EXHIBIT 10.37
================================================================================
Published CUSIP Number: 00000XXX0
CREDIT AGREEMENT
Dated as of March 30, 2005
among
ALLIED WORLD ASSURANCE HOLDINGS, LTD,
as the Borrower,
BANK OF AMERICA, N.A.,
as the Administrative Agent,
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Syndication Agent,
and
The Other Lenders Party Hereto
================================================================================
BANC OF AMERICA SECURITIES LLC
and
WACHOVIA CAPITAL MARKETS, LLC,
as
Joint Lead Arrangers and Book Managers
and
BARCLAYS BANK, PLC
CITIBANK, N.A.
DEUTSCHE BANK AG NEW YORK BRANCH
HSBC BANK USA, NATIONAL ASSOCIATION
ING BANK N.V., LONDON BRANCH
as
Co-Documentation Agents
TABLE OF CONTENTS
Section Page
------- -----
ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS............................................. 4
1.01 Defined Terms................................................................ 4
1.02 Other Interpretive Provisions................................................ 22
1.03 Accounting Terms............................................................. 22
1.04 Rounding..................................................................... 23
1.05 Times of Day................................................................. 23
ARTICLE II. THE COMMITMENTS.............................................................. 23
2.01 Loans........................................................................ 23
2.02 Borrowings, Conversions and Continuations of Loans........................... 23
2.03 Prepayments.................................................................. 25
2.04 Repayment of Loans........................................................... 26
2.05 Interest..................................................................... 27
2.06 Fees......................................................................... 27
2.07 Computation of Interest and Fees............................................. 27
2.08 Evidence of Debt............................................................. 28
2.09 Payments Generally; Administrative Agent's Clawback.......................... 28
2.10 Sharing of Payments by Lenders............................................... 30
ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY....................................... 30
3.01 Taxes........................................................................ 30
3.02 Illegality................................................................... 33
3.03 Inability to Determine Rates................................................. 33
3.04 Increased Costs; Reserves on Eurodollar Rate Loans........................... 34
3.05 Compensation for Losses...................................................... 35
3.06 Mitigation Obligations; Replacement of Lenders............................... 35
3.07 Survival..................................................................... 36
ARTICLE IV. CONDITIONS PRECEDENT TO BORROWING............................................ 36
4.01 Conditions of the Borrowing.................................................. 36
ARTICLE V. REPRESENTATIONS AND WARRANTIES............................................... 38
5.01 Existence, Qualification and Power; Compliance with Laws..................... 38
5.02 Authorization; No Contravention.............................................. 38
5.03 Governmental Authorization; Other Consents................................... 39
5.04 Binding Effect............................................................... 39
5.05 Financial Statements; No Material Adverse Effect............................. 39
5.06 Litigation................................................................... 39
5.07 No Default................................................................... 40
5.08 Ownership of Property; Liens................................................. 40
5.09 Environmental Compliance..................................................... 40
5.10 Insurance.................................................................... 40
5.11 Taxes........................................................................ 40
5.12 ERISA Compliance and Foreign Benefit Plan Compliance......................... 40
5.13 Subsidiaries................................................................. 41
5.14 Margin Regulations; Investment Company Act; Public Utility Holding
Company Act; Investment Business Act 2003.................................... 41
5.15 Disclosure................................................................... 42
1
5.16 Compliance with Laws......................................................... 42
5.17 Intellectual Property; Licenses, Etc......................................... 42
5.18 Insurance Licenses........................................................... 42
5.19 Status Under Bermuda Law..................................................... 42
5.20 Use of Proceeds.............................................................. 43
5.21 Solvency..................................................................... 43
ARTICLE VI. AFFIRMATIVE COVENANTS........................................................ 43
6.01 Financial Statements......................................................... 43
6.02 Certificates; Other Information.............................................. 44
6.03 Notices...................................................................... 45
6.04 Payment of Obligations....................................................... 46
6.05 Preservation of Existence, Etc............................................... 46
6.06 Maintenance of Properties.................................................... 46
6.07 Maintenance of Insurance..................................................... 46
6.08 Compliance with Laws......................................................... 47
6.09 Books and Records............................................................ 47
6.10 Inspection Rights............................................................ 47
6.11 Use of Proceeds.............................................................. 47
ARTICLE VII. NEGATIVE COVENANTS........................................................... 47
7.01 Liens........................................................................ 47
7.02 Subsidiary Indebtedness...................................................... 49
7.03 Fundamental Changes.......................................................... 50
7.04 Change in Nature of Business................................................. 50
7.05 Transactions with Affiliates................................................. 50
7.06 Burdensome Agreements........................................................ 50
7.07 Use of Proceeds.............................................................. 50
7.08 Financial Covenants.......................................................... 50
ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES............................................... 51
8.01 Events of Default............................................................ 51
8.02 Remedies Upon Event of Default............................................... 53
8.03 Application of Funds......................................................... 53
ARTICLE IX. ADMINISTRATIVE AGENT......................................................... 54
9.01 ............................................................................. 54
9.02 Rights as a Lender........................................................... 54
9.03 Exculpatory Provisions....................................................... 55
9.04 Reliance by Administrative Agent............................................. 55
9.05 Delegation of Duties......................................................... 56
9.06 Resignation of Administrative Agent.......................................... 56
9.07 Non-Reliance on Administrative Agent and Other Lenders....................... 57
9.08 No Other Duties, Etc......................................................... 57
ARTICLE X. MISCELLANEOUS................................................................ 57
10.01 Amendments, Etc.............................................................. 57
10.02 Notices; Effectiveness; Electronic Communication............................. 58
10.03 No Waiver; Cumulative Remedies............................................... 60
10.04 Expenses; Indemnity; Damage Waiver........................................... 60
10.05 Payments Set Aside........................................................... 62
2
10.06 Successors and Assigns....................................................... 62
10.07 Treatment of Certain Information; Confidentiality............................ 65
10.08 Right of Setoff.............................................................. 66
10.09 Interest Rate Limitation..................................................... 66
10.10 Counterparts; Integration; Effectiveness..................................... 66
10.11 Survival of Representations and Warranties................................... 67
10.12 Severability................................................................. 67
10.13 Replacement of Lenders....................................................... 67
10.14 Governing Law; Jurisdiction; Etc............................................. 68
10.15 Waiver of Jury Trial......................................................... 69
10.16 USA PATRIOT Act Notice....................................................... 69
10.17 Judgment Currency............................................................ 69
3
SCHEDULES
2.01 Commitments and Applicable Percentages
5.13 Subsidiaries
7.01 Existing Liens
7.02 Existing Indebtedness
10.02 Administrative Agent's Office; Certain Addresses for Notices
EXHIBITS
FORM OF
------------------------
A Loan Notice
B Note
C Compliance Certificate
D Assignment and Assumption
E Opinion Matters
4
CREDIT AGREEMENT
This CREDIT AGREEMENT ("Agreement") is entered into as of March 30, 2005,
among ALLIED WORLD ASSURANCE HOLDINGS, LTD, an exempted Bermuda company (the
"Borrower"), each lender from time to time party hereto (collectively, the
"Lenders" and individually, a "Lender"), and BANK OF AMERICA, N.A., as
Administrative Agent.
The Borrower has requested that the Lenders provide a term loan credit
facility, and the Lenders are willing to do so on the terms and conditions set
forth herein.
In consideration of the mutual covenants and agreements herein contained,
the parties hereto covenant and agree as follows:
ARTICLE I.
DEFINITIONS AND ACCOUNTING TERMS
1.01 DEFINED TERMS. As used in this Agreement, the following terms shall
have the meanings set forth below:
"Acquired Debt" means Indebtedness of any Person existing at the time such
Person is merged into or consolidated with the Borrower or a Subsidiary by
acquisition, merger, amalgamation, or consolidation (and renewals, extensions,
amendments, and modifications of such Indebtedness), so long as (i) no Default
exists or arises after giving effect to such acquisition, merger, amalgamation,
or consolidation, (ii) such Indebtedness was not incurred in contemplation of
such acquisition, merger, amalgamation, or consolidation, and (iii) no
Subsidiary (other than the existing obligor at the time such Person was so
acquired, merged, amalgamated, or consolidated) shall incur or have any direct
or indirect liability for such Indebtedness.
"Administrative Agent" means Bank of America in its capacity as
administrative agent under any of the Loan Documents, or any successor
administrative agent.
"Administrative Agent's Office" means the Administrative Agent's address
and, as appropriate, account as set forth on Schedule 10.02, or such other
address or account as the Administrative Agent may from time to time notify to
the Borrower and the Lenders.
"Administrative Questionnaire" means an Administrative Questionnaire in a
form supplied by the Administrative Agent.
"Affiliate" means, with respect to any Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with such Person.
"Aggregate Commitments" means, on any date of determination, the
Commitments of all the Lenders.
"Agreement" means this Credit Agreement.
"Annual Statement" means, as to any Insurance Subsidiary, the annual
financial statement of such Insurance Subsidiary as required to be filed with
the applicable Department, together with all exhibits or schedules filed
therewith, prepared in conformity with SAP.
"Applicable Insurance Code" means, as to any Insurance Subsidiary, the
insurance code of any state or other jurisdiction where such Insurance
Subsidiary is domiciled or doing insurance or reinsurance business.
"A.M. Best" means A.M. Best Company, Inc. or its successor.
"Applicable Margin" means, from time to time, the following percentage per
annum, based upon the most recently-announced financial strength rating of AWAC
by A.M. Best:
FINANCIAL STRENGTH RATING APPLICABLE MARGIN FOR EURODOLLAR RATE LOANS
------------------------- -------------------------------------------
A+ or better .50%
A .60%
A- or worse .75%
"Applicable Percentage" means, with respect to any Lender, (a) at any time
prior to the Borrowing on the Closing Date, the percentage (carried out to the
ninth decimal place) of the Aggregate Commitments represented by such Lender's
Commitment at such time, and (b) at any time from and after the Borrowing on the
Closing Date until the Loans are repaid in full, the percentage (carried out to
the ninth decimal place) of the Principal Debt that is held by such Lender at
such time. If at any time the Loans have been repaid in full, then the
Applicable Percentage of each Lender shall be determined based on the Applicable
Percentage of such Lender most recently in effect, giving effect to any
subsequent assignments. The initial Applicable
5
Percentage of each Lender is set forth opposite the name of such Lender on
Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender
becomes a party hereto, as applicable.
"Approved Fund" means any Fund that is administered or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers or manages a Lender.
"Arrangers" means Banc of America Securities LLC and Wachovia Capital
Markets, LLC, in their several capacities as joint lead arrangers and book
managers.
"Assignee Group" means two or more Eligible Assignees that are Affiliates
of one another or two or more Approved Funds managed by the same investment
advisor.
"Assignment and Assumption" means an assignment and assumption entered
into by a Lender and an Eligible Assignee (with the consent of any party whose
consent is required by Section 10.06(b)), and accepted by the Administrative
Agent, in substantially the form of Exhibit D or any other form approved by the
Administrative Agent.
"Assumed Taxes" means, (a) with respect to any Equity Issuance, an amount
equal to such incremental annual increase in franchise or other similar Taxes as
the Borrower estimates in good faith shall be payable as a result of such Equity
Issuance, and (b) with respect to any Significant Sale, an amount equal to such
percentage (as the Borrower estimates in good faith to be its effective rate) of
the taxable gain for income tax purposes with respect to such sale.
"Attributable Indebtedness" means, on any date, (a) in respect of any
capital lease of any Person, the capitalized amount thereof that would appear on
a balance sheet of such Person prepared as of such date in accordance with GAAP,
and (b) in respect of any Synthetic Lease Obligation, the capitalized amount of
the remaining lease payments under the relevant lease that would appear on a
balance sheet of such Person prepared as of such date in accordance with GAAP if
such lease were accounted for as a capital lease.
"Audited Financial Statements" means the audited consolidated balance
sheet of the Borrower and its Subsidiaries for the fiscal year ended December
31, 2004, and the related consolidated statements of income or operations,
shareholders' equity and cash flows for such fiscal year of the Borrower and its
Subsidiaries, including the notes thereto.
"AWAC" means Allied World Assurance Company, Ltd, a Bermuda exempt
company.
"Bank of America" means Bank of America, N.A. or its successor.
"Base Rate" means for any day a fluctuating rate per annum equal to the
higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest
in effect for such day as publicly announced from time to time by Bank of
America as its "prime rate." The "prime rate" is a rate set by Bank of America
based upon various factors including Bank of America's costs and desired return,
general economic conditions and other factors, and is used as a reference point
for
6
pricing some loans, which may be priced at, above, or below such announced rate.
Any change in such rate announced by Bank of America shall take effect at the
opening of business on the day specified in the public announcement of such
change.
"Base Rate Loan" means a Loan that bears interest at the Base Rate.
"Borrower Materials" has the meaning specified in Section 10.02 (c).
"Borrower" has the meaning specified in the introductory paragraph hereto.
"Borrowing" means the borrowing or borrowings by the Borrower on the
Closing Date of Loans of the same Type and, in the case of Eurodollar Rate
Loans, having the same Interest Period.
"Business Day" means any day other than a Saturday, Sunday, or other day
on which commercial banks are authorized to close under the Laws of, or are in
fact closed in, Charlotte, North Carolina, New York, New York, and Bermuda and,
if such day relates to any Eurodollar Rate Loan, means any such day on which
dealings in Dollar deposits are conducted by and between banks in the London
interbank eurodollar market.
"Change in Law" means the occurrence, after the date of this Agreement, of
any of the following: (a) the adoption or taking effect of any law, rule,
regulation or treaty, (b) any change in any law, rule, regulation or treaty or
in the administration, interpretation or application thereof by any Governmental
Authority or (c) the making or issuance of any request, guideline or directive
(whether or not having the force of law) by any Governmental Authority.
"Change of Control" means an event or series of events by which:
(a) any "person" or "group" (as such terms are used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any
employee benefit plan of such person or its subsidiaries, and any person
or entity acting in its capacity as trustee, agent or other fiduciary or
administrator of any such plan) becomes the "beneficial owner" (as defined
in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except
that a person or group shall be deemed to have "beneficial ownership" of
all securities that such person or group has the right to acquire (such
right, an "option right"), whether such right is exercisable immediately
or only after the passage of time), directly or indirectly, of 35% or more
of the equity securities of the Borrower entitled to vote for members of
the board of directors or equivalent governing body of the Borrower on a
fully-diluted basis (and taking into account all such securities that such
person or group has the right to acquire pursuant to any option right);
(b) during any period of 12 consecutive months, a majority of the
members of the board of directors or other equivalent governing body of
the Borrower cease to be composed of individuals (i) who were members of
that board or equivalent governing body on the first day of such period,
(ii) whose election or nomination to that board or equivalent governing
body was approved by individuals referred to in clause (i) above
constituting at the time of such election or nomination at least a
majority of that board or equivalent governing body or (iii) whose
election or nomination to that board or other
7
equivalent governing body was approved by individuals referred to in
clauses (i) and (ii) above constituting at the time of such election or
nomination at least a majority of that board or equivalent governing body
(excluding, in the case of both clause (ii) and clause (iii), any
individual whose initial nomination for, or assumption of office as, a
member of that board or equivalent governing body occurs as a result of an
actual or threatened solicitation of proxies or consents for the election
or removal of one or more directors by any person or group other than a
solicitation for the election of one or more directors by or on behalf of
the board of directors); or
(c) AWAC ceases for any reason to be a wholly owned Subsidiary of
the Borrower.
"Closing Date" means the Business Day on which all the conditions
precedent in Section 4.01 are satisfied or waived in accordance with Section
10.01 and the Borrowing is made.
"Code" means the Internal Revenue Code of 1986.
"Commitment" means, as to each Lender, its obligation to make Loans to the
Borrower pursuant to Section 2.01 in an aggregate principal amount not to exceed
the amount set forth opposite such Lender's name on Schedule 2.01.
"Compliance Certificate" means a certificate substantially in the form of
Exhibit C.
"Consolidated Funded Indebtedness" means, as of any date of determination
and without duplication, for the Borrower and its Subsidiaries on a consolidated
basis, the sum of (a) the outstanding principal amount of all obligations,
whether current or long-term, for borrowed money (including Obligations
hereunder) and all obligations evidenced by bonds, debentures, notes, loan
agreements or other similar instruments, (b) all purchase money Indebtedness,
(c) all direct obligations arising under letters of credit (including standby
and commercial) which have been drawn but not reimbursed by the Person for whose
account such letters of credit were issued, bankers' acceptances, bank
guaranties, surety bonds, and similar instruments, (d) all obligations in
respect of the deferred purchase price of property or services (other than trade
accounts payable in the ordinary course of business), (e) the Swap Termination
Value of Swap Contracts, (f) any obligations of any Insurance Subsidiary under
Primary Policies, Reinsurance Agreements, or Retrocession Agreements (including
security posted to secure obligations thereunder) to the extent such obligations
are treated as indebtedness in accordance with GAAP, (g) without duplication,
all Guarantees with respect to outstanding Indebtedness of the types specified
in clauses (a) through (f) above of Persons other than the Borrower or any
Subsidiary, and (h) all Indebtedness of the types referred to in clauses (a)
through (g) above of any partnership or joint venture (other than a joint
venture that is itself a corporation or limited liability company) in which the
Borrower or a Subsidiary is a general partner or joint venturer, unless such
Indebtedness is expressly made non-recourse to the Borrower or such Subsidiary.
"Consolidated Leverage Ratio" means, as of any date of determination, the
ratio of (a) Consolidated Funded Indebtedness as of such date to (b)
Consolidated Total Capitalization as of such date.
8
"Consolidated Net Income" means, for any period, for the Borrower and its
Subsidiaries on a consolidated basis, the net income of the Borrower and its
Subsidiaries for that period calculated consistent with GAAP.
"Consolidated Tangible Net Worth" means, as of any date of determination,
for the Borrower and its Subsidiaries on a consolidated basis, Shareholders'
Equity of the Borrower and its Subsidiaries on that date minus the Intangible
Assets of the Borrower and its Subsidiaries on that date.
"Consolidated Total Capitalization" means, as of any date of
determination, the sum of (a) Consolidated Funded Indebtedness as of such date,
plus (b) Consolidated Shareholders' Equity as of such date.
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument, or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"Debt Issuance" means any issuance after the Closing Date by the Borrower
or any Subsidiary of Indebtedness for borrowed money (whether evidenced by
bonds, notes, debentures, loan agreements, or other similar instruments), other
than Excluded Debt.
"Debtor Relief Laws" means the Bankruptcy Code of the United States, Part
XIII of the Companies Act 1981 of Bermuda, and all other liquidation,
conservatorship, bankruptcy, assignment for the benefit of creditors,
moratorium, rearrangement, receivership, insolvency, reorganization, or similar
debtor relief Laws of the United States, Bermuda or other applicable
jurisdictions from time to time in effect and affecting the rights of creditors
generally.
"Default" means any event or condition that constitutes an Event of
Default or that, with the giving of any notice, the passage of time, or both,
would be an Event of Default.
"Default Rate" means an interest rate equal to (i) the Base Rate plus (ii)
2% per annum; provided, however, that with respect to a Eurodollar Rate Loan so
long as it is a Eurodollar Rate Loan, the Default Rate shall be an interest rate
equal to the interest rate (including the Applicable Margin) otherwise
applicable to such Loan plus 2% per annum.
"Defaulting Lender" means any Lender that (a) has failed to fund any
portion of the Loans required to be funded by it hereunder on the Closing Date,
(b) has otherwise failed to pay over to the Administrative Agent or any other
Lender any other amount required to be paid by it hereunder within one Business
Day of the date when due, unless the subject of a good faith dispute, or (c) has
been deemed insolvent or become the subject of a bankruptcy or insolvency
proceeding.
9
"Department" means, as to any Insurance Subsidiary, the department of
insurance of the state or jurisdiction in which such Insurance Subsidiary is
domiciled or doing insurance or reinsurance business, which department has
regulatory jurisdiction over such Insurance Subsidiary.
"Disposition" or "Dispose" means the sale, transfer, license, lease, or
other disposition (including any sale and leaseback transaction) of any property
by any Person, including any sale, assignment, transfer, or other disposal, with
or without recourse, of any notes or accounts receivable or any rights and
claims associated therewith.
"Dollar" and "$" mean lawful money of the United States.
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a Lender; (c)
an Approved Fund; and (d) any other Person (other than a natural person)
approved by (i) the Administrative Agent and (ii) unless an Event of Default has
occurred and is continuing, the Borrower (each such approval not to be
unreasonably withheld or delayed); provided that notwithstanding the foregoing,
"Eligible Assignee" shall not include the Borrower or any of the Borrower's
Affiliates or Subsidiaries.
"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 governmental
restrictions relating to pollution and the protection of the environment or the
release of any materials into the environment, including those related to
hazardous substances or wastes, air emissions and discharges to waste or public
systems.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Borrower or any Subsidiary directly or
indirectly resulting from or based upon (a) violation of any Environmental Law,
(b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials,
(d) the release or threatened release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"Equity Interests" means, with respect to any Person, all of the shares of
capital stock of (or other ownership or profit interests in) such Person, all of
the warrants, options, or other rights for the purchase or acquisition from such
Person of shares of capital stock of (or other ownership or profit interests in)
such Person, all of the securities convertible into or exchangeable for shares
of capital stock of (or other ownership or profit interests in) such Person or
warrants, rights or options for the purchase or acquisition from such Person of
such shares (or such other interests), and all of the other ownership or profit
interests in such Person (including partnership, member or trust interests
therein), whether voting or nonvoting, and whether or not such shares, warrants,
options, rights, or other interests are outstanding on any date of
determination.
"Equity Issuance" means the issuance on and after the Closing Date by the
Borrower or any Subsidiary of any Equity Interest, other than (i) present and
future shares of stock, options,
10
or warrants issued to employees, directors, or consultants of the Borrower or
any Subsidiary, or stock issued upon the exercise of any such options or
warrants issued to such employees, directors, or consultants or (ii) Equity
Interests issued to the Borrower or any Subsidiary.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with the Borrower within the meaning of
Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for
purposes of provisions relating to Section 412 of the Code).
"ERISA Event" means (a) a Reportable Event with respect to a Pension Plan;
(b) a withdrawal by the Borrower or any ERISA Affiliate from a Pension Plan
subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation
of operations that is treated as such a withdrawal under Section 4062(e) of
ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA
Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is
in reorganization; (d) the filing of a notice of intent to terminate, the
treatment of a Plan amendment as a termination under Sections 4041 or 4041A of
ERISA, or the commencement of proceedings by the PBGC to terminate a Pension
Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds
under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the
imposition of any material liability under Title IV of ERISA, other than for
PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the
Borrower or any ERISA Affiliate.
