chase & Fleet
or Multi-Year Commitment)
(S)2.10(a) (Notice of Interest Rate Election) Chase
(S)2.11(a), (b) (prepayment notice) Chase
(S)8.01(b) (borrowing notices) Chase
(S)8.04 (Base Rate election) Chase
(S)9.09 (termination of JHCC as a Borrower) Chase & Fleet
----------------------------------------------------------------------------------------------------------
M-1
AGENT RESPONSIBILITY SECTION REFERENCE AGENT BANK
----------------------------------------------------------------------------------------------------------
Delivery of notices to (S)2.03(c) (Invitation for Money Market Quotes) Chase
the other Banks (S)2.03(d) (notice of nonconforming Money Market Quote) Chase
(S)2.03(h) (notice re acceptance of Money Market
Quotes) Chase
(S)2.04(a) (borrowing notices)
(S)2.05(c) (notes) Chase
(S)2.09(b) (termination or reduction of commitments) Fleet
(S)2.10(c) (Notice of Interest Rate Election) Chase & Fleet
(S)2.11(c) (prepayment notice) Chase
(S)3.01 (notice of Effective Date) Chase
(S)6.02 (confirmation of default notices) Fleet
(S)8.01(b) (Euro-Dollar Rate is inadequate or unfair) Chase & Fleet
(S)8.02 (illegality) Chase
(S)8.04 (Base Rate election) Xxxxx
Xxxxx
----------------------------------------------------------------------------------------------------------
Receipt of notices from (S)2.03(d) (Money Market Quotes) Chase
the other Banks (S)2.05(b) (request for notes) Fleet
(S)2.15 (forms and notices concerning withholding tax Chase
exemption)
(S)2.16 (Regulation D compensation) Chase
(S)6.01(c) (requests for default notices) Chase & Fleet
(S)8.01(b) (Euro-Dollar Rate is inadequate or unfair) Chase
(S)8.02 (illegality) Chase
(S)8.03(a), (b) and (c) (increased cost or reduced Chase
return)
----------------------------------------------------------------------------------------------------------
Receipt of notices from (S)2.07(g) (rate quotations) Chase
Euro-Dollar Reference (S)8.01(a) (deposits not being offered in relevant Chase
Banks market)
----------------------------------------------------------------------------------------------------------
Allocation of Money (S)2.03(g) (allocation between competing money market Chase
Market Loans offers)
----------------------------------------------------------------------------------------------------------
Determination of (S)2.04(b) (conditions to borrowing) Chase
Borrowers' compliance
with Article III
conditions
----------------------------------------------------------------------------------------------------------
Making funds available (S)2.04(c) (funding of loans) Chase
to Borrowers
----------------------------------------------------------------------------------------------------------
Selection of eurodollar (S)(S)2.07(c), (d) (selection of alternative to London Chase
interbank market interbank market for Euro-Dollar interest rate)
----------------------------------------------------------------------------------------------------------
Determination of (S)2.07(f) (interest rates for Loans generally) Chase
applicable interest
rates
----------------------------------------------------------------------------------------------------------
Approval of increase in (S)2.09A (approval of additional banks) Chase & Fleet
aggregate 364-Day
Commitment or
Multi-Year Commitment
----------------------------------------------------------------------------------------------------------
Collection of funds from (S)2.04(b) and definition of Designated Deposit Chase
Banks and transfer of Accounts
same to Borrowers
----------------------------------------------------------------------------------------------------------
Collection of fees and (S)2.07(c) (Applicable Usage Fee) Chase
payments from Borrowers (S)2.08 (Facility Fee) Chase
(S)2.12 (principal, interest and fees) Chase
(S)7.09 (agent's fees) Chase & Fleet
(S)9.03(a) (out-of-pocket expenses) Fleet
M-2
AGENT RESPONSIBILITY SECTION REFERENCE AGENT BANK
----------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
Distribution to Banks of (S)2.12 (principal, interest and fees) Chase
their ratable shares of
payments from Borrowers
----------------------------------------------------------------------------------------------------------
Receipt of loan documents (S)3.01 (loan agreement signature pages, notes, fees Fleet
payable prior to Effective Date, Support Agreement,
legal opinions, and any other loan documents)
----------------------------------------------------------------------------------------------------------
Consultation with experts (S)7.04 (consultation with legal, financial and other Chase & Fleet
experts)
----------------------------------------------------------------------------------------------------------
Consenting to and (S)9.06(c) (consent to assignment; processing same; Chase
processing assignments; administrative fee)
receipt of
administrative fee for
same
----------------------------------------------------------------------------------------------------------
Receipt of notices and (S)9.06(f) (special purpose funding vehicles) Chase
granting consents
concerning SPCs
----------------------------------------------------------------------------------------------------------
M-3
