EXECUTION COPY
EXHIBIT 10.1
================================================================================
AMENDED AND RESTATED
FIVE-YEAR COMPETITIVE ADVANCE AND
REVOLVING CREDIT FACILITY AGREEMENT
Dated as of June 20, 2001
among
THE HARTFORD FINANCIAL SERVICES GROUP, INC.
THE LENDERS NAMED HEREIN
and
THE CHASE MANHATTAN BANK
and
BANK OF AMERICA, N.A.
as Co-Administrative Agents
and
CITIBANK, N.A.,
FIRST UNION NATIONAL BANK and
FLEET NATIONAL BANK
as Co-Syndication Agents
X.X. XXXXXX SECURITIES INC.
BANC OF AMERICA SECURITIES LLC
as Co-Lead Arrangers and Co-Bookrunners
================================================================================
6701-199
TABLE OF CONTENTS
Article Section Page
------- ------- ----
I DEFINITIONS
1.01. Defined Terms...................................................4
1.02. Terms Generally................................................15
II THE CREDITS
2.01. Commitments....................................................15
2.02. Loans..........................................................16
2.03. Competitive Bid Procedure......................................17
2.04. Standby and Local Currency Borrowing Procedure.................19
2.05. Conversion and Continuation of Standby Loans...................19
2.06. Fees...........................................................20
2.07. Repayment of Loans; Evidence of Debt...........................21
2.08. Interest on Loans..............................................21
2.09. Default Interest...............................................22
2.10. Alternate Rate of Interest.....................................22
2.11. Termination and Reduction of Commitments.......................22
2.12. Prepayment.....................................................23
2.13. Reserve Requirements; Change in Circumstances..................23
2.14. Change in Legality.............................................24
2.15. Indemnity......................................................25
2.16. Pro Rata Treatment.............................................26
2.17. Sharing of Setoffs.............................................26
2.18. Payments.......................................................26
2.19. Taxes..........................................................27
2.20. Duty to Mitigate; Assignment of Commitments Under Certain
Circumstances.................................................29
2.21. Terms of Local Currency Facilities.............................29
2.22. Currency Fluctuations, Etc.....................................31
2.23. Increase in Total Commitment...................................32
III REPRESENTATIONS AND WARRANTIES
3.01. Organization; Powers...........................................34
3.02. Authorization..................................................34
3.03. Enforceability.................................................34
3.04. Governmental Approvals.........................................34
3.05. Financial Statements...........................................34
3.06. Litigation; Compliance with Laws...............................34
3.07. Federal Reserve Regulations....................................35
3.08. Investment Company Act; Public Utility Holding Company Act.....35
3.09. Use of Proceeds................................................35
3.10. Full Disclosure; No Material Misstatements.....................35
3.11. Taxes..........................................................35
3.12. Employee Pension Benefit Plans.................................36
Contents, p.2
IV CONDITIONS OF LENDING
4.01. All Borrowings.................................................36
4.02. Effective Date.................................................36
4.03. First Borrowing by Each Borrowing Subsidiary...................37
V COVENANTS
5.01. Existence......................................................37
5.02. Business and Properties........................................37
5.03. Financial Statements, Reports, Etc.............................38
5.04. Insurance......................................................39
5.05. Obligations and Taxes..........................................39
5.06. Litigation and Other Notices...................................39
5.07. Maintaining Records; Access to Properties and Inspections......39
5.08. Employee Benefits..............................................39
5.09. Use of Proceeds................................................39
5.10. Risk-Based Capital Ratio.......................................39
5.11. Consolidations, Mergers, and Sales of Assets...................40
5.12. Limitations on Liens...........................................40
5.13. Limitations on Sale and Leaseback Transactions.................41
5.14. Consolidated Total Debt to Consolidated Total Capitalization...42
5.15. Limitations on Dividends and Advances by Subsidiaries..........42
5.16. Minimum Consolidated Statutory Surplus.........................42
VI EVENTS OF DEFAULT.....................................................42
VII GUARANTEE.............................................................44
VIII THE ADMINISTRATIVE AGENT..............................................45
IX MISCELLANEOUS.........................................................47
9.01. Notices........................................................47
9.02. Survival of Agreement..........................................47
9.03. Binding Effect.................................................48
9.04. Successors and Assigns.........................................48
9.05. Expenses; Indemnity............................................50
9.06. APPLICABLE LAW.................................................50
9.07. Waivers; Amendment.............................................50
9.08. Entire Agreement...............................................51
9.09. Severability...................................................51
9.10. Counterparts...................................................51
9.11. Headings.......................................................51
9.12. Right of Setoff................................................51
9.13. Jurisdiction; Consent to Service of Process....................51
9.14. Waiver of Jury Trial...........................................52
9.15. Addition of Borrowing Subsidiaries.............................52
9.16. Conversion of Currencies.......................................52
Contents, p.3
EXHIBITS AND SCHEDULES
Exhibit A-1 Form of Competitive Bid Request
Exhibit A-2 Form of Notice of Competitive Bid Request
Exhibit A-3 Form of Competitive Bid
Exhibit A-4 Form of Competitive Bid Accept/Reject
Exhibit A-5 Form of Standby Borrowing Request
Exhibit B Form of Assignment and Acceptance
Exhibit C Form of Opinion of Counsel for The Hartford Financial
Services Group, Inc.
Exhibit D Form of Borrowing Subsidiary Agreement
Exhibit E Form of Local Currency Addendum
Schedule 2.01 Commitments
AMENDED AND RESTATED FIVE-YEAR COMPETITIVE
ADVANCE AND REVOLVING CREDIT FACILITY AGREEMENT (as
it may be amended, supplemented or otherwise
modified, the "Agreement") dated as of June 20, 2001,
among THE HARTFORD FINANCIAL SERVICES GROUP, INC., a
Delaware corporation (the "Company"); each Borrowing
Subsidiary party hereto; the lenders listed in
Schedule 2.01 (together with their permitted
assignees, the "Lenders"); and THE CHASE MANHATTAN
BANK and BANK OF AMERICA, N.A., as co-administrative
agents for the Lenders (in such capacity, the
"Co-Administrative Agents", it being agreed that all
references herein to the "Administrative Agent" shall
be references to The Chase Manhattan Bank).
On December 20, 1996, the Company, the Administrative Agent
and certain of the Lenders entered into a Five-Year Competitive Advance and
Revolving Credit Facility Agreement (the "Existing Credit Agreement") pursuant
--------------------------
to which the lenders thereunder agreed to extend credit to the Borrower. The
parties hereto desire to amend the Existing Credit Agreement and to restate it
in its entirety giving effect to such amendment. Therefore, the parties hereto
agree that the Existing Credit Agreement shall be amended and restated to read
in its entirety as set forth herein.
The Lenders have been requested to extend credit to the
Borrowers (such term and each other capitalized term used but not otherwise
defined herein having the meaning assigned to it in Article I) to enable them to
borrow on a standby revolving credit basis on and after the date hereof and at
any time and from time to time prior to the Maturity Date a principal amount not
in excess of $1,000,000,000 at any time outstanding. The Lenders have also been
requested to provide a procedure pursuant to which the Borrowers may invite the
Lenders to bid on an uncommitted basis on short-term borrowings by the
Borrowers. The proceeds of such borrowings are to be used for working capital
and other general corporate purposes, including the repayment of maturing
commercial paper. The Lenders are willing to extend credit on the terms and
subject to the conditions herein set forth.
Accordingly, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms shall have the meanings specified below:
"ABR Borrowing" shall mean a Borrowing comprised of ABR Loans.
"ABR Loan" shall mean any ABR Standby Loan.
"ABR Standby Loan" shall mean any Standby Loan bearing
interest at a rate determined by reference to the Alternate Base Rate in
accordance with the provisions of Article II.
"Administrative Fees" shall have the meaning assigned to such
term in Section 2.06(c).
"Administrative Questionnaire" shall mean an Administrative
Questionnaire in the form distributed to the Lenders by the Administrative
Agent.
"Affiliate" shall mean, when used with respect to a specified
person, another person that directly or indirectly controls or is controlled by
or is under common control with the
person specified.
"Agents" shall mean the Co-Administrative Agents, including
The Chase Manhattan Bank as Administrative Agent.
"Agreement Currency" shall have the meaning assigned to such
term in Section 9.16(b).
"Alternate Base Rate" shall mean, for any day, a rate per
annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to the
greater of (a) the Prime Rate in effect on such day and (b) the Federal Funds
Effective Rate in effect on such day plus 1/2 of 1%. For purposes hereof, "Prime
Rate" shall mean the rate of interest per annum publicly announced from time to
time by the Administrative Agent as its prime rate in effect at its principal
office in New York City; each change in the Prime Rate shall be effective on the
date such change is publicly announced as effective. "Federal Funds Effective
Rate" shall mean, for any day, the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve System arranged
by Federal funds brokers, as released on the next succeeding Business Day by the
Federal Reserve Bank of New York, or, if such rate is not so released for any
day which is a Business Day, the arithmetic average (rounded upwards to the next
1/100th of 1%), as determined by the Administrative Agent, of the quotations for
the day of such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by it. If for any reason
the Administrative Agent shall have determined (which determination shall be
conclusive absent manifest error) that it is unable to ascertain the Federal
Funds Effective Rate for any reason, including the inability or failure of the
Administrative Agent to obtain sufficient quotations in accordance with the
terms thereof, the Alternate Base Rate shall be determined without regard to
clause (b) of the first sentence of this definition until the circumstances
giving rise to such inability no longer exist. Any change in the Alternate Base
Rate due to a change in the Prime Rate or the Federal Funds Effective Rate shall
be effective on the effective date of such change in the Prime Rate or the
Federal Funds Effective Rate, respectively.
"Annual Statement" shall mean, with respect to the Restricted
Subsidiaries, the Annual Statement of such Restricted Subsidiary required to be
filed with the Applicable Insurance Regulatory Authority in accordance with
state law, including any exhibits, schedules, certificates or actuarial opinions
filed or delivered therewith.
"Applicable Insurance Regulatory Authority" shall mean, with
respect to any Insurance Subsidiary, the insurance commission or similar
Governmental Authority located in the state in which such Insurance Subsidiary
is domiciled and any Federal insurance Governmental Authority.
"Applicable Percentage" shall mean on any date, with respect
to Eurocurrency Standby Loans, with respect to the Facility Fee or with respect
to the Usage Fee, as the case may be, the applicable percentage set forth below
under the caption "Eurocurrency Spread", "Facility Fee Percentage" or "Usage Fee
Percentage", as the case may be, based upon the Ratings in effect on such date:
- 2 -
Category 1 Eurocurrency Spread Facility Fee Percentage Usage Fee Percentage
--------------------------------- ----------------------- --------------------------- -------------------------
Aa3 or higher by Xxxxx'x .130% .070% .050%
AA- or higher by S&P
Category 2
----------
A2 by Xxxxx'x .170% .080% .050%
A by S&P
Category 3
----------
A3 by Xxxxx'x .250% .100% .100%
A- by S&P
Category 4
----------
Baa1 by Xxxxx'x .375% .125% .125%
BBB+ by S&P
Category 5
----------
Baa2 or lower or unrated .575% .175% .125%
by Xxxxx'x
BBB or lower or unrated
by S&P
For purposes of the foregoing, (i) if either Xxxxx'x or S&P
shall not have in effect a Rating (other than by reason of the circumstances
referred to in the last sentence of this definition), then such Rating Agency
shall be deemed to have established a Rating in Category 5; (ii) if the Ratings
established or deemed to have been established by Xxxxx'x and S&P shall fall
within different Categories, the Applicable Percentage shall be based on the
lower of the two Ratings; and (iii) if the Ratings established or deemed to have
been established by Xxxxx'x and S&P shall be changed (other than as a result of
a change in the rating system of Xxxxx'x or S&P), such change shall be effective
as of the date on which it is first announced by the applicable Rating Agency.
Each change in the Applicable Percentage shall apply during the period
commencing on the effective date of such change and ending on the date
immediately preceding the effective date of the next such change. If the rating
system of Xxxxx'x or S&P shall change, or if either such Rating Agency shall
cease to be in the business of rating corporate debt obligations, the Company
and the Lenders shall negotiate in good faith to amend this definition to
reflect such changed rating system or the unavailability of ratings from such
Rating Agency and, pending the effectiveness of any such amendment, the
Applicable Percentage shall be determined by reference to the Rating most
recently in effect prior to such change or cessation.
"Assignment and Acceptance" shall mean an assignment and
acceptance entered into by a Lender and an assignee in the form of Exhibit B.
"Augmenting Lender" shall have the meaning assigned to such
term in Section 2.23(a).
"Available Commitment" shall mean, as to any Lender at any
time, an amount equal to such Lender's Commitment at such time minus the
aggregate of all such Lender's Local Currency Loans (Dollar Equivalent)
outstanding at such time.
- 3 -
"Board" shall mean the Board of Governors of the Federal
Reserve System of the United States.
"Board of Directors" shall mean the Board of Directors of a
Borrower or any duly authorized committee thereof.
"Borrower" shall mean any of the Company and the Borrowing
Subsidiaries.
"Borrowing" shall mean a group of Loans of a single Type made
by the Lenders (or, in the case of a Competitive Borrowing, by the Lender or
Lenders whose Competitive Bids have been accepted pursuant to Section 2.03) on a
single date and as to which a single Interest Period is in effect.
"Borrowing Date" shall mean any date on which a Borrowing is
made hereunder.
"Borrowing Subsidiary" shall mean any Subsidiary which shall
have executed and delivered to the Administrative Agent and each Lender a
Borrowing Subsidiary Agreement.
"Borrowing Subsidiary Agreement" shall mean an agreement, in
the form of Exhibit D hereto, duly executed by the Company and a Subsidiary.
"Business Day" shall mean any day (other than a day which is a
Saturday, Sunday or legal holiday in the State of New York) on which banks are
open for business in New York City; provided, however, that, when used in
connection with a Eurocurrency Loan, the term "Business Day" shall also exclude
any day on which banks are not open for dealings in deposits in the applicable
currency in the London interbank market, and, when used in connection with
determining any date on which any amount is to be paid or made available in
Local Currency, the term "Business Day" shall also exclude any day on which
commercial banks and foreign exchange markets are not open for business in the
principal financial center in the country of such Local Currency.
"Calculation Date" shall mean the last Business Day of each
calendar week.
"Capitalized Lease-Back Obligation" shall mean with respect to
any property or asset, at any date as of which the same is to be determined, the
total net rental obligations of the Company or a Subsidiary under a lease of
such property or asset, entered into as part of an arrangement to which the
provisions of Section 5.13 are applicable (or would have been applicable had
such Subsidiary been a Subsidiary at the time it entered into such lease),
discounted to the date of computation at the rate of interest per annum implicit
in the lease (determined in accordance with GAAP). The amount of the net rental
obligation for any calendar year under any lease shall be the sum of the rental
and other payments required to be paid in such calendar year by the lessee
thereunder, not including, however, any amounts required to be paid by such
lessee (whether or not therein designated as rental or additional rental) on
account of maintenance and repairs, insurance, taxes, assessments, water rates
and similar charges.
A "Change in Control" shall be deemed to have occurred if (a)
any person or group of persons shall have acquired beneficial ownership of more
than 30% of the outstanding Voting Shares of the Company (within the meaning of
Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as amended, and
the applicable rules and regulations thereunder), or (b) during any period of 12
consecutive months, commencing after the Effective Date, individuals who on the
first day of such period were directors of the Company (together with any
replacement or additional directors who were nominated or elected by a majority
of directors then in office) cease to constitute a majority of the Board of
Directors of the Company.
"Code" shall mean the Internal Revenue Code of 1986, as the
same may be
- 4 -
amended from time to time.
"Commitment" shall mean, with respect to each Lender, the
commitment of such Lender hereunder as set forth as of the Closing Date in
Schedule 2.01 under the heading "Commitment" or in an Assignment and Acceptance
delivered by such Lender under Section 9.04 as such Lender's Commitment may be
permanently terminated or reduced from time to time pursuant to Section 2.11 or
pursuant to one or more assignments under Section 9.04. The Commitment of each
Lender shall automatically and permanently terminate on the Maturity Date if not
terminated earlier pursuant to the terms hereof.
"Commitment Increase" shall have the meaning assigned to such
term in Section 2.23(b).
"Competitive Bid" shall mean an offer by a Lender to make a
Competitive Loan pursuant to Section 2.03.
"Competitive Bid Accept/Reject Letter" shall mean a
notification made by a Borrower pursuant to Section 2.03(d) in the form of
Exhibit A-4.
"Competitive Bid Rate" shall mean, as to any Competitive Bid,
(i) in the case of a Eurocurrency Loan, the Margin, and (ii) in the case of a
Fixed Rate Loan, the fixed rate of interest offered by the Lender making such
Competitive Bid.
"Competitive Bid Request" shall mean a request made pursuant
to Section 2.03(a) in the form of Exhibit A-1.
"Competitive Borrowing" shall mean a Borrowing consisting of a
Competitive Loan or concurrent Competitive Loans from the Lender or Lenders
whose Competitive Bids for such Borrowing have been accepted under the bidding
procedure described in Section 2.03.
"Competitive Loan" shall mean a Loan made pursuant to the
bidding procedure described in Section 2.03. Each Competitive Loan shall be in
Dollars and shall be a Eurocurrency Competitive Loan or a Fixed Rate Loan.
"Competitive Loan Exposure" shall mean, with respect to any
Lender at any time, the sum of the aggregate principal amount of all outstanding
Competitive Loans made by such Lender.
"Consolidated Net Worth" shall mean, as at any date of
determination, the consolidated stockholders' equity of the Company and its
Subsidiaries, as determined on a consolidated basis in accordance with GAAP plus
minority interests in Subsidiaries, as determined in accordance with GAAP, plus,
but without duplication, Special Preferred Securities, provided that
Consolidated Net Worth shall not include Special Preferred Securities to the
extent that Special Preferred Securities are greater than 15% of Consolidated
Total Capitalization.
"Consolidated Net Tangible Assets" shall mean the total of all
assets appearing on a consolidated balance sheet of the Company and its
Restricted Subsidiaries, prepared in accordance with GAAP (and as of a date not
more than 90 days prior to the date as of which Consolidated Net Tangible Assets
are to be determined), less the sum of the following items as shown on said
consolidated balance sheet:
(i) the book amount of all segregated intangible assets,
including such items as good will, trademarks, trademark rights, trade
names, trade name rights, copyrights, patents, patent rights and
licenses and unamortized debt discount and expense less unamortized
debt premium;
- 5 -
(ii) all depreciation, valuation and other reserves;
(iii) current liabilities;
(iv) any minority interest in the shares of stock (other than
Preferred Stock) and surplus of Restricted Subsidiaries of the Company;
(v) the investment of the Company and its Restricted
Subsidiaries in any Subsidiary of the Company that is not a Restricted
Subsidiary;
(vi) the total indebtedness of the Company and its Restricted
Subsidiaries incurred in any manner to finance or recover the cost to
the Company or any Restricted Subsidiary of any physical property, real
or personal, which prior to or simultaneously with the creation of such
indebtedness shall have been leased by the Company or a Restricted
Subsidiary to the United States of America or a department or agency
thereof at an aggregate rental, payable during that portion of the
initial term of such lease (without giving effect to any options of
renewal or extension) which shall be unexpired at the date of the
creation of such indebtedness, sufficient (taken together with any
amounts required to be paid by the lessee to the lessor upon any
termination of such lease) to pay in full at the stated maturity date
or dates thereof the principal of and the interest on such
indebtedness;
(vii) deferred income and deferred liabilities; and
(viii) other items deductible under GAAP.
"Consolidated Statutory Surplus" shall mean, with respect to
Hartford Fire Insurance Company and its consolidated Subsidiaries at any time
and Nutmeg Insurance Company and its consolidated Subsidiaries at any time, the
amount set forth on line 25 of the Liabilities, Surplus and Other Funds
Statement in the Annual Statement or the Quarterly Statement of Hartford Fire
Insurance Company most recently delivered to the Administrative Agent and the
Lenders pursuant to Section 5.03 or, if such statement shall be modified, the
equivalent item on any applicable successor form.
"Consolidated Total Capitalization" shall mean, as at any date
of determination, the sum of Consolidated Total Debt and Consolidated Net Worth.
"Consolidated Total Debt" shall mean, as at any date of
determination, without duplication, (i) all Indebtedness of the Company and its
Subsidiaries determined on a consolidated basis in accordance with GAAP plus
(ii) Special Preferred Securities that are mandatorily redeemable, or redeemable
at the option of the holder, within 10 years of such date of determination plus,
(iii) Special Preferred Securities to the extent that Special Preferred
Securities exceed 15% of Consolidated Total Capitalization.
"Default" shall mean any event or condition which upon notice,
lapse of time or both would constitute an Event of Default.
"Dollars" or "$" shall mean lawful money of the United States
of America.
"Dollar Borrowing" shall mean a Borrowing comprised of Dollar
Loans.
"Dollar Equivalent" shall mean, on any date of determination,
with respect to any amount in any Local Currency, the equivalent in Dollars of
such amount, determined by the Administrative Agent using the Exchange Rate with
respect to such Local Currency then in effect as determined pursuant to Section
2.22(a).
- 6 -
"Dollar Facility Excess" shall have the meaning assigned to
such term in Section 2.22(d).
"Dollar Facility Overage" shall mean an amount equal to the
excess of (a) the Total Commitment over (b) the aggregate amount of all Local
Currency Facility Maximum Borrowing Amounts (determined, if applicable, after
giving effect to any reduction therein made pursuant to Section 2.22(c)).
"Dollar Loan" shall mean any Loan denominated in Dollars.
"Dollar Standby Credit Excess" shall have the meaning assigned
to such term in Section 2.22(c).
"Dollar Standby Credit Overage" shall mean, with respect to
any Lender, an amount equal to the excess, if any, of (a) such Lender's
Commitment over (b) the aggregate Local Currency Lender Maximum Borrowing
Amounts of such Lender with respect to all Local Currency Addenda to which such
Lender or any of its Affiliates is a party.
"Dollar Standby Extensions of Credit" shall mean, with respect
to any Lender at any time, the aggregate principal amount of all Standby Loans
made by such Lender then outstanding.
"Effective Date" shall mean the date on which the conditions
set forth in Section 4.02 are satisfied.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as the same may be amended from time to time.
"ERISA Affiliate" shall mean any trade or business (whether or
not incorporated) that, together with the Company, is treated as a single
employer under Section 414(b) or (c) of the Code, or, solely for purposes of
Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.
"ERISA Event" shall mean (a) any "reportable event", as
defined in Section 4043 of ERISA or the regulations issued thereunder, with
respect to a Plan; (b) the adoption of any amendment to a Plan that would
require the provision of security pursuant to Section 401(a)(29) of the Code or
Section 307 of ERISA; (c) the existence with respect to any Plan of an
"accumulated funding deficiency" (as defined in Section 412 of the Code or
Section 302 of ERISA), whether or not waived; (d) the filing pursuant to Section
412(d) of the Code or Section 303(d) of ERISA of an application for a waiver of
the minimum funding standard with respect to any Plan; (e) the incurrence of any
liability under Title IV of ERISA with respect to the termination of any Plan or
the withdrawal or partial withdrawal of the Company or any of its ERISA
Affiliates from any Plan or Multiemployer Plan; (f) the receipt by the Company
or any ERISA Affiliate from the PBGC or a plan administrator of any notice
relating to the intention to terminate any Plan or Plans or to appoint a trustee
to administer any Plan; (g) the receipt by the Company or any ERISA Affiliate of
any notice that Withdrawal Liability is being imposed or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA; and (h) the occurrence of a "prohibited
transaction" with respect to which the Company or any of its Subsidiaries is a
"disqualified person" (within the meaning of Section 4975) of the Code, or with
respect to which the Company or any such Subsidiary could otherwise be liable.