"Eurodollar Rate" means, for any Interest Period with respect to a
Eurodollar Rate Loan, the rate per annum equal to the British Bankers
Association LIBOR Rate ("BBA LIBOR"), as published by Reuters (or other
commercially available source providing quotations of BBA LIBOR as designated by
the Administrative Agent from time to time) at approximately 11:00 a.m., London
time, two Business Days prior to the commencement of such Interest Period, for
Dollar deposits (for delivery on the first day of such Interest Period) with a
term equivalent to such Interest Period. If such rate is not available at such
time for any reason, then the "Eurodollar Rate" for such Interest Period shall
be the rate per annum determined by the Administrative Agent to be the rate at
which deposits in Dollars for delivery on the first day of such Interest Period
in same day funds in the approximate amount of the Eurodollar Rate Loan being
made, continued or converted by Bank of America and with a term equivalent to
such Interest Period would be offered by Bank of America's London Branch to
major banks in the London interbank eurodollar market at their request at
approximately 11:00 a.m. (London time) two Business Days prior to the
commencement of such Interest Period.
"Eurodollar Rate Loan" means a Loan that bears interest at a rate based on
the Eurodollar Rate.
"Event of Default" has the meaning specified in Section 8.01.
"Excluded Debt" of the Borrower or any Subsidiary means (a) the
Obligations, (b) Indebtedness for borrowed money (whether evidenced by bonds,
notes, debentures, loan
11
agreements or similar instruments) existing on the Closing Date and listed on
Schedule 7.02, (c) all obligations arising under letters of credit, now or
hereafter issued, under letter of credit facilities or agreements existing on
the Closing Date and listed on Schedule 7.02, (d) Acquired Debt which
constitutes Indebtedness for borrowed money (whether evidenced by bonds, notes,
debentures, loan agreements, or similar instruments), (e) renewals, extensions,
amendments, modifications, and refinancings of Indebtedness described in CLAUSES
(b), (c) OR (d), so long as (i) the principal amount of such Indebtedness shall
not exceed the principal amount of such Indebtedness immediately prior to giving
effect to any such renewal, extension, amendment, modification, or refinancing,
except (x) in the case of the Borrower, by an additional amount equal to a
reasonable premium paid, and fees and expenses reasonably incurred, in
connection with such refinancing, extension, amendment, or modification, and by
an amount equal to any existing commitments unutilized thereunder, or (b) in the
case of any Subsidiary, by an additional amount permitted to be incurred
pursuant to Sections 7.02(a), 7.02(b), or 7.02(f), and (ii) no Default exists or
arises after giving effect to such renewal, extension, amendment, modification,
or refinancing, and (f) additional Indebtedness for borrowed money incurred by
the Borrower or any Subsidiary on or after the Closing Date (other than
Indebtedness referenced in clauses (a) through (d) of this definition), not to
exceed $25,000,000 in the aggregate for all such entities collectively.
"Excluded Disposition" of the Borrower or any Subsidiary means (a) a
Disposition of fixed maturity investments or other investment assets in the
ordinary course of the Borrower's or such Subsidiary's business so long as the
proceeds of such Disposition are reinvested in other fixed maturity investments
or other investment assets, (b) any Disposition permitted by Section 7.03, (c)
Dispositions to fund obligations under insurance policy claims incurred in the
ordinary course of business, and (d) Dispositions (other than Dispositions
described in clauses (a) through (c) of this definition) with respect to which
the aggregate amount of Net Cash Proceeds received on and after the Closing Date
by Borrower and each such Subsidiary, collectively, does not exceed $10,000,000.
"Excluded Taxes" means, with respect to the Administrative Agent, any
Lender or any other recipient of any payment to be made by or on account of any
obligation of the Borrower hereunder, (a) taxes imposed on or measured by its
overall net income, profits, or capital (however denominated), and franchise
taxes imposed on it, by the jurisdiction (or any political subdivision thereof)
under the laws of which such recipient is organized or in which its principal
office is located or, in the case of any Lender, in which its applicable Lending
Office is located, (b) any branch profits taxes imposed by the United States or
any similar tax imposed by any other jurisdiction in which the Borrower is
located and (c) in the case of a Foreign Lender (other than an assignee pursuant
to a request by the Borrower under Section 10.13), any Taxes that are imposed on
amounts payable to such Foreign Lender at the time such Foreign Lender becomes a
party hereto (or designates a new Lending Office) or is attributable to such
Foreign Lender's failure or inability (other than as a result of a Change in
Law) to comply with Section 3.01(e), except to the extent that such Foreign
Lender (or its assignor, if any) was entitled, at the time of designation of a
new Lending Office (or assignment), to receive additional amounts from the
Borrower with respect to such Taxes pursuant to Section 3.01(a).
"Federal Funds Rate" means, for any day, the rate per annum equal to the
weighted average of the rates on overnight federal funds transactions with
members of the Federal Reserve
12
System arranged by federal funds brokers on such day, as published by the
Federal Reserve Bank of New York on the Business Day next succeeding such day;
provided that (a) if such day is not a Business Day, the Federal Funds Rate for
such day shall be such rate on such transactions on the next preceding Business
Day as so published on the next succeeding Business Day, and (b) if no such rate
is so published on such next succeeding Business Day, the Federal Funds Rate for
such day shall be the average rate (rounded upward, if necessary, to a whole
multiple of 1/100 of 1%) charged to Bank of America on such day on such
transactions as determined by the Administrative Agent.
"Fee Letter" means the letter agreement dated February 24, 2005, among the
Borrower, the Administrative Agent and the Arrangers.
"Foreign Benefit Plan" means any employee benefit plan, pension plan or
welfare plan not subject to ERISA which is maintained or contributed to for the
benefit of the employees of the Borrower or its Subsidiaries (other than any
plan, policy, or agreement operated by any Governmental Authority) which, under
applicable law, (a) is required to be funded through a trust or similar funding
vehicle or (b) creates or could result in a Lien on any property of Borrower or
any of its Subsidiaries.
"Foreign Lender" means any Lender that is organized under the laws of a
jurisdiction other than that in which the Borrower is resident for tax purposes.
For purposes of this definition, the United States, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"FRB" means the Board of Governors of the Federal Reserve System of the
United States.
"Fund" means any Person (other than a natural person) that is (or will be)
engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its business.
"GAAP" means generally accepted accounting principles in the United States
set forth in the opinions and pronouncements of the Accounting Principles Board
and the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or such other
principles as may be approved by a significant segment of the accounting
profession in the United States, that are applicable to the circumstances as of
the date of determination, consistently applied.
"Governmental Authority" means the government of the United States or
Bermuda or any other nation, or of any political subdivision thereof, whether
state or local, and any agency, authority, instrumentality, regulatory body,
court, central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government (including any Department or any supra-national bodies such as the
European Union or the European Central Bank).
"Guarantee" means, as to any Person, any (a) any obligation, contingent or
otherwise, of such Person guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation payable or performable by
another Person (the "primary obligor") in any
13
manner, whether directly or indirectly, and including any obligation of such
Person, direct or indirect, (i) to purchase or pay (or advance or supply funds
for the purchase or payment of) such Indebtedness or other obligation, (ii) to
purchase or lease property, securities or services for the purpose of assuring
the obligee in respect of such Indebtedness or other obligation of the payment
or performance of such Indebtedness or other obligation, (iii) to maintain
working capital, equity capital or any other financial statement condition or
liquidity or level of income or cash flow of the primary obligor so as to enable
the primary obligor to pay such Indebtedness or other obligation, or (iv)
entered into for the purpose of assuring in any other manner the obligee in
respect of such Indebtedness or other obligation of the payment or performance
thereof or to protect such obligee against loss in respect thereof (in whole or
in part), or (b) any Lien on any assets of such Person securing any Indebtedness
or other obligation of any other Person, whether or not such Indebtedness or
other obligation is assumed by such Person (or any right, contingent or
otherwise, of any holder of such Indebtedness to obtain any such Lien);
provided, however, that (i) obligations of any Insurance Subsidiary under
Primary Policies, Reinsurance Agreements, or Retrocession Agreements (including
security posted to secure obligations thereunder) (ii) the Borrower's obligation
to guarantee payment of any real property lease for office premises entered into
by a direct or indirect Subsidiary of the Borrower, and (iii) obligations of the
Borrower pursuant to letters to certain insurers, reinsurers and insurance
brokers to contribute or cause to be contributed sufficient capital surplus to
any direct or indirect Subsidiary of the Borrower in the event that such
Subsidiary is unable or unwilling in whole or in part for financial reasons to
make payment of any of its claims, losses or expenses pursuant to policies of
insurance or reinsurance issued to clients of the addressees of such letters
shall not be deemed to be Guarantees of such Person for the purposes of this
Agreement. The amount of any Guarantee shall be deemed to be an amount equal to
the stated or determinable amount of the related primary obligation, or portion
thereof, in respect of which such Guarantee is made or, if not stated or
determinable, the maximum reasonably anticipated liability in respect thereof as
determined by the guaranteeing Person in good faith. The term "Guarantee" as a
verb has a corresponding meaning.
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos-containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Indebtedness" means, as to any Person at a particular time, without
duplication, all of the following, whether or not included as indebtedness or
liabilities in accordance with GAAP:
(a) all obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds, debentures, notes, loan
agreements or other similar instruments;
(b) all direct or contingent obligations of such Person arising
under letters of credit (including standby and commercial), bankers'
acceptances, bank guaranties, surety bonds and similar instruments;
(c) net obligations of such Person under any Swap Contract;
14
(d) all obligations of such Person to pay the deferred purchase
price of property or services (other than trade accounts payable in the
ordinary course of business and, in each case, not past due for more than
60 days);
(e) indebtedness (excluding prepaid interest thereon) secured by a
Lien on property owned or being purchased by such Person (including
indebtedness arising under conditional sales or other title retention
agreements), whether or not such indebtedness shall have been assumed by
such Person or is limited in recourse, provided that for purposes hereof
the amount of such limited recourse Indebtedness shall be limited to the
lesser of (i) the amount of such Indebtedness as to which there is
recourse to such Person and (ii) the fair market value of the property
which is subject to the Lien;
(f) capital leases and Synthetic Lease Obligations;
(g) all obligations of such Person to purchase, redeem, retire,
defease or otherwise make any payment in respect of any Equity Interest in
such Person or any other Person, valued, in the case of a redeemable
preferred interest, at the greater of its voluntary or involuntary
liquidation preference plus accrued and unpaid dividends; and
(h) all Guarantees of such Person in respect of any of the
foregoing.
For all purposes hereof, the "Indebtedness" of any Person shall include
the Indebtedness of any partnership or joint venture (other than a joint venture
that is itself a corporation or limited liability company) in which such Person
is a general partner or a joint venturer, unless such Indebtedness is expressly
made non-recourse to such Person. The amount of any net obligation under any
Swap Contract on any date shall be deemed to be the Swap Termination Value
thereof as of such date. The amount of any capital lease or Synthetic Lease
Obligation as of any date shall be deemed to be the amount of Attributable
Indebtedness in respect thereof as of such date. For all purposes hereof, the
"Indebtedness" of any Person shall not include the obligation of any Insurance
Subsidiary under Primary Policies, Reinsurance Agreements, or Retrocession
Agreements (including security posted to secure obligations thereunder), or any
Guarantee of any such obligations, so long as such agreements do not constitute,
in effect, financing arrangements.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Indemnitee" has the meaning specified in Section 10.04(b).
"Information Memorandum" means the Information Memorandum prepared by the
Borrower dated March 2005, and distributed to the Administrative Agent and the
Lenders party to this Agreement on the Closing Date.
"Insurance Subsidiary" means any Subsidiary of the Borrower that is
authorized or admitted by a Department to carry on or transact one or more
aspects of the business of selling, issuing, or underwriting insurance or
reinsurance.
"Intangible Assets" means assets that are considered to be intangible
assets under GAAP, including customer lists, goodwill, computer software,
copyrights, trade names, trademarks,
15
patents, franchises, licenses, unamortized deferred charges, unamortized debt
discount, and capitalized research and development costs.
"Interest Payment Date" means, (a) as to any Loan other than a Base Rate
Loan, the last day of each Interest Period applicable to such Loan and the
Maturity Date; provided, however, that if any Interest Period for a Eurodollar
Rate Loan exceeds three months, the respective dates that fall every three
months after the beginning of such Interest Period shall also be Interest
Payment Dates; and (b) as to any Base Rate Loan, the last Business Day of each
March, June, September, and December and the Maturity Date.
"Interest Period" means, as to each Eurodollar Rate Loan, the period
commencing on the date such Eurodollar Rate Loan is disbursed or converted to or
continued as a Eurodollar Rate Loan and ending on the date one, two, three or
six months (or twelve months, if requested by the Borrower and consented to by
all the Lenders) thereafter, as selected by the Borrower in its Loan Notice;
provided that:
(i) any Interest Period that would otherwise end on a day that is
not a Business Day shall be extended to the next succeeding Business Day
unless such Business Day falls in another calendar month, in which case
such Interest Period shall end on the next preceding Business Day;
(ii) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of the calendar month at the
end of such Interest Period; and
(iii) no Interest Period shall extend beyond the Maturity Date.
"IRS" means the United States Internal Revenue Service.
"Laws" means, collectively, all international, foreign, federal, state and
local statutes, treaties, rules, guidelines, regulations, ordinances, codes,
executive orders and administrative or judicial precedents or authorities,
including the interpretation or administration thereof by any Governmental
Authority charged with the enforcement, interpretation, or administration
thereof, and all applicable administrative orders, directed duties, requests,
licenses, authorizations, and permits of, and agreements with, any Governmental
Authority, in each case whether or not having the force of law.
"Lender" has the meaning specified in the introductory paragraph hereto.
"Lending Office" means, as to any Lender, the office or offices of such
Lender described as such in such Lender's Administrative Questionnaire, or such
other office or offices as a Lender may from time to time notify the Borrower
and the Administrative Agent.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge, or preference,
priority or other security interest or preferential arrangement in the nature of
a security interest of any kind or nature whatsoever (including any conditional
sale or other title retention agreement, any easement, right of way or
16
other encumbrance on title to real property, and any financing lease having
substantially the same economic effect as any of the foregoing).
"Loan" means a loan by a Lender to the Borrower under Article II.
"Loan Documents" means this Agreement, each Note, and the Fee Letter.
"Loan Notice" means a notice of (a) the Borrowing, (b) a conversion of
Loans from one Type to the other, or (c) a continuation of Eurodollar Rate
Loans, in each case pursuant to Section 2.02(a), which, if in writing, shall be
substantially in the form of Exhibit A.
"Material Adverse Effect" means (a) a material adverse change in, or a
material adverse effect upon, the operations, business, properties, liabilities
(actual or contingent), or condition (financial or otherwise), of the Borrower
and its Subsidiaries taken as a whole; (b) a material impairment of the ability
of the Borrower to perform its obligations under any Loan Document; or (c) a
material adverse effect upon the legality, validity, binding effect or
enforceability against the Borrower of any Loan Document.
"Material Insurance Subsidiary" means AWAC and each other Insurance
Subsidiary whose (a) consolidated assets exceed 5% of the consolidated assets of
the Borrower and its Subsidiaries or (b) whose consolidated revenues exceed 5%
of the consolidated revenues of the Borrower and its Subsidiaries, as of the end
of or for the most recent fiscal quarter for which financial statements have
been delivered pursuant to Section 6.01(a) or (b).
"Maturity Date" means March 30, 2012.
"Multiemployer Plan" means any employee benefit plan of the type described
in Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate
makes or is obligated to make contributions, or during the preceding five plan
years, has made or been obligated to make contributions.
"Net Cash Proceeds" means (a) with respect to any Significant Sale, cash
(freely convertible into Dollars) (including, any cash received by way of
deferred payment pursuant to a promissory note or otherwise, but only as and
when received) received, on or after the date of consummation of such sale, by
the Borrower or any Subsidiary from such sale, after (i) deduction of Assumed
Taxes, (ii) payment of all usual and customary brokerage commissions and all
other reasonable fees and expenses related to such sale (including, without
limitation, reasonable attorneys' fees and closing costs incurred in connection
with such sale), (iii) deduction of appropriate amounts to be provided by the
Borrower or any Subsidiary as a reserve, in accordance with GAAP, against any
liabilities retained by the Borrower or any Subsidiary after such sale, which
liabilities are associated with the asset or assets being sold, including,
without limitation, pension and other post-employment benefit liabilities and
liabilities related to environmental matters or against any indemnification
obligations associated with such sale, and (iv) deduction for the amount of any
Indebtedness secured by the respective asset or assets being sold, which
Indebtedness is required to be repaid as a result of such sale; (b) with respect
to any Debt Issuance, cash (freely convertible into Dollars) received, on or
after the date of such Debt Issuance, by the Borrower or any Subsidiary from
such Debt Issuance, after (i) payment of all reasonable attorneys' fees and
usual and customary underwriting commissions, closing costs,
17
and other reasonable expenses associated with such Debt Issuance, and (ii)
deduction of all deposits, escrow amounts, or other reserves required to be
maintained by the Borrower or any Subsidiary in connection with such
Indebtedness, and (c) with respect to any Equity Issuance, cash (freely
convertible into Dollars) (including any cash received by way of deferred
payment pursuant to a promissory note, or otherwise, but only as and when
received) received, on or after the date of such Equity Issuance, by the
Borrower or any Subsidiary from such Equity Issuance, net of usual and customary
transaction costs and expenses associated with such Equity Issuance and Assumed
Taxes.
"Note" means a promissory note made by the Borrower in favor of a Lender
evidencing Loans made by such Lender, substantially in the form of Exhibit B.
"Obligations" means all advances to, and debts, liabilities, obligations,
covenants and duties of, the Borrower arising under any Loan Document or
otherwise with respect to any Loan, whether direct or indirect (including those
acquired by assumption), absolute or contingent, due or to become due, now
existing or hereafter arising and including interest and fees that accrue after
the commencement by or against the Borrower or any Affiliate thereof of any
proceeding under any Debtor Relief Laws naming such Person as the debtor in such
proceeding, regardless of whether such interest and fees are allowed claims in
such proceeding.
"OFAC" shall mean the U.S. Department of the Treasury's Office of Foreign
Assets Control.
"Organization Documents" means, (a) with respect to any corporation, the
certificate or articles of incorporation and the bylaws (or equivalent or
comparable constitutive documents with respect to any non-U.S. jurisdiction);
(b) with respect to any limited liability company, the certificate or articles
of formation or organization and operating agreement; and (c) with respect to
any partnership, joint venture, trust, or other form of business entity, the
partnership, joint venture or other applicable agreement of formation or
organization and any agreement, instrument, filing or notice with respect
thereto filed in connection with its formation or organization with the
applicable Governmental Authority in the jurisdiction of its formation or
organization and, if applicable, any certificate or articles of formation or
organization of such entity.
"Other Taxes" means all present or future stamp or documentary taxes or
any other excise or property taxes, charges or similar levies arising from any
payment made hereunder or under any other Loan Document or from the execution,
delivery or enforcement of, or otherwise with respect to, this Agreement or any
other Loan Document.
"Participant" has the meaning specified in Section 10.06(d).
"PBGC" means the Pension Benefit Guaranty Corporation.
"Pension Plan" means any "employee pension benefit plan" (as such term is
defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is
subject to Title IV of ERISA and is sponsored or maintained by the Borrower or
any ERISA Affiliate or to which the Borrower or any ERISA Affiliate contributes
or has an obligation to contribute, or in the case of
18
a multiple employer or other plan described in Section 4064(a) of ERISA, has
made contributions at any time during the immediately preceding five plan years.
"Person" means any natural person, corporation, limited liability company,
trust, joint venture, association, company, partnership, Governmental Authority
or other entity.
"Plan" means any "employee benefit plan" (as such term is defined in
Section 3(3) of ERISA) established by the Borrower or, with respect to any such
plan that is subject to Section 412 of the Code or Title IV of ERISA, any ERISA
Affiliate.
"Platform" has the meaning specified in Section 10.02.
"Primary Policies" means any insurance policies issued by an Insurance
Subsidiary.
"Principal Debt" means, on any date of determination, the aggregate unpaid
principal balance of the Loans.
"Process Agent" has the meaning specified in Section 10.14(d).
"Register" has the meaning specified in Section 10.06(c).
"Reinsurance Agreement" means any agreement, contract, treaty,
certificate, or other arrangement whereby any Insurance Subsidiary agrees to
assume from or reinsure an insurer or reinsurer for all or part of the liability
of such insurer or reinsurer under a policy or policies of insurance issued by
such insurer or reinsurer.
"Related Parties" means, with respect to any Person, such Person's
Affiliates and the partners, directors, officers, employees, agents, and
advisors of such Person and of such Person's Affiliates.
"Reportable Event" means any of the events set forth in Section 4043(c) of
ERISA, other than events for which the 30 day notice period has been waived.
"Required Lenders" means, as of any date of determination, Lenders the sum
of whose Applicable Percentages aggregate more than 50%; provided that the
Commitment of, and the portion of the Principal Debt held by, any Defaulting
Lender shall be excluded for purposes of making a determination of Required
Lenders.
"Responsible Officer" means the chief executive officer, president, chief
financial officer, chief accounting officer, treasurer, or secretary of the
Borrower, or any other officer of Borrower duly authorized by all necessary
corporate and/or other action on the part of the Borrower and for which an
incumbency certificate has been delivered to Administrative Agent. Any document
delivered hereunder that is signed by a Responsible Officer of the Borrower
shall be conclusively presumed to have been authorized by all necessary
corporate and/or other action on the part of the Borrower and such Responsible
Officer shall be conclusively presumed to have acted on behalf of the Borrower.
19
"Restricted Payment" means any dividend or other distribution (whether in
cash, securities or other property) with respect to any capital stock or other
Equity Interest of the Borrower or any Subsidiary, or any payment (whether in
cash, securities or other property), including any sinking fund or similar
deposit, on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any such capital stock or other Equity Interest,
or on account of any return of capital to the Borrower's or any Subsidiary's
stockholders, partners or members (or the equivalent Person thereof).
"Retrocession Agreement" means any agreement, contract, treaty,
certificate, or other arrangement whereby any Insurance Subsidiary cedes to
another insurer or reinsurer all or part of such Insurance Subsidiary's
liability under a policy or policies of insurance or reinsurance issued by such
Insurance Subsidiary.
"SAP" means, as to any Insurance Subsidiary, the statutory accounting
practices prescribed or permitted by the Laws of the Department in the state or
other jurisdiction of domicile of such Insurance Subsidiary for the preparation
of annual statements or other financial reports by insurance companies of the
same type as such Insurance Subsidiary as in effect at the time in question.
"SEC" means the Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.
"Shareholders' Equity" means, as of any date of determination,
consolidated shareholders' equity of the Borrower and its Subsidiaries as of
that date determined in accordance with GAAP.
"Significant Sale" means any Disposition by the Borrower or any Subsidiary
(other than any Excluded Disposition), with respect to which the Net Cash
Proceeds received by the Borrower or such Subsidiary for such Disposition
(individually, or when aggregated with the Net Cash Proceeds from all such other
Dispositions occurring in the same calendar year for which mandatory prepayments
pursuant to Section 2.03(b)(ii) are required but have not been paid) equals or
exceeds $10,000,000.
"Solvent" means, as to a Person, that (a) the aggregate value of such
Person's assets (at fair value and fair saleable value) exceeds (i) its total
liabilities (whether contingent, subordinated, unmatured, unliquidated, or
otherwise), and (ii) the amount required to pay such liabilities as they become
absolute and matured in the normal course of business; (b) such Person has
sufficient cash flow to enable it to pay its debts and liabilities (whether
contingent, subordinated, matured, unliquidated, or otherwise) as they become
absolute and matured in the normal course of business; and (c) such Person does
not have an unreasonably small amount of capital with which to conduct such
Person's business.
"Subsidiary" of a Person means a corporation, partnership, joint venture,
limited liability company, or other business entity of which a majority of the
shares of securities or other interests having ordinary voting power for the
election of directors or other governing body (other than securities or
interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned, or the management of which is otherwise
controlled, directly, or
20
indirectly through one or more intermediaries, or both, by such Person. Unless
otherwise specified, all references herein to a "Subsidiary" or to
"Subsidiaries" shall refer to a Subsidiary or Subsidiaries of the Borrower.
"Swap Contract" means (a) any and all rate swap transactions, basis swaps,
credit derivative transactions, forward rate transactions, commodity swaps,
commodity options, forward commodity contracts, equity or equity index swaps or
options, bond or bond price or bond index swaps or options or forward bond or
forward bond price or forward bond index transactions, interest rate options,
forward foreign exchange transactions, cap transactions, floor transactions,
collar transactions, currency swap transactions, cross-currency rate swap
transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions
of any kind, and the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement published by the
International Swaps and Derivatives Association, Inc., any International Foreign
Exchange Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a "Master Agreement"), including
any such obligations or liabilities under any Master Agreement.
"Swap Termination Value" means, in respect of any one or more Swap
Contracts, after taking into account the effect of any contractual netting
agreement relating to such Swap Contracts, (a) for any date on or after the date
such Swap Contracts have been closed out and termination value(s) determined in
accordance therewith, such termination value(s), and (b) for any date prior to
the date referenced in clause (a), the amount(s) determined as the
xxxx-to-market value(s) for such Swap Contracts, as determined based upon one or
more mid-market or other readily available quotations provided by any recognized
dealer in such Swap Contracts (which may include a Lender or any Affiliate of a
Lender).
"Synthetic Lease Obligation" means the monetary obligation of a Person
under (a) a so-called synthetic, off-balance sheet or tax retention lease, or
(b) an agreement for the use or possession of property creating obligations that
do not appear on the balance sheet of such Person but which, upon the insolvency
or bankruptcy of such Person, would be characterized as the indebtedness of such
Person (without regard to accounting treatment).
"Taxes" means all present or future taxes, levies, imposts, duties,
deductions, withholdings, assessments, fees, or other charges imposed by any
Governmental Authority, including any interest, additions to tax, or penalties
applicable thereto.
"Threshold Amount" means $25,000,000.
"Type" means, with respect to a Loan, its character as a Base Rate Loan or
a Eurodollar Rate Loan.
"Unfunded Pension Liability" means the excess of a Pension Plan's benefit
liabilities under Section 4001(a)(16) of ERISA, over the current value of that
Pension Plan's assets,
21
determined in accordance with the assumptions used for funding the Pension Plan
pursuant to Section 412 of the Code for the applicable plan year.
"United States" and "U.S." mean the United States of America.
1.02 OTHER INTERPRETIVE PROVISIONS. With reference to this Agreement and
each other Loan Document, unless otherwise specified herein or in such other
Loan Document:
(a) The definitions of terms herein shall apply equally to the
singular and plural forms of the terms defined. Whenever the context may
require, any pronoun shall include the corresponding masculine, feminine
and neuter forms. The words "include," "includes" and "including" shall be
deemed to be followed by the phrase "without limitation." The word "will"
shall be construed to have the same meaning and effect as the word
"shall." Unless the context requires otherwise, (i) any definition of or
reference to any agreement, instrument or other document (including any
Organization Document) shall be construed as referring to such agreement,
instrument or other document as from time to time amended, supplemented,
or otherwise modified (subject to any restrictions on such amendments,
supplements or modifications set forth herein or in any other Loan
Document), (ii) any reference herein to any Person shall be construed to
include such Person's successors and assigns, (iii) the words "herein,"
"hereof" and "hereunder," and words of similar import when used in any
Loan Document, shall be construed to refer to such Loan Document in its
entirety and not to any particular provision thereof, (iv) all references
in a Loan Document to Articles, Sections, Exhibits, and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules
to, the Loan Document in which such references appear, (v) any reference
to any Law shall include all Laws consolidating, amending, replacing, or
interpreting such Law, and any reference to any Law shall, unless
otherwise specified, refer to such Law, as amended, modified or
supplemented from time to time, and (vi) the words "asset" and "property"
shall be construed to have the same meaning and effect and to refer to any
and all tangible and intangible assets and properties, including cash,
securities, accounts and contract rights.
(b) In the computation of periods of time from a specified date to a
later specified date, the word "from" means "from and including;" the
words "to" and "until" each mean "to but excluding;" and the word
"through" means "to and including."
(c) Section headings herein and in the other Loan Documents are
included for convenience of reference only and shall not affect the
interpretation of this Agreement or any other Loan Document.
1.03 ACCOUNTING TERMS. (a) Generally. All accounting terms not
specifically or completely defined herein shall be construed in conformity with,
and all financial data (including financial ratios and other financial
calculations) required to be submitted pursuant to this Agreement shall be
prepared in conformity with, GAAP or SAP, as applicable, applied on a consistent
basis, as in effect from time to time, applied in the case of GAAP in a manner
consistent with that used in preparing the Audited Financial Statements and
applied in the case of SAP in a manner consistent with that used in preparing
the most-recent Annual Statement, except as otherwise specifically prescribed
herein.
22
(b) CHANGES IN GAAP OR SAP. If at any time any change in GAAP or SAP, as
applicable, would affect the computation of any financial ratio or requirement
set forth in any Loan Document, and either the Borrower or the Required Lenders
shall so request, the Administrative Agent, the Lenders and the Borrower shall
negotiate in good faith to amend such ratio or requirement to preserve the
original intent thereof in light of such change in GAAP or SAP, as applicable,
(subject to the approval of the Required Lenders); provided that, until so
amended, (i) such ratio or requirement shall continue to be computed in
accordance with GAAP or SAP, as applicable, prior to such change therein and
(ii) the Borrower shall provide to the Administrative Agent and the Lenders
financial statements and other documents required under this Agreement or as
reasonably requested hereunder setting forth a reconciliation between
calculations of such ratio or requirement made before and after giving effect to
such change in GAAP or SAP, as applicable.
1.04 ROUNDING. Any financial ratios required to be maintained by the
Borrower pursuant to this Agreement shall be calculated by dividing the
appropriate component by the other component, carrying the result to one place
more than the number of places by which such ratio is expressed herein and
rounding the result up or down to the nearest number (with a rounding-up if
there is no nearest number).
1.05 TIMES OF DAY. Unless otherwise specified, all references herein to
times of day shall be references to Eastern time (daylight or standard, as
applicable).
ARTICLE II.
THE COMMITMENTS
2.01 LOANS. Subject to the terms and conditions set forth herein, each
Lender severally agrees to make loans (each such loan, a "Loan") to the Borrower
on the Closing Date, in an aggregate amount not to exceed the amount of such
Lender's Commitment; provided, however, that after giving effect to the
Borrowing, the Principal Debt shall not exceed the Aggregate Commitments. Any
portion of any Lender's Commitment that is not borrowed on the Closing Date
shall automatically terminate. Loans that have been repaid or prepaid may not be
reborrowed. Loans may be Base Rate Loans or Eurodollar Rate Loans, as further
provided herein.
2.02 BORROWINGS, CONVERSIONS AND CONTINUATIONS OF LOANS.
(a) The Borrowing, each conversion of Loans from one Type to the other,
and each continuation of Eurodollar Rate Loans shall be made upon the Borrower's
irrevocable notice to the Administrative Agent, which may be given by telephone.
Each such notice must be received by the Administrative Agent not later than
11:00 a.m. (i) (x) three Business Days prior to the requested date of the
Borrowing of, conversion to, or continuation of Eurodollar Rate Loans or of any
conversion of Eurodollar Rate Loans to Base Rate Loans with a requested Interest
Period of one, two, three, or sixth months and (y) five Business Days prior to
the requested date of the Borrowing of, conversion to, or continuation of
Eurodollar Rate Loans or of any conversion of Eurodollar Rate Loans to Base Rate
Loans with a requested Interest Period of twelve months, and (ii) on the
requested date of the Borrowing of Base Rate Loans; provided, however, that if
the Borrower wishes to request Eurodollar Rate Loans having an Interest Period
of twelve months in duration as provided in the definition of "Interest Period",
the applicable notice must
23
be received by the Administrative Agent not later than 11:00 a.m. four Business
Days prior to the requested date of such Borrowing, conversion, or continuation,
whereupon the Administrative Agent shall give prompt notice to the Lenders of
such request and determine whether the requested Interest Period is acceptable
to all of them. In the case where the Borrower requests Eurodollar Rate Loans
having an Interest Period of twelve months, not later than 11:00 a.m., three
Business Days before the requested date of such Borrowing, conversion, or
continuation, the Administrative Agent shall notify the Borrower (which notice
may be by telephone) whether or not the requested Interest Period has been
consented to by all the Lenders. Each telephonic notice by the Borrower pursuant
to this Section 2.02(a) must be confirmed promptly by delivery to the
Administrative Agent of a written Loan Notice, appropriately completed and
signed by a Responsible Officer of the Borrower. Each Borrowing of, conversion
to, or continuation of Eurodollar Rate Loans shall be in a principal amount of
$5,000,000 or a whole multiple of $1,000,000 in excess thereof. Each Borrowing
of, or conversion to, Base Rate Loans shall be in a principal amount of $500,000
or a whole multiple of $100,000 in excess thereof. Each Loan Notice (whether
telephonic or written) shall specify (i) whether the Borrower is requesting a
Borrowing, a conversion of Loans from one Type to the other, or a continuation
of Eurodollar Rate Loans, (ii) the requested date of the Borrowing, conversion,
or continuation, as the case may be (which shall be a Business Day), (iii) the
principal amount of Loans to be borrowed, converted, or continued, (iv) the Type
of Loans to be borrowed or to which existing Loans are to be converted, and (v)
if applicable, the duration of the Interest Period with respect thereto. If the
Borrower fails to specify a Type of Loan in a Loan Notice or if the Borrower
fails to give a timely notice requesting a conversion or continuation, then the
applicable Loans shall be made as, or converted to, Base Rate Loans. Any such
automatic conversion to Base Rate Loans shall be effective as of the last day of
the Interest Period then in effect with respect to the applicable Eurodollar
Rate Loans. If the Borrower requests a Borrowing of, conversion to, or
continuation of Eurodollar Rate Loans in any such Loan Notice, but fails to
specify an Interest Period, it will be deemed to have specified an Interest
Period of one month.
(b) Following receipt of a Loan Notice, the Administrative Agent shall
promptly notify each Lender of the amount of its Applicable Percentage of the
applicable Loans, and if no timely notice of a conversion or continuation is
provided by the Borrower, the Administrative Agent shall notify each Lender of
the details of any automatic conversion to Base Rate Loans described in the
preceding subsection. In the case of the Borrowing, each Lender shall make the
amount of its Loans available to the Administrative Agent in immediately
available funds at the Administrative Agent's Office not later than 1:00 p.m. on
the Business Day specified in the applicable Loan Notice. Upon satisfaction of
the applicable conditions set forth in Section 4.01, the Administrative Agent
shall make all funds so received available to the Borrower in like funds as
received by the Administrative Agent promptly (such that, unless otherwise
agreed by the Administrative Agent and the Borrower, such funds are disbursed by
the later of 3:00 p.m. or one hour after all conditions precedent in Section
4.01 have been satisfied or waived), either by (i) crediting the account of the
Borrower on the books of Bank of America with the amount of such funds or (ii)
wire transfer of such funds, in each case in accordance with instructions
provided to (and reasonably acceptable to) the Administrative Agent by the
Borrower.
(c) Except as otherwise provided herein, a Eurodollar Rate Loan may be
continued or converted only on the last day of an Interest Period for such
Eurodollar Rate Loan. During the
24
existence of an Event of Default, no Loans may be requested as, converted to, or
continued as Eurodollar Rate Loans without the consent of the Required Lenders.
(d) The Administrative Agent shall promptly notify the Borrower and the
Lenders of the interest rate applicable to any Interest Period for Eurodollar
Rate Loans upon determination of such interest rate. At any time that Base Rate
Loans are outstanding, the Administrative Agent shall notify the Borrower and
the Lenders of any change in Bank of America's prime rate used in determining
the Base Rate promptly following the public announcement of such change.
(e) After giving effect to all Borrowings, all conversions of Loans from
one Type to the other, and all continuations of Loans as the same Type, there
shall not be more than five Interest Periods in effect with respect to Loans.
2.03 PREPAYMENTS.
(a) Optional Prepayments. The Borrower may, upon notice to the
Administrative Agent, at any time or from time to time voluntarily prepay the
Principal Debt in whole or in part without premium or penalty; provided that (i)
such notice must be received by the Administrative Agent not later than 11:00
a.m. (A) three Business Days prior to any date of prepayment of Eurodollar Rate
Loans and (B) on the date of prepayment of Base Rate Loans; (ii) any prepayment
of Eurodollar Rate Loans shall be in a principal amount of $5,000,000 or a whole
multiple of $1,000,000 in excess thereof; and (iii) any prepayment of Base Rate
Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000
in excess thereof or, in each case, if less, the entire principal amount thereof
then outstanding. Each such notice shall specify the date and amount of such
prepayment and the Type(s) of Loans to be prepaid. The Administrative Agent will
promptly notify each Lender of its receipt of each such notice, and of the
amount of such Lender's Applicable Percentage of such prepayment. If such
prepayment notice is given by the Borrower, the Borrower shall make such
prepayment and the payment amount specified in such notice shall be due and
payable on the date specified therein. Any prepayment of a Eurodollar Rate Loan
shall be accompanied by all accrued interest on the amount prepaid, together
with any additional amounts required pursuant to Section 3.05. Each prepayment
shall be applied to the Loans of the Lenders in accordance with their respective
Applicable Percentages, and all partial prepayments shall be applied to the
regularly-scheduled Principal Debt reductions as set forth in Section 2.04 in
inverse order of maturities.
(b) Mandatory Prepayments. Until such time as the Obligations have been
repaid in full, the Principal Debt shall be permanently prepaid in the amounts
and upon the occurrence of any of the following events:
(i) Concurrently with any Debt Issuance by the Borrower or any
Subsidiary, the Principal Debt shall be permanently prepaid, in the order
and manner specified herein, by an amount equal to 100% of the Net Cash
Proceeds realized by the Borrower or such Subsidiary from such Debt
Issuance;
(ii) With respect to the consummation of any Significant Sale by the
Borrower or any Subsidiary (which Significant Sale must be otherwise
permitted under the Loan Documents or shall have been consented to by
Required Lenders), the Principal Debt
25
shall be permanently prepaid in the order and manner specified herein, by
an amount equal to 100% of the Net Cash Proceeds realized by the Borrower
or such Subsidiary from such Significant Sale, which mandatory prepayment
shall be payable as and when received (or if such Disposition is a
Significant Sale as a result of aggregation with other Dispositions in the
same calendar year, shall be payable on the date the aggregate Net Cash
Proceeds from such Dispositions equals or exceeds $10,000,000).
(iii) Concurrently with any Equity Issuance by the Borrower or any
Subsidiary, the Principal Debt shall be permanently prepaid in the order
and manner specified herein, by an amount equal to 50% of the Net Cash
Proceeds realized by the Borrower or such Subsidiary from such Equity
Issuance; provided however that, if any Equity Issuance is made on or
prior to December 31, 2005, the mandatory prepayment required by this
clause (b)(iii) with respect to such Equity Issuance shall be made on the
first Business Day of January, 2006.
(iv) Upon the earlier of (x) Borrower entering into or having
knowledge of a definitive written agreement that could reasonably be
expected to result in a Change of Control, or (y) the occurrence of a
Change of Control, the Borrower shall immediately notify the
Administrative Agent (which shall promptly notify the Lenders), and shall
offer to prepay the Obligations owed to each Lender in full concurrently
with such Change of Control. At the time of sending such notice, the
Borrower (in consultation with the Administrative Agent) shall specify the
time period within which each Lender is requested to respond (which shall
in no event be less than five (5) Business Days from the date of delivery
of such notice to the Lenders the "Notice Period"). Each Lender shall
notify the Administrative Agent within the Notice Period whether or not it
wishes to receive a prepayment of the Obligations owed to such Lender. Any
Lender not responding to the Administrative Agent during the Notice Period
shall be deemed to have elected not to require prepayment of the
Obligations owed to such Lender. The Borrower shall repay in full the
Obligations owed to each Lender that elects to receive such prepayment
(each an "Electing Lender"), on the later of the date upon which Change of
Control occurs or two (2) Business Days after the expiration of the Notice
Period.
All mandatory prepayments of the Principal Debt shall be applied to the
Principal Debt owed to each Lender or Electing Lender, as the case may be, (x)
ratably, in the case of a prepayment pursuant to clauses (b)(i) through (iii)
above and (y) to each Electing Lender in the case of a prepayment pursuant to
clause (b)(iv) above, and any partial prepayments shall be applied to the
regularly-scheduled Principal Debt reductions as set forth in Section 2.04 in
inverse order of maturities.
2.04 REPAYMENT OF LOANS. The Borrower shall repay the Principal Debt in
three installments on the dates and in the amounts set forth below (as reduced
by any prepayments pursuant to Section 2.03):
(a) two installments each in the amount of $100,000,000, payable on March
30, 2010 and March 30, 2011 respectively; and
26
(b) a final installment payable on the Maturity Date in an amount equal to
all Principal Debt remaining outstanding on such date.
2.05 INTEREST.
(a) Subject to the provisions of subsection (b) below, (i) each Eurodollar
Rate Loan shall bear interest on the outstanding principal amount thereof for
each Interest Period at a rate per annum equal to the Eurodollar Rate for such
Interest Period plus the Applicable Margin and (ii) each Base Rate Loan shall
bear interest on the outstanding principal amount thereof from the applicable
borrowing date at a rate per annum equal to the Base Rate.
(b) (i) If any amount of the Principal Debt is not paid when due (without
regard to any applicable grace periods), whether at stated maturity, by
acceleration or otherwise, such amount shall thereafter bear interest at a
fluctuating interest rate per annum at all times equal to the Default Rate to
the fullest extent permitted by applicable Laws.
(ii) If any amount (other than the Principal Debt) payable by the
Borrower under any Loan Document is not paid when due (without regard to
any applicable grace periods), whether at stated maturity, by acceleration
or otherwise, then upon the request of the Required Lenders, such amount
shall thereafter bear interest at a fluctuating interest rate per annum at
all times equal to the Default Rate to the fullest extent permitted by
applicable Laws.
(iii) Upon the request of the Required Lenders, while any Event of
Default exists, the Borrower shall pay interest on the principal amount of
all outstanding Obligations hereunder at a fluctuating interest rate per
annum at all times equal to the Default Rate to the fullest extent
permitted by applicable Laws.
(iv) Accrued and unpaid interest on past due amounts (including
interest on past due interest) shall be due and payable upon demand.
(c) Interest on each Loan shall be due and payable in arrears on each
Interest Payment Date applicable thereto and at such other times as may be
specified herein. To the extent permitted by applicable Law, interest hereunder
shall be due and payable in accordance with the terms hereof before and after
judgment, and before and after the commencement of any proceeding under any
Debtor Relief Law.
2.06 FEES. The Borrower shall pay to the Arrangers and the Administrative
Agent for account of the Lenders or their own respective accounts, as the case
may be, fees in the amounts and at the times specified in the Fee Letter. Such
fees shall be fully earned when paid and shall not be refundable for any reason
whatsoever.
2.07 COMPUTATION OF INTEREST AND FEES. All computations of interest for
Base Rate Loans when the Base Rate is determined by Bank of America's "prime
rate" shall be made on the basis of a year of 365 or 366 days, as the case may
be, and actual days elapsed. All other computations of fees and interest shall
be made on the basis of a 360-day year and actual days elapsed (which results in
more fees or interest, as applicable, being paid than if computed on the basis
of a 365-day year). Interest shall accrue on each Loan for the day on which the
Loan is
27
made, and shall not accrue on a Loan, or any portion thereof, for the day on
which the Loan or such portion is paid. Each determination by the Administrative
Agent of an interest rate or fee hereunder shall be conclusive and binding for
all purposes, absent manifest error.
2.08 EVIDENCE OF DEBT. The Loans made by each Lender shall be evidenced by
one or more accounts or records maintained by such Lender and by the
Administrative Agent in the ordinary course of business. The accounts or records
maintained by the Administrative Agent and each Lender shall be conclusive
absent manifest error of the amount of the Loans made by the Lenders to the
Borrower and the interest and payments thereon. Any failure to so record or any
error in doing so shall not, however, limit or otherwise affect the obligation
of the Borrower hereunder to pay any amount owing with respect to the
Obligations. In the event of any conflict between the accounts and records
maintained by any Lender and the accounts and records of the Administrative
Agent in respect of such matters, the accounts and records of the Administrative
Agent shall control in the absence of manifest error. Upon the request of any
Lender made through the Administrative Agent, the Borrower shall execute and
deliver to such Lender (through the Administrative Agent) a Note, which shall
evidence such Lender's Loans in addition to such accounts or records. Each
Lender may attach schedules to its Note and endorse thereon the date, Type (if
applicable), amount and maturity of its Loans and payments with respect thereto.
2.09 PAYMENTS GENERALLY; ADMINISTRATIVE AGENT'S CLAWBACK.
(a) General. All payments to be made by the Borrower shall be made without
condition or deduction for any counterclaim, defense, recoupment, or setoff.
Except as otherwise expressly provided herein, all payments by the Borrower
hereunder shall be made to the Administrative Agent, for the account of the
respective Lenders to which such payment is owed, at the Administrative Agent's
Office in Dollars and in immediately available funds not later than 2:00 p.m. on
the date specified herein. The Administrative Agent will promptly distribute to
each Lender its Applicable Percentage (or other applicable share as provided
herein) of such payment in like funds as received by wire transfer to such
Lender's Lending Office. All payments received by the Administrative Agent after
2:00 p.m. shall be deemed received on the next succeeding Business Day and any
applicable interest or fee shall continue to accrue. If any payment to be made
by the Borrower shall come due on a day other than a Business Day, payment shall
be made on the next following Business Day, and such extension of time shall be
reflected in computing interest or fees, as the case may be.