"Eurocurrency Borrowing" shall mean a Borrowing comprised of
Eurocurrency Loans.
"Eurocurrency Competitive Loan" shall mean any Competitive
Loan bearing
- 7 -
interest at a rate determined by reference to the LIBO Rate in accordance with
the provisions of Article II.
"Eurocurrency Loan" shall mean any Eurocurrency Competitive
Loan, Eurocurrency Standby Loan or Eurocurrency Local Currency Loan.
"Eurocurrency Local Currency Loan" shall mean any Local
Currency Loan bearing interest at a rate determined by reference to the LIBO
Rate in accordance with the provisions of Article II.
"Eurocurrency Standby Loan" shall mean any Standby Loan
bearing interest at a rate determined by reference to the LIBO Rate in
accordance with the provisions of Article II.
"Event of Default" shall have the meaning assigned to such
term in Article VI.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
"Exchange Rate" shall mean, with respect to any Local Currency
on a particular date, the rate at which such Local Currency may be exchanged
into Dollars, as set forth on such date on the Reuters currency page more
particularly described in the Local Currency Addendum for Loans to be made in
such Local Currency. In the event that such rate does not appear on any Reuters
currency page, the Exchange Rate with respect to such Local Currency shall be
determined by reference to such other publicly available service for displaying
exchange rates as may be agreed upon by the Administrative Agent and the Company
or, in the absence of such agreement, such Exchange Rate shall instead be the
Administrative Agent's spot rate of exchange in the London interbank market
where its foreign currency exchange operations in respect of such Local Currency
are then being conducted, at or about 10:00 A.M., local time, at such date for
the purchase of Dollars with such Local Currency, for delivery two Business Days
later; provided, however, that if at the time of any such determination, for any
reason, no such spot rate is being quoted, the Administrative Agent may use any
reasonable method it deems applicable to determine such rate, and such
determination shall be conclusive absent manifest error.
"Existing Credit Facility" shall mean the Five-Year
Competitive Advance and Revolving Credit Facility Agreement dated as of December
20, 1996, among ITT Hartford Group, Inc. (now known as The Hartford Financial
Services Group, Inc.), each borrowing subsidiary party thereto, certain lenders
and The Chase Manhattan Bank, as administrative agent.
"Facility Fee" shall have the meaning assigned to such term in
Section 2.06(a).
"Fair Value", when used with respect to property, shall mean
the fair value as determined in good faith by the board of directors of the
Company.
"Fees" shall mean the Facility Fee, the Usage Fee and the
Administrative Fees.
"Financial Officer" of any corporation shall mean the chief
financial officer, principal accounting officer, treasurer, associate or
assistant treasurer or director of treasury services of such corporation.
"Fixed Rate Borrowing" shall mean a Borrowing comprised of
Fixed Rate Loans.
"Fixed Rate Loan" shall mean any Competitive Loan bearing
interest at a fixed percentage rate per annum (the "Fixed Rate") (expressed in
the form of a decimal to no more than four decimal places) specified by the
Lender making such Loan in its Competitive Bid.
"GAAP" shall mean generally accepted accounting principles in
the United States,
- 8 -
applied on a consistent basis.
"Governmental Authority" shall mean any Federal, state, local
or foreign court or governmental agency, authority, instrumentality or
regulatory body.
"Guaranteed Obligations" shall mean the principal of and
interest on the Loans made to, and the due and punctual performance of all other
obligations, monetary or otherwise of, the Borrowing Subsidiaries hereunder or
under a Local Currency Addendum.
"Increase Effective Date" shall have the meaning assigned to
such term in Section 2.23(b).
"Increasing Lender" shall have the meaning assigned to such
term in Section 2.23(a).
"Incremental Facility Amount" shall mean, at any time, an
amount equal to $500,000,000 minus the aggregate amount, if any, by which the
Total Commitment shall have been increased prior to such time pursuant to
Section 2.23.
"Indebtedness" of any person shall mean all indebtedness
representing money borrowed or the deferred purchase price of property (other
than trade accounts payable) or any capitalized lease obligation, which in any
case is created, assumed, incurred or guaranteed in any manner by such
corporation or for which such corporation is responsible or liable (whether by
agreement to purchase indebtedness of, or to supply funds to or invest in,
others or otherwise).
"Initial Loans" shall have the meaning assigned to such term
in Section 2.23(b).
"Insurance Subsidiaries" shall mean Hartford Fire Insurance
Company and each of its insurance company Subsidiaries.
"Interest Payment Date" shall mean (a) with respect to any
Loan, the last day of each Interest Period applicable thereto, (b) with respect
to a Eurocurrency Loan with an Interest Period of more than three months'
duration or a Fixed Rate Loan with an Interest Period of more than 90 days'
duration, each day that would have been an Interest Payment Date for such Loan
had successive Interest Periods of three months' duration or 90 days' duration,
as the case may be, been applicable to such Loan and, in addition, the date of
any prepayment of each Loan or conversion of such Loan to a Loan of a different
Type and (c) with respect to any Local Currency Loan, such days as shall be
specified in the applicable Local Currency Addendum.
"Interest Period" shall mean (a) as to any Eurocurrency
Borrowing, the period commencing on the date of such Borrowing or on the last
day of the immediately preceding Interest Period applicable to such Borrowing,
as the case may be, and ending on the numerically corresponding day (or, if
there is no numerically corresponding day, on the last day) in the calendar
month that is 1, 2, 3 or 6 months thereafter, as the Borrower may elect, (b) as
to any ABR Borrowing, the period commencing on the date of such Borrowing or on
the last day of the immediately preceding Interest Period applicable to such
Borrowing, as the case may be, and ending on the earliest of (i) the next
succeeding March 31, June 30, September 30 or December 31, (ii) the Maturity
Date, and (iii) the date such Borrowing is converted to a Borrowing of a
different Type in accordance with Section 2.05 or repaid or prepaid in
accordance with Section 2.07 or Section 2.12, (c) as to any Fixed Rate
Borrowing, the period commencing on the date of such Borrowing and ending on the
date specified in the Competitive Bids in which the offers to make the Fixed
Rate Loans comprising such Borrowing were extended, which shall not be earlier
than seven days after the date of such Borrowing or later than 360 days after
the date of such Borrowing and (d) as to any Local Currency Borrowing, such
periods as shall be specified in the applicable Local Currency Addendum;
provided, however, that if any Interest Period would end on a day other than
- 9 -
a Business Day, such Interest Period shall be extended to the next succeeding
Business Day unless, in the case of Eurocurrency Loans only, such next
succeeding Business Day would fall in the next calendar month, in which case
such Interest Period shall end on the next preceding Business Day. Interest
shall accrue from and including the first day of an Interest Period to but
excluding the last day of such Interest Period.
"Judgment Currency" shall have the meaning assigned to such
term in Section 9.16(b).
"Lender Affiliate" means, (a) with respect to any Lender, (i)
an Affiliate of such Lender or (ii) any entity (whether a corporation,
partnership, trust or otherwise) that is engaged in making, purchasing, holding
or otherwise investing in bank loans and similar extensions of credit in the
ordinary course of its business and is administered or managed by a Lender or an
Affiliate of such Lender and (b) with respect to any Lender that is a fund which
invests in bank loans and similar extensions of credit, any other fund that
invests in bank loans and similar extensions of credit and is managed by the
same investment advisor as such Lender or by an Affiliate of such investment
advisor.
"LIBO Rate" shall mean, with respect to any Eurocurrency
Borrowing for any Interest Period, an interest rate per annum (rounded upwards,
if necessary, to the next 1/16 of 1%) equal to the rate at which dollar deposits
or deposits in the applicable Local Currency approximately equal in principal
amount to (i) in the case of a Standby Borrowing that is a Eurocurrency
Borrowing, the Administrative Agent's portion of such Eurocurrency Borrowing,
(ii) in the case of a Competitive Borrowing, a principal amount that would have
been the Administrative Agent's portion of such Competitive Borrowing had such
Competitive Borrowing been a Standby Borrowing and (iii) in the case of a Local
Currency Borrowing, such Borrowing, and for a maturity comparable to such
Interest Period as are offered to the principal London offices of the
Administrative Agent in immediately available funds in the London interbank
market at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.
"Lien" shall mean, with respect to any property or asset, any
mortgage, deed of trust, lien, pledge, security interest, charge or other
encumbrance on, of or in such property or asset.
"Loan" shall mean a Competitive Loan, a Local Currency Loan or
a Standby Loan, whether made as a Eurocurrency Loan, an ABR Loan or a Fixed Rate
Loan, as permitted hereby.
"Loan Documents" shall mean this Agreement, the Borrowing
Subsidiary Agreements, the Local Currency Addenda and promissory notes, if any,
issued pursuant to Section 9.04(i).
"Local Currency" shall mean any currency other than Dollars as
to which an Exchange Rate may be calculated.
"Local Currency Addendum" shall mean a local currency addendum
between a Borrower and one or more Local Currency Lenders, substantially in the
form of Exhibit E, and the documentation referred to therein, to the extent not
inconsistent with this Agreement.
"Local Currency Borrowing" shall mean a Borrowing comprised of
Local Currency Loans.
"Local Currency Credit Event" shall mean each Borrowing under
a Local Currency Addendum.
- 10 -
"Local Currency Equivalent" shall mean, on any date of
determination, with respect to any amount in Dollars, the equivalent in the
relevant Local Currency of such amount, determined by the Administrative Agent
using the Exchange Rate with respect to such Local Currency then in effect as
determined pursuant to Section 2.22(a).
"Local Currency Facility Maximum Borrowing Amount" shall have
the meaning assigned to such term in Section 2.21(b).
"Local Currency Lender" shall mean any Lender (or any
Affiliate, branch or agency thereof) party to a Local Currency Addendum. In the
event any agency or Affiliate of a Lender shall be party to a Local Currency
Addendum, such agency or Affiliate shall, to the extent of any commitment
extended and any Loans made by it, have all the rights of such Lender hereunder;
provided, that such Lender shall continue to the exclusion of such agency or
Affiliate to have all the voting and consensual rights vested in it by the terms
hereof.
"Local Currency Lender Maximum Borrowing Amount" shall have
the meaning assigned to such term in Section 2.21(b).
"Local Currency Loan" shall mean any Loan, denominated in a
currency other than Dollars, made to a Borrower pursuant to Section 2.01(b) and
a Local Currency Addendum.
"Local Currency Loans (Dollar Equivalent)" shall mean the
Dollar Equivalent of the relevant Local Currency Loans.
"Local Currency Standby Borrowing" shall mean any Standby
Borrowing comprised of Local Currency Loans.
"Margin" shall mean, as to any Eurocurrency Competitive Loan,
the margin (expressed as a percentage rate per annum in the form of a decimal to
no more than four decimal places) to be added to or subtracted from the LIBO
Rate in order to determine the interest rate applicable to such Loan, as
specified in the Competitive Bid relating to such Loan.
"Margin Regulations" shall mean Regulations T, U and X of the
Board as from time to time in effect, and all official rulings and
interpretations thereunder or thereof.
"Margin Stock" shall have the meaning given such term under
Regulation U of the Board.
"Material Adverse Effect" shall mean a materially adverse
effect on the business, assets, operations or condition, financial or otherwise,
of the Company and its Subsidiaries taken as a whole.
"Maturity Date" shall mean June 20, 2006.
"Moody's" shall mean Xxxxx'x Investors Service, Inc. or any of
its successors.
"Multiemployer Plan" shall mean a multiemployer plan as
defined in Section 4001(a)(3) of ERISA to which the Company or any ERISA
Affiliate (other than one considered an ERISA Affiliate only pursuant to
subsection (m) or (o) of Code Section 414) is making or accruing an obligation
to make contributions, or has within any of the preceding five plan years made
or accrued an obligation to make contributions.
"NAIC" shall mean the National Association of Insurance
Commissioners or any association or Governmental Authority succeeding to any or
all of the functions of the National Association of Insurance Commissioners.
- 11 -
"Non-Increasing Lender" shall have the meaning assigned to
such term in Section 2.23(a).
"Notice of Competitive Bid Request" shall mean a notification
made pursuant to Section 2.03(a) in the form of Exhibit A-2.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
referred to and defined in ERISA.
"person" shall mean any natural person, corporation, business
trust, joint venture, association, company, partnership or government, or any
agency or political subdivision thereof.
"Plan" shall mean any employee pension benefit plan (other
than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or
Section 412 of the Code or Section 307 of ERISA, and in respect of which any
Borrower or any ERISA Affiliate is (or, if such plan were terminated, would
under Section 4069 of ERISA be deemed to be) an "employer" as defined in Section
3(5) of ERISA.
"Preferred Stock" shall mean any capital stock entitled by its
terms to a preference (a) as to dividends or (b) upon a distribution of assets.
"Pro Rata Percentage" of any Lender at any time shall mean the
percentage of the Total Commitment represented by such Lender's Commitment. If
the Commitments have terminated or expired, the Pro Rata Percentages shall be
determined based upon the Commitments most recently in effect, giving effect to
any assignments.
"Quarterly Statement" shall mean, with respect to any
Restricted Subsidiary, the Quarterly Statement of such Restricted Subsidiary
required to be filed with the Applicable Insurance Regulatory Authority in
accordance with state law, including any exhibits, schedules, certificates or
actuarial opinions filed or delivered therewith.
"Rating Agencies" shall mean Moody's and S&P.
"Ratings" shall mean the ratings from time to time established
by the Rating Agencies for senior, unsecured, non-credit-enhanced long-term debt
of the Company.
"Register" shall have the meaning given such term in Section
9.04(d).
"Regulation D" shall mean Regulation D of the Board as from
time to time in effect and all official rulings and interpretations thereunder
or thereof.
"Reportable Event" shall mean any reportable event as defined
in Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than a Plan maintained by an ERISA Affiliate that is considered an
ERISA Affiliate only pursuant to subsection (m) or (o) of Code Section 414).
"Required Lenders" shall mean, at any time, Lenders having
Commitments representing more than 50% of the Total Commitment or, for purposes
of acceleration pursuant to clause (ii) of Article VI, Lenders holding Loans
representing more than 50% of the aggregate principal amount of the Loans
outstanding. For purposes of determining the Required Lenders, any amounts
denominated in a Local Currency shall be translated into Dollars at the Exchange
Rates in effect on the Effective Date.
"Required Surplus" means, at any date, the sum, at such date,
without duplication, of (a) surplus of the Insurance Subsidiaries and (b) any
reserve established and
- 12 -
maintained by the Insurance Subsidiaries with respect to their invested assets,
either voluntarily or pursuant to requirements of applicable law, the NAIC, the
Insurance Department of the State of Connecticut or any other state or federal
regulatory authority having jurisdiction over the Insurance Subsidiaries, in
each case determined in accordance with SAP.
"Reset Date" shall have the meaning assigned to such term in
Section 2.22(a).
"Responsible Officer" of any corporation shall mean any
executive officer or Financial Officer of such corporation and any other officer
or similar official thereof responsible for the administration of the
obligations of such corporation in respect of this Agreement.
"Restricted Subsidiary" means a Subsidiary which is
incorporated in any state of the United States or in the District of Columbia
and which is a regulated insurance company principally engaged in one or more of
the property, casualty and life insurance businesses and which has total assets
representing 10% or more of the total assets of the Company and its consolidated
Subsidiaries (including such Subsidiary), in each case as set forth on the most
recent fiscal year-end balance sheets of such Subsidiary and the Company and its
consolidated Subsidiaries, respectively, and computed in accordance with GAAP.
Such Subsidiary must be designated a Restricted Subsidiary in a notice delivered
by the Company and certified by a Responsible Officer to the Administrative
Agent for distribution to the Lenders. In the event that the aggregate total
assets of the Restricted Subsidiaries represent less than 80% of the total
assets of the Company and its consolidated Subsidiaries, the Board of Directors
of the Company, as evidenced by a resolution of such Board of Directors, shall
promptly designate an additional Subsidiary or Subsidiaries as Restricted
Subsidiaries in order that, after such designations, the aggregate total assets
of the Restricted Subsidiaries represent at least 80% of the total assets of the
Company and its consolidated Subsidiaries, provided that all Subsidiaries with
total assets of 10% or more of the total assets of the Company and its
consolidated Subsidiaries have previously been designated as Restricted
Subsidiaries.
"Risk-Based Capital" shall mean, with respect to the Insurance
Subsidiaries at any time, the Company Action Level Risk-Based Capital (as
defined by the NAIC at such time and as computed in accordance with SAP) of the
Insurance Subsidiaries (determined and consolidated in accordance with SAP) at
such time.
"S&P" shall mean Standard and Poor's, a division of the
XxXxxx-Xxxx Companies, or any of its successors.
"SAP" shall mean, with respect to any Insurance Subsidiary,
the accounting principles and procedures prescribed or permitted by the
Applicable Insurance Regulatory Authority applied on a basis consistent with
those that are indicated in Section 1.02.
"SEC" shall mean the Securities and Exchange Commission.
"Special Preferred Securities" shall mean preferred securities
that are mandatorily redeemable, or redeemable at the option of the holder, not
sooner than ten years after issuance and issued by the Company and/or one or
more Subsidiaries of the Company, which would not be reflected as a liability in
a consolidated balance sheet of the Company and its consolidated Subsidiaries
prepared in accordance with generally accepted accounting principles.
"Standby Borrowing" shall mean a Borrowing consisting of
simultaneous Standby Loans from each of the Lenders.
"Standby Borrowing Request" shall mean a request made pursuant
to Section 2.04 in the form of Exhibit A-5.
- 13 -
"Standby Credit Exposure" shall mean, with respect to any
Lender at any time, the sum of the aggregate principal amount at such time of
all outstanding Standby Loans of such Lender and the aggregate Dollar Equivalent
of the principal amount of all outstanding Local Currency Loans of such Lender
(and each agency, branch or Affiliate of such Lender acting as a Local Currency
Lender).
"Standby Loans" shall mean the revolving loans made pursuant
to Section 2.04(a). Each Standby Loan shall be in Dollars and shall be a
Eurocurrency Standby Loan or an ABR Loan.
"Statement of Actuarial Opinion" shall mean, with respect to
the Restricted Subsidiaries, the Statement of Actuarial Opinion required to be
filed with the Applicable Insurance Regulatory Authority in accordance with
state law or, if such Applicable Insurance Regulatory Authority shall no longer
require such a statement, information equivalent to that required to be included
in the Statement of Actuarial Opinion that was filed immediately prior to the
time such statement was no longer required.
"subsidiary" shall mean, with respect to any person (the
"parent"), any corporation, association or other business entity of which
securities or other ownership interests representing more than 50% of the
ordinary voting power are, at the time as of which any determination is being
made, owned or controlled by the parent or one or more subsidiaries of the
parent or by the parent and one or more subsidiaries of the parent.
"Subsidiary" shall mean a subsidiary of the Company.
"Subsequent Borrowings" shall have the meaning assigned to
such term in Section 2.23(b).
"Total Adjusted Capital" shall mean, with respect to the
Insurance Subsidiaries at any time, the Total Adjusted Capital (as defined by
the NAIC at such time and as determined and consolidated in accordance with SAP)
of the Insurance Subsidiaries (taken together) at such time.
"Total Commitment" shall mean, at any time, the aggregate
amount of Commitments of all the Lenders, as in effect at such time.
"Transactions" shall have the meaning assigned to such term in
Section 3.02.
"Type", when used in respect of any Loan or Borrowing, shall
refer to the Rate by reference to which interest on such Loan or on the Loans
comprising such Borrowing is determined and the currency in which such Loan or
the Loans comprising such Borrowing are denominated. For purposes hereof, "Rate"
shall include the LIBO Rate, the Alternate Base Rate and the Fixed Rate, and
currency shall include Dollars and any Local Currency permitted hereunder.
"Usage Fee" shall have the meaning assigned to such term in
Section 2.06(b).
"Voting Shares" shall mean, as to shares of a particular
corporation, outstanding shares of stock of any class of such corporation
entitled to vote in the election of directors, excluding shares entitled so to
vote only upon the happening of some contingency.
"Withdrawal Liability" shall mean liability to a Multiemployer
Plan as a result of a complete or partial withdrawal from such Multiemployer
Plan, as such terms are defined in Part I of Subtitle E of Title VI of ERISA.
SECTION 1.02. Terms Generally. The definitions in Section 1.01
shall apply equally to both the singular and plural forms of the terms defined.
Whenever the context may
- 14 -
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". All references herein to
Articles, Sections, Exhibits and Schedules shall be deemed references to
Articles and Sections of, and Exhibits and Schedules to, this Agreement unless
the context shall otherwise require. Except as otherwise expressly provided
herein, all terms of an accounting or financial nature shall be construed in
accordance with GAAP or, to the extent such terms apply to an Insurance
Subsidiary, SAP, in each case as in effect from time to time; provided, however,
that for purposes of determining compliance with any covenant set forth in
Article V, such terms shall be construed in accordance with GAAP or SAP, as
applicable, as in effect on the date hereof applied on a basis consistent with
the application used in preparing the Company's audited financial statements
referred to in Section 3.05. All references herein to the "date hereof" or the
"date of this Agreement" shall be construed as referring to June 20, 2001,
provided that all obligations of the Borrowers accrued prior to the date hereof
under the Existing Credit Agreement but not yet paid shall continue to be
obligations of the Borrowers under this Agreement.
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments. (a) Subject to the terms and
conditions and relying upon the representations and warranties herein set forth,
each Lender agrees, severally and not jointly, to make Standby Loans to the
Borrowers, at any time and from time to time on and after the Effective Date and
until the earlier of the Maturity Date and the termination of the Commitment of
such Lender.
(b) Subject to the terms and conditions and relying upon the
representations and warranties set forth herein and in the applicable Local
Currency Addendum, each Local Currency Lender agrees, severally and not jointly,
to make Local Currency Loans to the Borrowers at any time and from time to time
on and after the execution of the applicable Local Currency Addendum and until
the earlier of the Maturity Date and the termination of the Commitment (or the
commitment under such Local Currency Addendum) of such Local Currency Lender.
(c) Notwithstanding anything to the contrary contained in this
Agreement, in no event may Standby Loans or Local Currency Loans be borrowed
under this Article II if, after giving effect thereto (and to any concurrent
repayment or prepayment of Loans), (i) the sum of the aggregate Standby Credit
Exposures and the aggregate Competitive Loan Exposures would exceed the Total
Commitment then in effect, (ii) the Standby Credit Exposure of any Lender would
exceed such Lender's Commitment or (iii) the Dollar Equivalent of the aggregate
principal amount of outstanding Local Currency Loans denominated in a specified
Local Currency would exceed the applicable Local Currency Facility Maximum
Borrowing Amount.
Within the foregoing limits, the Borrowers may borrow, pay or
prepay and reborrow Standby Loans and Local Currency Loans hereunder, on and
after the Effective Date and prior to the Maturity Date, subject to the terms,
conditions and limitations set forth herein.