(b) (i) Funding by Lenders; Presumption by Administrative Agent. Unless
the Administrative Agent shall have received notice from a Lender prior to the
Closing Date that such Lender will not make available to the Administrative
Agent such Lender's share of the Borrowing, the Administrative Agent may assume
that such Lender has made such share available on such date in accordance with
Section 2.02 and may, in reliance upon such assumption, make available to the
Borrower a corresponding amount. In such event, if a Lender has not in fact made
its share of the Borrowing available to the Administrative Agent, then the
applicable Lender and the Borrower severally agree to pay to the Administrative
Agent forthwith on demand such corresponding amount in immediately available
funds with interest thereon, for each day from and including the date such
amount is made available to the Borrower to but excluding the date of payment to
the Administrative Agent, at (A) in the case of a payment to be
28
made by such Lender, the greater of the Federal Funds Rate and a rate determined
by the Administrative Agent in accordance with banking industry rules on
interbank compensation and (B) in the case of a payment to be made by the
Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and
such Lender shall pay such interest to the Administrative Agent for the same or
an overlapping period, the Administrative Agent shall promptly remit to the
Borrower the amount of such interest paid by the Borrower for such period. If
such Lender pays its share of the Borrowing to the Administrative Agent, then
the amount so paid shall constitute such Lender's Loan included in the
Borrowing. Any payment by the Borrower shall be without prejudice to any claim
the Borrower may have against a Lender that shall have failed to make such
payment to the Administrative Agent.
(ii) Payments by Borrower; Presumptions by Administrative Agent. Unless
the Administrative Agent shall have received notice from the Borrower prior to
the date on which any payment is due to the Administrative Agent for the account
of the Lenders hereunder that the Borrower will not make such payment, the
Administrative Agent may assume that the Borrower has made such payment on such
date in accordance herewith and may, in reliance upon such assumption,
distribute to the Lenders the amount due. In such event, if the Borrower has not
in fact made such payment, then each of the Lenders severally agrees to repay to
the Administrative Agent forthwith on demand the amount so distributed to such
Lender, in immediately available funds with interest thereon, for each day from
and including the date such amount is distributed to it to but excluding the
date of payment to the Administrative Agent, at the greater of the Federal Funds
Rate and a rate determined by the Administrative Agent in accordance with
banking industry rules on interbank compensation.
A notice of the Administrative Agent to any Lender or the Borrower with
respect to any amount owing under this subsection (b) shall be conclusive,
absent manifest error.
(c) Failure to Satisfy Conditions Precedent. If any Lender makes available
to the Administrative Agent funds for any Loan to be made by such Lender as
provided in the foregoing provisions of this Article II, and such funds are not
made available to the Borrower by the Administrative Agent because the
conditions to the Borrowing set forth in Article IV are not satisfied or waived
in accordance with the terms hereof, the Administrative Agent shall return such
funds (in like funds as received from such Lender) to such Lender, without
interest.
(d) Obligations of Lenders Several. The obligations of the Lenders
hereunder to make Loans and to make payments pursuant to Section 10.04(c) are
several and not joint. The failure of any Lender to make any Loan or to make any
payment under Section 10.04(c) on any date required hereunder shall not relieve
any other Lender of its corresponding obligation to do so on such date, and no
Lender shall be responsible for the failure of any other Lender to so make its
Loan or to make its payment under Section 10.04(c).
(e) Funding Source. Nothing herein shall be deemed to obligate any Lender
to obtain the funds for any Loan in any particular place or manner or to
constitute a representation by any Lender that it has obtained or will obtain
the funds for any Loan in any particular place or manner.
29
2.10 SHARING OF PAYMENTS BY LENDERS. If any Lender shall, by exercising
any right of setoff or counterclaim or otherwise, obtain payment in respect of
any principal of or interest on any of the Loans made by it resulting in such
Lender's receiving payment of a proportion of the aggregate amount of such Loans
and accrued interest thereon greater than its pro rata share thereof as provided
herein, then the Lender receiving such greater proportion shall (a) notify the
Administrative Agent of such fact, and (b) purchase (for cash at face value)
participations in the Loans of the other Lenders, or make such other adjustments
as shall be equitable, so that the benefit of all such payments shall be shared
by the Lenders ratably in accordance with the aggregate amount of principal of
and accrued interest on their respective Loans and other amounts owing them,
provided that:
(i) if any such participations or subparticipations are purchased
and all or any portion of the payment giving rise thereto is recovered,
such participations or subparticipations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest;
and
(ii) the provisions of this Section shall not be construed to apply
to (x) any payment made by the Borrower pursuant to and in accordance with
the express terms of this Agreement or (y) any payment obtained by a
Lender as consideration for the assignment of or sale of a participation
in any of its Loans, other than to the Borrower or any Subsidiary thereof
(as to which the provisions of this Section shall apply).
The Borrower consents to the foregoing and agrees, to the extent it may
effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against the
Borrower rights of setoff and counterclaim with respect to such participation as
fully as if such Lender were a direct creditor of the Borrower in the amount of
such participation.
ARTICLE III.
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 TAXES.
(a) Payments Free of Taxes. Any and all payments by or on account of any
obligation of the Borrower hereunder or under any other Loan Document shall be
made free and clear of and without reduction or withholding for any Indemnified
Taxes or Other Taxes, provided that if the Borrower shall be required by
applicable law to deduct any such Indemnified Taxes or Other Taxes from such
payments, then (i) the sum payable shall be increased as necessary so that after
making all required deductions (including deductions applicable to additional
sums payable under this Section) the Administrative Agent or Lender, as the case
may be, receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions and (iii) the
Borrower shall timely pay the full amount deducted to the relevant Governmental
Authority in accordance with applicable law.
(b) Payment of Other Taxes by the Borrower. Without limiting the
provisions of subsection (a) above, the Borrower shall timely pay any Other
Taxes to the appropriate Governmental Authority in accordance with applicable
Law.
30
(c) Indemnification by the Borrower. The Borrower shall indemnify the
Administrative Agent and each Lender, within 10 days after demand therefor, for
the full amount of any Indemnified Taxes or Other Taxes (including Indemnified
Taxes or Other Taxes imposed or asserted on or attributable to amounts payable
under this Section) paid by the Administrative Agent or such Lender, as the case
may be, and any penalties, interest and reasonable expenses arising therefrom or
with respect thereto, whether or not such Indemnified Taxes or Other Taxes were
correctly or legally imposed or asserted by the relevant Governmental Authority.
A certificate as to the amount of such payment or liability delivered to the
Borrower by a Lender (with a copy to the Administrative Agent), or by the
Administrative Agent on its own behalf or on behalf of a Lender, shall be
conclusive absent manifest error.
(d) Evidence of Payments. As soon as practicable after any payment of
Indemnified Taxes or Other Taxes by the Borrower to a Governmental Authority,
the Borrower shall deliver to the Administrative Agent the original or a
certified copy of a receipt issued by such Governmental Authority evidencing
such payment, a copy of the return reporting such payment, or other evidence of
such payment reasonably satisfactory to the Administrative Agent.
(e) Status of Lenders. Any Foreign Lender that is entitled to an exemption
from or reduction of withholding tax under the law of the jurisdiction in which
the Borrower is resident for tax purposes, or any treaty to which such
jurisdiction is a party, with respect to payments hereunder or under any other
Loan Document shall deliver to the Borrower (with a copy to the Administrative
Agent), at the time or times prescribed by applicable law or reasonably
requested by the Borrower or the Administrative Agent, such properly completed
and executed documentation prescribed by applicable law as will permit such
payments to be made without withholding or at a reduced rate of withholding. In
addition, any Lender, if requested by the Borrower or the Administrative Agent,
shall deliver such other documentation prescribed by applicable law or
reasonably requested by the Borrower or the Administrative Agent as will enable
the Borrower or the Administrative Agent to determine whether or not such Lender
is subject to backup withholding or information reporting requirements.
Without limiting the generality of the foregoing, in the event that the
Borrower is resident for tax purposes in the United States, any Foreign Lender
shall deliver to the Borrower and the Administrative Agent (in such number of
copies as shall be requested by the recipient) on or prior to the date on which
such Foreign Lender becomes a Lender under this Agreement (and from time to time
thereafter upon the request of the Borrower or the Administrative Agent, but
only if such Foreign Lender is legally entitled to do so), whichever of the
following is applicable:
(i) duly completed copies of IRS Form W-8BEN claiming eligibility
for benefits of an income tax treaty to which the United States is a
party,
(ii) duly completed copies of IRS Form W-8ECI,
(iii) in the case of a Foreign Lender claiming the benefits of the
exemption for portfolio interest under section 881(c) of the Code, (x) a
certificate to the effect that such Foreign Lender is not (A) a "bank"
within the meaning of section 881(c)(3)(A) of the Code, (B) a "10 percent
shareholder" of the Borrower within the meaning of section
31
881(c)(3)(B) of the Code, or (C) a "controlled foreign corporation"
described in section 881(c)(3)(C) of the Code and (y) duly completed
copies of IRS Form W-8BEN, or
(iv) any other form prescribed by applicable law as a basis for
claiming exemption from or a reduction in United States Federal
withholding tax duly completed together with such supplementary
documentation as may be prescribed by applicable law to permit the
Borrower to determine the withholding or deduction required to be made.
Without limiting the obligations of the Lenders set forth above regarding
delivery of certain forms and documents to establish each Lender's status for
U.S. withholding tax purposes, each Lender agrees promptly to deliver to the
Administrative Agent or the Borrower, as the Administrative Agent or the
Borrower shall reasonably request, on or prior to the Closing Date, and in a
timely fashion thereafter, such other documents and forms required by any
relevant taxing authorities under the Laws of any other jurisdiction, duly
executed and completed by such Lender, as are required under such Laws to
confirm such Lender's entitlement to any available exemption from, or reduction
of, applicable withholding taxes in respect of all payments to be made to such
Lender outside of the U.S. by the Borrower pursuant to this Agreement or
otherwise to establish such Lender's status for withholding tax purposes in such
other jurisdiction. Each Lender shall promptly (a) notify the Administrative
Agent and the Borrower of any change in circumstances which would modify or
render invalid any such claimed exemption or reduction, and (b) take such steps
as shall not be materially disadvantageous to it, in the reasonable judgment of
such Lender, and as may be reasonably necessary (including the re-designation of
its Lending Office) to avoid any requirement of applicable Laws of any such
jurisdiction that the Borrower make any deduction or withholding for Taxes from
amounts payable to such Lender. Additionally, the Borrower shall promptly
deliver to the Administrative Agent or any Lender, as the Administrative Agent
or such Lender shall reasonably request, on or prior to the Closing Date, and in
a timely fashion thereafter, such documents and forms required by any relevant
taxing authorities under the Laws of any jurisdiction, duly executed and
completed by the Borrower, as are required to be furnished by such Lender or the
Administrative Agent under such Laws in connection with any payment by the
Administrative Agent or any Lender of Indemnified Taxes or Other Taxes, or
otherwise in connection with the Loan Documents, with respect to such
jurisdiction.
(f) Treatment of Certain Refunds. If the Administrative Agent or any
Lender determines, in its sole discretion, that it has received a refund of any
Indemnified Taxes or Other Taxes as to which it has been indemnified by the
Borrower or with respect to which the Borrower has paid additional amounts
pursuant to this Section, it shall pay to the Borrower an amount equal to such
refund (but only to the extent of indemnity payments made, or additional amounts
paid, by the Borrower under this Section with respect to the Indemnified Taxes
or Other Taxes giving rise to such refund), net of all out-of-pocket expenses of
the Administrative Agent or such Lender, as the case may be, and without
interest (other than any interest paid by the relevant Governmental Authority
with respect to such refund), provided that the Borrower, upon the request of
the Administrative Agent or such Lender, agrees to repay the amount paid over to
the Borrower (plus any penalties, interest, or other charges imposed by the
relevant Governmental Authority) to the Administrative Agent or such Lender in
the event the Administrative Agent or such Lender is required to repay such
refund to such Governmental Authority. This subsection shall not be construed to
require the Administrative Agent or any
32
Lender to make available its tax returns (or any other information relating to
its taxes that it deems confidential) to the Borrower or any other Person.
(g) Delay in Requests. Failure or delay on the part of any Lender to
demand payment pursuant to Section 3.01(b) or (c) shall not constitute a waiver
of such Lender's right to demand such payment, provided that the Borrower shall
not be required to compensate a Lender for any Indemnified Taxes or Other Taxes
pursuant to Section 3.01(b) or (c) if such Lender's demand for payment is made
more than six months after the date of such Lender's actual knowledge of the
obligation to pay such Indemnified Taxes or Other Taxes.
3.02 ILLEGALITY. If any Lender determines that any Law has made it
unlawful, or that any Governmental Authority has asserted that it is unlawful,
for any Lender or its applicable Lending Office to make, maintain or fund
Eurodollar Rate Loans, or to determine or charge interest rates based upon the
Eurodollar Rate, or any Governmental Authority has imposed material restrictions
on the authority of such Lender to purchase or sell, or to take deposits of,
Dollars in the London interbank market, then, on notice thereof by such Lender
to the Borrower through the Administrative Agent, any obligation of such Lender
to make or continue Eurodollar Rate Loans or to convert Base Rate Loans to
Eurodollar Rate Loans shall be suspended until such Lender notifies the
Administrative Agent and the Borrower that the circumstances giving rise to such
determination no longer exist. Upon receipt of such notice, the Borrower shall,
upon demand from such Lender (with a copy to the Administrative Agent), prepay
or, if applicable, convert all Eurodollar Rate Loans of such Lender to Base Rate
Loans, either on the last day of the Interest Period therefor, if such Lender
may lawfully continue to maintain such Eurodollar Rate Loans to such day, or
immediately, if such Lender may not lawfully continue to maintain such
Eurodollar Rate Loans. Upon any such prepayment or conversion, the Borrower
shall also pay accrued interest on the amount so prepaid or converted.
3.03 INABILITY TO DETERMINE RATES. If the Required Lenders determine that
for any reason in connection with any request for a Eurodollar Rate Loan or a
conversion to or continuation thereof that (a) Dollar deposits are not being
offered to banks in the London interbank eurodollar market for the applicable
amount and Interest Period of such Eurodollar Rate Loan, (b) adequate and
reasonable means do not exist for determining the Eurodollar Rate for any
requested Interest Period with respect to a proposed Eurodollar Rate Loan or (c)
the Eurodollar Rate for any requested Interest Period with respect to a proposed
Eurodollar Rate Loan does not adequately and fairly reflect the cost to such
Lenders of funding such Loan, the Administrative Agent will promptly so notify
the Borrower and each Lender. Thereafter, the obligation of the Lenders to make
or maintain Eurodollar Rate Loans shall be suspended until the Administrative
Agent (upon the instruction of the Required Lenders) revokes such notice. Upon
receipt of such notice, the Borrower may revoke any pending request for a
Borrowing of, conversion to or continuation of Eurodollar Rate Loans or, failing
that, will be deemed to have converted such request into a request for a
Borrowing of Base Rate Loans in the amount specified therein.
33
3.04 INCREASED COSTS; RESERVES ON EURODOLLAR RATE LOANS.
(a) Increased Costs Generally. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit,
compulsory loan, insurance charge or similar requirement against assets
of, deposits with or for the account of, or credit extended or
participated in by, any Lender (except any reserve requirement
contemplated by Section 3.04(e));
(ii) subject any Lender to any tax of any kind whatsoever with
respect to this Agreement or any Eurodollar Rate Loan made by it, or
change the basis of taxation of payments to such Lender in respect thereof
(except for Indemnified Taxes or Other Taxes covered by Section 3.01 and
the imposition of, or any change in the rate of, any Excluded Tax payable
by such Lender); or
(iii) impose on any Lender or the London interbank market any other
condition, cost or expense affecting this Agreement or Eurodollar Rate
Loans made by such Lender;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Rate Loan (or of maintaining its
obligation to make any such Loan) or to reduce the amount of any sum received or
receivable by such Lender hereunder (whether of principal, interest, or any
other amount), then, upon request of such Lender, the Borrower will pay to such
Lender, such additional amount or amounts as will compensate such Lender for
such additional costs incurred or reduction suffered.
(b) Capital Requirements. If any Lender determines that any Change in Law
affecting such Lender or any Lending Office of such Lender or such Lender's
holding company, if any, regarding capital requirements has or would have the
effect of reducing the rate of return on such Lender's capital or on the capital
of such Lender's holding company, if any, as a consequence of this Agreement,
the Commitments of such Lender or the Loans made by such Lender to a level below
that which such Lender or such Lender's holding company could have achieved but
for such Change in Law (taking into consideration such Lender's policies and the
policies of such Lender's holding company with respect to capital adequacy),
then from time to time the Borrower will pay to such Lender such additional
amount or amounts as will compensate such Lender or such Lender's holding
company for any such reduction suffered.
(c) Certificates for Reimbursement. A certificate of a Lender setting
forth the amount or amounts necessary to compensate such Lender or its holding
company, as the case may be, as specified in subsection (a) or (b) of this
Section and delivered to the Borrower shall be conclusive absent manifest error.
The Borrower shall pay such Lender the amount shown as due on any such
certificate within 10 Business Days after receipt thereof.
(d) Delay in Requests. Failure or delay on the part of any Lender to
demand compensation pursuant to the foregoing provisions of this Section shall
not constitute a waiver of such Lender's right to demand such compensation,
provided that the Borrower shall not be required to compensate a Lender pursuant
to the foregoing provisions of this Section for any increased costs incurred or
reductions suffered more than six months prior to the date that such
34
Lender notifies the Borrower of the Change in Law giving rise to such increased
costs or reductions and of such Lender's intention to claim compensation
therefor (except that, if the Change in Law giving rise to such increased costs
or reductions is retroactive, then the six month period referred to above shall
be extended to include the period of retroactive effect thereof).
(e) Reserves on Eurodollar Rate Loans. The Borrower shall pay to each
Lender, as long as such Lender shall be required to maintain reserves with
respect to liabilities or assets consisting of or including eurocurrency funds
or deposits (currently known as "Eurocurrency liabilities"), additional interest
on the unpaid principal amount of each Eurodollar Rate Loan equal to the actual
costs of such reserves allocated to such Loan by such Lender (as determined by
such Lender in good faith, which determination shall be conclusive), which shall
be due and payable on each date on which interest is payable on such Loan,
provided the Borrower shall have received at least 10 Business Days' prior
notice (with a copy to the Administrative Agent) of such additional interest
from such Lender. If a Lender fails to give notice 10 Business Days prior to the
relevant Interest Payment Date, such additional interest shall be due and
payable 10 Business Days from receipt of such notice.
3.05 COMPENSATION FOR LOSSES. Upon demand of any Lender (with a copy to
the Administrative Agent) from time to time, the Borrower shall promptly
compensate such Lender for and hold such Lender harmless from any loss, cost or
expense incurred by it as a result of:
(a) any continuation, conversion, payment, or prepayment of any Loan other
than a Base Rate Loan on a day other than the last day of the Interest Period
for such Loan (whether voluntary, mandatory, automatic, by reason of
acceleration, or otherwise);
(b) any failure by the Borrower (for a reason other than the failure of
such Lender to make a Loan) to prepay, borrow, continue, or convert any Loan
other than a Base Rate Loan on the date or in the amount notified by the
Borrower; or
(c) any assignment of a Eurodollar Rate Loan on a day other than the last
day of the Interest Period therefor as a result of a request by the Borrower
pursuant to Section 10.13;
excluding any loss of anticipated profits or margin, but including any loss or
expense arising from the liquidation or reemployment of funds obtained by it to
maintain such Loan or from fees payable to terminate the deposits from which
such funds were obtained. The Borrower shall also pay any customary
administrative fees charged by such Lender in connection with the foregoing.
For purposes of calculating amounts payable by the Borrower to the Lenders under
this Section 3.05, each Lender shall be deemed to have funded each Eurodollar
Rate Loan made by it at the Eurodollar Rate for such Loan by a matching deposit
or other borrowing in the London interbank eurodollar market for a comparable
amount and for a comparable period, whether or not such Eurodollar Rate Loan was
in fact so funded.
3.06 MITIGATION OBLIGATIONS; REPLACEMENT OF LENDERS.
(a) Designation of a Different Lending Office. If any Lender requests
compensation under Section 3.04, or the Borrower is required to pay any
additional amount to any Lender or
35
any Governmental Authority for the account of any Lender pursuant to Section
3.01, or if any Lender gives a notice pursuant to Section 3.02, then such Lender
shall use reasonable efforts to designate a different Lending Office for funding
or booking its Loans hereunder or to assign its rights and obligations hereunder
to another of its offices, branches or affiliates, if, in the judgment of such
Lender, such designation or assignment (i) would eliminate or reduce amounts
payable pursuant to Section 3.01 or 3.04, as the case may be, in the future, or
eliminate the need for the notice pursuant to Section 3.02, as applicable, and
(ii) in each case, would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. The Borrower
hereby agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
(b) Replacement of Lenders. If any Lender requests compensation under
Section 3.04, or if the Borrower is required to pay any additional amount to any
Lender or any Governmental Authority for the account of any Lender pursuant to
Section 3.01, the Borrower may replace such Lender in accordance with Section
10.13.
3.07 SURVIVAL. All of the Borrower's obligations under this Article III
shall survive termination of the Aggregate Commitments and repayment of all
other Obligations hereunder.
ARTICLE IV.
CONDITIONS PRECEDENT TO BORROWING
4.01 CONDITIONS OF THE BORROWING. The obligation of each Lender to fund
its Applicable Percentage of the Borrowing on the Closing Date is subject to
satisfaction of the following conditions precedent (unless waived in accordance
with Section 10.01):
(a) The Administrative Agent's receipt of the following, each of which
shall be originals or telecopies (followed promptly by originals) unless
otherwise specified, each properly executed by a Responsible Officer of the
Borrower, each dated the Closing Date (or, in the case of certificates of
governmental officials, a recent date before the Closing Date) and each in form
and substance reasonably satisfactory to the Administrative Agent and each of
the Lenders:
(i) executed counterparts of this Agreement, sufficient in number
for distribution to the Administrative Agent, each Lender, and the
Borrower;
(ii) a Note executed by the Borrower in favor of each Lender
requesting a Note;
(iii) such certificates of resolutions or other action, incumbency
certificates, and/or other certificates of Responsible Officers of the
Borrower as the Administrative Agent may reasonably require evidencing the
identity, authority, and capacity of each Responsible Officer thereof
authorized to act as a Responsible Officer in connection with this
Agreement and the other Loan Documents;
(iv) such documents and certifications as the Administrative Agent
may reasonably require to evidence that the Borrower is duly organized or
formed, and that
36
the Borrower is validly existing, in good standing, and qualified to
engage in business in Bermuda;
(v) favorable opinions (i) of Xxxxxxxx and Xxxxxxxx LLP, special New
York counsel to the Borrower, (ii) Xxxxxxx Xxxx & Xxxxxxx, special Bermuda
counsel to the Borrower, and (iii) Xxxxxx Xxxxxx, general counsel of the
Borrower, addressed to the Administrative Agent and each Lender, as to the
matters set forth in Exhibit E and such other matters concerning the
Borrower and the Loan Documents as the Required Lenders may reasonably
request;
(vi) a certificate of a Responsible Officer of the Borrower either
(A) attaching copies of all consents, licenses, and approvals required in
connection with the execution, delivery, and performance by the Borrower
and the validity against the Borrower of the Loan Documents to which it is
a party, and such consents, licenses, and approvals shall be in full force
and effect, or (B) stating that no such consents, licenses, or approvals
are so required;
(vii) a certificate signed by a Responsible Officer of the Borrower
certifying (A) that the conditions specified in this Section 4.01 have
been satisfied; and (B) the A.M. Best rating of AWAC on the Closing Date;
(viii) confirmation that as of the Closing Date, and after giving
effect to the Borrowing and the use of the proceeds of the Borrowing as
permitted under the Loan Documents, each Material Insurance Subsidiary has
a financial strength rating as reported by A.M. Best of A+;
(ix) a letter from the Process Agent agreeing to the terms of
Section 10.14(d);
(x) the Audited Financial Statements and a copy of the Annual
Statement of each Material Insurance Subsidiary for the fiscal year ended
December 31, 2004; and
(xi) such other assurances, certificates, documents, consents, or
opinions as the Administrative Agent or the Required Lenders reasonably
may require, including, without limitation, any consents or approvals from
Governmental Authorities or other Persons required for the intended use of
the proceeds of this Agreement.
(b) Any fees required to be paid on or before the Closing Date shall have
been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have
paid all fees, charges, and disbursements of counsel to the Administrative Agent
to the extent invoiced at least two Business Days prior to the Closing Date,
which invoice may include such additional amounts of such fees, charges, and
disbursements as shall constitute its reasonable estimate of such fees, charges,
and disbursements incurred or to be incurred by it through the closing
proceedings (provided that such estimate shall not thereafter preclude a final
settling of accounts between the Borrower and the Administrative Agent).
(d) The Closing Date shall have occurred on or before March 31, 2005.
37
(e) Except as set forth in the Information Memorandum, no change shall
have occurred since December 31, 2004, in the business, assets, liabilities
(actual or contingent), operations, condition (financial or otherwise), or
prospects of the Borrower or its Subsidiaries (taken as a whole) or in the facts
and information regarding such entities as represented to date that has had (or
could reasonably be expected to have) a Material Adverse Effect.
(f) The representations and warranties of the Borrower contained in
Article V or any other Loan Document shall be true and correct on and as of the
date of the Borrowing, except to the extent that such representations and
warranties specifically refer to an earlier date, in which case they shall be
true and correct as of such earlier date.
(g) No Default shall exist, or would result from the Borrowing or from the
application of the proceeds thereof.
(h) The Administrative Agent shall have received a Loan Notice in
accordance with the requirements hereof.
Without limiting the generality of the provisions of Section 9.04, for
purposes of determining compliance with the conditions specified in this Section
4.01, each Lender that has signed this Agreement shall be deemed to have
consented to, approved, or accepted or to be satisfied with, each document or
other matter required thereunder to be consented to or approved by or acceptable
or satisfactory to a Lender unless the Administrative Agent shall have received
notice from such Lender prior to the proposed Closing Date specifying its
objection thereto.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Administrative Agent and the
Lenders that on the date hereof and on the Closing Date:
5.01 EXISTENCE, QUALIFICATION AND POWER; COMPLIANCE WITH LAWS. The
Borrower and each Subsidiary (a) is duly organized or formed, validly existing,
and in good standing under the Laws of the jurisdiction of its incorporation or
organization, (b) has all requisite power and authority and all requisite
governmental licenses, authorizations, consents, and approvals to (i) own or
lease its assets and carry on its business and (ii) execute, deliver, and
perform its obligations under the Loan Documents to which it is a party, and (c)
is duly qualified and is licensed and in good standing under the Laws of each
jurisdiction where its ownership, lease, or operation of properties or the
conduct of its business requires such qualification or license; except in each
case referred to in clause (b)(i) or (c), to the extent that failure to do so
could not reasonably be expected to have a Material Adverse Effect.
5.02 AUTHORIZATION; NO CONTRAVENTION. The execution, delivery, and
performance by the Borrower of each Loan Document have been duly authorized by
all necessary corporate or other organizational action, and do not and will not
(a) contravene the terms of any of the Borrower's Organization Documents; (b)
conflict with or result in any breach or contravention of, or the creation of
any Lien under, or require any payment to be made under (i) any Contractual
Obligation to which the Borrower or any Subsidiary is a party or affecting the
Borrower or the
38
properties of the Borrower or any Subsidiary or (ii) any order, injunction,
writ, or decree of any Governmental Authority or any arbitral award to which the
Borrower or any Subsidiary or their respective property is subject; or (c)
violate any Law. The Borrower and each Subsidiary thereof, as applicable, is in
compliance with all Contractual Obligations referred to in clause (b)(i), except
to the extent that failure to do so could not reasonably be expected to have a
Material Adverse Effect.
5.03 GOVERNMENTAL AUTHORIZATION; OTHER CONSENTS. No approval, consent,
exemption, authorization, or other action by, or notice to, or filing with, any
Governmental Authority or any other Person is necessary or required in
connection with the execution, delivery, or performance by, or enforcement
against, the Borrower of this Agreement or any other Loan Document, except to
the extent that the failure to do so could not reasonably be expected to (i)
affect the Borrower's ability to perform each of its obligations under the Loan
Documents or (ii) impose any liability on Administrative Agent or any Lender.
5.04 BINDING EFFECT. This Agreement has been, and each other Loan
Document, when delivered hereunder, will have been, duly executed and delivered
by the Borrower. This Agreement constitutes, and each other Loan Document when
so delivered will constitute, a legal, valid, and binding obligation of the
Borrower, enforceable against the Borrower in accordance with its terms.
5.05 FINANCIAL STATEMENTS; NO MATERIAL ADVERSE EFFECT.
(a) The Audited Financial Statements (i) were prepared in accordance with
GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein; and (ii) fairly present the financial
condition of the Borrower and its Subsidiaries as of the date thereof and their
results of operations for the period covered thereby in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise
expressly noted therein.
(b) Except as set forth in the Information Memorandum, since the date of
the Audited Financial Statements, there has been no event or circumstance,
either individually or in the aggregate, that has had or could reasonably be
expected to have a Material Adverse Effect.
(c) The Annual Statements of each Material Insurance Subsidiary for the
fiscal year ended December 31, 2004, heretofore filed with the applicable U.S.
Department and delivered to the Lenders, have been prepared in accordance with
SAP and fairly present the financial conditions of such Persons as of the dates
thereof and their results of operations for the periods covered thereby in
accordance with SAP consistently applied throughout the periods covered thereby,
except as expressly noted therein.
5.06 LITIGATION. There are no actions, suits, proceedings, claims,
investigations, or disputes pending or, to the knowledge of any Responsible
Officer of the Borrower after due investigation, threatened or contemplated, at
law, in equity, in arbitration, or before any Governmental Authority, by or
against the Borrower or any Subsidiary or against any of their properties or
revenues that (a) purport to affect or pertain to this Agreement or any other
Loan Document, or
39
any of the transactions contemplated hereby, or (b) either individually or in
the aggregate, could reasonably be expected to have a Material Adverse Effect.
5.07 NO DEFAULT. Neither the Borrower nor any Subsidiary is in default
under or with respect to any Contractual Obligation that could, either
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. No Default has occurred and is continuing or would result from
the consummation of the transactions contemplated by this Agreement or any other
Loan Document.
5.08 OWNERSHIP OF PROPERTY; LIENS. Each of the Borrower and each
Subsidiary has good record and marketable title in fee simple to, or valid
leasehold interests in, all real property necessary or used in the ordinary
conduct of its business, except for such defects in title as could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. The property of the Borrower and its Subsidiaries is subject to
no Liens, other than Liens permitted by Section 7.01.
5.09 ENVIRONMENTAL COMPLIANCE. The Borrower and each Subsidiary has
reasonably concluded that there do not exist any Environmental Laws or claims
that could, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
5.10 INSURANCE. The properties of each of the Borrower and each Subsidiary
are insured with financially sound and reputable insurance companies not
Affiliates of the Borrower, in such amounts (after giving effect to any
self-insurance compatible with the following standards), with such deductibles
and covering such risks as are customarily carried by companies engaged in
similar businesses and owning similar properties in localities where the
Borrower or the applicable Subsidiary operates.
5.11 TAXES. The Borrower and each Subsidiary have filed all federal,
state, and other material tax returns and reports required to be filed, and have
paid all federal, state, and other material taxes, assessments, fees, and other
governmental charges levied or imposed upon them or their properties, income, or
assets otherwise due and payable, except those which are being contested in good
faith by appropriate proceedings diligently conducted and for which adequate
reserves have been provided in accordance with GAAP. There is no proposed tax
assessment against the Borrower or any Subsidiary that would, if made, have a
Material Adverse Effect.
5.12 ERISA COMPLIANCE AND FOREIGN BENEFIT PLAN COMPLIANCE.
(a) Each Plan is in substantial compliance with the applicable provisions
of ERISA, the Code, and other federal or state Laws. Each Plan that is intended
to be qualified under Section 401(a) of the Code has received a favorable
determination letter from the IRS or an application for such a letter is
currently being processed by the IRS with respect thereto and, to the best
knowledge of the Borrower, nothing has occurred which would prevent, or cause
the loss of, such qualification. The Borrower and each ERISA Affiliate have made
all required contributions to each Plan subject to Section 412 of the Code, and
no application for a funding waiver or an extension of any amortization period
pursuant to Section 412 of the Code has been made with respect to any Plan.
40
(b) There are no pending or, to the best knowledge of any Responsible
Officer of the Borrower, threatened claims, actions or lawsuits, or action by
any Governmental Authority, with respect to any Plan that could reasonably be
expected to have a Material Adverse Effect. There has been no prohibited
transaction or violation of the fiduciary responsibility rules with respect to
any Plan that has resulted or could reasonably be expected to result in a
Material Adverse Effect.
(c) (i) No ERISA Event has occurred or is reasonably expected to occur;
(ii) no Pension Plan has any Unfunded Pension Liability; (iii) neither the
Borrower nor any ERISA Affiliate has incurred, or reasonably expects to incur,
any liability under Title IV of ERISA with respect to any Pension Plan (other
than premiums due and not delinquent under Section 4007 of ERISA); (iv) neither
the Borrower nor any ERISA Affiliate has incurred, or reasonably expects to
incur, any liability (and no event has occurred which, with the giving of notice
under Section 4219 of ERISA, would result in such liability) under Sections 4201
or 4243 of ERISA with respect to a Multiemployer Plan; and (v) neither the
Borrower nor any ERISA Affiliate has engaged in a transaction that could be
subject to Sections 4069 or 4212(c) of ERISA.
(d) Except as could not reasonably be expected to have a Material Adverse
Effect, (i) each Foreign Benefit Plan is in compliance with applicable Laws,
(ii) to the extent that a Foreign Benefit Plan is required to be funded, the
aggregate of the accumulated benefit obligations under each Foreign Benefit Plan
does not exceed the fair market value of the assets held in the trust or similar
funding vehicles for such Foreign Benefit Plan, (iii) reasonable reserves have
been established in accordance with prudent business practice or where required
by ordinary accounting practices in the jurisdiction in which each Foreign
Benefit Plan is maintained, and (iv) there are no actions, suits, or claims
pending, or to the knowledge of the Borrower, threatened with respect to any
Foreign Benefit Plan (other than routine claims for benefits).
5.13 SUBSIDIARIES. The Borrower has no Subsidiaries other than those
specifically disclosed on Schedule 5.13, and all of the outstanding Equity
Interests in such Subsidiaries have been validly issued, are fully paid and
nonassessable, and are owned by the Persons in the amounts specified on Schedule
5.13 free and clear of all Liens.
5.14 MARGIN REGULATIONS; INVESTMENT COMPANY ACT; PUBLIC UTILITY HOLDING
COMPANY ACT; XXXXXXXXXX XXXXXXXX XXX 0000.
(a) The Borrower is not engaged and will not engage, principally or as one
of its important activities, in the business of purchasing or carrying margin
stock (within the meaning of Regulation U issued by the FRB), or extending
credit for the purpose of purchasing or carrying margin stock. Following the
application of the proceeds of the Borrowing, not more than 25% of the value of
the assets (either of the Borrower only or of the Borrower and its Subsidiaries
on a consolidated basis) subject to the provisions of Section 7.01 or subject to
any restriction contained in any agreement or instrument between the Borrower
and any Lender or any Affiliate of any Lender relating to Indebtedness and
within the scope of Section 8.01(e) will be margin stock.
(b) None of the Borrower, any Person Controlling the Borrower, or any
Subsidiary (i) is a "holding company," or a "subsidiary company" of a "holding
company," or an "affiliate" of
41
a "holding company" or of a "subsidiary company" of a "holding company," within
the meaning of the Public Utility Holding Company Act of 1935, or (ii) is or is
required to be registered as an "investment company" under the Investment
Company Act of 1940.
(c) The Borrower is not required to be licensed under Xxx Xxxxxxxxxx
Xxxxxxxx Xxx 0000 of Bermuda.
5.15 DISCLOSURE. No report, financial statement, certificate or other
information furnished (whether in writing or orally) by or on behalf of the
Borrower to the Administrative Agent or any Lender in connection with the
transactions contemplated hereby and the negotiation of this Agreement or
delivered hereunder or under any other Loan Document (in each case, as modified
or supplemented by other information so furnished) contains any material
misstatement of fact or omits to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided that, with respect to projected financial
information, the Borrower represents only that such information was prepared in
good faith based upon assumptions believed to be reasonable at the time.
5.16 COMPLIANCE WITH LAWS. Each of the Borrower and each Subsidiary is in
compliance in all material respects with the requirements of all Laws and all
orders, writs, injunctions and decrees applicable to it or to its properties,
except in such instances in which (a) such requirement of Law or order, writ,
injunction or decree is being contested in good faith by appropriate proceedings
diligently conducted or (b) the failure to comply therewith, either individually
or in the aggregate, could not reasonably be expected to have a Material Adverse
Effect.
5.17 INTELLECTUAL PROPERTY; LICENSES, ETC. To the best of Borrower's
knowledge, the Borrower and each Subsidiary own, or possess the right to use,
all of the trademarks, service marks, trade names, copyrights, patents, patent
rights, franchises, licenses, and other intellectual property rights that are
necessary for the operation of their respective businesses, without conflict
with the rights of any other Person, except to the extent any failure to do so
could not reasonably be expected to have a Material Adverse Effect.
5.18 INSURANCE LICENSES. Each Insurance Subsidiary has obtained and
maintains in full force and effect all licenses and permits from the Department
and all other Governmental Authorities necessary to operate in the jurisdictions
in which it operates, in each case other than such licenses and permits the
failure to obtain or maintain, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
5.19 STATUS UNDER BERMUDA LAW.
(a) The Borrower is subject to civil and commercial Laws with respect to
its obligations under the Loan Documents, and the execution, delivery, and
performance by the Borrower of the Loan Documents constitute and will constitute
private and commercial acts and not public or governmental acts. Neither the
Borrower nor any of its property has any immunity from jurisdiction of any court
or from any legal process (whether through service or notice, attachment prior
to judgment, attachment in aid of execution, execution or otherwise) under the
Laws of Bermuda in respect of its obligations under the Loan Documents;
42
(b) The Loan Documents are in proper legal form under the Laws of Bermuda
for the enforcement thereof against the Borrower under the Laws of such
jurisdiction, and to ensure the legality, validity, enforceability, priority, or
admissibility in evidence of the Loan Documents. It is not necessary to ensure
the legality, validity, enforceability, priority, or admissibility in evidence
of the Loan Documents that the Loan Documents be filed, registered, or recorded
with, or executed or notarized before, any court or other authority in Bermuda
or that any registration charge or stamp or similar tax be paid on or in respect
of the Loan Documents or any other document, except for (i) any such filing,
registration, recording, execution, or notarization as has been made or is not
required to be made until the Loan Document or any other document is sought to
be enforced, and (ii) any charge or tax as has been timely paid;
(c) There is no tax, levy, impost, duty, fee, assessment, or other
governmental charge, or any deduction or withholding, imposed by any Government
Authority in or of Bermuda either (i) on or by virtue of the execution or
delivery of the Loan Documents or (ii) on any payment to be made by the Borrower
pursuant to the Loan Documents; and
(d) The execution, delivery, and performance of the Loan Documents
executed by the Borrower are, under applicable foreign exchange control
regulations of Bermuda, not subject to any notification or authorization except
(i) such as have been made or obtained or (ii) such as cannot be made or
obtained until a later date (provided that any notification or authorization
described in clause (ii) shall be made or obtained as soon as is reasonably
practicable).
5.20 USE OF PROCEEDS. The proceeds of the Loan will be used by the
Borrower solely for the purposes specified in Section 6.11. None of such
proceeds will be used to purchase or carry any "margin stock" as defined in
Regulation U of the FRB (12 C.F.R. Part 221 and 207), or to reduce or retire any
indebtedness originally incurred to purchase or carry a margin stock or for any
other purpose that might constitute this transaction a "purpose credit" within
the meaning of such Regulation U.
5.21 SOLVENCY. Immediately prior to and after giving effect to the
Borrowing hereunder and the use of the proceeds of the Borrowing as permitted
under the Loan Documents, the Borrower and each Subsidiary are Solvent.
ARTICLE VI.
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder or any Loan or
other Obligation hereunder shall remain unpaid or unsatisfied, the Borrower
shall, and shall (except in the case of the covenants set forth in Sections
6.01, 6.02, and 6.03) cause each Subsidiary to:
6.01 FINANCIAL STATEMENTS. Deliver to the Administrative Agent and each
Lender, in form and detail reasonably satisfactory to the Administrative Agent
and the Required Lenders:
(a) as soon as available, but in any event within 90 days after the end of
each fiscal year of the Borrower, a consolidated balance sheet of the Borrower
and its Subsidiaries as at the end of such fiscal year, and the related
consolidated statements of income or operations, shareholders' equity and cash
flows for such fiscal year, setting forth in each case in comparative
43
form the figures for the previous fiscal year, all in reasonable detail and
prepared in accordance with GAAP, audited and accompanied by a report and
opinion of an independent certified public accountant of nationally recognized
standing reasonably acceptable to the Required Lenders, which report and opinion
shall be prepared in accordance with generally accepted auditing standards and
shall not be subject to any "going concern" or like qualification or exception
or any qualification or exception as to the scope of such audit;
(b) as soon as available, but in any event within 45 days after the end of
each of the first three fiscal quarters of each fiscal year of the Borrower, a
consolidated balance sheet of the Borrower and its Subsidiaries as at the end of
such fiscal quarter, and the related consolidated statements of income or
operations, shareholders' equity and cash flows for such fiscal quarter and for
the portion of the Borrower's fiscal year then ended, setting forth in each case
in comparative form the figures for the corresponding fiscal quarter of the
previous fiscal year and the corresponding portion of the previous fiscal year,
all in reasonable detail, certified by a Responsible Officer of the Borrower as
fairly presenting the financial condition, results of operations, shareholders'
equity and cash flows of the Borrower and its Subsidiaries in accordance with
GAAP, subject only to normal year-end audit adjustments and the absence of
footnotes;
(c) as soon as available, but in any event within 120 days after the end
of each fiscal year of each Material Insurance Subsidiary, a copy of the Annual
Statement of such Person for such fiscal year, as filed with the applicable
Department, prepared in accordance with SAP; and
(d) as soon as available, but in any event within 45 days after the end of
each of the first three fiscal quarters of each fiscal year of each Material
Insurance Subsidiary, a copy of the quarterly financial statement of such Person
for such fiscal quarter, in reasonable detail and prepared in accordance with
GAAP.
6.02 CERTIFICATES; OTHER INFORMATION. Deliver to the Administrative Agent
and each Lender, in form and detail reasonably satisfactory to the
Administrative Agent and the Required Lenders:
(a) concurrently with the delivery of the financial statements referred to
in Sections 6.01(a) and (b), a duly completed Compliance Certificate signed by a
Responsible Officer of the Borrower;
(b) promptly after any reasonable request by the Administrative Agent,
copies of any detailed audit reports, management letters or recommendations
submitted to the board of directors (or the audit committee of the board of
directors) of the Borrower by independent accountants in connection with the
accounts or books of the Borrower or any Subsidiary, or any audit of any of
them;
(c) promptly after the same are available, copies of each annual report,
proxy, or financial statement or other report or communication sent to the
stockholders, as a group, of the Borrower, and copies of all annual, regular,
periodic, and special reports and registration statements which the Borrower may
file or be required to file with the SEC under Section 13 or 15(d) of the
Securities Exchange Act of 1934 (or comparable agency in any applicable non-U.S.
jurisdiction) or which any Insurance Subsidiary may file or be required to file
with the applicable
44
Department, and not otherwise required to be delivered to the Administrative
Agent pursuant hereto, including, without limitation, all Insurance Holding
Company System Act filings and filings which seek approval from Governmental
Authorities with respect to transactions between the Borrower and its
Affiliates;
(d) promptly, such additional information regarding the business,
financial or corporate affairs of the Borrower or any Subsidiary, or compliance
with the terms of the Loan Documents, as the Administrative Agent or any Lender
may from time to time reasonably request; and
Documents required to be delivered pursuant to Section 6.01(a) or (b) or
Section 6.02(c) (to the extent any such documents are included in materials
otherwise filed with the SEC or comparable agency in any applicable non-U.S.
jurisdiction) may be delivered electronically and if so delivered, shall be
deemed to have been delivered on the date (i) on which the Borrower posts such
documents, or provides a link thereto on the Borrower's website on the Internet
at the website address listed on Schedule 10.02; or (ii) on which such documents
are posted on the Borrower's behalf on an Internet or intranet website, if any,
to which each Lender and the Administrative Agent have access (whether a
commercial, third-party website or whether sponsored by the Administrative
Agent); provided that: (i) the Borrower shall deliver paper copies of such
documents to the Administrative Agent or any Lender that requests the Borrower
to deliver such paper copies until a written request to cease delivering paper
copies is given by the Administrative Agent or such Lender and (ii) the Borrower
shall notify the Administrative Agent and each Lender (by telecopier or
electronic mail) of the posting of any such documents and provide to the
Administrative Agent by electronic mail electronic versions (i.e., soft copies)
of such documents. Notwithstanding anything contained herein, in every instance
the Borrower shall be required to provide paper copies of the Compliance
Certificates required by Section 6.02(a) to the Administrative Agent. Except for
such Compliance Certificates, the Administrative Agent shall have no obligation
to request the delivery or to maintain copies of the documents referred to
above, and in any event shall have no responsibility to monitor compliance by
the Borrower with any such request for delivery, and each Lender shall be solely
responsible for requesting delivery to it or maintaining its copies of such
documents.