SECTION 2.02. Loans. (a) Each Standby Loan shall be made as
part of a Borrowing consisting of Standby Loans made by the Lenders ratably in
accordance with their respective Available Commitments; provided, however, that
the failure of any Lender to make any Standby Loan shall not in itself relieve
any other Lender of its obligation to lend hereunder (it being understood,
however, that no Lender shall be responsible for the failure of any other Lender
to make any Loan required to be made by such other Lender). Each Local Currency
Loan shall be made as part of a Borrowing consisting of Local Currency Loans
made by the Local Currency Lenders ratably in accordance with the applicable
Local Currency Lender Maximum Borrowing Amounts, provided, however, that the
failure of any Local Currency Lender to make any Local
- 15 -
Currency Loan shall not in itself relieve any other Local Currency Lender of its
obligation to lend hereunder (it being understood, however, that no Local
Currency Lender shall be responsible for the failure of any other Local Currency
Lender to make any Local Currency Loan required to be made by such other Local
Currency Lender). Each Competitive Loan shall be made in accordance with the
procedures set forth in Section 2.03. The Loans comprising any Borrowing shall
be (i) in the case of Competitive Loans, in an aggregate principal amount which
is an integral multiple of $1,000,000 and not less than $5,000,000, (ii) in the
case of Standby Loans, in an aggregate principal amount which is an integral
multiple of $5,000,000 and not less than $20,000,000 (or an aggregate principal
amount equal to the remaining balance of the Available Commitments) and (iii) in
the case of Local Currency Loans, in an aggregate principal amount which
complies with the requirements set forth in the applicable Local Currency
Addendum. All Standby Loans and Competitive Loans made pursuant to this Article
II shall be denominated in Dollars.
(b) Each Competitive Borrowing shall be comprised entirely of
Eurocurrency Competitive Loans or Fixed Rate Loans, and each Standby Borrowing
shall be comprised entirely of Eurocurrency Standby Loans or ABR Loans, as the
Borrower may request pursuant to Section 2.03 or 2.04, as applicable. Each
Lender may at its option make any Eurocurrency Loan by causing any domestic or
foreign branch, agency or Affiliate of such Lender to make such Loan; provided
that any exercise of such option shall not affect the obligation of the Borrower
to repay such Loan in accordance with the terms of this Agreement. Borrowings of
more than one Type may be outstanding at the same time. For purposes of the
foregoing, Loans having different Interest Periods, regardless of whether they
commence on the same date, shall be considered separate Loans.
(c) Subject to Section 2.05 and, in the case of any Local
Currency Loan, to any alternative procedures set forth in the applicable Local
Currency Addendum, each Lender shall make each Loan to be made by it hereunder
on the proposed date thereof by wire transfer of immediately available funds to
the Administrative Agent in New York, New York, not later than 12:00 noon, New
York City time, and the Administrative Agent shall by 2:00 p.m., New York City
time, credit the amounts so received to the account or accounts specified from
time to time in one or more notices delivered by the Company to the
Administrative Agent or, if a Borrowing shall not occur on such date because any
condition precedent herein specified shall not have been met, return the amounts
so received to the respective Lenders. Competitive Loans shall be made by the
Lender or Lenders whose Competitive Bids therefor are accepted pursuant to
Section 2.03 in the amounts so accepted. Standby Loans and Local Currency Loans
shall be made by the Lenders and the Local Currency Lenders, as applicable, pro
rata in accordance with Section 2.16. Unless the Administrative Agent shall have
received notice from a Lender prior to the date (or, in the case of ABR
Borrowings, on the date) of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender's portion of such Borrowing,
the Administrative Agent may assume that such Lender has made such portion
available to the Administrative Agent on the date of such Borrowing in
accordance with this paragraph (c) and the Administrative Agent may, in reliance
upon such assumption, make available to the Borrower on such date a
corresponding amount in the required currency. If and to the extent that such
Lender shall not have made such portion available to the Administrative Agent,
such Lender and the Borrower severally agree to repay to the Administrative
Agent forthwith on demand such corresponding amount together with interest
thereon in such currency, for each day from the date such amount is made
available to the Borrower until the date such amount is repaid to the
Administrative Agent at (i) in the case of the Borrower, the interest rate
applicable at the time to the Loans comprising such Borrowing and (ii) in the
case of such Lender, a rate determined by the Administrative Agent to represent
its cost of overnight funds. If such Lender shall repay to the Administrative
Agent such corresponding amount, such amount shall constitute such Lender's Loan
as part of such Borrowing for purposes of this Agreement.
(d) Each Competitive Loan shall be a Eurocurrency Competitive
Loan or a Fixed Rate Loan. Each Standby Loan shall be a Eurocurrency Standby
Loan or an ABR Standby Loan.
- 16 -
Each Local Currency Loan shall be a Eurocurrency Local Currency Loan or shall
bear interest at a rate specified in the applicable Loan Currency Addendum.
SECTION 2.03. Competitive Bid Procedure. (a) Subject to the
terms and conditions set forth herein, from time to time on or after the
Effective Date and until the earlier of the Maturity Date and the termination of
the Commitments, the Borrower may request Competitive Bids and may (but shall
not have any obligation to) accept Competitive Bids and borrow Competitive
Loans; provided that the sum of the total Standby Credit Exposures plus the
aggregate amount of the Competitive Loan Exposures at any time shall not exceed
the Total Commitment. In order to request Competitive Bids, a Borrower (the
"Applicable Borrower") shall hand deliver or telecopy to the Administrative
Agent a duly completed Competitive Bid Request in the form of Exhibit A-1
hereto, to be received by the Administrative Agent (i) in the case of a
Eurocurrency Competitive Loan, not later than 10:00 a.m., New York City time,
four Business Days before a proposed Competitive Borrowing and (ii) in the case
of a Fixed Rate Borrowing, not later than 10:00 a.m., New York City time, one
Business Day before a proposed Competitive Borrowing. No ABR Loan shall be
requested in, or made pursuant to, a Competitive Bid Request. A Competitive Bid
Request that does not conform substantially to the format of Exhibit A-1 may be
rejected in the Administrative Agent's sole discretion, and the Administrative
Agent shall promptly notify the Borrower of such rejection by telecopy. Each
Competitive Bid Request shall refer to this Agreement and specify (w) whether
the Borrowing then being requested is to be a Eurocurrency Borrowing or a Fixed
Rate Borrowing, (x) the date of such Borrowing (which shall be a Business Day)
and the aggregate principal amount thereof which shall be in a minimum principal
amount of $10,000,000 and in an integral multiple of $5,000,000 and (y) the
Interest Period with respect thereto (which may not end after the Maturity
Date). Promptly after its receipt of a Competitive Bid Request that is not
rejected as aforesaid, the Administrative Agent shall telecopy to the Lenders a
Notice of Competitive Bid Request inviting the Lenders to bid, on the terms and
conditions of this Agreement, to make Competitive Loans.
(b) Each Lender invited to bid may, in its sole discretion,
make one or more Competitive Bids to the Applicable Borrower responsive to such
Borrower's Competitive Bid Request. Each Competitive Bid by a Lender must be
received by the Administrative Agent by telecopy, in the form of Exhibit A-3
hereto, (i) in the case of a Eurocurrency Competitive Loan, not later than 9:30
a.m., New York City time, three Business Days before a proposed Competitive
Borrowing and (ii) in the case of a Fixed Rate Borrowing, not later than 9:30
a.m., New York City time, on the day of a proposed Competitive Borrowing. A
Lender may submit multiple bids to the Administrative Agent. Competitive Bids
that do not conform substantially to the format of Exhibit A-3 may be rejected
by the Administrative Agent, and the Administrative Agent shall notify the
Lender making such nonconforming bid of such rejection as soon as practicable.
Each Competitive Bid shall refer to this Agreement and specify (x) the principal
amount (which shall be in a minimum principal amount of $5,000,000 and in an
integral multiple of $1,000,000 and which may equal the entire principal amount
of the Competitive Borrowing requested) of the Competitive Loan or Loans that
the Lender is willing to make, (y) the Competitive Bid Rate or Rates at which
the Lender is prepared to make the Competitive Loan or Loans and (z) the
Interest Period and the last day thereof. If any Lender invited to bid shall
elect not to make a Competitive Bid, such Lender shall so notify the
Administrative Agent by telecopy (I) in the case of Eurocurrency Competitive
Loans, not later than 9:30 a.m., New York City time, three Business Days before
a proposed Competitive Borrowing, and (II) in the case of Fixed Rate Loans, not
later than 9:30 a.m., New York City time, on the day of a proposed Competitive
Borrowing; provided, however, that failure by any Lender to give such notice
shall not cause such Lender to be obligated to make any Competitive Loan as part
of such Competitive Borrowing. A Competitive Bid submitted by a Lender pursuant
to this paragraph (b) shall be irrevocable.
(c) The Administrative Agent shall as promptly as practicable
notify the Borrower, by telecopy, of all the Competitive Bids made, the
Competitive Bid Rate and the principal amount of each Competitive Loan in
respect of which a Competitive Bid was made and
- 17 -
the identity of the Lender that made each bid. The Administrative Agent shall
send a copy of all Competitive Bids to the Borrower for its records as soon as
practicable after completion of the bidding process set forth in this Section
2.03.
(d) The Borrower may in its sole and absolute discretion,
subject only to the provisions of this paragraph (d), accept or reject any
Competitive Bid referred to in paragraph (c) above. The Borrower shall notify
the Administrative Agent by telephone, confirmed by telecopy in the form of a
Competitive Bid Accept/Reject Letter, whether and to what extent it has decided
to accept or reject any of or all the bids referred to in paragraph (c) above
not more than one hour after it shall have been notified of such bids by the
Administrative Agent pursuant to such paragraph (c); provided, however, that (i)
the failure of the Borrower to give such notice shall be deemed to be a
rejection of all the bids referred to in paragraph (c) above, (ii) the Borrower
shall not accept a bid made at a particular Competitive Bid Rate if it has
decided to reject a bid made at a lower Competitive Bid Rate, (iii) the
aggregate amount of the Competitive Bids accepted by the Borrower shall not
exceed the principal amount specified in the Competitive Bid Request, (iv) if
the Borrower shall accept a bid or bids made at a particular Competitive Bid
Rate but the amount of such bid or bids shall cause the total amount of bids to
be accepted to exceed the amount specified in the Competitive Bid Request, then
the Borrower shall accept a portion of such bid or bids in an amount equal to
the amount specified in the Competitive Bid Request less the amount of all other
Competitive Bids accepted with respect to such Competitive Bid Request, which
acceptance, in the case of multiple bids at such Competitive Bid Rate, shall be
made pro rata in accordance with the amount of each such bid at such Competitive
Bid Rate, and (v) except pursuant to clause (iv) above, no bid shall be accepted
for a Competitive Loan unless such Competitive Loan is in a minimum principal
amount of $5,000,000 and an integral multiple of $1,000,000; provided further,
however, that if a Competitive Loan must be in an amount less than $5,000,000
because of the provisions of clause (iv) above, such Competitive Loan may be for
a minimum of $1,000,000 or any integral multiple thereof, and in calculating the
pro rata allocation of acceptances of portions of multiple bids at a particular
Competitive Bid Rate pursuant to clause (iv) the amounts shall be rounded to
integral multiples of $1,000,000 in a manner which shall be in the discretion of
the Borrower. A notice given pursuant to this paragraph (d) shall be
irrevocable.
(e) The Administrative Agent shall promptly notify each
bidding Lender whether or not its Competitive Bid has been accepted (and if so,
in what amount and at what Competitive Bid Rate) by telecopy, and each
successful bidder will thereupon become bound, subject to the other applicable
conditions hereof, to make the Competitive Loan in respect of which its bid has
been accepted.
(f) No Competitive Borrowing shall be requested or made
hereunder if after giving effect thereto any of the conditions set forth in
paragraph (c) of Section 2.01 would not be met.
(g) If the Administrative Agent shall elect to submit a
Competitive Bid in its capacity as a Lender, it shall submit such bid directly
to the Applicable Borrower one quarter of an hour earlier than the latest time
at which the other Lenders are required to submit their bids to the
Administrative Agent pursuant to paragraph (b) above.
(h) All notices required by this Section 2.03 shall be given
in accordance with Section 9.01.
SECTION 2.04. Standby and Local Currency Borrowing Procedure.
(a) In order to request a Standby Borrowing, a Borrower shall hand deliver or
telecopy to the Administrative Agent a duly completed Standby Borrowing Request
in the form of Exhibit A-5 (i) in the case of a Eurocurrency Standby Loan, not
later than 10:30 a.m., New York City time (or, if the Standby Borrowing request
is delivered or telecopied to the Administrative Agent in London,
- 18 -
9:30 a.m., London time), three Business Days before such Borrowing, and (ii) in
the case of an ABR Borrowing, not later than 10:30 a.m., New York City time, on
the day of such Borrowing. No Fixed Rate Loan shall be requested or made
pursuant to a Standby Borrowing Request. Such notice shall be irrevocable and
shall in each case specify (A) whether the Borrowing then being requested is to
be a Eurocurrency Standby Loan or an ABR Borrowing; (B) the date of such Standby
Borrowing (which shall be a Business Day) and the amount thereof; and (C) if
such Borrowing is to be a Eurocurrency Standby Loan, the Interest Period with
respect thereto, which shall not end after the Maturity Date. If no election as
to the Type of Standby Borrowing is specified in any such notice, then the
requested Standby Borrowing shall be an ABR Borrowing. If no Interest Period
with respect to any Eurocurrency Standby Loan is specified in any such notice,
then the Borrower shall be deemed to have selected an Interest Period of one
month's duration. Notwithstanding any other provision of this Agreement to the
contrary, no Standby Borrowing shall be requested if the Interest Period with
respect thereto would end after the Maturity Date. The Administrative Agent
shall promptly advise each of the Lenders of any notice given pursuant to this
Section 2.04 and of each Lender's portion of the requested Borrowing.
(b) In order to request a Local Currency Borrowing, a Borrower
shall give the notice required under the applicable Local Currency Addendum and
shall simultaneously deliver a copy of such notice to the Administrative Agent.
SECTION 2.05. Conversion and Continuation of Standby Loans.
Each Borrower shall have the right at any time upon prior irrevocable notice to
the Administrative Agent (i) not later than 10:30 a.m., New York City time, on
the day of the conversion, to convert all or any part of any Eurocurrency
Standby Loan into an ABR Standby Loan, and (ii) not later than 10:30 a.m., New
York City time, three Business Days prior to conversion or continuation, to
convert any ABR Standby Loan into a Eurocurrency Standby Loan or to continue any
Eurocurrency Standby Loan as a Eurocurrency Standby Loan for an additional
Interest Period, subject in each case to the following:
(a) if less than all the outstanding principal amount of any
Standby Borrowing shall be converted or continued, the aggregate
principal amount of the Standby Borrowing converted or continued shall
be an integral multiple of $5,000,000 and not less than $20,000,000;
(b) accrued interest on a Standby Borrowing (or portion
thereof) being converted shall be paid by the Borrower at the time of
conversion;
(c) if any Eurocurrency Standby Loan is converted at a time
other than the end of the Interest Period applicable thereto, the
Borrower shall pay, upon demand, any amounts due to the Lenders
pursuant to Section 2.15;
(d) any portion of a Standby Borrowing maturing or required to
be repaid in less than one month may not be converted into or continued
as a Eurocurrency Standby Loan;
(e) any portion of a Eurocurrency Standby Loan which cannot be
continued as a Eurocurrency Standby Loan by reason of clause (d) above
shall be automatically converted at the end of the Interest Period in
effect for such Eurocurrency Standby Loan into an ABR Borrowing;
(f) no Interest Period may be selected for any Eurocurrency
Standby Borrowing that would end later than the Maturity Date; and
(g) at any time when there shall have occurred and be
continuing any Default or Event of Default, no Borrowing may be
converted into or continued as a Eurocurrency Standby Loan.
- 19 -
Each notice pursuant to this Section 2.05 shall be irrevocable
and shall refer to this Agreement and specify (i) the identity and amount of the
Standby Borrowing to be converted or continued, (ii) whether such Standby
Borrowing is to be converted to or continued as a Eurocurrency Standby Loan or
an ABR Standby Loan, (iii) if such notice requests a conversion, the date of
such conversion (which shall be a Business Day) and (iv) if such Standby
Borrowing is to be converted to or continued as a Eurocurrency Standby Loan, the
Interest Period with respect thereto. If no Interest Period is specified in any
such notice with respect to any conversion to or continuation as a Eurocurrency
Standby Loan, the Borrower shall be deemed to have selected an Interest Period
of one month's duration. If no notice shall have been given in accordance with
this Section 2.05 to convert or continue any Standby Borrowing, such Standby
Borrowing shall, at the end of the Interest Period applicable thereto (unless
repaid pursuant to the terms hereof), automatically be continued into a new
Interest Period as an ABR Standby Loan.
SECTION 2.06. Fees. (a) The Company agrees to pay to the
Administrative Agent for the account of each Lender a facility fee (the
"Facility Fee"), which shall accrue at the Applicable Percentage from time to
time in effect on the daily amount of the Commitment of such Lender (whether
used or unused) during the period from and including the date hereof to but
excluding the date on which such Commitment terminates; provided that, if such
Lender continues to have any Standby Credit Exposure after its Commitment
terminates, then such Facility Fee shall continue to accrue on the daily amount
of such Lender's Standby Credit Exposure from and including the date on which
its Commitment terminates to but excluding the date on which such Lender ceases
to have any Standby Credit Exposure. Accrued Facility Fees shall be payable in
arrears on the last day of March, June, September and December of each year,
commencing on the first such date to occur after the date hereof, and on the
date on which the Commitments shall have terminated and the Lenders shall have
no further Standby Credit Exposures. All Facility Fees shall be computed on the
basis of a year of 360 days and shall be payable for the actual number of days
elapsed (including the first day but excluding the last day).
(b) For any day on which the aggregate Dollar Equivalents of
the outstanding principal amounts of Loans shall be greater than 50% of the
Total Commitment (and for any day after the termination of all the Commitments
on which Loans shall be outstanding), the Company shall pay to the
Administrative Agent for the account of each Lender a usage fee (the "Usage
Fee") at the Applicable Percentage from time to time in effect on the aggregate
Dollar Equivalents of the outstanding principal amounts of each Lender's Loans
on such day. Accrued and unpaid Usage Fees, if any, shall be payable on the last
day of each March, June, September and December and on the date on which the
Commitments shall have terminated and the Lenders shall have no Standby Credit
Exposures. All Usage Fees shall be computed on the basis of a year of 360 days
and shall be payable for the actual number of days elapsed (including the first
day but excluding the last day).
(c) The Company agrees to pay each Agent, for its own account,
the administrative and other fees separately agreed to by the Company and such
Agent (the "Administrative Fees").
(d) All Fees shall be paid on the dates due, in immediately
available funds, to the Administrative Agent for distribution, if and as
appropriate, among the Lenders, except that the Administrative Fees shall be
paid pursuant to paragraph (c) above. Once paid, none of the Fees shall be
refundable under any circumstances.
SECTION 2.07. Repayment of Loans; Evidence of Debt. (a) Each
Borrower hereby agrees that the outstanding principal balance of each Standby
Loan or Local Currency Loan shall be payable on the Maturity Date (unless an
earlier date is specified in the Local Currency Addendum relating to such Local
Currency Loan) and that the outstanding principal balance of each Competitive
Loan shall be payable on the last day of the Interest Period applicable thereto.
Each Loan shall bear interest on the outstanding principal balance thereof as
set forth in
- 20 -
Section 2.08.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness to such Lender
resulting from each Loan made by such Lender from time to time, including the
amounts of principal and interest payable and paid to such Lender from time to
time under this Agreement.
(c) The Administrative Agent shall (i) maintain accounts in
which it will record (A) the amount of each Loan made hereunder, the currency of
each Loan, the Borrower of each Loan, the Type of each Loan made and the
Interest Period applicable thereto, (B) the amount of any principal or interest
due and payable or to become due and payable from each Borrower to each Lender
hereunder and (C) the amount of any sum received by the Administrative Agent
hereunder from each Borrower and each Lender's share thereof and (ii) provide a
summary to the Company in writing on a quarterly basis.
(d) The entries made in the accounts maintained pursuant to
paragraphs (b) and (c) of this Section 2.07 shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
obligations therein recorded; provided, however, that the failure of any Lender
or the Administrative Agent to maintain such accounts or any error therein shall
not in any manner affect the obligations of the Borrowers to repay the Loans in
accordance with their terms.
SECTION 2.08. Interest on Loans. (a) Subject to the provisions
of Section 2.09, the Loans comprising each Eurocurrency Borrowing shall bear
interest (computed on the basis of the actual number of days elapsed over a year
of 360 days) at a rate per annum equal to (i) in the case of each Eurocurrency
Standby Loan, the LIBO Rate for the Interest Period in effect for such Borrowing
plus the Applicable Percentage from time to time in effect, (ii) in the case of
each Eurocurrency Competitive Loan, the LIBO Rate for the Interest Period in
effect for such Borrowing plus the Margin offered by the Lender making such Loan
and accepted by the Borrower pursuant to Section 2.03 and (iii) in the case of
each Eurocurrency Local Currency Loan, the LIBO Rate for the Interest Period in
effect for such Loan plus any spread specified in the applicable Local Currency
Addendum (or, if no such spread shall be specified, the Applicable Percentage
from time to time in effect).
(b) Subject to the provisions of Section 2.09, the Loans
comprising each ABR Borrowing shall bear interest (computed on the basis of the
actual number of days elapsed over a year of 365 or 366 days, as the case may
be, for periods during which the Alternate Base Rate is determined by reference
to the Prime Rate and 360 days for other periods) at a rate per annum equal to
the Alternate Base Rate.
(c) Subject to the provisions of Section 2.09, each Fixed Rate
Loan shall bear interest at a rate per annum (computed on the basis of the
actual number of days elapsed over a year of 360 days) equal to the fixed rate
of interest offered by the Lender making such Loan and accepted by the Borrower
pursuant to Section 2.03.
(d) Subject to the provisions of Section 2.09, any Local
Currency Loan that is not a Eurocurrency Loan shall bear interest at the rate or
rates per annum set forth in the applicable Local Currency Addendum.
(e) Interest on each Loan shall be payable on each Interest
Payment Date applicable to such Loan except as otherwise provided in this
Agreement or in an applicable Local Currency Addendum. The applicable LIBO Rate
or Alternate Base Rate for each Interest Period or day within an Interest
Period, as the case may be, shall be determined by the Administrative Agent, and
such determination shall be conclusive absent manifest error.
- 21 -
SECTION 2.09. Default Interest. If a Borrower shall default in
the payment of the principal of or interest on any Loan or any other amount
becoming due hereunder, whether by scheduled maturity, notice of prepayment,
acceleration or otherwise, such Borrower shall on demand from time to time from
the Administrative Agent pay interest, to the extent permitted by law, on such
defaulted amount up to (but not including) the date of actual payment (after as
well as before judgment) at a rate per annum (computed as provided in Section
2.08(b)) equal to the Alternate Base Rate plus 2% (or, in the case of Local
Currency Loans, such other rate as may be specified in the applicable Local
Currency Addendum).