6.03 NOTICES. Promptly notify the Administrative Agent and each Lender
upon a Responsible Officer becoming aware:
(a) of the occurrence of any Default;
(b) of any matter that has resulted or could reasonably be expected to
result in a Material Adverse Effect, including (i) breach or non-performance of,
or any default under, a Contractual Obligation of the Borrower or any
Subsidiary; (ii) any dispute, litigation, investigation, or proceeding between
the Borrower or any Subsidiary and any Department or other Governmental
Authority, including, without limitation, any hearing relating to a suspension,
termination, revocation, or restructure of any insurance license or permit of
any Material Insurance Subsidiary; (iii) any change in any Applicable Insurance
Code or other Laws governing the investment and dividend policies and practices
of any Insurance Subsidiary; (iv) any suspension, termination, or revocation by
any Department or other Governmental Authority of any license of any Insurance
Subsidiary to conduct business as an Insurance Subsidiary or the
45
placing of any condition or restriction thereon; or (v) the commencement of, or
any material development in, any litigation or proceeding affecting the Borrower
or any Subsidiary, including pursuant to any applicable Environmental Laws;
(c) of the occurrence of any ERISA Event;
(d) of any material change in accounting policies or financial reporting
practices by the Borrower or any Subsidiary; and
(e) of any announcement by A.M. Best of any change in the financial
strength rating of any Material Insurance Subsidiary.
Each notice pursuant to this Section shall be accompanied by a statement
of a Responsible Officer of the Borrower setting forth details of the occurrence
referred to therein and stating what action, if any, the Borrower has taken and
proposes to take with respect thereto. Each notice pursuant to Section 6.03(a)
shall describe with particularity any and all provisions of this Agreement and
any other Loan Documents, if any, that have been breached.
6.04 PAYMENT OF OBLIGATIONS. Pay and discharge as the same shall become
due and payable, all its obligations and liabilities, including (a) all tax
liabilities, assessments and governmental charges or levies upon it or its
properties or assets, unless the same are being or are about to be contested in
good faith by appropriate proceedings diligently conducted and adequate reserves
in accordance with GAAP are being maintained by the Borrower or such Subsidiary;
(b) all lawful claims which, if unpaid, would by law become a Lien upon its
property; and (c) all Indebtedness, as and when due and payable, but subject to
any applicable grace periods and subordination provisions contained in any
instrument or agreement evidencing such Indebtedness, except in each case, where
the failure to pay and discharge would result in aggregate obligations and
liabilities in excess of the Threshold Amount.
6.05 PRESERVATION OF EXISTENCE, ETC. (a) take all reasonable action to
maintain all rights, privileges, permits, licenses, exemptions, and franchises
necessary or desirable in the normal conduct of its business, except to the
extent that failure to do so could not reasonably be expected to have a Material
Adverse Effect; and (b) preserve or renew all of its registered patents,
trademarks, trade names, and service marks, the non-preservation of which could
reasonably be expected to have a Material Adverse Effect.
6.06 MAINTENANCE OF PROPERTIES. (a) Maintain, preserve, and protect all of
its material properties and equipment necessary in the operation of its business
in good working order and condition, ordinary wear and tear excepted and (b)
make all necessary repairs thereto and renewals and replacements thereof, in
each case, except where the failure to do so could not reasonably be expected to
have a Material Adverse Effect.
6.07 MAINTENANCE OF INSURANCE. Maintain with financially sound and
reputable insurance companies not Affiliates of the Borrower, insurance with
respect to its properties and business against loss or damage of the kinds
customarily insured against by Persons engaged in the same or similar business,
of such types and in such amounts (after giving effect to any self-insurance
compatible with the following standards) as are customarily carried under
similar circumstances by such other Persons.
46
6.08 COMPLIANCE WITH LAWS. Comply in all material respects with the
requirements of all Laws and all orders, writs, injunctions, and decrees
applicable to it or to its business or property, except in such instances in
which (a) such requirement of Law or order, writ, injunction or decree is being
contested in good faith by appropriate proceedings diligently conducted; or (b)
the failure to comply therewith could not reasonably be expected to have a
Material Adverse Effect.
6.09 BOOKS AND RECORDS. (a) Maintain proper books of record and account,
in which full, true and correct entries in conformity with GAAP (or SAP, as
applicable) consistently applied shall be made of all financial transactions and
matters involving the assets and business of the Borrower or such Subsidiary, as
the case may be and (b) maintain such books of record and account in material
conformity with all applicable requirements of any Governmental Authority having
regulatory jurisdiction over the Borrower or such Subsidiary, as the case may
be.
6.10 INSPECTION RIGHTS. Permit representatives and independent contractors
of the Administrative Agent and each Lender to visit and inspect any of its
properties, to examine its corporate, financial, and operating records, and make
copies thereof or abstracts therefrom, and to discuss its affairs, finances, and
accounts with its directors, officers, and independent public accountants, and
at such reasonable times during normal business hours and as often as may be
reasonably desired, upon reasonable advance notice to the Borrower; provided,
however, that when an Event of Default exists the Administrative Agent or any
Lender (or any of their respective representatives or independent contractors)
may do any of the foregoing at any time during normal business hours and without
advance notice.
6.11 USE OF PROCEEDS. Use the proceeds of the Borrowing for general
corporate purposes, which in each case is not in contravention of any Law or of
any Loan Document, including the payment of dividends and other obligations.
ARTICLE VII.
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder or any Loan or
other Obligation hereunder shall remain unpaid or unsatisfied, the Borrower
shall not, nor shall it permit any Subsidiary to, directly or indirectly:
7.01 LIENS. Create, incur, assume, or suffer to exist any Lien upon any of
its property, assets, or revenues, whether now owned or hereafter acquired,
other than the following, so long as at the time of the incurrence of any Lien
on and after the Closing Date, no Default exists or arises as a result thereof:
(a) Liens pursuant to any Loan Document;
(b) Liens existing on the date hereof and listed on Schedule 7.01 and any
renewals or extensions thereof, provided that (i) the property covered thereby
is not changed, it being understood that to the extent such property consists of
marketable securities, the Borrower or any Subsidiary may, from time to time,
substitute or replace such martketable securities with other marketable
securities, (ii) the amount secured or benefited thereby is not increased, and
(iii) with
47
respect to obligations of Subsidiaries, any renewal or extension of the
obligations secured or benefited thereby is permitted by Section 7.02(a);
(c) Liens for Taxes not yet due or which are being contested in good faith
and by appropriate proceedings diligently conducted, if adequate reserves with
respect thereto are maintained on the books of the applicable Person in
accordance with GAAP;
(d) carriers', warehousemen's, mechanics', materialmen's, repairmen's,
landlord's, or other like Liens arising in the ordinary course of business which
are not overdue for a period of more than 30 days or which are being contested
in good faith and by appropriate proceedings diligently conducted, if adequate
reserves with respect thereto are maintained on the books of the applicable
Person;
(e) pledges or deposits in the ordinary course of business in connection
with workers' compensation, unemployment insurance and other social security
legislation, other than any Lien imposed by ERISA;
(f) deposits to secure the performance of bids, trade contracts and leases
(other than Indebtedness), statutory obligations, surety and appeal bonds,
performance bonds, and other obligations of a like nature incurred in the
ordinary course of business;
(g) easements, rights-of-way, restrictions, and other similar encumbrances
affecting real property which, in the aggregate, are not substantial in amount,
and which do not in any case materially detract from the value of the property
subject thereto or materially interfere with the ordinary conduct of the
business of the applicable Person;
(h) Liens securing judgments for the payment of money not constituting an
Event of Default under Section 8.01(h);
(i) Liens in respect of capital leases, Synthetic Lease Obligations, and
purchase money obligations for fixed or capital assets; provided that (i) such
Liens do not at any time encumber any property other than the property financed
by such Indebtedness, (ii) the Indebtedness secured thereby does not exceed the
cost or fair market value, whichever is lower, of the property being acquired on
the date of acquisition, and (iii) any purchase money Indebtedness secured
thereby is incurred or guaranteed prior to, at the time of, or within 180 days
after such acquisition (or in the case of real property, completion of such
improvement or construction or commencement of full operation of such property,
whichever is later);
(j) Liens on cash, cash equivalents, portfolio securities, or Swap
Contracts of any Insurance Subsidiary pursuant to trust or other security
arrangements, securing (i) obligations of such Insurance Subsidiary under
Reinsurance Agreements, Primary Policies, or Retrocession Contracts (so long as
such agreements do not constitute, in effect, financing arrangements), (ii)
Guarantees of any obligations described in clause (i), or (iii) reimbursement
obligations relating to letters of credit issued in lieu of the Guarantees
described in clause (ii);
(k) Liens securing Indebtedness owing by any Subsidiary to the Borrower;
48
(l) Liens securing Acquired Debt and any refinancings, refundings,
renewals, or extensions thereof; provided such Liens shall not extend to any
other property of the Borrower or any Subsidiary; and
(m) additional Liens so long as the aggregate principal amount of the
Indebtedness or obligations secured thereby at any time outstanding does not
exceed $25,000,000.
7.02 SUBSIDIARY INDEBTEDNESS. Permit any Subsidiary to create, incur,
assume, or suffer to exist any Indebtedness, except:
(a) all reimbursement obligations (direct or contingent) relating to
letters of credit described in Section 7.01(j)(iii), including without
limitation, those existing on the Closing Date and listed on Part A of Schedule
7.02 and any refinancings, refundings, renewals, or extensions thereof;
(b) Indebtedness of each Subsidiary existing on the Closing Date (other
than Indebtedness described in clause (a)) and listed on Part B of Schedule 7.02
and any refinancings, refundings, renewals, or extensions thereof; provided that
(i) after giving effect to any such refinancing, refunding, renewal, or
extension, the aggregate increased Indebtedness under this clause (b) incurred
on or after the Closing Date, when aggregated, with any Indebtedness outstanding
under Section 7.02(f), shall not exceed $25,000,000, and (ii) the terms relating
to principal amount, amortization, maturity, collateral (if any), and
subordination (if any), and other material terms taken as a whole, of any such
refinancing, refunding, renewing, or extending Indebtedness, and of any
agreement entered into and of any instrument issued in connection therewith, are
no less favorable in any material respect to such Subsidiary or the Lenders than
the terms of any agreement or instrument governing the Indebtedness being
refinanced, refunded, renewed, or extended;
(c) obligations (contingent or otherwise) of any Subsidiary existing or
arising under any Swap Contract, provided that such obligations are (or were)
entered into by such Person in the ordinary course of business for the purpose
of directly mitigating risks associated with liabilities, commitments,
investments, assets, or property held or reasonably anticipated by such Person,
or changes in the value of securities issued by such Person, and not for
purposes of speculation or taking a "market view;"
(d) Indebtedness in respect of capital leases, Synthetic Lease
Obligations, and purchase money obligations for fixed or capital assets within
the limitations set forth in Section 7.01(i); provided, however, that the
aggregate amount of all such Indebtedness at any one time outstanding shall not
exceed $25,000,000;
(e) Acquired Debt and any refinancings, refundings, renewals, or
extensions thereof, so long as the principal amount of such Indebtedness shall
not exceed the principal amount of such Indebtedness immediately prior to giving
effect to any such renewal, extension, amendment, modification, or refinancing;
and
(f) additional Indebtedness in an aggregate principal amount not to
exceed, on any date of determination, $25,000,000 less the aggregate increase in
Indebtedness incurred on or after the Closing Date which is permitted under
Section 7.02(b) and is outstanding on such date.
49
7.03 FUNDAMENTAL CHANGES. Merge, dissolve, liquidate, consolidate with or
into another Person, or Dispose of (whether in one transaction or in a series of
transactions) all or substantially all of its assets (whether now owned or
hereafter acquired) to or in favor of any Person, except that, so long as no
Default exists or would result therefrom:
(a) any Subsidiary may merge with or into (i) the Borrower, provided that
the Borrower shall be the continuing or surviving Person, or (ii) any one or
more other Subsidiaries, provided that when any wholly-owned Subsidiary is
merging with another Subsidiary, the wholly-owned Subsidiary shall be the
continuing or surviving Person; and
(b) any Subsidiary may Dispose of all or substantially all of its assets
(upon voluntary liquidation or otherwise) to the Borrower or to another
Subsidiary; provided that if the transferor in such a transaction is a
wholly-owned Subsidiary, then the transferee must either be the Borrower or a
wholly-owned Subsidiary.
7.04 CHANGE IN NATURE OF BUSINESS. Engage in any business substantially
different from the business conducted by the Borrower and its Subsidiaries on
the date hereof or any business substantially related or incidental thereto.
7.05 TRANSACTIONS WITH AFFILIATES. Enter into any transaction of any kind
with any Affiliate of the Borrower, whether or not in the ordinary course of
business, other than on fair and reasonable terms substantially as favorable to
the Borrower or such Subsidiary as would be obtainable by the Borrower or such
Subsidiary at the time in a comparable arm's length transaction with a Person
other than an Affiliate, provided that the foregoing restriction shall not apply
to transactions between or among the Borrower and any of its wholly-owned
Subsidiaries or between and among any wholly-owned Subsidiaries.
7.06 BURDENSOME AGREEMENTS. Enter into any Contractual Obligation (other
than this Agreement or any other Loan Document) that (a) limits the ability (i)
of any Subsidiary to make Restricted Payments to the Borrower or any Subsidiary
or to otherwise transfer property to the Borrower or any Subsidiary, (ii) of any
Subsidiary to Guarantee the Indebtedness of the Borrower or (iii) of the
Borrower or any Subsidiary to create, incur, assume or suffer to exist Liens on
property of such Person; provided, however, that this clause (iii) shall not
prohibit any negative pledge incurred or provided in favor of any holder of
Indebtedness permitted under Section 7.02(d) solely to the extent any such
negative pledge relates to the property financed by or the subject of such
Indebtedness; or (b) requires the grant of a Lien to secure an obligation of
such Person if a Lien is granted to secure another obligation of such Person.
7.07 USE OF PROCEEDS. Use the proceeds of the Borrowing, whether directly
or indirectly, and whether immediately, incidentally or ultimately, to purchase
or carry margin stock (within the meaning of Regulation U of the FRB) or to
extend credit to others for the purpose of purchasing or carrying margin stock
or to refund indebtedness originally incurred for such purpose.
7.08 FINANCIAL COVENANTS.
(a) Consolidated Tangible Net Worth. Permit Consolidated Tangible Net
Worth at any time to be less than the sum of (i) $1,145,000,000, plus (ii) an
amount equal to 50% of Consolidated Net Income earned in each full fiscal
quarter ending on or after March 31, 2005
50
(with no deduction for a net loss in any such fiscal quarter), plus (iii) an
amount equal to 50% of the aggregate Net Cash Proceeds from Equity Issuances
made after December 31, 2004.
(b) Consolidated Leverage Ratio. Permit the Consolidated Leverage Ratio at
any time to be greater than 0.35 to 1.00.
(c) Financial Strength Ratings. Permit the financial strength rating by
A.M. Best of any Material Insurance Subsidiary to be lower than A- at any time.
ARTICLE VIII.
EVENTS OF DEFAULT AND REMEDIES
8.01 EVENTS OF DEFAULT. The occurrence and continuance of any of the
following shall constitute an Event of Default:
(a) Non-Payment. The Borrower fails to pay (i) when and as required to be
paid herein, any amount of the Principal Debt or (ii) within three days after
the same becomes due, any interest on any Loan or any fee due hereunder, or
(iii) within five days after the same becomes due, any other amount payable
hereunder or under any other Loan Document; or
(b) Specific Covenants. The Borrower fails to perform or observe any term,
covenant or agreement contained in any of Sections 6.01, 6.03, or 6.11, or
Article VII; or
(c) Other Defaults. The Borrower fails to perform or observe any other
covenant or agreement (not specified in subsection (a) or (b) above) contained
in any Loan Document on its part to be performed or observed and such failure
continues for 30 days after the earlier of (i) the date a Responsible Officer
becomes aware or should have become aware thereof or (ii) the date upon which
Administrative Agent gives notice to the Borrower of such failure; or
(d) Representations and Warranties. Any representation, warranty,
certification, or statement of fact made or deemed made by or on behalf of the
Borrower herein, in any other Loan Document, or in any document delivered in
connection herewith or therewith shall be incorrect or misleading when made or
deemed made; or
(e) Cross-Default. (i) The Borrower or any Subsidiary (A) fails to make
any payment when due (whether by scheduled maturity, required prepayment,
acceleration, demand, or otherwise) in respect of any Indebtedness or Guarantee
(other than Indebtedness hereunder and Indebtedness under Swap Contracts) having
an aggregate principal amount (including undrawn committed or available amounts
and including amounts owing to all creditors under any combined or syndicated
credit arrangement) of more than the Threshold Amount, or (B) fails to observe
or perform any other agreement or condition relating to any such Indebtedness or
Guarantee or contained in any instrument or agreement evidencing, securing, or
relating thereto, or any other event occurs, the effect of which default or
other event is to cause, or to permit the holder or holders of such Indebtedness
or the beneficiary or beneficiaries of such Guarantee (or a trustee or agent on
behalf of such holder or holders or beneficiary or beneficiaries) to cause, with
the giving of notice if required, such Indebtedness to be demanded or to become
due or to be repurchased, prepaid, defeased or redeemed (automatically or
otherwise), or an offer to
51
repurchase, prepay, defease, or redeem such Indebtedness to be made, prior to
its stated maturity, or such Guarantee to become payable or cash collateral in
respect thereof to be demanded; or (ii) there occurs under any Swap Contract an
"Early Termination Date" (as defined in such Swap Contract) resulting from (A)
any event of default under such Swap Contract as to which the Borrower or any
Subsidiary is the "Defaulting Party" (as defined in such Swap Contract) or (B)
any "Termination Event" (as so defined under such Swap Contract) as to which the
Borrower or any Subsidiary is an Affected Party (as so defined under such Swap
Contract) and, in either event, the Swap Termination Value owed by the Borrower
or such Subsidiary as a result thereof is greater than the Threshold Amount; or
(f) Insolvency Proceedings, Etc. The Borrower or any Material Insurance
Subsidiary institutes or consents to the institution of any proceeding under any
Debtor Relief Law, or makes an assignment for the benefit of creditors; or
applies for or consents to the appointment of any receiver, trustee, custodian,
conservator, liquidator, rehabilitator, or similar officer for it or for all or
any material part of its property; or any receiver, trustee, custodian,
conservator, liquidator, rehabilitator, or similar officer is appointed without
the application or consent of such Person and the appointment continues
undischarged or unstayed for 90 calendar days; or any proceeding under any
Debtor Relief Law relating to any such Person or to all or any material part of
its property is instituted without the consent of such Person and continues
undismissed or unstayed for 90 calendar days, or an order for relief is entered
in any such proceeding; or
(g) Inability to Pay Debts; Attachment. (i) The Borrower or any Material
Insurance Subsidiary becomes unable or admits in writing its inability or fails
generally to pay its debts as they become due, or (ii) any writ or warrant of
attachment or execution or similar process is issued or levied against all or
any material part of the property of any such Person and is not released,
vacated, or fully bonded within 30 days after its issue or levy; or
(h) Judgments. There is entered against the Borrower or any Material
Insurance Subsidiary (i) a final judgment or order for the payment of money in
an aggregate amount exceeding the Threshold Amount (to the extent not covered by
independent third-party insurance as to which the insurer does not dispute
coverage or not otherwise adequately reserved for by Borrower or such Material
Insurance Subsidiary in accordance with GAAP or SAP, as may be applicable), or
(ii) any one or more non-monetary final judgments that have, or could reasonably
be expected to have, individually or in the aggregate, a Material Adverse Effect
and, in either case, (A) enforcement proceedings are commenced by any creditor
upon such judgment or order, or (B) there is a period of 10 consecutive days
during which a stay of enforcement of such judgment, by reason of a pending
appeal or otherwise, is not in effect; or
(i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or
Multiemployer Plan which has resulted or could reasonably be expected to result
in liability of the Borrower under Title IV of ERISA to the Pension Plan,
Multiemployer Plan, or the PBGC in an aggregate amount in excess of the
Threshold Amount, or (ii) the Borrower or any ERISA Affiliate fails to pay when
due, after the expiration of any applicable grace period, any installment
payment with respect to its withdrawal liability under Section 4201 of ERISA
under a Multiemployer Plan in an aggregate amount in excess of the Threshold
Amount; or
52
(j) Invalidity of Loan Documents. Any Loan Document, at any time after its
execution and delivery and for any reason other than as expressly permitted
hereunder or thereunder or satisfaction in full of all the Obligations, ceases
to be in full force and effect; or the Borrower contests in any manner the
validity or enforceability of any Loan Document; or the Borrower denies that it
has any or further liability or obligation under any Loan Document, or purports
to revoke, terminate, or rescind any Loan Document;
(k) Adverse Governmental Action. Any Department or other Governmental
Authority revokes or fails to renew any insurance license, permit, or franchise
of any Material Insurance Subsidiary, or imposes any restriction or condition on
any insurance license, permit, or franchise of any Material Insurance
Subsidiary, if such revocation, non-renewal, condition, or restriction is
reasonably likely to have a Material Adverse Effect; or
(l) Failure to Preserve Existence. The Borrower fails to preserve, renew,
or maintain in full force and effect its legal existence and good standing under
the Laws of the jurisdiction of its organization except in a transaction
permitted by Section 7.03.
8.02 REMEDIES UPON EVENT OF DEFAULT. If any Event of Default occurs and is
continuing, the Administrative Agent shall, at the request of, or may, with the
consent of, the Required Lenders, take any or all of the following actions:
(a) declare the commitment of each Lender to make Loans to be terminated,
whereupon such commitments and obligation shall be terminated;
(b) declare the unpaid Principal Debt, all interest accrued and unpaid
thereon, and all other amounts owing or payable hereunder or under any other
Loan Document to be immediately due and payable, without presentment, demand,
protest, or other notice of any kind, all of which are hereby expressly waived
by the Borrower; and
(d) exercise on behalf of itself and the Lenders all rights and remedies
available to it and the Lenders under the Loan Documents;
provided, however, that upon the occurrence of (i) an actual or deemed entry of
an order for relief with respect to the Borrower under any Debtor Relief Law or
(ii) an Event of Default pursuant to Section 8.01(f) or (g), the obligation of
each Lender to make Loans shall automatically terminate, and the unpaid
Principal Debt and all interest and other amounts as aforesaid shall
automatically become due and payable, in each case without further act of the
Administrative Agent or any Lender.