SECTION 2.10. Alternate Rate of Interest. In the event, and on
each occasion, that on the day two Business Days prior to the commencement of
any Interest Period for a Eurocurrency Borrowing, the Administrative Agent shall
have determined (i) that deposits in the currency and principal amounts of the
Eurocurrency Loans comprising such Borrowing are not generally available in the
London market or (ii) that reasonable means do not exist for ascertaining the
LIBO Rate, the Administrative Agent shall, as soon as practicable thereafter,
give telecopy notice of such determination to the Company and applicable
Borrower and the Lenders. In the event of any such determination under clauses
(i) or (ii) above, until the Administrative Agent shall have advised the Company
and the Lenders that the circumstances giving rise to such notice no longer
exist, (x) any request by a Borrower for a Eurocurrency Competitive Loan
pursuant to Section 2.03 shall be of no force and effect and shall be denied by
the Administrative Agent, (y) any request by a Borrower for a Eurocurrency
Standby Loan pursuant to Section 2.04(a) shall be deemed to be a request for an
ABR Borrowing and (z) any request for a Eurocurrency Local Currency Loan
pursuant to Section 2.04(b) and to a Local Currency Addendum shall be deemed to
be a request for a Local Currency Loan bearing interest by reference to the rate
specified in the applicable Local Currency Addendum (provided that if the
requested Eurocurrency Local Currency Loan was to be made pursuant to a Local
Currency Addendum in which no rate is specified such request shall be of no
force and effect and shall be denied by the Administrative Agent). In the event
the Required Lenders notify the Administrative Agent that the rates at which
Dollar deposits are being offered will not adequately and fairly reflect the
cost to such Lenders of making or maintaining Eurocurrency Loans in Dollars
during such Interest Period, the Administrative Agent shall notify the
applicable Borrower of such notice and until the Required Lenders shall have
advised the Administrative Agent that the circumstances giving rise to such
notice no longer exist, any request by such Borrower for a Eurocurrency Standby
Loan shall be deemed a request for an ABR Borrowing. Each determination by the
Administrative Agent hereunder shall be made in good faith and shall be
conclusive absent manifest error.
SECTION 2.11. Termination and Reduction of Commitments. (a)
The Commitments shall be automatically terminated on the Maturity Date;
provided, however, that if the Effective Date does not occur on or before June
-------- -------
29, 2001, the Commitments shall terminate on such date.
(b) Upon at least three Business Days' prior irrevocable
telecopy notice to the Administrative Agent, the Company may at any time in
whole permanently terminate, or from time to time in part permanently reduce,
the Total Commitment; provided, however, that (i) each partial reduction of the
Total Commitment shall be in an integral multiple of $10,000,000 and in a
minimum principal amount of $50,000,000 and (ii) no such termination or
reduction shall be made (A) which would reduce the Total Commitment to an amount
less than the sum of the aggregate Standby Credit Exposures and the Competitive
Loan Exposures or (B) which would reduce any Lender's Commitment to an amount
that is less than such Lender's Standby Credit Exposure.
(c) Each reduction in the Total Commitment hereunder shall be
made ratably among the Lenders in accordance with their respective Commitments.
The Borrowers shall pay to the Administrative Agent for the account of the
Lenders, on the date of each reduction or termination of the Total Commitment,
the Facility Fees on the amount of the Commitments terminated accrued through
the date of such termination or reduction.
- 22 -
SECTION 2.12. Prepayment. (a) Each Borrower shall have the
right at any time and from time to time to prepay any Standby Borrowing or Local
Currency Borrowing, as the case may be, in whole or in part, upon giving
telecopy notice (or telephone notice promptly confirmed by telecopy) to the
Administrative Agent: (i) before 10:00 a.m., New York City time, three Business
Days prior to prepayment, in the case of Eurocurrency Standby Loans, and (ii)
before 10:00 a.m., New York City time, one Business Day prior to prepayment, in
the case of ABR Standby Loans and (iii) in the case of Local Currency Loans, by
such time as shall be specified in the applicable Local Currency Addendum;
provided, however, that each partial prepayment shall be in an amount which is
(x) in the case of any Standby Borrowing, an integral multiple of $10,000,000
and not less than $50,000,000, and (ii) in the case of any Local Currency
Borrowing, an amount in which prepayments are permitted to be made under the
applicable Local Currency Addendum. No prepayment may be made in respect of any
Competitive Borrowing.
(b) On the date of any termination or reduction of the
Commitments pursuant to Section 2.11, the Borrowers shall pay or prepay so much
of the Standby Borrowings as shall be necessary in order that the sum of the
Competitive Loan Exposures and Standby Credit Exposures will not exceed the
Total Commitment, after giving effect to such termination or reduction.
(c) Each notice of prepayment shall specify the prepayment
date and the principal amount of each Borrowing (or portion thereof) to be
prepaid, shall be irrevocable and shall commit the applicable Borrower to prepay
such Borrowing (or portion thereof) by the amount stated therein on the date
stated therein. All prepayments under this Section 2.12 shall be subject to
Section 2.15 but otherwise without premium or penalty. All prepayments under
this Section 2.12 shall be accompanied by accrued interest on the principal
amount being prepaid to the date of payment.
SECTION 2.13. Reserve Requirements; Change in Circumstances.
(a) Notwithstanding any other provision herein, if after the date of this
Agreement any change in applicable law or regulation or in the interpretation or
administration thereof by any Governmental Authority charged with the
interpretation or administration thereof (whether or not having the force of
law) shall result in the imposition, modification or applicability of any
reserve, special deposit or similar requirement against assets of, deposits with
or for the account of or credit extended by any Lender, or shall result in the
imposition on (i) any Lender or the London interbank market of any other
condition affecting this Agreement, (ii) such Lender's Commitment or (iii) any
Eurocurrency Loan or Fixed Rate Loan 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 Eurocurrency Loan or Fixed Rate Loan or to reduce the amount of
any sum received or receivable by such Lender hereunder (whether of principal,
interest or otherwise) by an amount reasonably deemed by such Lender to be
material, then such additional amount or amounts as will compensate such Lender
for such additional costs or reduction will be paid by the Borrowers to such
Lender upon demand. Notwithstanding the foregoing, no Lender shall be entitled
to request compensation under this paragraph with respect to any Competitive
Loan if the change giving rise to such request was applicable to such Lender at
the time of submission of the Competitive Bid pursuant to which such Competitive
Loan was made.
(b) If any Lender shall have determined that the adoption of
any law, rule, regulation or guideline arising out of the July 1988 report of
the Basle Committee on Banking Regulations and Supervisory Practices entitled
"International Convergence of Capital Measurement and Capital Standards", or the
adoption after the date hereof of any other law, rule, regulation or guideline
regarding capital adequacy, or any change in any of the foregoing or in the
interpretation or administration of any of the foregoing by any Governmental
Authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender (or any lending office of
such Lender) or any Lender's holding company with any request or directive
regarding capital adequacy (whether or not having the force of law) of any such
authority, central bank or comparable agency, has or would have the effect of
reducing
- 23 -
the rate of return on (i) such Lender's capital or on the capital of such
Lender's holding company, if any, as a consequence of this Agreement, (ii) such
Lender's Commitment or (iii) the Loans made by such Lender pursuant hereto to a
level below that which such Lender or such Lender's holding company could have
achieved but for such adoption, change or compliance (taking into consideration
such Lender's policies and the policies of such Lender's holding company with
respect to capital adequacy) by an amount reasonably deemed by such Lender to be
material, then from time to time such additional amount or amounts as will
compensate such Lender for such reduction will be paid by the Borrowers to such
Lender.
(c) A certificate of any Lender setting forth such amount or
amounts as shall be necessary to compensate such Lender or its holding company,
as applicable, as specified in paragraph (a) or (b) above, as the case may be,
shall be delivered to the Company and shall be conclusive absent manifest error.
The Borrowers shall pay such Lender the amount shown as due on any such
certificate delivered by it within 10 days after its receipt of the same.
(d) Failure on the part of any Lender to demand compensation
for any increased costs or reduction in amounts received or receivable or
reduction in return on capital with respect to any period shall not constitute a
waiver of such Lender's right to demand compensation with respect to such period
or any other period; provided, however, that no Lender shall be entitled to
compensation under this Section 2.13 for any costs incurred or reductions
suffered with respect to any date unless it shall have notified the Company that
it will demand compensation for such costs or reductions under paragraph (c)
above not more than 90 days after the later of (i) such date and (ii) the date
on which it shall have become aware of such costs or reductions. The protection
of this Section shall be available to each Lender regardless of any possible
contention of the invalidity or inapplicability of the law, rule, regulation,
guideline or other change or condition which shall have occurred or been
imposed.
SECTION 2.14. Change in Legality. (a) Notwithstanding any
other provision herein, if any change in any law or regulation or in the
interpretation thereof by any Governmental Authority charged with the
administration or interpretation thereof shall make it unlawful for any Lender
or any of its Affiliates which shall be party to a Local Currency Addendum to
make or maintain any Eurocurrency Loan or Local Currency Loan or to give effect
to its obligations as contemplated hereby with respect to any Eurocurrency Loan
or Local Currency Loan, or shall limit the convertibility into Dollars of any
Local Currency (or make such conversion commercially impracticable), then, by
written notice to the Company and to the Administrative Agent, such Lender may:
(i) declare that Eurocurrency Loans or Loans in any affected
Local Currency will not thereafter be made by such Lender hereunder,
whereupon such Lender shall not submit a Competitive Bid in response to
a request for a Eurocurrency Competitive Loan, any request for a
Eurocurrency Standby Loan shall, as to such Lender only, be deemed a
request for an ABR Loan, and any request for a Local Currency Borrowing
in such Local Currency shall be disregarded, unless such declaration
shall be subsequently withdrawn; and
(ii) require that all outstanding Eurocurrency Loans in
Dollars made by it be converted to ABR Loans and that all outstanding
Local Currency Loans made by it in the affected Local Currency be
promptly prepaid, in which event all such Eurocurrency Loans in Dollars
shall be automatically converted to ABR Loans as of the effective date
of such notice as provided in paragraph (b) below and all such Local
Currency Loans shall be promptly prepaid.
In the event any Lender shall exercise its rights under subparagraph (i) or (ii)
above with respect to Eurocurrency Loans in Dollars, all payments and
prepayments of principal which would otherwise have been applied to repay the
Eurocurrency Loans that would have been made by such Lender or
- 24 -
the converted Eurocurrency Loans, of such Lender shall instead be applied to
repay the ABR Loans made by such Lender in lieu of, or resulting from the
conversion of, such Eurocurrency Loans.
(b) For purposes of this Section 2.14, a notice by any Lender
shall be effective as to each Eurocurrency Loan or Local Currency Loan, if
lawful, on the last day of the Interest Period currently applicable to such
Eurocurrency Loan or Local Currency Loan; in all other cases such notice shall
be effective on the date of receipt.
SECTION 2.15. Indemnity. The Borrowers shall indemnify each
Lender against any out-of-pocket loss or expense which such Lender may sustain
or incur as a consequence of (a) any failure to borrow or to refinance, convert
or continue any Loan hereunder after irrevocable notice of such borrowing,
refinancing, conversion or continuation has been given pursuant to Section 2.03,
2.04 or 2.05 or pursuant to any Local Currency Addendum, (b) any payment,
prepayment or conversion, or assignment required under Section 2.20, of a
Eurocurrency Loan required by any other provision of this Agreement or otherwise
made or deemed made on a date other than the last day of the Interest Period, if
any, applicable thereto, (c) any default in payment or prepayment of the
principal amount of any Loan or any part thereof or interest accrued thereon, as
and when due and payable (at the due date thereof, whether by scheduled
maturity, acceleration, irrevocable notice of prepayment or otherwise) or (d)
the occurrence of any Event of Default, including, in each such case, any loss
or reasonable expense sustained or incurred or to be sustained or incurred in
liquidating or employing deposits from third parties acquired to effect or
maintain such Loan or any part thereof as a Eurocurrency Loan or Local Currency
Loan. Such loss or reasonable expense shall include an amount equal to the
excess, if any, as reasonably determined by such Lender, of (i) its cost of
obtaining the funds for the Loan being paid, prepaid, refinanced or not borrowed
(assumed to be the LIBO Rate applicable thereto) for the period from the date of
such payment, prepayment, refinancing or failure to borrow or refinance to the
last day of the Interest Period for such Loan (or, in the case of a failure to
borrow or refinance the Interest Period for such Loan which would have commenced
on the date of such failure) over (ii) the amount of interest (as reasonably
determined by such Lender) that would be realized by such Lender in reemploying
the funds so paid, prepaid or not borrowed or refinanced for such period or
Interest Period, as the case may be. A certificate of any Lender setting forth
any amount or amounts which such Lender is entitled to receive pursuant to this
Section shall be delivered to such Borrower and shall be conclusive absent
manifest error.
SECTION 2.16. Pro Rata Treatment. Except as required under
Sections 2.14 and 2.20, each payment or prepayment of principal of any Standby
Borrowing, each payment of interest on the Standby Loans, each payment of the
Facility Fees, each payment of the Usage Fees, each reduction of the Commitments
and each refinancing or conversion of any Standby Borrowing with a Standby
Borrowing of any Type, shall be allocated pro rata among the Lenders in
accordance with their respective Commitments (or, if such Commitments shall have
expired or been terminated, in accordance with the respective principal amounts
of their outstanding Standby Loans). Each payment of principal of any
Competitive Borrowing shall be allocated pro rata among the Lenders
participating in such Borrowing in accordance with the respective principal
amounts of their outstanding Competitive Loans comprising such Borrowing. Each
payment of interest on any Competitive Borrowing shall be allocated pro rata
among the Lenders participating in such Borrowing in accordance with the
respective amounts of accrued and unpaid interest on their outstanding
Competitive Loans comprising such Borrowing. For purposes of determining the
Available Commitments of the Lenders at any time, each outstanding Competitive
Borrowing shall be deemed to have utilized the Commitments of the Lenders
(including those Lenders which shall not have made Loans as part of such
Competitive Borrowing) pro rata in accordance with such respective Commitments.
Each Lender agrees that in computing such Lender's portion of any Borrowing to
be made hereunder, the Administrative Agent may, in its discretion, round each
Lender's percentage of such Borrowing to the next higher or lower whole Dollar
amount.
- 25 -
SECTION 2.17. Sharing of Setoffs. Each Lender agrees that if
it shall, through the exercise of a right of banker's lien, setoff or
counterclaim, or pursuant to a secured claim under Section 506 of Title 11 of
the United States Code or other security or interest arising from, or in lieu
of, such secured claim, received by such Lender under any applicable bankruptcy,
insolvency or other similar law or otherwise, or by any other means, obtain
payment (voluntary or involuntary) in respect of any Standby Loan or Loans as a
result of which the unpaid principal portion of its Standby Loans shall be
proportionately less than the unpaid principal portion of the Standby Loans of
any other Lender, it shall be deemed simultaneously to have purchased from such
other Lender at face value, and shall promptly pay to such other Lender the
purchase price for, a participation in the Standby Loans of such other Lender,
so that the aggregate unpaid principal amount of the Standby Loans and
participations in the Standby Loans held by each Lender shall be in the same
proportion to the aggregate unpaid principal amount of all Standby Loans then
outstanding as the principal amount of its Standby Loans prior to such exercise
of banker's lien, setoff or counterclaim or other event was to the principal
amount of all Standby Loans outstanding prior to such exercise of banker's lien,
setoff or counterclaim or other event; provided, however, that, if any such
purchase or purchases or adjustments shall be made pursuant to this Section 2.17
and the payment giving rise thereto shall thereafter be recovered, such purchase
or purchases or adjustments shall be rescinded to the extent of such recovery
and the purchase price or prices or adjustment restored without interest. Any
Lender holding a participation in a Standby Loan deemed to have been so
purchased may exercise any and all rights of banker's lien, setoff or
counterclaim with respect to any and all moneys owing to such Lender by reason
thereof as fully as if such Lender had made a Standby Loan in the amount of such
participation.
SECTION 2.18. Payments. (a) The Borrowers shall make each
payment (including principal of or interest on any Borrowing and any Fees or
other amounts) hereunder from an account in the United States not later than
12:00 noon, local time at the place of payment, on the date when due, without
setoff or counterclaim, in immediately available funds to the Administrative
Agent at its offices at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx (or, in the case of
Local Currency Loans, such other time and place as shall be specified in the
applicable Local Currency Addendum). Each such payment (other than principal of
and interest on Local Currency Loans which shall be made in the Local Currency
of such Local Currency Loan) shall be made in Dollars.
(b) Whenever any payment (including principal of or interest
on any Borrowing or any Fees or other amounts) hereunder shall become due, or
otherwise would occur, on a day that is not a Business Day, such payment may be
made on the next succeeding Business Day, and such extension of time shall in
such case be included in the computation of interest or Fees, if applicable.
SECTION 2.19. Taxes. (a) Any and all payments to the Lenders
hereunder shall be made, in accordance with Section 2.18, free and clear of and
without deduction for any and all current or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto,
excluding (i) income taxes imposed on the income of the Administrative Agent or
any Lender (or any transferee or assignee thereof, including a participation
holder (any such entity a "Transferee")) and (ii) franchise taxes imposed on the
income, assets or net worth of the Administrative Agent, or any Lender (or
Transferee), in each case by the jurisdiction under the laws of which the
Administrative Agent or such Lender (or Transferee) is organized or doing
business (other than as a result of entering into this Agreement, performing any
obligations hereunder, receiving any payments hereunder or enforcing any rights
hereunder), or any political subdivision thereof (all such nonexcluded taxes,
levies, imposts, deductions, charges, withholdings and liabilities, collectively
or individually, "Taxes"). If any Borrower shall be required to deduct any Taxes
from or in respect of any sum payable hereunder to any Lender (or any
Transferee) or the Administrative Agent, (i) the sum payable shall be increased
by the amount (an "additional amount") necessary so that after making all
required deductions (including deductions applicable
- 26 -
to additional sums payable under this Section 2.19) such Lender (or Transferee)
or the Administrative Agent (as the case may be) shall receive an amount equal
to the sum it would have received had no such deductions been made, (ii) such
Borrower shall make such deductions and (iii) such Borrower shall pay the full
amount deducted to the relevant Governmental Authority in accordance with
applicable law.
(b) In addition, the Borrowers shall pay to the relevant
Governmental Authority in accordance with applicable law any current or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies that arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement or any
other Loan Document ("Other Taxes").
(c) The Borrowers shall indemnify each Lender (or Transferee),
and the Administrative Agent for the full amount of Taxes and Other Taxes paid
by such Lender (or Transferee) or the Administrative Agent, as the case may be,
and any liability (including penalties, interest and expenses (including
reasonable attorneys' fees and expenses)) arising therefrom or with respect
thereto, whether or not such Taxes or Other Taxes were correctly or legally
asserted by the relevant Governmental Authority. A certificate as to the amount
of such payment or liability prepared by a Lender (or Transferee) or the
Administrative Agent on its behalf, absent manifest error, shall be final,
conclusive and binding for all purposes. Such indemnification shall be made
within 30 days after the date any Lender (or Transferee) or the Administrative
Agent, as the case may be, makes written demand therefor, which written demand
shall be made within 60 days of the date such Lender (or Transferee) or the
Administrative Agent receives written demand for payment of such Taxes or Other
Taxes from the relevant Governmental Authority.
(d) If a Lender (or Transferee) or the Administrative Agent
shall become aware that it is entitled to claim a refund from a Governmental
Authority in respect of Taxes or Other Taxes as to which it has been indemnified
by the Borrowers, or with respect to which the Borrowers have paid additional
amounts, pursuant to this Section 2.19, it shall promptly notify the Borrowers
of the availability of such refund claim and shall, within 30 days after receipt
of a request by the Borrowers, make a claim to such Governmental Authority for
such refund at the Borrowers' expense. If a Lender (or Transferee) or the
Administrative Agent receives a refund (including pursuant to a claim for refund
made pursuant to the preceding sentence) in respect of any Taxes or Other Taxes
as to which it has been indemnified by the Borrowers or with respect to which
the Borrowers have paid additional amounts pursuant to this Section 2.19, it
shall within 30 days from the date of such receipt pay over such refund to the
Borrowers (but only to the extent of indemnity payments made, or additional
amounts paid, by the Borrowers under this Section 2.19 with respect to the Taxes
or Other Taxes giving rise to such refund), net of all out-of-pocket expenses of
such Lender (or Transferee) or the Administrative Agent and without interest
(other than interest paid by the relevant Governmental Authority with respect to
such refund); provided, however, that the Borrowers, upon the request of such
Lender (or Transferee) or the Administrative Agent, agree to repay the amount
paid over to the Borrowers (plus penalties, interest or other charges) to such
Lender (or Transferee) or the Administrative Agent in the event such Lender (or
Transferee) or the Administrative Agent is required to repay such refund to such
Governmental Authority.
(e) As soon as practicable after the date of any payment of
Taxes or Other Taxes by the Borrowers to the relevant Governmental Authority,
the Borrowers will deliver to the Administrative Agent, at its address referred
to in Section 9.01, the original or a certified copy of a receipt issued by such
Governmental Authority evidencing payment thereof.
(f) Without prejudice to the survival of any other agreement
contained herein, the agreements and obligations contained in this Section 2.19
shall survive the payment in full of the principal of and interest on all Loans
made hereunder.
- 27 -
(g) Each Lender (or Transferee) that is organized under the
laws of a jurisdiction other than the United States, any State thereof or the
District of Columbia (a "Non-U.S. Lender") shall deliver to the Company and the
Administrative Agent two copies of either United States Internal Revenue Service
Form W-8BEN or Form W-8ECI, or, in the case of a Non-U.S. Lender claiming
exemption from U.S. Federal withholding tax under Section 871(h) or 881(c) of
the Code with respect to payments of "portfolio interest", a Form W-8BEN, or any
subsequent versions thereof or successors thereto (and, if such Non-U.S. Lender
delivers a Form W-8BEN, a certificate representing that such Non-U.S. Lender is
not a bank for purposes of Section 881(c) of the Code, is not a 10 percent
shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the
Company and is not a controlled foreign corporation related to the Company
(within the meaning of Section 864(d)(4) of the Code)), properly completed and
duly executed by such Non-U.S. Lender claiming complete exemption from, or
reduced rate of, U.S. Federal withholding tax on payments by the Company under
this Agreement. Such forms shall be delivered by each Non-U.S. Lender on or
before the date it becomes a party to this Agreement (or, in the case of a
Transferee that is a participation holder, on or before the date such
participation holder becomes a Transferee hereunder) and on or before the date,
if any, such Non-U.S. Lender changes its applicable lending office by
designating a different lending office (a "New Lending Office"). In addition,
each Non-U.S. Lender shall deliver such forms promptly upon the obsolescence or
invalidity of any form previously delivered by such Non-U.S. Lender.
Notwithstanding any other provision of this Section 2.19(g), a Non-U.S. Lender
shall not be required to deliver any form pursuant to this Section 2.19(g) that
such Non-U.S. Lender is not legally able to deliver.
(h) The Borrowers shall not be required to indemnify any
Non-U.S. Lender, or to pay any additional amounts to any Non-U.S. Lender, in
respect of United States Federal withholding tax pursuant to paragraph (a) or
(c) above to the extent that (i) the obligation to withhold amounts with respect
to United States Federal withholding tax existed on the date such Non-U.S.
Lender became a party to this Agreement (or, in the case of a Transferee that is
a participation holder, on the date such participation holder became a
Transferee hereunder) or, with respect to payments to a New Lending Office, the
date such Non-U.S. Lender designated such New Lending Office with respect to a
Loan; provided, however, that this clause (i) shall not apply to any Transferee
or New Lending Office that becomes a Transferee or New Lending Office as a
result of an assignment, participation, transfer or designation made at the
request of the Company; and provided further, however, that this clause (i)
shall not apply to the extent the indemnity payment or additional amounts any
Transferee, or Lender (or Transferee) through a New Lending Office, would be
entitled to receive (without regard to this clause (i)) do not exceed the
indemnity payment or additional amounts that the person making the assignment,
participation or transfer to such Transferee, or Lender (or Transferee) making
the designation of such New Lending Office, would have been entitled to receive
in the absence of such assignment, participation, transfer or designation or
(ii) the obligation to pay such additional amounts would not have arisen but for
a failure by such Non-U.S. Lender to comply with the provisions of paragraph (g)
above.
(i) Any Lender (or Transferee) claiming any indemnity payment
or additional amounts payable pursuant to this Section 2.19 shall use reasonable
efforts (consistent with legal and regulatory restrictions) to file any
certificate or document reasonably requested in writing by the Company or to
change the jurisdiction of its applicable lending office if the making of such a
filing or change would avoid the need for or reduce the amount of any such
indemnity payment or additional amounts that may thereafter accrue and would
not, in the determination of such Lender (or Transferee), be otherwise
disadvantageous to such Lender (or Transferee).
(j) Nothing contained in this Section 2.19 shall require any
Lender (or Transferee) or the Administrative Agent to make available any of its
tax returns (or any other information that it deems to be confidential or
proprietary).
SECTION 2.20. Duty to Mitigate; Assignment of Commitments
Under Certain Circumstances. (a) Any Lender (or Transferee) claiming any
additional amounts payable
- 28 -
pursuant to Section 2.13 or Section 2.19 or exercising its rights under Section
2.14 shall use reasonable efforts (consistent with legal and regulatory
restrictions) to file any certificate or document requested by the Company or to
change the jurisdiction of its applicable lending office if the making of such a
filing or change would avoid the need for or reduce the amount of any such
additional amounts which may thereafter accrue or avoid the circumstances giving
rise to such exercise and would not, in the determination of such Lender (or
Transferee), be otherwise disadvantageous to such Lender (or Transferee).
(b) In the event that any Lender shall have delivered a notice
or certificate pursuant to Section 2.13 or 2.14, or the Company shall be
required to make additional payments to any Lender under Section 2.19, the
Company shall have the right, at its own expense, upon notice to such Lender and
the Administrative Agent, to require such Lender to transfer and assign without
recourse (in accordance with and subject to the restrictions contained in
Section 9.04) all interests, rights and obligations contained hereunder to
another financial institution approved by the Administrative Agent (which
approval shall not be unreasonably withheld) which shall assume such
obligations; provided that (i) no such assignment shall conflict with any law,
rule or regulation or order of any Governmental Authority and (ii) the assignee
or the Company, as the case may be, shall pay to the affected Lender in
immediately available funds on the date of such assignment the principal of and
interest accrued to the date of payment on the Loans made by it hereunder and
all other amounts accrued for its account or owed to it hereunder.
SECTION 2.21. Terms of Local Currency Facilities. (a) The
Company may in its discretion from time to time elect to borrow, or elect that
one or more Borrowing Subsidiaries may borrow, Local Currency Loans on a
revolving basis from any one or more Local Currency Lenders, with the consent of
each such Local Currency Lender in its sole discretion, by delivering a Local
Currency Addendum to the Administrative Agent and the applicable Local Currency
Lenders (through the Administrative Agent), executed by the Company, each such
Borrowing Subsidiary and each such Local Currency Lender; provided, however,
that on the effective date of such election, and after giving effect thereto,
(i) an Exchange Rate with respect to each Local Currency covered by such Local
Currency Addendum shall be determinable by reference to the Reuters currency
pages (or comparable publicly available screen), (ii) no Default or Event of
Default shall have occurred and be continuing and (iii) the aggregate amount of
all Local Currency Facility Maximum Borrowing Amounts under all Local Currency
Addenda at the time in effect shall not exceed $350,000,000. Each Borrower and,
by agreeing to any Local Currency Addendum, each relevant Local Currency Lender,
acknowledges and agrees that each reference in this Agreement to any Lender
shall, to the extent applicable, be deemed to be a reference to such Local
Currency Lender, subject to the second sentence of the definition of such term.
(b) Each Local Currency Addendum shall set forth (i) the
maximum amount (expressed in Dollars and without duplication) available to be
borrowed from all Local Currency Lenders under such Local Currency Addendum (as
the same may be reduced from time to time pursuant to Section 2.22(c) or (d), a
"Local Currency Facility Maximum Borrowing Amount") and (ii) with respect to
each Local Currency Lender party to such Local Currency Addendum, the maximum
amount (expressed in Dollars and without duplication) available to be borrowed
from such Local Currency Lender thereunder (as the same may be reduced from time
to time pursuant to Section 2.22(c) or (d), a "Local Currency Lender Maximum
Borrowing Amount"). In no event shall the aggregate of all Local Currency Lender
Maximum Borrowing Amounts in respect of any Local Currency Lender at any time
exceed such Lender's Commitment. Except as provided in Section 2.21(c), the
making of Local Currency Loans by a Local Currency Lender under a Local Currency
Addendum shall under no circumstances reduce the amount available to be borrowed
from such Lender under any other Local Currency Addendum to which such Lender is
a party.
(c) Except as otherwise required by applicable law, in no
event shall the Local Currency Lenders have the right to accelerate the Local
Currency Loans outstanding under any Local Currency Addendum, or to terminate
their commitments (if any) thereunder to make Local
- 29 -
Currency Loans prior to the stated termination date in respect thereof, except
that such Local Currency Lenders shall, in each case, have such rights upon an
acceleration of the Loans and a termination of the Commitments pursuant to
Article VI, respectively. No Local Currency Loan may be made if (i) an Exchange
Rate with respect to such Local Currency cannot be determined, (ii) a Default or
an Event of Default shall have occurred and be continuing or would result
therefrom or (iii) after giving effect thereto, (A) the sum of the aggregate
principal amount of the Dollar Loans (other than Competitive Loans) and Local
Currency Loans (Dollar Equivalent) of any Lender (and the Affiliates of such
Lender that are Local Currency Lenders) then outstanding would exceed such
Lender's Commitment, (B) the Dollar Equivalent of the aggregate principal amount
of outstanding Local Currency Loans denominated in a specified Local Currency
would exceed the applicable Local Currency Facility Maximum Borrowing Amount or
(C) the sum of the aggregate Standby Credit Exposures and the aggregate
Competitive Loan Exposures would exceed the Total Commitment.
(d) The applicable Borrower and the applicable Local Currency
Lenders, or, if so specified in the relevant Local Currency Addendum, an agent
acting on their behalf, shall furnish to the Administrative Agent, promptly
following the making, payment or prepayment of each Local Currency Loan, and at
any other time at the request of the Administrative Agent, a statement setting
forth the outstanding Local Currency Loans made under such Local Currency
Addendum.
(e) The applicable Borrower shall furnish to the
Administrative Agent copies of any amendment, supplement or other modification
to the terms of any Local Currency Addendum promptly after the effectiveness
thereof.
(f) The Company may terminate any Local Currency Addendum, if
there are not any Loans outstanding thereunder, in its sole discretion (or, if
there are Loans outstanding thereunder, with the consent of each Local Currency
Lender party thereto), by written notice to the Administrative Agent, which
notice shall be executed by the Company, each relevant Borrowing Subsidiary and,
if their consent is required, each such Local Currency Lender. Once notice of
such termination is received by the Administrative Agent, such Local Currency
Addendum and the loans and other obligations outstanding thereunder shall
immediately cease to be subject to the terms of this Agreement.
SECTION 2.22. Currency Fluctuations, Etc. (a) Not later than
1:00 p.m., New York City time, on each Calculation Date, the Administrative
Agent shall (i) determine the Exchange Rate as of such Calculation Date with
respect to each Local Currency covered by a Local Currency Addendum and (ii)
give notice thereof to the Lenders, the Company and the relevant Borrowing
Subsidiaries. The Exchange Rates so determined shall become effective on the
first Business Day immediately following the relevant Calculation Date (a "Reset
Date") and shall remain effective until the next succeeding Reset Date.
(b) Not later than 5:00 p.m., New York City time, on each
Reset Date and each Borrowing Date, the Administrative Agent shall (i) determine
the Dollar Equivalent of the Local Currency Loans then outstanding (after giving
effect to any Local Currency Loans to be made or repaid on such date) and (ii)
notify the Lenders, the Company and the relevant Borrowing Subsidiaries of the
results of such determination.
(c) If, on any Reset Date or any Borrowing Date (after giving
effect to (i) any Loans to be made or repaid on such date and (ii) any
amendment, supplement or other modification to any Local Currency Addendum
effective on such date of which the Administrative Agent has received notice),
the aggregate outstanding Dollar Standby Extensions of Credit of any Lender
exceeds the Dollar Standby Credit Overage of such Lender (the amount of such
excess being called the "Dollar Standby Credit Excess"), then such Lender's
Local Currency Lender Maximum Borrowing Amount under each Local Currency
Addendum to which such Lender is a party shall be reduced on such date by an
amount equal to the product of such Dollar Standby Credit Excess
- 30 -
times a fraction the numerator of which shall equal the Local Currency Lender
Maximum Borrowing Amount under such Local Currency Addendum and the denominator
of which shall equal the aggregate of the Local Currency Lender Maximum
Borrowing Amounts of such Lender. After giving effect to any such reduction in
Local Currency Lender Maximum Borrowing Amounts, the Local Currency Facility
Maximum Borrowing Amount with respect to each Local Currency Addendum shall in
turn be reduced to an amount equal to the aggregate of the Local Currency Lender
Maximum Borrowing Amounts of all Lenders party to such Local Currency Addendum.
Reductions in Local Currency Facility Maximum Borrowing Amounts and Local
Currency Lender Maximum Borrowing Amounts pursuant to this Section 2.22(c) shall
be effective until the amount thereof shall be recalculated by the
Administrative Agent on the next succeeding Reset Date or Borrowing Date, and
shall not be deemed to reduce the stated amount of any commitment of any Local
Currency Lender in respect of any Local Currency Addendum.
(d) If, on any Reset Date or Borrowing Date (after giving
effect to (i) any Loans to be made or repaid on such date, (ii) any amendment,
supplement or other modification to any Local Currency Addendum effective on
such date of which the Administrative Agent has received notice and (iii) any
reduction in the Local Currency Facility Maximum Borrowing Amounts pursuant to
Section 2.22(c) effective on such date), the sum of (A) the aggregate
outstanding Dollar Standby Extensions of Credit of all the Lenders and (B) the
aggregate Competitive Loan Exposures exceed the Dollar Facility Overage (the
amount of such excess being called the "Dollar Facility Excess"), then the Local
Currency Facility Maximum Borrowing Amount under each Local Currency Addendum
shall be reduced on such date by an amount equal to the product of such Dollar
Facility Excess times a fraction the numerator of which shall equal the Local
Currency Facility Maximum Borrowing Amount under such Local Currency Addendum
and the denominator of which shall equal the aggregate of the Local Currency
Facility Maximum Borrowing Amounts with respect to all Local Currency Addenda.
Each such reduction in the Local Currency Facility Maximum Borrowing Amount
under a Local Currency Addendum shall in turn reduce the respective Local
Currency Lender Maximum Borrowing Amounts of each Local Currency Lender party to
such Local Currency Addendum, pro rata on the basis of the respective Local
Currency Lender Maximum Borrowing Amounts of such Local Currency Lenders
immediately prior to such reduction. Reductions in Local Currency Facility
Maximum Borrowing Amounts and Local Currency Lender Maximum Borrowing Amounts
pursuant to this Section 2.22(d) shall be effective until the amount thereof
shall be recalculated by the Administrative Agent on the next succeeding Reset
Date or Borrowing Date, and shall not be deemed to reduce the stated amount of
any commitment of any Local Currency Lender in respect of any Local Currency
Addendum.
(e) If, on any Reset Date, the Dollar Equivalent of the Local
Currency Loans outstanding under a Local Currency Addendum exceeds 105% of the
Local Currency Facility Maximum Borrowing Amount with respect thereto (after
giving effect to any reductions therein effected pursuant to Section 2.22(c) or
(d) on such date), then the relevant Borrower shall, within three Business Days
after notice thereof from the Administrative Agent, (i) increase the Local
Currency Facility Maximum Borrowing Amount with respect to such Local Currency
Facility in accordance with Section 2.21(e) and/or (ii) prepay Local Currency
Loans, in either case in an aggregate amount such that, after giving effect
thereto, (x) the Dollar Equivalent of all such Local Currency Loans shall be
equal to or less than such Local Currency Facility Maximum Borrowing Amount and
(y) the Dollar Equivalent of the Local Currency Loans of each relevant Local
Currency Lender shall be equal to or less than such Local Currency Lender's
Local Currency Lender Maximum Borrowing Amount with respect to such Local
Currency Addendum.
(f) If, on any Reset Date, the Standby Credit Exposure of any
Lender exceeds 105% of such Lender's Commitment, then, within three Business
Days after notice thereof from the Administrative Agent, the Company shall
prepay and/or cause the relevant Borrowing Subsidiaries to prepay the Loans in
accordance with this Agreement, in an aggregate amount such that, after giving
effect thereto, the Standby Credit Exposure of such Lender shall be equal to or
less than such Lender's Standby Credit Commitment.
- 31 -
(g) The Administrative Agent shall promptly notify the
relevant Lenders of the amount of any reductions in Local Currency Facility
Maximum Borrowing Amounts or Local Currency Lender Maximum Borrowing Amounts
required pursuant to this Section 2.22.
SECTION 2.23. Increase in Total Commitment. (a) The Company
may from time to time, by written notice to the Administrative Agent (which
shall deliver a copy thereof to each Lender), request that the Total Commitment
be increased by an amount not to exceed the Incremental Facility Amount at such
time. Such notice shall set forth the amount of the requested increase in the
Total Commitment (which shall be an integral multiple of $10,000,000) and the
date on which such increase is requested to become effective (which shall not be
less than 10 Business Days or more than 60 days after the date of such notice),
and shall offer to each Lender the opportunity to increase its Commitment by its
Pro Rata Percentage of the proposed increased amount. Each Lender shall, by
notice to the Company and the Administrative Agent given not more than 10 days
after the date on which the Administrative Agent shall have delivered the
Company's notice, either agree to increase its Commitment by all or a portion of
the offered amount (each Lender so agreeing being an "Increasing Lender") or
decline to increase its Commitment (and any Lender that does not deliver such
notice within such period of 10 days shall be deemed to have declined to
increase its Commitment) (each Lender so declining or being deemed to have
declined being a "Non-Increasing Lender"). In the event that, on the 10th day
after the Administrative Agent shall have delivered the Company's notice, the
Lenders shall have agreed pursuant to the preceding sentence to increase their
Commitments by an aggregate amount less than the increase in the Total
Commitment requested by the Company, the Company may arrange for one or more
banks or other financial institutions (any such bank or other financial
institution referred to in this clause (a) being called an "Augmenting Lender"),
which may include any Lender, to extend Commitments or increase their existing
Commitments in an aggregate amount equal to the unsubscribed amount; provided
that each Augmenting Lender, if not already a Lender hereunder, shall be subject
to the approval of the Administrative Agent and the Company and each Augmenting
Lender shall execute all such documentation as the Administrative Agent shall
specify to evidence its Commitment and/or its status as a Lender hereunder. Any
increase in the Total Commitment may be made in an amount which is less than the
increase requested by the Company if the Company is unable to arrange for, or
chooses not to arrange for, Augmenting Lenders.
(b) On the effective date (the "Increase Effective Date") of
any increase in the Total Commitment pursuant to this Section 2.23 (the
"Commitment Increase"), (i) the aggregate principal amount of the Standby Loans
outstanding (the "Initial Loans") immediately prior to giving effect to the
Commitment Increase on the Increase Effective Date shall be deemed to be paid,
(ii) each Increasing Lender and each Augmenting Lender that shall have been a
Lender prior to the Commitment Increase shall pay to the Administrative Agent in
same day funds an amount equal to the difference between (A) the product of (1)
such Lender's Pro Rata Percentage (calculated after giving effect to the
Commitment Increase) multiplied by (2) the amount of the Subsequent Borrowings
(as hereinafter defined) and (B) the product of (1) such Lender's Pro Rata
Percentage (calculated without giving effect to the Commitment Increase)
multiplied by (2) the amount of the Initial Loans, (iii) each Augmenting Lender
that shall not have been a Lender prior to the Commitment Increase shall pay to
the Administrative Agent in same day funds an amount equal to the product of (1)
such Augmenting Lender's Pro Rata Percentage (calculated after giving effect to
the Commitment Increase) multiplied by (2) the amount of the Subsequent
Borrowings, (iv) after the Administrative Agent receives the funds specified in
clauses (ii) and (iii) above, the Administrative Agent shall pay to each
Non-Increasing Lender the portion of such funds that is equal to the difference
between (A) the product of (1) such Non-Increasing Lender's Pro Rata Percentage
(calculated without giving effect to the Commitment Increase) multiplied by (2)
the amount of the Initial Loans, and (B) the product of (1) such Non-Increasing
Lender's Pro Rata Percentage (calculated after giving effect to the Commitment
Increase) multiplied by (2) the amount of the Subsequent Borrowings, (v) after
the effectiveness of the Commitment Increase, the Company shall be deemed to
have made new Borrowings (the "Subsequent Borrowings") in an aggregate principal
amount equal to the aggregate principal amount of the Initial Loans and of the
- 32 -
Types and for the Interest Periods specified in a borrowing request delivered in
accordance with Section 2.04, (vi) each Non-Increasing Lender, each Increasing
Lender and each Augmenting Lender shall be deemed to hold its Pro Rata
Percentage of each Subsequent Borrowing (each calculated after giving effect to
the Commitment Increase) and (vii) the Company shall pay each Increasing Lender
and each Non-Increasing Lender any and all accrued but unpaid interest on the
Initial Loans. The deemed payments made pursuant to clause (i) above in respect
of each Eurocurrency Loan shall be subject to indemnification by the Company
pursuant to the provisions of Section 2.15 if the Increase Effective Date occurs
other than on the last day of the Interest Period relating thereto.
(c) Notwithstanding the foregoing, no increase in the Total
Commitment (or in the Commitment of any Lender) or addition of a new Lender
shall become effective under this Section 2.23 unless, (i) on the Increase
Effective Date, the conditions set forth in paragraphs (b) and (c) of Section
4.01 shall be satisfied and the Administrative Agent shall have received a
certificate to that effect dated such date and executed by a Financial Officer
of the Company, (ii) no reduction of the Total Commitment shall have occurred
prior to the Increase Effective Date and (iii) the Administrative Agent shall
have received (with sufficient copies for each of the Lenders) documents
consistent with those delivered on the Effective Date under clauses (a) and (b)
of Section 4.02 as to the corporate power and authority of the Company to borrow
hereunder after giving effect to such increase.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Each Borrower represents and warrants to each of the Lenders
that:
SECTION 3.01. Organization; Powers. Each Borrower and each of
the Restricted Subsidiaries (a) is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization, (b) has all requisite power and authority to own its property and
assets and to carry on its business as now conducted and as proposed to be
conducted, (c) is qualified to do business in every jurisdiction where such
qualification is required, except where the failure so to qualify would not
result in a Material Adverse Effect, and (d) in the case of each Borrower, has
the corporate power and authority to execute, deliver and perform its
obligations under the Loan Documents and to borrow hereunder and thereunder.
SECTION 3.02. Authorization. The execution, delivery and
performance by the Borrowers of this Agreement, the promissory notes, if any,
issued pursuant to Section 9.04(i) and each Local Currency Addendum (and by the
Borrowing Subsidiaries of each Borrowing Subsidiary Agreement) and the
Borrowings hereunder (collectively, the "Transactions") (a) have been duly
authorized by all requisite corporate action and (b) will not (i) violate (A)
any provision of any law, statute, rule or regulation (including the Margin
Regulations) or of the certificate of incorporation or other constitutive
documents or by-laws of the Borrowers, (B) any order of any Governmental
Authority or (C) any provision of any indenture, agreement or other instrument
to which any Borrower is a party or by which it or any of its property is or may
be bound, (ii) be in conflict with, result in a breach of or constitute (alone
or with notice or lapse of time or both) a default under any such indenture,
agreement or other instrument or (iii) result in the creation or imposition of
any lien upon any property or assets of any Borrower.
SECTION 3.03. Enforceability. This Agreement and each Loan
Document to which a Borrower is a party constitutes a legal, valid and binding
obligation of each such Borrower enforceable in accordance with its terms.
SECTION 3.04. Governmental Approvals. No action, consent or
approval of,
- 33 -
registration or filing with or other action by any Governmental Authority, other
than those which have been taken, given or made, as the case may be, is or will
be required with respect to any Borrower in connection with the Transactions.
SECTION 3.05. Financial Statements. (a) The Company has
heretofore furnished to the Administrative Agent and the Lenders copies of its
consolidated balance sheet and statements of income, cash flow and stockholders'
equity as of and for the year ended December 31, 2000 and the three months ended
March 31, 2001. Such financial statements present fairly, in all material
respects, the consolidated financial condition and the results of operations of
the Company and the Subsidiaries as of such dates and for such periods in
accordance with GAAP or SAP, as requested.
(b) As of the date hereof, there has been no material adverse
change in the consolidated financial condition of the Company and the
Subsidiaries taken as a whole from the financial condition reported in the
financial statements referenced in paragraph (a) of this Section 3.05.
SECTION 3.06. Litigation; Compliance with Laws. (a) There are
no actions, proceedings or investigations filed or (to the knowledge of the
Borrowers) threatened against any Borrower or any Subsidiary in any court or
before any Governmental Authority or arbitration board or tribunal which
question the validity or legality of this Agreement, the Transactions or any
action taken or to be taken pursuant to this Agreement and no order or judgment
has been issued or entered restraining or enjoining any Borrower or any
Subsidiary from the execution, delivery or performance of this Agreement nor is
there any other action, proceeding or investigation filed or (to the knowledge
of any Borrower or any Subsidiary) threatened against any Borrower or any
Subsidiary in any court or before any Governmental Authority or arbitration
board or tribunal which would be reasonably likely to result in a Material
Adverse Effect or materially restrict the ability of any Borrower to comply with
its obligations under the Loan Documents.
(b) Neither any Borrower nor any Subsidiary is in violation of
any law, rule or regulation (including any law, rule or regulation relating to
the protection of the environment or to employee health or safety), or in
default with respect to any judgment, writ, injunction or decree of any
Governmental Authority, where such violation or default would be reasonably
likely to result in a Material Adverse Effect.
(c) No exchange control law or regulation materially restricts
any Borrower from complying with its obligations in respect of any Loan or
otherwise under this Agreement or any Local Currency Addendum.
SECTION 3.07. Federal Reserve Regulations. (a) Neither any
Borrower nor any Subsidiary that will receive proceeds of the Loans hereunder is
engaged principally, or as one of its important activities, in the business of
extending credit for the purpose of purchasing or carrying Margin Stock.
(b) No part of the proceeds of any Loan will be used, whether
directly or indirectly, and whether immediately, incidentally or ultimately, to
purchase or carry Margin Stock or to refund indebtedness originally incurred for
such purpose, or for any other purpose which entails a violation of, or which is
inconsistent with, the provisions of the Margin Regulations.
SECTION 3.08. Investment Company Act; Public Utility Holding
Company Act. No Borrower is (a) an "investment company" as defined in, or
subject to regulation under, the Investment Company Act of 1940 (the "1940 Act")
or (b) a "holding company" as defined in, or subject to regulation under, the
Public Utility Holding Company Act of 1935. While certain subsidiaries of
Hartford Life Insurance Company are "investment companies" as defined in the
1940 Act, the transactions contemplated by this Agreement will not violate or
require any approval
- 34 -
under such Act or any regulations promulgated pursuant thereto.
SECTION 3.09. Use of Proceeds. All proceeds of the Loans shall
be used for the purposes referred to in the recitals to this Agreement.