8.03 APPLICATION OF FUNDS. After the exercise of remedies provided for in
Section 8.02 (or after the Loans have automatically become immediately due and
payable), any amounts received on account of the Obligations shall be applied by
the Administrative Agent in the following order:
First, to payment of that portion of the Obligations constituting fees,
indemnities, expenses, and other amounts (including fees, charges, and
disbursements of counsel to the Administrative Agent and amounts payable under
Article III) payable to the Administrative Agent in its capacity as such;
53
Second, to payment of that portion of the Obligations constituting fees,
indemnities, and other amounts (other than principal and interest) payable to
the Lenders (including fees, charges, and disbursements of counsel to the
respective Lenders and amounts payable under Article III), ratably among them in
proportion to the amounts described in this clause Second payable to them;
Third, to payment of that portion of the Obligations constituting accrued
and unpaid interest on the Loans and other Obligations, ratably among the
Lenders in proportion to the respective amounts described in this clause Third
payable to them;
Fourth, to payment of that portion of the Obligations constituting the
Principal Debt, ratably among the Lenders in proportion to the respective
amounts described in this clause Fourth held by them;
Fifth, to payment of any amounts owing to any Lender pursuant to the terms
of any Swap Contracts, ratably among the Lenders in proportion to the respective
amounts described in this clause Fifth payable to them; and
Last, the balance, if any, after all of the Obligations have been
indefeasibly paid in full, to the Borrower or as otherwise required by Law.
ARTICLE IX.
ADMINISTRATIVE AGENT
9.01 APPOINTMENT AND AUTHORITY. Each of the Lenders hereby irrevocably
appoints Bank of America to act on its behalf as the Administrative Agent
hereunder and under the other Loan Documents and authorizes the Administrative
Agent to take such actions on its behalf and to exercise such powers as are
delegated to the Administrative Agent by the terms hereof or thereof, together
with such actions and powers as are reasonably incidental thereto. Except as
provided in Section 9.06, the provisions of this Article are solely for the
benefit of the Administrative Agent and the Lenders, and the Borrower shall not
have rights or be bound in any way as a third party beneficiary of any of such
provisions.
9.02 RIGHTS AS A LENDER. The Person serving as the Administrative Agent
hereunder shall have the same rights and powers in its capacity as a Lender as
any other Lender and may exercise the same as though it were not the
Administrative Agent and the term "Lender" or "Lenders" shall, unless otherwise
expressly indicated or unless the context otherwise requires, include the Person
serving as the Administrative Agent hereunder in its individual capacity. Such
Person and its Affiliates may accept deposits from, lend money to, act as the
financial advisor or in any other advisory capacity for and generally engage in
any kind of business with the Borrower or any Subsidiary or other Affiliate
thereof as if such Person were not the Administrative Agent hereunder and
without any duty to account therefor to the Lenders.
54
9.03 EXCULPATORY PROVISIONS. The Administrative Agent shall not have any
duties or obligations except those expressly set forth herein and in the other
Loan Documents. Without limiting the generality of the foregoing, the
Administrative Agent:
(a) shall not be subject to any fiduciary or other implied duties,
regardless of whether a Default has occurred and is continuing;
(b) shall not have any duty to take any discretionary action or
exercise any discretionary powers, except discretionary rights and powers
expressly contemplated hereby or by the other Loan Documents that the
Administrative Agent is required to exercise as directed in writing by the
Required Lenders (or such other number or percentage of the Lenders as
shall be expressly provided for herein or in the other Loan Documents),
provided that the Administrative Agent shall not be required to take any
action that, in its opinion or the opinion of its counsel, may expose the
Administrative Agent to liability or that is contrary to any Loan Document
or applicable law; and
(c) shall not, except as expressly set forth herein and in the other
Loan Documents, have any duty to disclose, and shall not be liable for the
failure to disclose, any information relating to the Borrower or any of
its Affiliates that is communicated to or obtained by the Person serving
as the Administrative Agent or any of its Affiliates in any capacity.
The Administrative Agent shall not be liable for any action taken or not
taken by it (i) with the consent or at the request of the Required Lenders (or
such other number or percentage of the Lenders as shall be necessary, or as the
Administrative Agent shall believe in good faith shall be necessary, under the
circumstances as provided in Sections 10.01 and 8.02) or (ii) in the absence of
its own gross negligence or willful misconduct. The Administrative Agent shall
be deemed not to have knowledge of any Default unless and until notice
describing such Default is given to the Administrative Agent by the Borrower or
a Lender.
The Administrative Agent shall not be responsible for or have any duty to
ascertain or inquire into (i) any statement, warranty or representation made in
or in connection with this Agreement or any other Loan Document, (ii) the
contents of any certificate, report or other document delivered hereunder or
thereunder or in connection herewith or therewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth herein or therein or the occurrence of any Default, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement, any other Loan
Document or any other agreement, instrument or document, or (v) the satisfaction
of any condition set forth in Article IV or elsewhere herein, other than to
confirm receipt of items expressly required to be delivered to the
Administrative Agent.
9.04 RELIANCE BY ADMINISTRATIVE AGENT. The Administrative Agent shall be
entitled to rely upon, and shall not incur any liability for relying upon, any
notice, request, certificate, consent, statement, instrument, document, or other
writing (including any electronic message, Internet or intranet website posting,
or other distribution) believed by it to be genuine and to have been signed,
sent or otherwise authenticated by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed
by it to
55
have been made by the proper Person, and shall not incur any liability for
relying thereon. In determining compliance with any condition hereunder to the
making of a Loan that by its terms must be fulfilled to the satisfaction of a
Lender, the Administrative Agent may presume that such condition is satisfactory
to such Lender unless the Administrative Agent shall have received notice to the
contrary from such Lender prior to the making of such Loan. The Administrative
Agent may consult with legal counsel (who may be counsel for the Borrower),
independent accountants and other experts selected by it, and shall not be
liable for any action taken or not taken by it in accordance with the advice of
any such counsel, accountants or experts.
9.05 DELEGATION OF DUTIES. The Administrative Agent may perform any and
all of its duties and exercise its rights and powers hereunder or under any
other Loan Document by or through any one or more sub-agents appointed by the
Administrative Agent. The Administrative Agent and any such sub-agent may
perform any and all of its duties and exercise its rights and powers by or
through their respective Related Parties. The exculpatory provisions of this
Article shall apply to any such sub-agent and to the Related Parties of the
Administrative Agent and any such sub-agent, and shall apply to their respective
activities in connection with the syndication of the credit facilities provided
for herein as well as activities as Administrative Agent.
9.06 RESIGNATION OF ADMINISTRATIVE AGENT. The Administrative Agent may at
any time give notice of its resignation to the Lenders and the Borrower. Upon
receipt of any such notice of resignation, the Required Lenders shall have the
right, in consultation with the Borrower (and the prior written approval of the
Borrower if no Default has occurred and is continuing and the successor is not a
Lender or an Affiliate of a Lender), to appoint a successor, which shall be a
bank with an office in the United States, or an Affiliate of any such bank with
an office in the United States. If no such successor shall have been so
appointed by the Required Lenders and shall have accepted such appointment
within 30 days after the retiring Administrative Agent gives notice of its
resignation, then the retiring Administrative Agent may on behalf of the
Lenders, appoint a successor Administrative Agent meeting the qualifications set
forth above; provided that if the Administrative Agent shall notify the Borrower
and the Lenders that no qualifying Person has accepted such appointment, then
such resignation shall nonetheless become effective in accordance with such
notice and (1) the retiring Administrative Agent shall be discharged from its
duties and obligations hereunder and under the other Loan Documents and (2) all
payments, communications, and determinations provided to be made by, to or
through the Administrative Agent shall instead be made by or to each Lender
directly, until such time as the Required Lenders appoint a successor
Administrative Agent as provided for above in this Section. Upon the acceptance
of a successor's appointment as Administrative Agent hereunder, such successor
shall succeed to and become vested with all of the rights, powers, privileges,
and duties of the retiring (or retired) Administrative Agent, and the retiring
Administrative Agent shall be discharged from all of its duties and obligations
hereunder or under the other Loan Documents (if not already discharged therefrom
as provided above in this Section). The fees payable by the Borrower to a
successor Administrative Agent shall be the same as those payable to its
predecessor unless otherwise agreed between the Borrower and such successor.
After the retiring Administrative Agent's resignation hereunder and under the
other Loan Documents, the provisions of this Article and Section 10.04 shall
continue in effect for the benefit of such retiring Administrative Agent, its
sub-agents, and their respective Related Parties in respect of any actions taken
or omitted to be taken by any of them while the retiring Administrative Agent
was acting as Administrative Agent.
56
9.07 NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER LENDERS. Each Lender
acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Lender or any of their Related Parties and
based on such documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender or any of their Related Parties and
based on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action
under or based upon this Agreement, any other Loan Document or any related
agreement or any document furnished hereunder or thereunder.
9.08 NO OTHER DUTIES, ETC. Anything herein to the contrary
notwithstanding, none of the Arrangers or the Syndication Agent listed on the
cover page hereof shall have any powers, duties or responsibilities under this
Agreement or any of the other Loan Documents, except in its capacity, as
applicable, as the Administrative Agent or a Lender hereunder.
ARTICLE X.
MISCELLANEOUS
10.01 AMENDMENTS, ETC. No amendment or waiver of any provision of this
Agreement or any other Loan Document, and no consent to any departure by the
Borrower therefrom, shall be effective unless in writing signed by the Required
Lenders and the Borrower and acknowledged by the Administrative Agent, and each
such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given; provided, however, that no such amendment,
waiver or consent shall:
(a) waive any condition set forth in Section 4.01 without the written
consent of each Lender;
(b) extend or increase the Commitment of any Lender (or reinstate any
Commitment terminated pursuant to Section 8.02) without the written consent of
such Lender;
(c) postpone any date fixed by this Agreement or any other Loan Document
for any payment, including amortization pursuant to Section 2.04, but excluding
payments under Section 2.03(b), of principal, interest, fees, or other amounts
due to the Lenders (or any of them) hereunder or under any Loan Document,
without the written consent of each Lender directly affected thereby;
(d) reduce the principal of, or the rate of interest specified herein on,
any Loan, or (subject to clause (ii) of the second proviso to this Section
10.01) any fees or other amounts payable hereunder or under any other Loan
Document without the written consent of each Lender directly affected thereby;
provided, however, that only the consent of the Required Lenders shall be
necessary to amend the definition of "Default Rate" or to waive any obligation
of the Borrower to pay interest at the Default Rate;
(e) change Section 2.10 or Section 8.03 in a manner that would alter the
ratable sharing of payments required thereby without the written consent of each
Lender;
57
(f) change any provision of this Section or the definition of "Required
Lenders" or any other provision hereof specifying the number or percentage of
Lenders required to amend, waive or otherwise modify any rights hereunder or
make any determination or grant any consent hereunder, without the written
consent of each Lender;
and, provided further, that (i) no amendment, waiver, or consent shall, unless
in writing and signed by the Administrative Agent in addition to the Lenders
required above, affect the rights or duties of the Administrative Agent under
this Agreement or any other Loan Document; and (ii) the Fee Letter may be
amended, or rights or privileges thereunder waived, in a writing executed only
by the parties thereto. Notwithstanding anything to the contrary herein, no
Defaulting Lender shall have any right to approve or disapprove any amendment,
waiver or consent hereunder, except that the Commitment of such Lender may not
be increased without the consent of such Lender.
10.02 NOTICES; EFFECTIVENESS; ELECTRONIC COMMUNICATION.
(a) Notices Generally. Except in the case of notices and other
communications expressly permitted to be given by telephone (and except as
provided in subsection (b) below), all notices and other communications provided
for herein shall be in writing and shall be delivered by hand or overnight
courier service, mailed by certified or registered mail, or sent by telecopier
as follows, and all notices and other communications expressly permitted
hereunder to be given by telephone shall be made to the applicable telephone
number, as follows:
(i) if to the Borrower or the Administrative Agent, to the address,
telecopier number, electronic mail address or telephone number specified
for such Person on Schedule 10.02; and
(ii) if to any other Lender, to the address, telecopier number,
electronic mail address or telephone number specified in its
Administrative Questionnaire.
Notices sent by hand or overnight courier service, or mailed by certified or
registered mail, shall be deemed to have been given when received; notices sent
by telecopier shall be deemed to have been given when sent (except that, if not
given during normal business hours for the recipient, shall be deemed to have
been given at the opening of business on the next business day for the
recipient). Notices delivered through electronic communications to the extent
provided in subsection (b) below, shall be effective as provided in such
subsection (b).
(b) Electronic Communications. Notices and other communications to the
Lenders hereunder may be delivered or furnished by electronic communication
(including e-mail and Internet or intranet websites) pursuant to procedures
approved by the Administrative Agent, provided that the foregoing shall not
apply to notices to any Lender pursuant to Article II if such Lender has
notified the Administrative Agent that it is incapable of receiving notices
under such Article by electronic communication. The Administrative Agent or the
Borrower may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures approved by it, provided that approval of such procedures may be
limited to particular notices or communications.
58
Unless the Administrative Agent otherwise prescribes, (i) notices and
other communications sent to an e-mail address shall be deemed received upon the
sender's receipt of an acknowledgement from the intended recipient (such as by
the "return receipt requested" function, as available, return e-mail, or other
written acknowledgement); provided that if such notice or other communication is
not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on
the next business day for the recipient, and (ii) notices or communications
posted to an Internet or intranet website shall be deemed received upon the
deemed receipt by the intended recipient at its e-mail address as described in
the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor.
(c) The Platform. The Borrower hereby acknowledges that (a) the
Administrative Agent and/or the Arranger will make available to the Lenders
materials and/or information provided by or on behalf of the Borrower hereunder
(collectively, "Borrower Materials") by posting the Borrower Materials on
IntraLinks or another similar electronic system (the "Platform"). THE PLATFORM
IS PROVIDED "AS IS" AND "AS AVAILABLE." THE AGENT PARTIES (AS DEFINED BELOW) DO
NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE
ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR
OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED
OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM
VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE
BORROWER MATERIALS OR THE PLATFORM. In no event shall the Administrative Agent
or any of its Related Parties (collectively, the "Agent Parties") have any
liability to the Borrower, any Lender, or any other Person for losses, claims,
damages, liabilities, or expenses of any kind (whether in tort, contract, or
otherwise) arising out of the Borrower's or the Administrative Agent's
transmission of Borrower Materials through the Internet, except to the extent
that such losses, claims, damages, liabilities, or expenses are determined by a
court of competent jurisdiction by a final and nonappealable judgment to have
resulted from the gross negligence or willful misconduct of such Agent Party;
provided, however, that in no event shall any Agent Party have any liability to
the Borrower, any Lender, or any other Person for indirect, special, incidental,
consequential, or punitive damages (as opposed to direct or actual damages).
(d) Change of Address, Etc. Each of the Borrower and the Administrative
Agent may change its address, telecopier, or telephone number for notices and
other communications hereunder by notice to the other parties hereto. Each other
Lender may change its address, telecopier or telephone number for notices and
other communications hereunder by notice to the Borrower and the Administrative
Agent.
(e) Reliance by Administrative Agent and Lenders. The Administrative Agent
and the Lenders shall be entitled to rely and act upon any notices (including
telephonic Loan Notices) purportedly given by or on behalf of the Borrower even
if (i) such notices were not made in a manner specified herein, were incomplete,
or were not preceded or followed by any other form of notice specified herein,
or (ii) the terms thereof, as understood by the recipient, varied from any
confirmation thereof. The Borrower shall indemnify the Administrative Agent,
each Lender,
59
and the Related Parties of each of them from all losses, costs, expenses, and
liabilities resulting from the reliance by such Person on each notice
purportedly given by or on behalf of the Borrower. All telephonic notices to and
other telephonic communications with the Administrative Agent may be recorded by
the Administrative Agent, and each of the parties hereto hereby consents to such
recording.
10.03 NO WAIVER; CUMULATIVE REMEDIES. No failure by any Lender or the
Administrative Agent to exercise, and no delay by any such Person in exercising,
any right, remedy, power, or privilege hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power,
or privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power, or privilege. The rights, remedies,
powers, and privileges herein provided are cumulative and not exclusive of any
rights, remedies, powers, and privileges provided by law.
10.04 EXPENSES; INDEMNITY; DAMAGE WAIVER.
(a) Costs and Expenses. The Borrower shall pay (i) all reasonable
documented out-of-pocket expenses incurred by the Administrative Agent and its
Affiliates (including the reasonable fees, charges and disbursements of counsel
for the Administrative Agent), in connection with the syndication of the credit
facilities provided for herein, the preparation, due diligence, negotiation,
execution, delivery, closing, and administration of this Agreement and the other
Loan Documents or any amendments, modifications, or waivers of the provisions
hereof or thereof (whether or not the transactions contemplated hereby or
thereby shall be consummated), and (ii) all out-of-pocket expenses incurred by
the Administrative Agent or any Lender (including, without limitation, the fees,
charges, and disbursements of any counsel for the Administrative Agent or any
Lender, including fee and time charges for attorneys who may be employees of the
Administrative Agent or any Lender) in connection with inspection rights under
Section 6.10 or in connection with the enforcement or protection of its rights
(A) in connection with this Agreement and the other Loan Documents, including
its rights under this Section, or (B) in connection with the Loans made
hereunder, including all such out-of-pocket expenses incurred during any
workout, restructuring, or negotiations in respect of such Loans.
(b) Indemnification by the Borrower. The Borrower shall indemnify the
Administrative Agent (and any sub-agent thereof), each Lender, and each Related
Party of any of the foregoing Persons (each such Person being called an
"Indemnitee") against, and hold each Indemnitee harmless from, any and all
losses, claims, damages, liabilities, and related expenses (including the fees,
charges, and disbursements of any counsel for any Indemnitee and all fees and
time charges and disbursements for attorneys who may be employees of any
Indemnitee,) incurred by any Indemnitee or asserted against any Indemnitee by
any third party or by the Borrower arising out of, in connection with, or as a
result of (i) the execution or delivery of this Agreement, any other Loan
Document, or any agreement or instrument contemplated hereby or thereby, the
performance by the parties hereto of their respective obligations hereunder or
thereunder or the consummation of the transactions contemplated hereby or
thereby, or, in the case of the Administrative Agent (and any sub-agent thereof)
and its Related Parties only, the administration of this Agreement and the other
Loan Documents, (ii) any Loan or the use or proposed use of the proceeds
therefrom, (iii) any actual or alleged presence or release of Hazardous
Materials on or from any property owned or operated by the Borrower or any of
its
60
Subsidiaries, or any Environmental Liability related in any way to the Borrower
or any of its Subsidiaries, (iv) to the extent permitted by applicable Law, any
civil penalty or fine assessed by OFAC against, and all reasonable costs and
expenses (including counsel fees and disbursements) incurred in connection with
defense thereof, by the Administrative Agent or any Lender as a result of
conduct of the Borrower that violates a sanction enforced by OFAC, or (v) any
actual or prospective claim, litigation, investigation, or proceeding relating
to any of the foregoing, whether based on contract, tort or any other theory,
whether brought by a third party or by the Borrower, and regardless of whether
any Indemnitee is a party thereto; provided that such indemnity shall not, as to
any Indemnitee, be available to the extent that such losses, claims, damages,
liabilities, or related expenses (x) are determined by a court of competent
jurisdiction by final judgment to have resulted from the gross negligence or
willful misconduct of such Indemnitee or (y) result from a claim brought by the
Borrower against an Indemnitee for breach in bad faith of such Indemnitee's
obligations hereunder or under any other Loan Document, if the Borrower has
obtained a final judgment in its favor on such claim as determined by a court of
competent jurisdiction, in all cases, whether or not caused by or arising, in
whole or in part, out of the comparative, contributory, or sole negligence of
the Indemnitee.
(c) Reimbursement by Lenders. To the extent that the Borrower for any
reason fails to indefeasibly pay any amount required under subsection (a) or (b)
of this Section to be paid by it to the Administrative Agent (or any sub-agent
thereof), or any Related Party of any of the foregoing, each Lender severally
agrees to pay to the Administrative Agent (or any such sub-agent), or such
Related Party, as the case may be, such Lender's Applicable Percentage
(determined as of the time that the applicable unreimbursed expense or indemnity
payment is sought) of such unpaid amount, provided that the unreimbursed expense
or indemnified loss, claim, damage, liability, or related expense, as the case
may be, was incurred by or asserted against the Administrative Agent (or any
such sub-agent) in its capacity as such, or against any Related Party of any of
the foregoing acting for the Administrative Agent (or any such sub-agent) in
connection with such capacity. The obligations of the Lenders under this
subsection (c) are subject to the provisions of Section 2.09(d).
(d) Waiver of Consequential Damages, Etc. To the fullest extent permitted
by applicable law, the Borrower shall not assert, and hereby waives, any claim
against any Indemnitee, on any theory of liability, for special, indirect,
consequential, or punitive damages (as opposed to direct or actual damages)
arising out of, in connection with, or as a result of, this Agreement, any other
Loan Document or any agreement or instrument contemplated hereby, the
transactions contemplated hereby or thereby, any Loan or the use of the proceeds
thereof. No Indemnitee referred to in subsection (b) above shall be liable for
any damages arising from the use by unintended recipients of any information or
other materials distributed by it through telecommunications, electronic, or
other information transmission systems in connection with this Agreement or the
other Loan Documents or the transactions contemplated hereby or thereby.
(e) Payments. All amounts due under this Section shall be payable not
later than ten Business Days after demand therefor.
(f) Survival. The agreements in this Section shall survive the resignation
of the Administrative Agent, the replacement of any Lender, the termination of
the Aggregate Commitments, and the repayment, satisfaction, or discharge of all
the other Obligations.
61
10.05 PAYMENTS SET ASIDE. To the extent that any payment by or on behalf
of the Borrower is made to the Administrative Agent or any Lender, or the
Administrative Agent or any Lender exercises its right of setoff, and such
payment or the proceeds of such setoff or any part thereof is subsequently
invalidated, declared to be fraudulent or preferential, set aside or required
(including pursuant to any settlement entered into by the Administrative Agent
or such Lender in its discretion) to be repaid to a trustee, receiver, or any
other party, in connection with any proceeding under any Debtor Relief Law or
otherwise, then (a) to the extent of such recovery, the obligation or part
thereof originally intended to be satisfied shall be revived and continued in
full force and effect as if such payment had not been made or such setoff had
not occurred, and (b) each Lender severally agrees to pay to the Administrative
Agent upon demand its applicable share (without duplication) of any amount so
recovered from or repaid by the Administrative Agent, plus interest thereon from
the date of such demand to the date such payment is made at a rate per annum
equal to the Federal Funds Rate from time to time in effect. The obligations of
the Lenders under clause (b) of the preceding sentence shall survive the payment
in full of the Obligations and the termination of this Agreement.