SECTION 3.10. Full Disclosure; No Material Misstatements. None
of the representations or warranties made by any Borrower in connection with
this Agreement as of the date such representations and warranties are made or
deemed made, and no report, financial statement or other information furnished
by or on behalf of any Borrower to the Administrative Agent or any Lender
pursuant to or in connection with this Agreement or the credit facilities
established hereby, contains or will contain any material misstatement of fact
or omits or will omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were or
will be made, not misleading.
SECTION 3.11. Taxes. Each Borrower and each of the Restricted
Subsidiaries have filed or caused to be filed all Federal, state and local tax
returns which are required to be filed by them, and have paid or caused to be
paid all taxes shown to be due and payable on such returns or on any assessments
received by any of them, other than any taxes or assessments the validity of
which is being contested in good faith by appropriate proceedings, and with
respect to which appropriate accounting reserves have to the extent required by
GAAP or SAP, as applicable, been set aside.
SECTION 3.12. Employee Pension Benefit Plans. The present
aggregate value of accumulated benefit obligations of all unfunded and
underfunded pension plans of the Company and its Subsidiaries (based on those
assumptions used for disclosure in corporate financial statements in accordance
with GAAP or SAP, as applicable) did not, as of December 31, 2000, exceed by
more than $41,000,000 the value of the assets of all such plans. In these cases
the Company has recorded book reserves to meet the obligations.
ARTICLE IV
CONDITIONS OF LENDING
The obligations of the Lenders to make Loans hereunder are
subject to the satisfaction of the following conditions:
SECTION 4.01. All Borrowings. On the date of each Borrowing:
(a) The Administrative Agent shall have received a notice of
such Borrowing as required by Section 2.03 or Section 2.04, as
applicable.
(b) The representations and warranties set forth in Article
III hereof shall be true and correct in all material respects on and as
of the date of such Borrowing with the same effect as though made on
and as of such date, except to the extent such representations and
warranties expressly relate to an earlier date.
(c) At the time of and immediately after such Borrowing no
Event of Default or Default shall have occurred and be continuing.
Each Borrowing shall be deemed to constitute a representation and warranty by
each Borrower on the date of such Borrowing as to the matters specified in
paragraphs (b) and (c) of this Section 4.01.
- 35 -
SECTION 4.02. Effective Date. On the Effective Date:
(a) The Administrative Agent shall have received a favorable
written opinion of C. Xxxxxxx X'Xxxxxxxx, Esq., dated the Effective Date and
addressed to the Lenders and satisfactory to the Lenders, the Administrative
Agent and Cravath, Swaine & Xxxxx, counsel for the Administrative Agent, to the
effect set forth in Exhibit C hereto.
(b) The Administrative Agent shall have received (i) a copy of
the certificate of incorporation, including all amendments thereto, of the
Company, certified as of a recent date by the Secretary of State of its state of
incorporation, and a certificate as to the good standing of the Company as of a
recent date from such Secretary of State; (ii) a certificate of the Secretary or
an Assistant Secretary of the Company dated the Effective Date and certifying
(A) that attached thereto is a true and complete copy of the by-laws of the
Company as in effect on the Effective Date and at all times since a date prior
to the date of the resolutions described in clause (B) below, (B) that attached
thereto is a true and complete copy of resolutions duly adopted by the Board of
Directors of the Company authorizing the execution, delivery and performance of
this Agreement and any other documents related to this Agreement and the
Borrowings hereunder, and that such resolutions have not been modified,
rescinded or amended and are in full force and effect, (C) that the certificate
of incorporation referred to in clause (i) above has not been amended since the
date of the last amendment thereto shown on the certificate of good standing
furnished pursuant to such clause (i) and (D) as to the incumbency and specimen
signature of each officer executing this Agreement or any other document
delivered in connection herewith on behalf of the Company; and (iii) a
certificate of another officer of the Company as to the incumbency and specimen
signature of the Secretary or Assistant Secretary executing the certificate
pursuant to (ii) above.
(c) The Administrative Agent shall have received a
certificate, dated the Effective Date and signed by a Financial Officer of the
Company, confirming compliance with the conditions precedent set forth in
paragraphs (b) and (c) of Section 4.01.
(d) No Loans shall be outstanding on the Effective Date. The
Administrative Agent shall have received all fees and interest accrued and
unpaid prior to the Effective Date under the Existing Credit Agreement (whether
or not due at the time) and all other amounts due and payable under the Existing
Credit Agreement on or prior to the Effective Date, as well as all Fees and
other amounts due under this Agreement, including, to the extent invoiced,
reimbursement or payment of all reasonable out-of-pocket expenses required to be
reimbursed or paid by the Company hereunder.
SECTION 4.03. First Borrowing by Each Borrowing Subsidiary. On
or prior to the first date on which Loans are made to any Borrowing Subsidiary:
(a) The Lenders shall have received the favorable written
opinion of counsel with respect to such Borrowing Subsidiary
satisfactory to the Administrative Agent, addressed to the Lenders and
satisfactory to the Lenders, the Administrative Agent and Cravath,
Swaine & Xxxxx, counsel for the Administrative Agent, to the effect set
forth in Exhibit C hereto.
(b) Each Lender shall have received a copy of the Borrowing
Subsidiary Agreement executed by such Borrowing Subsidiary.
- 36 -
ARTICLE V
COVENANTS
A. Affirmative Covenants. Each Borrower covenants and agrees
with each Lender and the Administrative Agent that so long as this Agreement
shall remain in effect or the principal of or interest on any Loan, any Fees or
any other amounts payable hereunder shall be unpaid, unless the Required Lenders
shall otherwise consent in writing, it will, and will cause each of the
Subsidiaries to:
SECTION 5.01. Existence. Do or cause to be done all things
necessary to preserve and keep in full force and effect its corporate existence,
rights and franchises, except as expressly permitted under Section 5.11;
provided, however, that nothing in this Section shall prevent the abandonment or
termination of the existence, rights or franchises of any Restricted Subsidiary
or any rights or franchises of any Borrower if such abandonment or termination
is in the best interests of the Borrowers and is not disadvantageous in any
material respect to the Lenders.
SECTION 5.02. Business and Properties. In the case of the
Borrowers and the Restricted Subsidiaries, comply in all material respects with
all applicable laws, rules, regulations and orders of any Governmental Authority
(including any of the foregoing relating to the protection of the environment or
to employee health and safety), whether now in effect or hereafter enacted; and
at all times maintain and preserve all property material to the conduct of its
business and keep such property in good repair, working order and condition and
from time to time make, or cause to be made, all needful and proper repairs,
renewals, additions, improvements and replacements thereto necessary in order
that the business carried on in connection therewith may be properly conducted
at all times.
SECTION 5.03. Financial Statements, Reports, Etc. In the case
of the Company, furnish to the Administrative Agent for distribution to each
Lender:
(a) within 120 days after the end of each fiscal year, its
consolidated balance sheet and the related consolidated statements of
income and cash flows showing its consolidated financial condition as
of the close of such fiscal year and the consolidated results of its
operations during such year, all audited by Xxxxxx Xxxxxxxx LLP or
other independent certified public accountants of recognized national
standing selected by the Company and accompanied by an opinion of such
accountants to the effect that such consolidated financial statements
fairly present its financial condition and results of operations on a
consolidated basis in accordance with GAAP or SAP, as applicable (it
being agreed that the requirements of this paragraph may be satisfied
by the delivery pursuant to paragraph (f) below of an annual report on
Form 10-K containing the foregoing);
(b) within 90 days after the end of each of the first three
fiscal quarters of each fiscal year, its consolidated balance sheet and
related consolidated statements of income and cash flows showing its
consolidated financial condition as of the close of such fiscal quarter
and the consolidated results of its operations during such fiscal
quarter and the then elapsed portion of the fiscal year, all certified
by one of its Financial Officers as fairly presenting its financial
condition and results of operations on a consolidated basis in
accordance with GAAP or SAP, as applicable, subject to normal year-end
audit adjustments (it being agreed that the requirements of this
paragraph may be satisfied by the delivery pursuant to paragraph (e)
below of a quarterly report on Form 10-Q containing the foregoing);
(c) concurrently with any delivery of financial statements
under paragraph (a) or (b) above, a certificate of a Financial Officer
certifying that no Event of Default or Default
- 37 -
has occurred or, if such an Event of Default or Default has occurred,
specifying the nature and extent thereof and any corrective action
taken or proposed to be taken with respect thereto;
(d) as soon as available and in any event within 90 days after
the end of each fiscal year, (i) the Statement of Actuarial Opinion of
each of the Restricted Subsidiaries for such fiscal year and as filed
with the Applicable Insurance Regulatory Authority and (ii) the Annual
Statement of each of the Restricted Subsidiaries for such fiscal year
and as filed with the Applicable Insurance Regulatory Authority,
together with, in the case of the statements delivered pursuant to
clause (ii) above, a certificate of a Financial Officer to the effect
that such statements present fairly the statutory assets, liabilities,
capital and surplus, results of operations and cash flows of such
Insurance Subsidiary in accordance with SAP;
(e) promptly after the same become publicly available, copies
of all reports on forms 10-K, 10-Q and 8-K filed by it with the SEC, or
any Governmental Authority succeeding to any of or all the functions of
the SEC, or, in the case of the Company, copies of all reports
distributed to its shareholders, as the case may be;
(f) promptly, from time to time, such other information as any
Lender shall reasonably request through the Administrative Agent; and
(g) concurrently with any delivery of financial statements
under paragraph (a) or (b) above, calculations of the financial tests
referred to in Sections 5.10, 5.14 and 5.16.
SECTION 5.04. Insurance. In the case of the Borrowers and each
Restricted Subsidiary, keep its insurable properties adequately insured at all
times by financially sound and reputable insurers, and maintain such other
insurance, to such extent and against such risks, including fire and other risks
insured against by extended coverage, as is customary with companies similarly
situated and in the same or similar businesses (it being understood that the
Borrowers and the Restricted Subsidiaries may self-insure to the extent
customary with companies similarly situated and in the same or similar
businesses).
SECTION 5.05. Obligations and Taxes. In the case of the
Company and each Restricted Subsidiary, pay and discharge promptly when due all
taxes, assessments and governmental charges imposed upon it or upon its income
or profits or in respect of its property, as well as all other material
liabilities, in each case before the same shall become delinquent or in default
and before penalties accrue thereon, unless and to the extent that the same are
being contested in good faith by appropriate proceedings and adequate reserves
with respect thereto shall, to the extent required by GAAP or SAP, as
applicable, have been set aside.
SECTION 5.06. Litigation and Other Notices. Give the
Administrative Agent prompt written notice of the following:
(a) the filing or commencement of, or any written threat or
written notice of intention of any person to file or commence, any
action, suit or proceeding which could reasonably be expected to result
in a Material Adverse Effect;
(b) any Event of Default or Default, specifying the nature and
extent thereof and the action (if any) which is proposed to be taken
with respect thereto; and
(c) any change in any of the Ratings.
SECTION 5.07. Maintaining Records; Access to Properties and
Inspections. Maintain financial records in accordance with GAAP or SAP, as
applicable, and, upon reasonable
- 38 -
notice, at all reasonable times, permit any authorized representative designated
by the Administrative Agent to visit and inspect the properties of the Company
and of any Restricted Subsidiary and to discuss the affairs, finances and
condition of the Company and the Restricted Subsidiaries with a Financial
Officer of the Company and such other officers as the Company shall deem
appropriate.
SECTION 5.08. Employee Benefits. (a) Comply in all material
respects with the applicable provisions of ERISA and the Code and (b) furnish to
the Administrative Agent and each Lender as soon as possible after, and in any
event within 30 days after any Responsible Officer of any Borrower or any ERISA
Affiliate knows that, any ERISA Event has occurred that, alone or together with
any other ERISA Event known to have occurred, could reasonably be expected to
result in liability of such Borrower in an aggregate amount exceeding
$15,000,000 in any year, a statement of a Financial Officer of the Borrower
setting forth details as to such ERISA Event and the action, if any, that such
Borrower proposes to take with respect thereto.
SECTION 5.09. Use of Proceeds. Use the proceeds of the Loans
only for the purposes set forth in the preamble to this Agreement.
SECTION 5.10. Risk-Based Capital Ratio. Maintain the ratio of
Total Adjusted Capital to Risk-Based Capital (after covariance) at the end of
each fiscal year of the Restricted Subsidiaries at a level equal to or greater
than 1.25 to 1.00.
B. Negative Covenants. Each Borrower covenants and agrees with
each Lender and the Administrative Agent that so long as this Agreement shall
remain in effect or the principal of or interest on any Loan, any Fees or any
other amounts payable hereunder shall be unpaid, unless the Required Lenders
shall otherwise consent in writing, it will not, and will not cause or permit
any of the Subsidiaries to:
SECTION 5.11. Consolidations, Mergers, and Sales of Assets. In
the case of the Company and the Restricted Subsidiaries, consolidate or merge
with or into any other person or sell, lease or transfer all or substantially
all of its property and assets, or agree to do any of the foregoing, unless (a)
no Default or Event of Default has occurred and is continuing or would have
occurred immediately after giving effect thereto, and (b) in the case of a
consolidation or merger or transfer of assets involving the Company and in which
the Company is not the surviving corporation or sells, leases or transfers all
or substantially all of its property and assets, the surviving corporation or
person purchasing, leasing or receiving such property and assets is organized in
the United States of America or a state thereof and agrees to be bound by the
terms and provisions applicable to the Company hereunder.
SECTION 5.12. Limitations on Liens. Create, incur, assume or
permit to exist any Lien on any property or assets (including the capital stock
of any Subsidiary) now owned or hereafter acquired by it, or sell or transfer or
create any Lien on any income or revenues or rights in respect thereof;
provided, however, that this covenant shall not apply to any of the following:
(a) any Lien on any property or asset hereafter acquired,
constructed or improved by the Company or any Subsidiary which is
created or assumed to secure or provide for the payment of any part of
the purchase price of such property or asset or the cost of such
construction or improvement, or any mortgage, pledge or other lien on
any Lien on any property or asset existing at the time of acquisition
thereof, provided, however, that such Lien shall not extend to any
other property owned by the Company or any Subsidiary;
(b) any Lien existing upon any property or asset of a company
which is merged with or into or is consolidated into, or substantially
all the assets or shares of capital stock of which are acquired by, the
Company or a Subsidiary, at the time of such merger, consolidation or
acquisition, provided that such Lien does not extend to any other
property
or asset, other than improvements to the property or asset subject to
such Lien;
- 39 -
(c) any pledge or deposit to secure payment of workers'
compensation or insurance premiums, or in connection with tenders,
bids, contracts (other than contracts for the payment of money) or
leases;
(d) any pledge of, or other Lien upon, any assets as security
for the payment of any tax, assessment or other similar charge by any
Governmental Authority or public body, or as security required by law
or governmental regulation as a condition to the transaction of any
business or the exercise of any privilege or right;
(e) any Lien necessary to secure a stay of any legal or
equitable process in a proceeding to enforce a liability or obligation
contested in good faith by the Company or a Subsidiary or required in
connection with the institution by the Company or a Subsidiary of any
legal or equitable proceeding to enforce a right or to obtain a remedy
claimed in good faith by the Company or a Subsidiary, or required in
connection with any order or decree in any such proceeding or in
connection with any contest of any tax or other governmental charge; or
the making of any deposit with or the giving of any form of security to
any governmental agency or any body created or approved by law or
governmental regulation in order to entitle the Company or a Subsidiary
to maintain self-insurance or to participate in any fund in connection
with workers' compensation, unemployment insurance, old age pensions or
other social security or to share in any provisions or other benefits
provided for companies participating in any such arrangement or for
liability on insurance of credits or other risks;
(f) any mechanics', carriers', workmen's, repairmen's, or
other like Liens, if arising in the ordinary course of business, in
respect of obligations which are not overdue or liability for which is
being contested in good faith by appropriate proceedings;
(g) any Lien on property in favor of the United States of
America, or of any agency, department or other instrumentality thereof,
to secure partial, progress or advance payments pursuant to the
provisions of any contract;
(h) any Lien securing indebtedness of a Subsidiary to the
Company or a Subsidiary, provided that in the case of any sale or other
disposition of such indebtedness by the Company or such Subsidiary,
such sale or other disposition shall be deemed to constitute the
creation of another Lien not permitted by this clause (h);
(i) any Lien affecting property of the Company or any
Subsidiary securing indebtedness of the United States of America or a
State thereof (or any instrumentality or agency of either thereof)
issued in connection with a pollution control or abatement program
required in the opinion of the Company to meet environmental criteria
with respect to operations of the Company or any Subsidiary and the
proceeds of which indebtedness have financed the cost of acquisition of
such program;
(j) the renewal, extension, replacement or refunding of any
mortgage, pledge, lien, deposit, charge or other encumbrance permitted
by the foregoing provisions of this covenant upon the same property
theretofore subject thereto, or the renewal, extension, replacement or
refunding of the amount secured thereby, provided that in each case
such amount outstanding at that time shall not be increased; or
(k) any other Lien, provided that immediately after the
creation or assumption of such Lien, the total of (x) the aggregate
principal amount of Indebtedness of the Company and all Subsidiaries
(not including Indebtedness permitted under clauses (a) through (j)
above) secured by all Liens created or assumed under the provisions of
this clause (k), plus
- 40 -
(y) the aggregate amount of Capitalized Lease-Back Obligations of the
Company and Subsidiaries under the entire unexpired terms of all leases
entered into in connection with sale and lease-back transactions which
would have been precluded by the provisions of Section 5.13 but for the
satisfaction of the condition set forth in clause (b) thereof, shall
not exceed an amount equal to 10% of the Consolidated Net Tangible
Assets of the Company and its consolidated Subsidiaries.
SECTION 5.13. Limitations on Sale and Leaseback Transactions.
Enter into any arrangement with any person providing for the leasing by the
Company or any Restricted Subsidiary of any property or asset (except for
temporary leases for a term of not more than three years and except for leases
between the Company and a Restricted Subsidiary or between Restricted
Subsidiaries), which property has been or is to be sold or transferred by the
Company or such Restricted Subsidiary to such person more than 120 days after
the acquisition thereof or the completion of construction and commencement of
full operation thereof, unless either (a) the Company shall apply an amount
equal to the greater of the Fair Value of such property or the net proceeds of
such sale, within 120 days of the effective date of any such arrangement, to the
retirement (other than any mandatory retirement or by way of payment at
maturity) of Indebtedness or to the acquisition, construction, development or
improvement of properties, facilities or equipment used for operating purposes;
or (b) at the time of entering into such arrangement, such property or asset
could have been subjected to a Lien securing Indebtedness of the Company or a
Restricted Subsidiary in a principal amount equal to the Capitalized Lease-Back
Obligations with respect to such property or asset under paragraph (k) of
Section 5.12.
SECTION 5.14. Consolidated Total Debt to Consolidated Total
Capitalization. Permit the ratio of (a) Consolidated Total Debt to (b)
Consolidated Total Capitalization to be greater than 0.40 to 1.
SECTION 5.15. Limitations on Dividends and Advances by
Subsidiaries. Enter into any covenant or agreement restricting the ability of
any Subsidiary to pay dividends on or make other distributions in respect of its
capital stock, to make loans or advances to the Company or any Subsidiary or to
pay any Indebtedness owed to the Company or any Subsidiary.
SECTION 5.16. Minimum Consolidated Statutory Surplus. Permit
Consolidated Statutory Surplus at the end of any fiscal quarter to be less than
$4,000,000,000.
ARTICLE VI
EVENTS OF DEFAULT
In case of the happening of any of the following events (each
an "Event of Default"):
(a) any representation or warranty made or deemed made in or
in connection with the execution and delivery of this Agreement or any
Local Currency Addenda or the Borrowings hereunder shall prove to have
been false or misleading in any material respect when so made, deemed
made or furnished;
(b) default shall be made in the payment of any principal of
any Loan when and as the same shall become due and payable, whether at
the due date thereof or at a date fixed for prepayment thereof or by
acceleration thereof or otherwise;
(c) default shall be made in the payment of any interest on
any Loan or any Fee or any other amount (other than an amount referred
to in paragraph (b) above) due hereunder, when and as the same shall
become due and payable, and such default shall continue
- 41 -
unremedied for a period of ten days;
(d) default shall be made in the due observance or performance
of any covenant, condition or agreement contained in Section 5.01,
5.10, 5.11, 5.12, 5.13, 5.14, 5.15 or 5.16 or in any Local Currency
Addendum and, in the case of any default under Section 5.12, such
default shall continue for 30 days;
(e) default shall be made in the due observance or performance
of any covenant, condition or agreement contained herein or in any
other Loan Document (other than those specified in clauses (b), (c) or
(d) above) and such default shall continue unremedied for a period of
30 days after notice thereof from the Administrative Agent or any
Lender to the Company;
(f) the Company or any Subsidiary shall (i) fail to pay any
principal or interest, regardless of amount, due in respect of any
Indebtedness in a principal amount in excess of $20,000,000, when and
as the same shall become due and payable, or (ii) fail to observe or
perform any other term, covenant, condition or agreement contained in
any agreement or instrument evidencing or governing any such
Indebtedness if the effect of any failure referred to in this clause
(ii) is to cause, or to permit the holder or holders of such
Indebtedness or a trustee on its or their behalf (with or without the
giving of notice, the lapse of time or both) to cause, such
Indebtedness to become due prior to its stated maturity;
(g) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed in a court of competent
jurisdiction seeking (i) relief in respect of the Company or any
Restricted Subsidiary, or of a substantial part of the property or
assets of the Company or or any Restricted Subsidiary, under Title 11
of the United States Code, as now constituted or hereafter amended, or
any other Federal or state bankruptcy, insolvency, receivership or
similar law, (ii) the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Company or any
Restricted Subsidiary or for a substantial part of the property or
assets of the Company or any Restricted Subsidiary or (iii) the winding
up or liquidation of the Company or any Restricted Subsidiary; and such
proceeding or petition shall continue undismissed for 60 days or an
order or decree approving or ordering any of the foregoing shall be
entered;
(h) the Company or any Restricted Subsidiary shall (i)
voluntarily commence any proceeding or file any petition seeking relief
under Title 11 of the United States Code, as now constituted or
hereafter amended, or any other Federal or state bankruptcy,
insolvency, receivership or similar law, (ii) consent to the
institution of, or fail to contest in a timely and appropriate manner,
any proceeding or the filing of any petition described in (g) above,
(iii) apply for or consent to the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for the
Company or any Restricted Subsidiary or for a substantial part of the
property or assets of the Company or any Restricted Subsidiary, (iv)
file an answer admitting the material allegations of a petition filed
against it in any such proceeding, (v) make a general assignment for
the benefit of creditors, (vi) become unable, admit in writing its
inability or fail generally to pay its debts as they become due or
(vii) take any action for the purpose of effecting any of the
foregoing;
(i) one or more final judgments shall be entered by any court
against the Company or any of the Subsidiaries for the payment of money
in an aggregate amount in excess of $50,000,000, and such judgment or
judgments shall not have been paid, discharged or stayed for a period
of 60 days, or a warrant of attachment or execution or similar process
shall have been issued or levied against property of the Company or any
of the Subsidiaries to enforce any such judgment or judgments;
- 42 -
(j) an ERISA Event shall have occurred that, in the opinion of
the Required Lenders, when taken together with all other such ERISA
Events, could reasonably be expected to result in a Material Adverse
Effect; or
(k) a Change in Control shall occur;
then, and in every such event (other than an event with respect to the Company
or any Restricted Subsidiary described in paragraph (g) or (h) above), and at
any time thereafter during the continuance of such event, the Administrative
Agent, at the request of the Required Lenders, shall, by notice to the Company,
take either or both of the following actions, at the same or different times:
(i) terminate forthwith the Commitments and (ii) declare the Loans then
outstanding to be forthwith due and payable in whole or in part, whereupon the
principal of the Loans so declared to be due and payable, together with accrued
interest thereon and any unpaid accrued Fees and all other liabilities of the
Borrowers accrued hereunder, without presentment, demand, protest or any other
notice of any kind, all of which are hereby expressly waived anything contained
herein to the contrary notwithstanding; and, in the case of any event with
respect to the Company or any Restricted Subsidiary described in paragraph (g)
or (h) above, the Commitments shall automatically terminate and the principal of
the Loans then outstanding, together with accrued interest thereon and any
unpaid accrued Fees and all other liabilities of the Borrowers accrued hereunder
shall automatically become due and payable, without presentment, demand, protest
or any other notice of any kind, all of which are hereby expressly waived
anything contained herein to the contrary notwithstanding.
ARTICLE VII
GUARANTEE
The Company unconditionally and irrevocably guarantees the due
and punctual payment and performance, when and as due, whether at maturity, by
acceleration, upon one or more dates set for prepayment or otherwise, of the
Guaranteed Obligations. The Company further agrees that the Guaranteed
Obligations may be extended or renewed, in whole or in part, without notice or
further assent from it and that it will remain bound upon its guarantee
notwithstanding any extension or renewal of any Guaranteed Obligations.
The Company waives presentment to, demand of payment from and
protest to the Borrowing Subsidiaries of any of the Guaranteed Obligations, and
also waives notice of acceptance of its guarantee and notice of protest for
nonpayment. The obligations of the Company hereunder shall not be affected by
(a) the failure of any Lender to assert any claim or demand or to enforce any
right or remedy against the Borrowing Subsidiaries under the provisions of this
Agreement or otherwise; (b) any rescission, waiver, amendment or modification of
any of the terms or provisions of this Agreement, any guarantee or any other
agreement; or (c) the failure of any Lender to exercise any right or remedy
against any other guarantor of the Guaranteed Obligations.
The Company further agrees that its guarantee constitutes a
guarantee of payment when due and not of collection, and waives any right to
require that any resort be had by the Administrative Agent or any Lender to any
security, if any, held for payment of the Guaranteed Obligations or to any
balance of any deposit account or credit on its books, in favor of the Borrowing
Subsidiaries or any other person.
The obligations of the Company hereunder shall not be subject
to any reduction, limitation, impairment or termination for any reason,
including any claim of waiver, release, surrender, alteration or compromise, and
shall not be subject to any defense or setoff, counterclaim, recoupment or
termination whatsoever by reason of the invalidity, illegality or
unenforceability of the Guaranteed Obligations or otherwise. Without limiting
the generality of the
- 43 -
foregoing, the obligations of the Company hereunder shall not be discharged or
impaired or otherwise affected by the failure of the Administrative Agent or any
Lender to assert any claim or demand or to enforce any remedy under this
Agreement, any guarantee or any other agreement, by any waiver or modification
of any provision thereof, by any default, failure or delay, wilful or otherwise,
in the performance of the Guaranteed Obligations, or by any other act or
omission which may or might in any manner or to any extent vary the risk of the
Company or otherwise operate as a discharge of the Company as a matter of law or
equity.
To the extent permitted by applicable law, the Company waives
any defense based on or arising out of any defense available to the Borrowing
Subsidiaries, including any defense based on or arising out of any disability of
the Borrowing Subsidiaries, or the unenforceability of the Guaranteed
Obligations or any part thereof from any cause, or the cessation from any cause
of the liability of the Borrowing Subsidiaries, other than final payment in full
of the Guaranteed Obligations. The Administrative Agent and the Lenders may, at
their election, foreclose on any security held by one or more of them by one or
more judicial or non-judicial sales, or exercise any other right or remedy
available to them against the Borrowing Subsidiaries, or any security without
affecting or impairing in any way the liability of the Company hereunder except
to the extent the Guaranteed Obligations have been fully and finally paid. The
Company waives any defense arising out of any such election even though such
election operates to impair or to extinguish any right of reimbursement or
subrogation or other right or remedy of the Company against the Borrowing
Subsidiaries or any security.
The Company further agrees that its guarantee shall continue
to be effective or be reinstated, as the case may be, if at any time payment, or
any part thereof, of principal of or interest on any Guaranteed Obligation is
rescinded or must otherwise be restored by any Lender upon the bankruptcy or
reorganization of any Borrowing Subsidiary or otherwise.
In furtherance of the foregoing and not in limitation of any
other right which the Administrative Agent or any Lender may have at law or in
equity against the Company by virtue hereof, upon the failure of any Borrowing
Subsidiary to pay any Guaranteed Obligation when and as the same shall become
due, whether at maturity, by acceleration, after notice of prepayment or
otherwise, the Company hereby promises to and will, upon receipt of written
demand by the Administrative Agent or any Lender, forthwith pay or cause to be
paid to the Administrative Agent or such Lender in cash the amount of such
unpaid Guaranteed Obligation.
Until the termination of this Agreement and the commitments
hereunder, and the repayment in full of all amounts due under this Agreement,
the Company hereby irrevocably waives and releases any and all rights of
subrogation, indemnification, reimbursement and similar rights which it may have
against or in respect of the Borrowing Subsidiaries at any time relating to the
Guaranteed Obligations, including all rights that would result in its being
deemed a "creditor" of the Borrowing Subsidiaries under the United States Code
as now in effect or hereafter amended, or any comparable provision of any
successor statute.
ARTICLE VIII
THE ADMINISTRATIVE AGENT
In order to expedite the transactions contemplated by this
Agreement, The Chase Manhattan Bank is hereby appointed to act as Administrative
Agent on behalf of the Lenders. Each of the Lenders hereby irrevocably
authorizes the Administrative Agent to take such actions on behalf of such
Lender and to exercise such powers as are specifically delegated to the
Administrative Agent by the terms and provisions hereof, together with such
actions and powers as are reasonably incidental thereto. The Administrative
Agent is hereby expressly authorized by the Lenders, without hereby limiting any
implied authority, (a) to receive on behalf of the Lenders all
- 44 -
payments of principal of and interest on the Loans and all other amounts due to
the Lenders hereunder, and promptly to distribute to each Lender its proper
share of each payment so received; (b) to give notice on behalf of each of the
Lenders to the Borrowers of any Event of Default of which the Administrative
Agent has actual knowledge acquired in connection with its agency hereunder; and
(c) to distribute to each Lender copies of all notices, financial statements and
other materials delivered by the Borrowers pursuant to this Agreement as
received by the Administrative Agent.
Neither the Administrative Agent nor any of its directors,
officers, employees or agents shall be liable as such for any action taken or
omitted by any of them except for its or his or her own gross negligence or
willful misconduct as determined by a final judgment of a court of competent
jurisdiction, or be responsible for any statement, warranty or representation
herein or the contents of any document delivered in connection herewith, or be
required to ascertain or to make any inquiry concerning the performance or
observance by the Borrowers of any of the terms, conditions, covenants or
agreements contained in this Agreement. The Administrative Agent shall not be
responsible to the Lenders for the due execution, genuineness, validity,
enforceability or effectiveness of this Agreement or other instruments or
agreements. The Administrative Agent may deem and treat the Lender which makes
any Loan as the holder of the indebtedness resulting therefrom for all purposes
hereof until it shall have received notice from such Lender, given as provided
herein, of the transfer thereof. The Administrative Agent shall in all cases be
fully protected in acting, or refraining from acting, in accordance with written
instructions signed by the Required Lenders and, except as otherwise
specifically provided herein, such instructions and any action or inaction
pursuant thereto shall be binding on all the Lenders. The Administrative Agent
shall, in the absence of knowledge to the contrary, be entitled to rely on any
instrument or document believed by it in good faith to be genuine and correct
and to have been signed or sent by the proper person or persons. Neither the
Administrative Agent nor any of its directors, officers, employees or agents
shall have any responsibility to the Borrowers on account of the failure of or
delay in performance or breach by any Lender of any of its obligations hereunder
or to any Lender on account of the failure of or delay in performance or breach
by any other Lender or the Borrowers of any of their respective obligations
hereunder or in connection herewith. The Administrative Agent may execute any
and all duties hereunder by or through agents or employees and shall be entitled
to rely upon the advice of legal counsel selected by it with respect to all
matters arising hereunder and shall not be liable for any action taken or
suffered in good faith by it in accordance with the advice of such counsel.
The Lenders hereby acknowledge that the Administrative Agent
shall be under no duty to take any discretionary action permitted to be taken by
it pursuant to the provisions of this Agreement unless it shall be requested in
writing to do so by the Required Lenders.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided below, the Administrative Agent may resign at
any time by notifying the Lenders and the Company. Upon any such resignation,
the Required Lenders shall have the right to appoint a successor Administrative
Agent acceptable to the Company. If no 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 which shall be a bank with an office in the
United States, having a combined capital and surplus of at least $500,000,000 or
an Affiliate of any such bank. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor bank, such successor shall succeed
to and become vested with all the rights, powers, privileges and duties of the
retiring Administrative Agent and the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder. After the Administrative
Agent's resignation hereunder, the provisions of this Article and Section 9.05
shall continue in effect for its benefit in respect of any actions taken or
omitted to be taken by it while it was acting as Administrative Agent.
- 45 -
With respect to the Loans made by it hereunder, the
Administrative Agent in its individual capacity and not as Administrative Agent
shall have the same rights and powers as any other Lender and may exercise the
same as though it were not the Administrative Agent, and may accept deposits
from, lend money to and generally engage in any kind of business with the
Borrowers or any Subsidiary or other Affiliate thereof as if it were not the
Administrative Agent.
Each Lender agrees (i) to reimburse the Administrative Agent,
on demand, in the amount of its pro rata share (based on its Commitment
hereunder or, if the Commitments shall have been terminated, the amount of its
outstanding Loans) of any expenses incurred for the benefit of the Lenders by
such Agent, including counsel fees and compensation of agents and employees paid
for services rendered on behalf of the Lenders, which shall not have been
reimbursed by the Borrowers and (ii) to indemnify and hold harmless the
Administrative Agent and any of its directors, officers, employees or agents, on
demand, in the amount of such pro rata share, from and against any and all
liabilities, taxes, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever which
may be imposed on, incurred by or asserted against it in its capacity as
Administrative Agent in any way relating to or arising out of this Agreement or
any action taken or omitted by it under this Agreement to the extent the same
shall not have been reimbursed by the Borrowers; provided that no Lender shall
be liable to the Administrative Agent for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the gross negligence or wilful
misconduct of the Administrative Agent or any of its directors, officers,
employees or agents.
Each Lender acknowledges that it has, independently and
without reliance upon the Administrative Agent or any other Lender 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 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
or any related agreement or any document furnished hereunder or thereunder.
Each party to this Agreement acknowledges and agrees that Bank
of America, N.A., in its capacity as Co-Administrative Agent, will have no
duties or responsibilities for the administration of this Agreement or the
Borrowings hereunder.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices. Notices and other communications
provided for herein shall be in writing and shall be delivered by hand or
overnight courier service, mailed or sent by telecopy, as follows:
(a) if to any Borrower, to The Hartford Financial Services
Group, Inc., Xxxxxxxx Xxxxx, Xxxxxxxx, XX 00000, Attention of Mr. J.
Xxxxxxx Xxxxxxx (Telecopy No. 860-547-5462); with a copy to Xx. Xxxxx
X. Xxxxxx, The Hartford Financial Services Group, Inc., Xxxxxxxx Xxxxx,
Xxxxxxxx XX 00000 (Telecopy No. 860-547-3829);
(b) if to the Administrative Agent, to The Chase Manhattan
Bank, Loan and Agency Services Group, One Chase Xxxxxxxxx Xxxxx, 0xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of Xxxxx Xxxxxxx, (Telecopy
No. 212-552-7490), with a copy to The Chase Manhattan Bank, 000 Xxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of Xxxxxxx
Xxxxxxxxx, Re: The Hartford Financial Services Group, Inc.
- 46 -
(Telecopy No. 212-270-0412); and
(c) if to a Lender, to it at its address (or telecopy number)
set forth in Schedule 2.01 or in the Assignment and Acceptance pursuant
to which such Lender became a party hereto.
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on the
date of receipt if delivered by hand or overnight courier service or sent by
telecopy to such party as provided in this Section or in accordance with the
latest unrevoked direction from such party given in accordance with this
Section.
SECTION 9.02. Survival of Agreement. All covenants,
agreements, representations and warranties made by the Borrowers herein and in
the certificates or other instruments prepared or delivered in connection with
or pursuant to this Agreement shall be considered to have been relied upon by
the Lenders and shall survive the making by the Lenders of the Loans regardless
of any investigation made by the Lenders or on their behalf, and shall continue
in full force and effect as long as the principal of or any accrued interest on
any Loan or any Fee or any other amount payable under this Agreement is
outstanding and unpaid, or the Commitments have not been terminated.
SECTION 9.03. Binding Effect. This Agreement shall become
effective on the Effective Date when it shall have been executed by the Company
and the Administrative Agent and when the Administrative Agent shall have
received copies hereof (telecopied or otherwise) which, when taken together,
bear the signature of each Lender, and thereafter shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns, except that the Borrowers shall not have the right to assign any rights
hereunder or any interest herein without the prior consent of all the Lenders.
SECTION 9.04. Successors and Assigns. (a) Whenever in this
Agreement any of the parties hereto is referred to, such reference shall be
deemed to include the successors and assigns of such party; and all covenants,
promises and agreements by or on behalf of any party that are contained in this
Agreement shall bind and inure to the benefit of its successors and assigns.
(b) Each Lender may assign to one or more assignees all or a
portion of its interests, rights and obligations under this Agreement (including
all or a portion of its Commitment and the Loans at the time owing to it);
provided, however, that (i) except in the case of an assignment to a Lender or a
Lender Affiliate, the Company and the Administrative Agent must give their prior
written consent (except when there exists a Default or an Event of Default) to
such assignment (which consent shall not be unreasonably withheld), (ii) the
parties to each such assignment shall execute and deliver to the Administrative
Agent an Assignment and Acceptance, and a processing and recordation fee of
$3,500, (iii) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire, and (iv) the amount of the
Commitment of the assigning Lender subject to each such assignment (determined
as of the date the Assignment and Acceptance with respect to such assignment is
delivered to the Administrative Agent) shall not be less than $5,000,000 and the
amount of the Commitment of such Lender remaining after such assignment shall
not be less than $5,000,000 or shall be zero. Upon acceptance and recording
pursuant to paragraph (e) of this Section, from and after the effective date
specified in each Assignment and Acceptance, which effective date shall be at
least five Business Days after the execution thereof, (A) the assignee
thereunder shall be a party hereto and, to the extent of the interest assigned
by such Assignment and Acceptance, have the rights and obligations of a Lender
under this Agreement and (B) the assigning Lender thereunder shall, to the
extent of the interest assigned by such Assignment and Acceptance, be released
from its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's rights
and obligations under this Agreement, such
- 47 -
Lender shall cease to be a party hereto (but shall continue to be entitled to
the benefits of Sections 2.13, 2.15, 2.19 and 9.05, as well as to any Fees
accrued for its account hereunder and not yet paid)). Notwithstanding the
foregoing, any Lender assigning its rights and obligations under this Agreement
may retain any Competitive Loans made by it outstanding at such time, and in
such case shall retain its rights hereunder in respect of any Loans so retained
until such Loans have been repaid in full in accordance with this Agreement.
(c) By executing and delivering an Assignment and Acceptance,
the assigning Lender thereunder and the assignee thereunder shall be deemed to
confirm to and agree with each other and the other parties hereto as follows:
(i) such assigning Lender warrants that it is the legal and beneficial owner of
the interest being assigned thereby free and clear of any adverse claim, (ii)
except as set forth in (i) above, such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement, or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other instrument or document furnished pursuant
hereto or the financial condition of the Borrowers or the performance or
observance by the Borrowers of any obligations under this Agreement or any other
instrument or document furnished pursuant hereto; (iii) such assignee represents
and warrants that it is legally authorized to enter into such Assignment and
Acceptance; (iv) such assignee confirms that it has received a copy of this
Agreement, together with copies of the most recent financial statements
delivered pursuant to Section 5.03 and such other documents and information as
it has deemed appropriate to make its own credit analysis and decision to enter
into such Assignment and Acceptance; (v) such assignee will independently and
without reliance upon the Administrative Agent, such assigning Lender or any
other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement; (vi) such assignee appoints and
authorizes the Administrative Agent to take such action as agent on its behalf
and to exercise such powers under this Agreement as are delegated to the
Administrative Agent by the terms hereof, together with such powers as are
reasonably incidental thereto; and (vii) such assignee agrees that it will
perform in accordance with their terms all the obligations which by the terms of
this Agreement are required to be performed by it as a Lender.
(d) The Administrative Agent shall maintain at one of its
offices in The City of New York a copy of each Assignment and Acceptance
delivered to it and a register for the recordation of the names and addresses of
the Lenders, and the Commitment of, and the principal amount of the Loans owing
to, each Lender pursuant to the terms hereof from time to time (the "Register").
The entries in the Register shall be conclusive in the absence of manifest error
and the Borrowers, 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. The Register shall be
available for inspection by each party hereto, at any reasonable time and from
time to time upon reasonable prior notice.
(e) Upon its receipt of a duly completed Assignment and
Acceptance executed by an assigning Lender and an assignee together with an
Administrative Questionnaire completed in respect of the assignee (unless the
assignee shall already be a Lender hereunder), the processing and recordation
fee referred to in paragraph (b) above and the written consent of the Company to
such assignment, the Administrative Agent shall (i) accept such Assignment and
Acceptance and (ii) record the information contained therein in the Register.
(f) Each Lender may sell participations to one or more banks
or other entities in all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Commitment and the Loans owing to
it); provided, however, 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, (iii) each
participating bank or other entity shall be entitled to the benefit of the cost
protection provisions contained in Sections 2.13, 2.15 and 2.19 to the same
extent as if it were the selling Lender (and limited to the
- 48 -
amount that could have been claimed by the selling Lender had it continued to
hold the interest of such participating bank or other entity), except that all
claims made pursuant to such Sections shall be made through such selling Lender,
and (iv) the Borrowers, the Administrative Agent and the other Lenders shall
continue to deal solely and directly with such selling Lender in connection with
such Lender's rights and obligations under this Agreement.
(g) Any Lender or participant may, in connection with any
assignment or participation or proposed assignment or participation pursuant to
this Section, disclose to the assignee or participant or proposed assignee or
participant any information relating to the Borrowers furnished to such Lender;
provided that, prior to any such disclosure, each such assignee or participant
or proposed assignee or participant shall execute an agreement whereby such
assignee or participant shall agree (subject to customary exceptions) to
preserve the confidentiality of any such information.
(h) The Borrowers shall not assign or delegate any rights and
duties hereunder without the prior written consent of all Lenders.
(i) Any Lender may at any time pledge all or any portion of
its rights under this Agreement to a Federal Reserve Bank; provided that no such
pledge shall release any Lender from its obligations hereunder or substitute any
such Bank for such Lender as a party hereto. In order to facilitate such an
assignment to a Federal Reserve Bank, each Borrower shall, at the request of the
assigning Lender, duly execute and deliver to the assigning Lender a promissory
note or notes evidencing the Loans made to such Borrower by the assigning Lender
hereunder.
SECTION 9.05. Expenses; Indemnity. (a) The Borrowers agree to
pay all reasonable out-of-pocket expenses incurred by each Agent in connection
with the syndication of the credit facility provided for herein, the
preparation, execution, delivery and administration of this Agreement or in
connection with any amendments, modifications or waivers of the provisions
hereof, or incurred by either Agent or any Lender in connection with the
enforcement or protection of their rights in connection with this Agreement or
in connection with the Loans made hereunder or under any Local Currency
Addendum, including the reasonable fees and disbursements of counsel for each
Agent or, in the case of enforcement costs and documentary taxes, the Lenders.
(b) The Borrowers agree to indemnify the Administrative Agent,
each Lender, each of their Affiliates and the directors, officers, employees and
agents of the foregoing (each such person being called an "Indemnitee") against,
and to hold each Indemnitee harmless from, any and all losses, claims, damages,
liabilities and related expenses, including reasonable counsel fees and
expenses, incurred by or asserted against any Indemnitee arising out of (i) the
consummation of the transactions contemplated by this Agreement, (ii) the use of
the proceeds of the Loans or (iii) any claim, litigation, investigation or
proceeding relating to any of the foregoing, whether or not 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 are determined by a final judgment of a court of competent
jurisdiction to have resulted from the gross negligence or willful misconduct of
such Indemnitee.
(c) The provisions of this Section shall remain operative and
in full force and effect regardless of the expiration of the term of this
Agreement, the consummation of the transactions contemplated hereby, the
repayment of any of the Loans, the invalidity or unenforceability of any term or
provision of this Agreement or any investigation made by or on behalf of either
Agent or any Lender. All amounts due under this Section shall be payable on
written demand therefor.
SECTION 9.06. APPLICABLE LAW. THIS AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
- 49 -
SECTION 9.07. Waivers; Amendment. (a) No failure or delay of
the Administrative Agent or any Lender in exercising any power or right
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right or power, or any abandonment or discontinuance of
steps to enforce such a right or power, preclude any other or further exercise
thereof or the exercise of any other right or power. The rights and remedies of
the Administrative Agent and the Lenders hereunder are cumulative and are not
exclusive of any rights or remedies which they would otherwise have. No waiver
of any provision of this Agreement or consent to any departure therefrom shall
in any event be effective unless the same shall be permitted by paragraph (b)
below, and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. No notice or demand on any
Borrower or any Subsidiary in any case shall entitle such party to any other or
further notice or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be
waived, amended or modified except pursuant to an agreement or agreements in
writing entered into by the Borrowers and the Required Lenders; provided,
however, that no such agreement shall (i) decrease the principal amount of, or
extend the maturity of or any scheduled principal payment date or date for the
payment of any interest on any Loan or waive or excuse any such payment or any
part thereof, or decrease the rate of interest on any Loan, without the prior
written consent of each Lender affected thereby, (ii) increase the Commitment,
decrease the Facility Fee or decrease the Usage Fee of any Lender without the
prior written consent of such Lender, (iii) limit or release the guarantee set
forth in Article VII, or (iv) amend or modify the provisions of Section 2.16 or
Section 9.04(h), the provisions of this Section or the definition of the
"Required Lenders", without the prior written consent of each Lender; provided
further, however, that no such agreement shall amend, modify or otherwise affect
the rights or duties of the Administrative Agent hereunder without the prior
written consent of the Administrative Agent. Each Lender shall be bound by any
waiver, amendment or modification authorized by this Section and any consent by
any Lender pursuant to this Section shall bind any assignee of its rights and
interests hereunder.
SECTION 9.08. Entire Agreement. This Agreement and the
agreements referred to in Section 2.06 constitute the entire contract among the
parties relative to the subject matter hereof. Any previous agreement among the
parties with respect to the subject matter hereof is superseded by this
Agreement. Nothing in this Agreement, expressed or implied, is intended to
confer upon any party other than the parties hereto any rights, remedies,
obligations or liabilities under or by reason of this Agreement.