10.06 SUCCESSORS AND ASSIGNS.
(a) Successors and Assigns Generally. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that the Borrower may
not assign or otherwise transfer any of its rights or obligations hereunder
without the prior written consent of the Administrative Agent and each Lender
and no Lender may assign or otherwise transfer any of its rights or obligations
hereunder except (i) to an Eligible Assignee in accordance with the provisions
of subsection (b) of this Section, (ii) by way of participation in accordance
with the provisions of subsection (d) of this Section, or (iii) by way of pledge
or assignment of a security interest subject to the restrictions of subsection
(f) of this Section (and any other attempted assignment or transfer by any party
hereto shall be null and void). Nothing in this Agreement, expressed or implied,
shall be construed to confer upon any Person (other than the parties hereto,
their respective successors and assigns permitted hereby, Participants to the
extent provided in subsection (d) of this Section and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent and
the Lenders) any legal or equitable right, remedy or claim under or by reason of
this Agreement.
(b) Assignments by Lenders. Any Lender may at any time assign to one or
more Eligible Assignees all or a portion of its rights and obligations under
this Agreement (including all or a portion of its Commitment and the Loans at
the time owing to it); provided that:
(i) except in the case of an assignment of the entire remaining
amount of the assigning Lender's Commitment and the Loans at the time
owing to it or in the case of an assignment to a Lender or an Affiliate of
a Lender or an Approved Fund with respect to a Lender, the aggregate
amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) or, if the Commitment is not then in effect, the
principal outstanding balance of the Loans of the assigning Lender subject
to each such assignment, determined as of the date the Assignment and
Assumption with respect to such assignment is delivered to the
Administrative Agent or, if "Trade Date" is specified in the Assignment
and Assumption, as of the Trade Date, shall not be less than
62
$5,000,000 unless each of the Administrative Agent and, so long as no
Event of Default has occurred and is continuing, the Borrower otherwise
consents (each such consent not to be unreasonably withheld or delayed);
provided, however, that concurrent assignments to members of an Assignee
Group and concurrent assignments from members of an Assignee Group to a
single Eligible Assignee (or to an Eligible Assignee and members of its
Assignee Group) will be treated as a single assignment for purposes of
determining whether such minimum amount has been met;
(ii) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and obligations
under this Agreement with respect to the Loans or the Commitment assigned;
(iii) any assignment of a Commitment must be approved by the
Administrative Agent (which approval shall not be unreasonably withheld or
delayed) unless the Person that is the proposed assignee is itself a
Lender (whether or not the proposed assignee would otherwise qualify as an
Eligible Assignee); and
(iv) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Assumption, together with the
processing and recordation fee in the amount, if any, set forth on
Schedule 10.06, and the Eligible Assignee, if it shall not be a Lender,
shall deliver to the Administrative Agent an Administrative Questionnaire.
Subject to acceptance and recording thereof by the Administrative Agent pursuant
to subsection (c) of this Section, from and after the effective date specified
in each Assignment and Assumption, the Eligible Assignee thereunder shall be a
party to this Agreement and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and obligations of a Lender under
this Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto) but shall continue
to be entitled to the benefits of Sections 3.01, 3.04, 3.05, and 10.04 with
respect to facts and circumstances occurring prior to the effective date of such
assignment. Upon request, the Borrower (at its expense) shall execute and
deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of
rights or obligations under this Agreement that does not comply with this
subsection shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with
subsection (d) of this Section.
(c) Register. The Administrative Agent, acting solely for this purpose as
an agent of the Borrower, shall maintain at the Administrative Agent's Office a
copy of each Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of,
and the amount of the Principal Debt owing to, each Lender pursuant to the terms
hereof from time to time (the "Register"). The entries in the Register shall be
conclusive, and the Borrower, the Administrative Agent, and the Lenders may
treat each Person whose name is recorded in the Register pursuant to the terms
hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding
notice to the contrary.
63
The Register shall be available for inspection by the Borrower at any reasonable
time and from time to time upon reasonable prior notice. In addition, at any
time that a request for a consent for a material or substantive change to the
Loan Documents is pending, any Lender may request and receive from the
Administrative Agent a copy of the Register.
(d) Participations. Any Lender may at any time, without the consent of, or
notice to, the Borrower or the Administrative Agent, sell participations to any
Person (other than a natural person or the Borrower or any of the Borrower's
Affiliates or Subsidiaries) (each, a "Participant") in all or a portion of such
Lender's rights and/or obligations under this Agreement (including all or a
portion of its Commitment and/or the Loans owing to it); provided that (i) such
Lender's obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (iii) the Borrower, the Administrative
Agent, and the Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement.
Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification, or waiver of
any provision of this Agreement; provided that such agreement or instrument may
provide that such Lender will not, without the consent of the Participant, agree
to any amendment, waiver, or other modification described in the first proviso
to Section 10.01 that affects such Participant. Subject to subsection (e) of
this Section, the Borrower agrees that each Participant shall be entitled to the
benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to subsection (b) of
this Section. To the extent permitted by law, each Participant also shall be
entitled to the benefits of Section 10.08 as though it were a Lender, provided
such Participant agrees to be subject to Section 2.10 as though it were a
Lender.
(e) Limitations upon Participant Rights. A Participant shall not be
entitled to receive any greater payment under Section 3.01 or 3.04 than the
applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to
such Participant is made with the Borrower's prior written consent. A
Participant that would be a Foreign Lender if it were a Lender shall not be
entitled to the benefits of Section 3.01 unless the Borrower is notified of the
participation sold to such Participant and such Participant agrees, for the
benefit of the Borrower, to comply with Section 3.01(e) as though it were a
Lender.
(f) Certain Pledges. Any Lender may at any time pledge or assign a
security interest in all or any portion of its rights under this Agreement
(including under its Note, if any) to secure obligations of such Lender,
including any pledge or assignment to secure obligations to a Federal Reserve
Bank; provided that no such pledge or assignment shall release such Lender from
any of its obligations hereunder or substitute any such pledgee or assignee for
such Lender as a party hereto.
(g) Electronic Execution of Assignments. The words "execution," "signed,"
"signature," and words of like import in any Assignment and Assumption shall be
deemed to include electronic signatures or the keeping of records in electronic
form, each of which shall be
64
of the same legal effect, validity or enforceability as a manually executed
signature or the use of a paper-based recordkeeping system, as the case may be,
to the extent and as provided for in any applicable law, including the Federal
Electronic Signatures in Global and National Commerce Act, the New York State
Electronic Signatures and Records Act, or any other similar state laws based on
the Uniform Electronic Transactions Act.
10.07 TREATMENT OF CERTAIN INFORMATION; CONFIDENTIALITY. Each of the
Administrative Agent and the Lenders agrees to maintain the confidentiality of
the Information (as defined below), except that Information may be disclosed (a)
to its Affiliates and to its and its Affiliates' respective partners, directors,
officers, employees, agents, advisors, and representatives (it being understood
that the Persons to whom such disclosure is made will be informed of the
confidential nature of such Information and instructed to keep such Information
confidential and that the party making such disclosure agrees to be responsible
for any breach of this Section 10.07 by any of its Affiliates and its Affiliates
respective partners, directors, employees, agents, advisors, and
representatives), (b) to the extent requested by any regulatory authority
purporting to have jurisdiction over it (including any self-regulatory
authority, such as the National Association of Insurance Commissioners), (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party hereto, (e) in connection with the
exercise of any remedies hereunder or under any other Loan Document or any
action or proceeding relating to this Agreement or any other Loan Document or
the enforcement of rights hereunder or thereunder, (f) subject to an agreement
containing provisions substantially the same as those of this Section, to (i)
any assignee of or Participant in, or any prospective assignee of or Participant
in, any of its rights or obligations under this Agreement (ii) any actual or
prospective counterparty (or its advisors) to any swap or derivative transaction
relating to the Borrower and its obligations, (iii) to an investor or
prospective investor in an Approved Fund that also agrees that Information shall
be used solely for the purpose of evaluating an investment in such Approved
Fund, (iv) to a trustee, collateral manager, servicer, backup servicer,
noteholder or secured party in an Approved Fund in connection with the
administration, servicing and reporting on the assets serving as collateral for
an Approved Fund, or (g) to a nationally recognized rating agency that requires
access to information regarding the Borrower, the Loan and Loan Documents in
connection with ratings issued with respect to an Approved Fund, (h) with the
consent of the Borrower or (i) to the extent such Information (x) becomes
publicly available other than as a result of a breach of this Section or (y)
becomes available to the Administrative Agent, any Lender or any of their
respective Affiliates on a nonconfidential basis from a source other than the
Borrower, which source is not subject to a confidentiality obligation.
For purposes of this Section, "Information" means all information received
from the Borrower or any Subsidiary relating to the Borrower or any Subsidiary
or any of their respective businesses, other than any such information that is
available to the Administrative Agent or any Lender on a nonconfidential basis
prior to disclosure by the Borrower or any Subsidiary, provided that, in the
case of information received from the Borrower or any Subsidiary after the date
hereof, such information is clearly identified at the time of delivery as
confidential. Any Person required to maintain the confidentiality of Information
as provided in this Section shall be considered to have complied with its
obligation to do so if such Person has exercised the same degree of care to
maintain the confidentiality of such Information as such Person would accord to
its own confidential information.
65
Each of the Administrative Agent and the Lenders acknowledges that (a) the
Information may include material non-public information concerning the Borrower
or a Subsidiary, as the case may be, (b) it has developed compliance procedures
regarding the use of material non-public information and (c) it will handle such
material non-public information in accordance with applicable Law, including
federal and state securities Laws.
10.08 RIGHT OF SETOFF. If an Event of Default shall have occurred and be
continuing, each Lender and each of its Affiliates is hereby authorized at any
time and from time to time, to the fullest extent permitted by applicable Law,
to set off and apply any and all deposits (general or special, time or demand,
provisional or final, in whatever currency) at any time held and other
obligations (in whatever currency) at any time owing by such Lender or any such
Affiliate to or for the credit or the account of the Borrower against any and
all of the obligations then due of the Borrower now or hereafter existing under
this Agreement or any other Loan Document to such Lender, irrespective of
whether or not such Lender shall have made any demand under this Agreement or
any other Loan Document and although such obligations of the Borrower may be
owed to a branch or office of such Lender different from the branch or office
holding such deposit or obligated on such indebtedness. The rights of each
Lender and its Affiliates under this Section are in addition to other rights and
remedies (including other rights of setoff) that such Lender or its Affiliates
may have. Each Lender agrees to notify the Borrower and the Administrative Agent
promptly after any such setoff and application, provided that the failure to
give such notice shall not affect the validity of such setoff and application.
10.09 INTEREST RATE LIMITATION. Notwithstanding anything to the contrary
contained in any Loan Document, the interest paid or agreed to be paid under the
Loan Documents shall not exceed the maximum rate of non-usurious interest
permitted by applicable Law (the "Maximum Rate"). If the Administrative Agent or
any Lender shall receive interest in an amount that exceeds the Maximum Rate,
the excess interest shall be applied to the Principal Debt or, if it exceeds
such the amount of the Principal Debt, refunded to the Borrower. In determining
whether the interest contracted for, charged, or received by the Administrative
Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent
permitted by applicable Law, (a) characterize any payment that is not principal
as an expense, fee, or premium rather than interest, (b) exclude voluntary
prepayments and the effects thereof, and (c) amortize, prorate, allocate, and
spread in equal or unequal parts the total amount of interest throughout the
contemplated term of the Obligations hereunder.
10.10 COUNTERPARTS; INTEGRATION; EFFECTIVENESS. This Agreement may be
executed in counterparts (and by different parties hereto in different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement and the other
Loan Documents constitute the entire contract among the parties relating to the
subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. This
Agreement shall become effective when it shall have been executed by the
Administrative Agent and when the Administrative Agent shall have received
counterparts hereof that, when taken together, bear the signatures of each of
the other parties hereto. Delivery of an executed counterpart of a signature
page of this Agreement by telecopy shall be effective as delivery of a manually
executed counterpart of this Agreement.
66
10.11 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties made hereunder and in any other Loan Document or other document
delivered pursuant hereto or thereto or in connection herewith or therewith
shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by the
Administrative Agent and each Lender, regardless of any investigation made by
the Administrative Agent or any Lender or on their behalf and notwithstanding
that the Administrative Agent or any Lender may have had notice or knowledge of
any Default at the time of any Borrowing, and shall continue in full force and
effect as long as any Loan or any other Obligation hereunder shall remain unpaid
or unsatisfied.
10.12 SEVERABILITY. If any provision of this Agreement or the other Loan
Documents is held to be illegal, invalid, or unenforceable, (a) the legality,
validity, and enforceability of the remaining provisions of this Agreement and
the other Loan Documents shall not be affected or impaired thereby and (b) the
parties shall endeavor in good faith negotiations to replace the illegal,
invalid, or unenforceable provisions with valid provisions the economic effect
of which comes as close as possible to that of the illegal, invalid, or
unenforceable provisions. The invalidity of a provision in a particular
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
10.13 REPLACEMENT OF LENDERS. If any Lender requests compensation under
Section 3.04, or if the Borrower is required to pay any additional amount to any
Lender or any Governmental Authority for the account of any Lender pursuant to
Section 3.01, or if any Lender is a Defaulting Lender, then the Borrower may, at
its sole expense and effort, upon notice to such Lender and the Administrative
Agent, require such Lender to assign and delegate, without recourse (in
accordance with and subject to the restrictions contained in, and consents
required by, Section 10.06), all of its interests, rights, and obligations under
this Agreement and the related Loan Documents to an assignee that shall assume
such obligations (which assignee may be another Lender, if a Lender accepts such
assignment), provided that:
(a) the Borrower shall have paid to the Administrative Agent the
assignment fee specified in Section 10.06(b);
(b) such Lender shall have received payment of an amount equal to the
outstanding principal of its Loans, accrued interest thereon, accrued fees and
all other amounts payable to it hereunder and under the other Loan Documents
(including any amounts under Section 3.05) from the assignee (to the extent of
such outstanding principal and accrued interest and fees) or the Borrower (in
the case of all other amounts);
(c) in the case of any such assignment resulting from a claim for
compensation under Section 3.04 or payments required to be made pursuant to
Section 3.01, such assignment will result in a reduction in such compensation or
payments thereafter; and
(d) such assignment does not conflict with applicable Laws.
A Lender shall not be required to make any such assignment or delegation
if, prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling the Borrower to require such assignment and delegation
cease to apply.
67
10.14 GOVERNING LAW; JURISDICTION; ETC.
(a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. WITHOUT GIVING EFFECT TO ANY
LAWS THAT WOULD RESULT IN A CHOICE OF LAW OTHER THAN THE LAWS OF THE STATE OF
NEW YORK.
(b) SUBMISSION TO JURISDICTION. THE BORROWER IRREVOCABLY AND
UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY
AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK,
AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO
IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT
OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT.
EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR
PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY
SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS
AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE
ADMINISTRATIVE AGENT OR ANY LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THE
BORROWER OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION. THE BORROWER
IRREVOCABLY WAIVES ALL IMMUNITY (WHETHER ON THE BASIS OF SOVEREIGNTY OR
OTHERWISE) FROM JURISDICTION, ATTACHMENT (BOTH BEFORE AND AFTER JUDGMENT) AND
EXECUTION TO WHICH IT MIGHT BE ENTITLED IN ANY SUCH LEGAL ACTION OR PROCEEDING
IN THE COURTS OF ANY JURISDICTION.
(c) WAIVER OF VENUE. THE BORROWER IRREVOCABLY AND UNCONDITIONALLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW
OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT
OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT
REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE
DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING
IN ANY SUCH COURT.
(d) SERVICE OF PROCESS. ON OR PRIOR TO THE CLOSING DATE, THE BORROWER
SHALL APPOINT ALLIED WORLD ASSURANCE COMPANY (U.S.) INC. (THE "PROCESS AGENT"),
WITH AN OFFICE ON THE DATE HEREOF AT 000 XXXXX XXXXXX, 16TH FLOOR, XXX XXXX, XX
00000, XXXXXX XXXXXX, AS ITS AGENT TO
68
RECEIVE ON ITS BEHALF AND ITS PROPERTY SERVICE OF THE SUMMONS AND COMPLAINT AND
ANY OTHER PROCESS WHICH MAY BE SERVED IN ANY SUCH ACTION OR PROCEEDING, PROVIDED
THAT A COPY OF SUCH PROCESS IS ALSO MAILED IN THE MANNER PROVIDED IN SECTION
10.02. SUCH SERVICE MAY BE MADE BY MAILING OR DELIVERING A COPY OF SUCH PROCESS
TO THE BORROWER IN CARE OF THE PROCESS AGENT AT THE PROCESS AGENT'S ABOVE
ADDRESS, AND THE BORROWER HEREBY IRREVOCABLY AUTHORIZES AND DIRECTS THE PROCESS
AGENT TO ACCEPT SUCH SERVICE ON ITS BEHALF. THE BORROWER ALSO IRREVOCABLY
CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION
10.02. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO
SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.
10.15 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER
THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT, OR
ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE
BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
10.16 USA PATRIOT ACT NOTICE. Each Lender that is subject to the Act (as
hereinafter defined) and the Administrative Agent (for itself and not on behalf
of any Lender) hereby notifies the Borrower that pursuant to the requirements of
the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the "Act"), it is required to obtain, verify and record information that
identifies the Borrower, which information includes the name and address of the
Borrower and other information that will allow such Lender or the Administrative
Agent, as applicable, to identify the Borrower in accordance with the Act.
10.17 JUDGMENT CURRENCY. If, for the purposes of obtaining judgment in any
court, it is necessary to convert a sum due hereunder or any other Loan Document
in one currency into another currency, the rate of exchange used shall be that
at which in accordance with normal banking procedures the Administrative Agent
could purchase the first currency with such other currency on the Business Day
preceding that on which final judgment is given. The obligation of the Borrower
in respect of any such sum due from it to the Administrative Agent or the
Lenders hereunder or under the other Loan Documents shall, notwithstanding any
judgment in a currency (the "Judgment Currency") other than that in which such
sum is denominated in accordance with the applicable provisions of this
Agreement (the "Agreement Currency"), be discharged only to the extent that on
the Business Day following receipt by the Administrative Agent of any sum
adjudged to be so due in the Judgment Currency, the Administrative Agent
69
may in accordance with normal banking procedures purchase the Agreement Currency
with the Judgment Currency. If the amount of the Agreement Currency so purchased
is less than the sum originally due by the Borrower in the Agreement Currency,
the Borrower agrees, as a separate obligation and notwithstanding any such
judgment, to indemnify the Person to whom such obligation was owing against such
loss. If the amount of the Agreement Currency so purchased is greater than the
sum originally due in such currency, the Person receiving such payment agrees to
return the amount of any excess to the Borrower (or to any other Person who may
be entitled thereto under applicable Law).
[SIGNATURE PAGES FOLLOW.]
70
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
ALLIED WORLD ASSURANCE HOLDINGS, LTD
By: /s/ Xxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: President & CEO
By: /s/ Xxxxxx Xxxxxx
------------------------------------
Name: Xxxxxx Xxxxxx
Title: Secretary & General Counsel
SIGNATURE PAGE TO CREDIT AGREEMENT
BANK OF AMERICA, N.A., as
Administrative Agent
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
SIGNATURE PAGE TO CREDIT AGREEMENT
BANK OF AMERICA, N.A., as a Lender
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
SIGNATURE PAGE TO CREDIT AGREEMENT
WACHOVIA BANK, NATIONAL
ASSOCIATION, as a Lender
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Director
SIGNATURE PAGE TO CREDIT AGREEMENT
HSBC BANK USA, NATIONAL
ASSOCIATION, as a Lender
By: /s/ Xxxxxxxx Xxxx
-----------------------------------
Name: Xxxxxxxx Xxxx
Title: Senior Vice President
SIGNATURE PAGE TO CREDIT AGREEMENT
BARCLAYS BANK PLC, as a Lender
By: /s/ Xxxxx Xxxxxx
-----------------------------------
Name: Xxxxx Xxxxxx
Title: Manager
SIGNATURE PAGE TO CREDIT AGREEMENT
CITIBANK N.A., as a Lender
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
SIGNATURE PAGE TO CREDIT AGREEMENT
DEUTSCHE BANK AG NEW YORK
BRANCH, as a Lender
By: /s/ Xxxx Xxxxx
-----------------------------------
Name: Xxxx Xxxxx
Title: Director
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxx
Title: Managing Director
SIGNATURE PAGE TO CREDIT AGREEMENT
ING BANK N.V., LONDON BRANCH, as a
Lender
By: /s/ Xxxx Xxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxx
Title: Managing Director
By: /s/ Xxxx Xxxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxxx
Title: Director
SIGNATURE PAGE TO CREDIT AGREEMENT
THE GOVERNOR AND COMPANY OF THE
BANK OF IRELAND, as a Lender
By: /s/ Xxxxxxx Xxxxx
-----------------------------------
Name: Xxxxxxx Xxxxx
Title: Director
By: /s/ Xxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxx
Title: Manager
SIGNATURE PAGE TO CREDIT AGREEMENT
BAYERISCHE LANDESBANK, as a Lender
By: /s/ Xxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
By: /s/ Xxxxxx XxXxxxx
-----------------------------------
Name: Xxxxxx XxXxxxx
Title: First Vice President
SIGNATURE PAGE TO CREDIT AGREEMENT
THE BANK OF TOKYO-MITSUBISHI, LTD.
NEW YORK BRANCH, as a Lender
By: /s/ Xxxxx X. Xxxx, Xx.
-----------------------------------
Name: Xxxxx X. Xxxx, Xx.
Title: Authorized Signatory
SIGNATURE PAGE TO CREDIT AGREEMENT
CREDIT SUISSE FIRST BOSTON, ACTING
THROUGH ITS CAYMAN ISLANDS BRANCH, as
a Lender
By: /s/ Xxx Xxxxx
-----------------------------------
Name: Xxx Xxxxx
Title: Director
By: /s/ Xxxxx Xxxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxxx
Title: Associate
SIGNATURE PAGE TO CREDIT AGREEMENT
JPMORGAN CHASE BANK, as a Lender
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
SIGNATURE PAGE TO CREDIT AGREEMENT
MIZUHO CORPORATE BANK, LTD., as a Lender
By: /s/ Xxxxxx Xxxxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Senior Vice President
SIGNATURE PAGE TO CREDIT AGREEMENT
ABN AMRO BANK N.V., as a Lender
By: /s/ Xxxx X. Xxxxx
-----------------------------------
Name: Xxxx X. Xxxxx
Title: Director
By: /s/ Xxxxxxx XxXxxxx
------------------------------------
Name: Xxxxxxx XxXxxxx
Title: Assistant Vice President
SIGNATURE PAGE TO CREDIT AGREEMENT
UFJ BANK LIMITED, as a Lender
By: /s/ Xxxxxxx X. Small
---------------------------------------
Name: Xxxxxxx X. Small
Title: Senior Vice President & Area Manager
SIGNATURE PAGE TO CREDIT AGREEMENT