SECTION 9.09. Severability. In the event any one or more of
the provisions contained in this Agreement should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be affected or
impaired thereby. The parties shall endeavor in good-faith negotiations to
replace the invalid, illegal or unenforceable provisions with valid provisions
the economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
SECTION 9.10. Counterparts. This Agreement may be executed in
two or more counterparts, each of which shall constitute an original but all of
which when taken together shall constitute but one contract, and shall become
effective as provided in Section 9.03.
SECTION 9.11. Headings. Article and Section headings and the
Table of Contents used herein are for convenience of reference only, are not
part of this Agreement and are not to affect the construction of, or to be taken
into consideration in interpreting, this Agreement.
SECTION 9.12. Right of Setoff. If an Event of Default shall
have occurred and be continuing, each Lender is hereby authorized at any time
and from time to time, to the fullest extent permitted by law, to set off and
apply any and all deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing by such
- 50 -
Lender to or for the credit or obligations of the Company and any Borrowing
Subsidiary now or hereafter existing under this Agreement held by such Lender,
irrespective of whether or not such Lender shall have made any demand under this
Agreement and although such obligations may be unmatured. Each Lender agrees
promptly to notify the Company and the Administrative Agent after such setoff
and application made by such Lender, but the failure to give such notice shall
not affect the validity of such setoff and application. The rights of each
Lender under this Section are in addition to other rights and remedies
(including other rights of setoff) which such Lender may have.
SECTION 9.13. Jurisdiction; Consent to Service of Process. (a)
Each Borrower hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York County, and
any appellate court from any thereof, in any action or proceeding arising out of
or relating to this Agreement, any Local Currency Addendum, or for recognition
or enforcement of any judgment, and each of the parties hereto hereby
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 or, to
the extent permitted by 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. Subject to the foregoing and to paragraph
(b) below, nothing in this Agreement shall affect any right that any party
hereto may otherwise have to bring any action or proceeding relating to this
Agreement, any Local Currency Addendum against any other party hereto in the
courts of any jurisdiction.
(b) Each Borrower hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection which it may now or thereafter have to the laying of venue of any
suit, action or proceeding arising out of or relating to this Agreement or any
Local Currency Addendum in any New York State or Federal court. Each of the
parties hereto hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to
service of process in the manner provided for notices in Section 9.01. Nothing
in this Agreement will affect the right of any party to this Agreement to serve
process in any other manner permitted by law.
SECTION 9.14. Waiver of Jury Trial. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING
OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT. Each party hereto (a)
certifies that no representative, agent or attorney of any other party has
represented, expressly or otherwise, that such other party would not, in the
event of litigation, seek to enforce the foregoing waiver and (b) acknowledges
that it and other parties hereto have been induced to enter into this Agreement
by, among other things, the mutual waivers and certification in this Section.
SECTION 9.15. Addition of Borrowing Subsidiaries. Each
Borrowing Subsidiary which shall deliver to the Administrative Agent a Borrowing
Subsidiary Agreement executed by such Subsidiary and the Company shall, upon
such delivery and without further act, become a party hereto and a Borrower
hereunder with the same effect as if it had been an original party to this
Agreement.
SECTION 9.16. Conversion of Currencies. (a) If, for the
purpose of obtaining judgment in any court, it is necessary to convert a sum
owing hereunder in one currency into another currency, each party hereto agrees,
to the fullest extent that it may effectively do so, that the rate of exchange
used shall be that at which in accordance with normal banking procedures in
- 51 -
the relevant jurisdiction the first currency could be purchased with such other
currency on the Business Day immediately preceding the day on which final
judgment is given.
(b) The obligations of the Borrowers in respect of any sum due
to any party hereto or any holder of the obligations owing hereunder (the
"Applicable Creditor") shall, notwithstanding any judgment in a currency (the
"Judgment Currency") other than the currency in which such sum is stated to be
due hereunder (the "Agreement Currency"), be discharged only to the extent that,
on the Business Day following receipt by the Applicable Creditor of any sum
adjudged to be so due in the Judgment Currency, the Applicable Creditor may in
accordance with normal banking procedures in the relevant jurisdiction purchase
the Agreement Currency with the Judgment Currency; if the amount of the
Agreement Currency so purchased is less than the sum originally due to the
Applicable Creditor in the Agreement Currency, the Borrowers agree, as a
separate obligation and notwithstanding any such judgment, to indemnify the
Applicable Creditor against such loss. The obligations of the Borrowers
contained in this Section 9.16 shall survive the termination of this Agreement
and the payment of all other amounts owing hereunder.
- 52 -
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
THE HARTFORD FINANCIAL SERVICES GROUP,
INC., as Borrower,
by
/s/ J. Xxxxxxx Xxxxxxx
-----------------------------------------------
Name: J. Xxxxxxx Xxxxxxx
Title: Sr. Vice President & Treasurer
THE CHASE MANHATTAN BANK, individually and
as Co-Administrative Agent,
by
/s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
BANK OF AMERICA, N.A., individually and as
Co-Administrative Agent,
by
/s/ Xxxxxx X. Xxxx
-----------------------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
CITIBANK, N.A., individually and as Co-Syndication
Agent,
by
/s/ Xxxxxx Xxxxxx
-----------------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
FIRST UNION NATIONAL BANK., individually and as
Co-Syndication Agent,
by
/s/ Xxxxxx X. Xxxxxxxxxxx
-----------------------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
Title: Senior Vice President
- 53 -
FLEET NATIONAL BANK, individually and as
Co-Syndication Agent,
by
/s/ Xxxxxxxx Xxxxx
-----------------------------------------------
Name: Xxxxxxxx Xxxxx
Title: Associate, Portfolio Manager
XXXXX FARGO BANK, NATIONAL
ASSOCIATION
by: /s/ Xxxxxx X. Xxxxx
-----------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
STATE STREET BANK AND TRUST
COMPANY
by: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
THE BANK OF NEW YORK
by: /s/ Xxxx X. Xxxxxxx
-----------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION
by: /s/ Xxxxx Xxxxxx
-----------------------------------------------
Name: Xxxxx Xxxxxx
Title: Corporate Banking Officer
MELLON BANK, N.A.
by: /s/ Xxxxxx Xxxxxxx
-----------------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Assistant Vice President
- 54 -
UBS AG STAMFORD BRANCH
by: /s/ Xxxxxxx X.Xxxx
-----------------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Executive Director Leverage Finance
by: /s/ Xxxxxxx X. XxXxxxxx
-----------------------------------------------
Name: Xxxxxxx X. XxXxxxxx
Title: Director Banking Products
WACHOVIA BANK, N.A.
by: /s/ Xxxx X. Xxxxxxx
-----------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Senior Vice President
ABN AMRO BANK N.V.
by: /s/ Xxxx X. Xxxxx
-----------------------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
by: /s/ Xxxxx X. Xxxxxxx
-----------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Group Vice President
SUN TRUST BANK, INC.
by: /s/ W. Xxxxx Xxxxxx
-----------------------------------------------
Name: W. Xxxxx Xxxxxx
Title: Vice President
- 55 -
EXHIBIT A-1
FORM OF COMPETITIVE BID REQUEST
The Chase Manhattan Bank,
as Administrative Agent
for the Lenders referred to below,
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: [ ]
Dear Ladies and Gentlemen:
The undersigned, ________________________ (the "Borrower"),
refers to the Amended and Restated Five-Year Competitive Advance and Revolving
Credit Facility Agreement dated as of June 20, 2001 (as it may be amended,
modified, extended or restated from time to time, the "5-Year Agreement"), among
The Hartford Financial Services Group, Inc., the Borrowing Subsidiaries parties
thereto, the Lenders parties thereto, and The Chase Manhattan Bank and Bank of
America, N.A., as Co-Administrative Agents (it being agreed that all references
herein to the Administrative Agent shall be references to The Chase Manhattan
Bank). Capitalized terms used herein and not otherwise defined herein shall have
the meanings assigned to such terms in the 5-Year Agreement. The Borrower hereby
gives you notice pursuant to Section 2.03(a) of the 5-Year Agreement that it
requests a Competitive Borrowing under the 5-Year Agreement, and in that
connection sets forth below the terms on which such Competitive Borrowing is
requested to be made:
(A) Date of Competitive Borrowing
(which is a Business Day) _____________
(B) Principal amount of
Competitive Borrowing 1/ _____________
-
(C) Interest rate basis 2/ _____________
-
(D) Interest Period and the
last day thereof 3/ _____________
-
Upon acceptance of any or all of the Loans offered by the
Lenders in response to this
------------------------------
1/ Not less than $10,000,000 (and in integral multiples of $5,000,000) or
-
greater than the Total Commitment then available.
2/ Eurocurrency Competitive Loan or Fixed Rate Loan.
-
3/ Which shall be subject to the definition of "Interest Period" and end
-
not later than the Maturity Date.
request, the Borrower shall be deemed to have
represented and warranted that the conditions to lending specified in Section
4.01(b) and (c) of the 5-Year Agreement have been satisfied.
Very truly yours,
[NAME OF BORROWER],
by_________________________
Name:
Title: [Financial Officer]
EXHIBIT A-2
FORM OF NOTICE OF COMPETITIVE BID REQUEST
[Name of Lender]
[Address]
[Date]
Attention: [ ]
Dear Ladies and Gentlemen:
Reference is made to the Amended and Restated Five-Year
Competitive Advance and Revolving Credit Facility Agreement dated as of June 20,
2001 (as it may be amended, modified, extended or restated from time to time,
the "5-Year Agreement"), among The Hartford Financial Services Group, Inc., the
Borrowing Subsidiaries parties thereto, the Lenders parties thereto, and The
Chase Manhattan Bank and Bank of America, N.A., as Co-Administrative Agents (it
being agreed that all references herein to the Administrative Agent shall be
references to The Chase Manhattan Bank). Capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to such terms in the
5-Year Agreement. [__________] (the "Borrower") made a Competitive Bid Request
on , pursuant to Section 2.03(a) of the 5-Year Agreement, and in that connection
you are invited to submit a Competitive Bid by [Date]/[Time]. 1/ Your
-
Competitive Bid must comply with Section 2.03(b) of the 5-Year Agreement and the
terms set forth below on which the Competitive Bid Request was made:
(A) Date of Competitive Borrowing _________
(B) Principal amount of
Competitive Borrowing _________
(C) Interest rate basis _________
(D) Interest Period and the
last day thereof _________
Very truly yours,
THE CHASE MANHATTAN BANK,
as Administrative Agent,
by__________________________
Name:
Title:
------------------------------
1/ The Competitive Bid must be received by the Administrative Agent (i) in
-
the case of Eurocurrency Competitive Loans, not later than 10:00 a.m., New York
City time, four Business Days before a proposed Competitive Borrowing, and (ii)
in the case of Fixed Rate Loans, not later than 10:00 a.m., New York City time,
one Business Day before a proposed Competitive Borrowing.
EXHIBIT A-3
FORM OF COMPETITIVE BID
The Chase Manhattan Bank, as Administrative Agent
for the Lenders referred to below,
000 Xxxx Xxxxxx
Xxx Xxxx, X.X. 00000
[Date]
Attention: [ ]
Dear Ladies and Gentlemen:
The undersigned, [Name of Lender], refers to the Amended and
Restated Five-Year Competitive Advance and Revolving Credit Facility Agreement
dated as of June 20, 2001 (as it may be amended, modified, extended or restated
from time to time, the "5-Year Agreement"), among The Hartford Financial
Services Group, Inc, the Borrowing Subsidiaries parties thereto, the Lenders
parties thereto, and The Chase Manhattan Bank and Bank of America, N.A., as
Co-Administrative Agents (it being agreed that all references herein to the
Administrative Agent shall be references to The Chase Manhattan Bank).
Capitalized terms used herein and not otherwise defined herein shall have the
meanings assigned to such terms in the 5-Year Agreement. The undersigned hereby
makes a Competitive Bid pursuant to Section 2.03(b) of the 5-Year Agreement, in
response to the Competitive Bid Request made by [__________] (the "Borrower") on
, 20[ ], and in that connection sets forth below the terms on which such
Competitive Bid is made:
(A) Principal Amount 1/ _________
-
(B) Competitive Bid Rate 2/ _________
-
(C) Interest Period and last
day thereof _________
The undersigned hereby confirms that it is prepared, subject to the
conditions set forth in the 5-Year Agreement, to extend credit to the Borrower
upon acceptance by the Borrower of this bid in accordance with Section 2.03(d)
of the 5-Year Agreement.
Very truly yours,
[NAME OF LENDER],
by___________________________
Name:
Title:
------------------------------
1/ Not less than $5,000,000 or greater than the requested Competitive
-
Borrowing and in integral multiples of $1,000,000. Multiple bids will be
accepted by the Administrative Agent.
2/ i.e., LIBO Rate + or - %, in the case of Eurocurrency Competitive Loans
-
or %, in the case of Fixed Rate Loans.
EXHIBIT A-4
FORM OF COMPETITIVE BID ACCEPT/REJECT LETTER
[Date]
The Chase Manhattan Bank, as Administrative Agent
for the Lenders referred to below
000 Xxxx Xxxxxx
Xxx Xxxx, X.X. 00000
Attention: [ ]
Dear Ladies and Gentlemen:
The undersigned, ________________________ (the "Borrower"), refers to
the Amended and Restated Five-Year Competitive Advance and Revolving Credit
Facility Agreement dated as of June 20, 2001 (as it may be amended, modified,
extended or restated from time to time, the "5-Year Agreement"), among The
Hartford Financial Services Group, Inc., the Borrowing Subsidiaries parties
thereto, the Lenders parties thereto, and The Chase Manhattan Bank and Bank of
America, N.A., as Co-Administrative Agents (it being agreed that all references
herein to the Administrative Agent shall be references to The Chase Manhattan
Bank). Capitalized terms used herein and not otherwise defined herein shall have
the meanings assigned to such terms in the 5-Year Agreement.
In accordance with Section 2.03(c) of the 5-Year Agreement, we have
received a summary of bids in connection with our Competitive Bid Request dated
, and in accordance with Section 2.03(d) of the 5-Year Agreement, we hereby
accept the following bids for maturity on [date]:
Principal Amount Fixed Rate/Margin Lender
---------------- ----------------- ------
$ [%]/[+/-. %]
$
We hereby reject the following bids:
Principal Amount Fixed Rate/Margin Lender
---------------- ----------------- ------
$ [%]/[+/-. %]
$
The $ should be deposited in The Chase Manhattan Bank account number
[ ] on [date].
Very truly yours,
[NAME OF BORROWER],
by______________________
Name:
Title:
EXHIBIT A-5
FORM OF STANDBY BORROWING REQUEST
The Chase Manhattan Bank, as Administrative Agent
for the Lenders referred to below,
000 Xxxx Xxxxxx
Xxx Xxxx, X.X. 00000
[Date]
Attention: [ ]
Dear Ladies and Gentlemen:
The undersigned, _______________________ (the "Borrower"), refers to
the Amended and Restated Five-Year Competitive Advance and Revolving Credit
Facility Agreement dated as of June 20, 2001 (as it may be amended, modified,
extended or restated from time to time, the "5-Year Agreement"), among The
Hartford Financial Services Group, Inc., the Borrowing Subsidiaries parties
thereto, the Lenders parties thereto, and The Chase Manhattan Bank and Bank of
America, N.A., as Co-Administrative Agents (it being agreed that all references
herein to the Administrative Agent shall be references to The Chase Manhattan
Bank). Capitalized terms used herein and not otherwise defined herein shall have
the meanings assigned to such terms in the 5-Year Agreement. The Borrower hereby
gives you notice pursuant to Section 2.04 of the 5-Year Agreement that it
requests a Standby Borrowing under the 5-Year Agreement, and in that connection
sets forth below the terms on which such Standby Borrowing is requested to be
made:
(A) Date of Standby Borrowing
(which is a Business Day) _________
(B) Principal amount of
Standby Borrowing 1/ _________
-
(C) Interest rate basis 2/ _________
-
(D) Interest Period and the
last day thereof 3/ _________
-
Upon acceptance of any or all of the Loans made by the Lenders in
response to this request, the Borrower shall be deemed to have represented and
warranted that the conditions to lending specified in Section 4.01(b) and (c) of
the 5-Year Agreement have been satisfied.
Very truly yours,
[NAME OF BORROWER],
by_________________________
Name:
Title: [Financial Officer]
------------------------------
1/ Not less than $20,000,000 (and in integral multiples of $5,000,000) or
-
greater than the Total Commitment then available.
2/ Eurocurrency Standby Loan or ABR Loan.
-
3/ Which shall be subject to the definition of "Interest Period" and end
-
not later than the Maturity Date.
EXHIBIT B
[FORM OF]
ASSIGNMENT AND ACCEPTANCE
Dated: ____ , ____
Reference is made to the Amended and Restated Five-Year
Competitive Advance and Revolving Credit Facility Agreement dated as of June 20,
2001 (the "5-Year Agreement"), among The Hartford Financial Services Group, Inc.
(the "Company"), the Borrowing Subsidiaries parties thereto, the lenders parties
thereto (the "Lenders"), and The Chase Manhattan Bank and Bank of America, N.A.,
as Co-Administrative Agents (it being agreed that all references herein to the
Administrative Agent shall be references to The Chase Manhattan Bank). Terms
defined in the 5-Year Agreement are used herein with the same meanings.
1. The Assignor hereby sells and assigns, without recourse, to
the Assignee, and the Assignee hereby purchases and assumes, without recourse,
from the Assignor, effective as of the Effective Date set forth below, the
interests set forth below (the "Assigned Interest") in the Assignor's rights and
obligations under the 5-Year Agreement, including, without limitation, the
interests set forth below in the Commitment of the Assignor on the Effective
Date and the Competitive Loans and Standby Loans owing to the Assignor which are
outstanding on the Effective Date. Each of the Assignor and the Assignee hereby
makes and agrees to be bound by all the representations, warranties and
agreements set forth in Section 9.04(c) of the 5-Year Agreement, a copy of which
has been received by each such party. From and after the Effective Date, (i) the
Assignee shall be a party to and be bound by the provisions of the 5-Year
Agreement and, to the extent of the interests assigned by this Assignment and
Acceptance, have the rights and obligations of a Lender thereunder and (ii) the
Assignor shall, to the extent of the interests assigned by this Assignment and
Acceptance, relinquish its rights and be released from its obligations under the
5-Year Agreement.
2. This Assignment and Acceptance is being delivered to the
Administrative Agent together with (i) if the Assignee is organized under the
laws of a jurisdiction outside the United States, the forms specified in Section
2.19(g) of the 5-Year Agreement, duly completed and executed by such Assignee,
(ii) if the Assignee is not already a Lender under the 5-Year Agreement, an
Administrative Questionnaire in the form of Exhibit B to the 5-Year Agreement
and (iii) a processing and recordation fee of $3,500.
3. This Assignment and Acceptance shall be governed by and
construed in accordance with the laws of the State of New York.
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address for Notices:
Effective Date of Assignment
(may not be fewer than 5 Business
Days after the Date of Assignment):
Percentage Assigned of
Facility/Commitment (set forth, to
at least 8 decimals, as a percentage
Principal Amount Assigned (and of the Facility and the aggregate
identifying information as to Commitments
Facility individual Competitive Loans) of all Lenders thereunder)
-------- ----------------------------- --------------------------
Commitment Assigned: $____________ ___________ %
Standby Loans: $____________ ___________ %
Competitive Loans: $____________ ___________ %
The terms set forth and on the reverse side Accepted:
hereof are hereby agreed to:
THE HARTFORD FINANCIAL
SERVICES GROUP, INC.,
________________________________, by: __________________
as Assignor, Name:
Title:
by: ____________________________
Name:
Title:
________________________________,
as Assignee,
by: ____________________________
Name:
Title:
- 2 -
EXHIBIT C
[FORM OF]
OPINION OF COUNSEL FOR
THE HARTFORD FINANCIAL SERVICES GROUP, INC. 1/
-
1. The Hartford Financial Services Group, Inc. (i) is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware, (ii) has all requisite power and authority to own its
property and assets and to carry on its business as now conducted, (iii) is
qualified to do business in every jurisdiction within the United States where
such qualification is required, except where the failure so to qualify would not
result in a Material Adverse Effect on The Hartford Financial Services Group,
Inc., and (iv) has all requisite corporate power and authority to execute,
deliver and perform its obligations under the Agreement and to borrow funds
thereunder.
2. The execution, delivery and performance by The Hartford
Financial Services Group, Inc. of the Agreement and the borrowings of The
Hartford Financial Services Group, Inc. thereunder (collectively, the
"Transactions") (i) have been duly authorized by all requisite corporate action
and (ii) will not (a) violate (1) any provision of law, statute, rule or
regulation (including without limitation, the Margin Regulations), or of the
certificate of incorporation or other constitutive documents or by-laws of The
Hartford Financial Services Group, Inc., (2) any order of any governmental
authority or (3) any provision of any indenture, agreement or other instrument
to which The Hartford Financial Services Group, Inc. is a party or by which it
or its property is or may be bound, (b) be in conflict with, result in a breach
of or constitute (alone or with notice or lapse of time or both) a default under
any such indenture, agreement or other instrument or (c) result in the creation
or imposition of any lien upon any property or assets of The Hartford Financial
Services Group, Inc.
3. The Agreement has been duly executed and delivered by The
Hartford Financial Services Group, Inc. and constitutes a legal, valid and
binding obligation of The Hartford Financial Services Group, Inc. enforceable
against The Hartford Financial Services Group, Inc. in accordance with its
terms, subject as to the enforceability of rights and remedies to any applicable
bankruptcy, reorganization, insolvency, moratorium or other similar laws of
general application relating to or affecting the enforcement of creditors'
rights from time to time in effect.
4. No action, consent or approval of, registration or filing
with, or any other action by, any government authority is or will be required in
connection with the Transactions, except such as have been made or obtained and
are in full force and effect.
5. Neither The Hartford Financial Services Group, Inc. nor any
of its subsidiaries is (a) an "investment company" as defined in, or subject to
regulation under, the Investment Company Act of 1940 (the "1940 Act") or (b) a
"holding company" as defined in, or subject to regulation under, the Public
Utility Holding Company Act of 1935. While certain subsidiaries of The Hartford
Financial Services Group, Inc. are "investment companies" as defined in the 1940
Act, the transactions contemplated by this Agreement will not violate or require
any approval under such Act or any regulations promulgated pursuant thereto.
------------------------------
1/ Capitalized terms used but not otherwise defined herein shall have the
-
meanings assigned to such terms in the Amended and Restated Five-Year
Competitive Advance and Revolving Credit Facility Agreement (the "Agreement")
dated as of June 20, 2001, among The Hartford Financial Services Group, Inc.,
the Borrowing Subsidiaries party thereto, the lenders listed in Schedule 2.01
thereto, and The Chase Manhattan Bank and Bank of America, N.A., as
Co-Administrative Agents (it being agreed that all references herein to the
Administrative Agent shall be references to The Chase Manhattan Bank).
EXHIBIT D
BORROWING SUBSIDIARY AGREEMENT dated as of [
], [ ], among THE HARTFORD FINANCIAL SERVICES GROUP,
INC., a Delaware corporation (the "Company"), [Name
of Subsidiary], a [ ] corporation ("the Subsidiary"),
and THE CHASE MANHATTAN BANK and BANK OF AMERICA,
N.A., as co-administrative agents (in such capacity,
the "Co-Administrative Agents", it being agreed that
all references herein to the "Administrative Agent"
shall be references to The Chase Manhattan Bank) for
the lenders (the "Lenders") party to the Amended and
Restated Five-Year Competitive Advance and Revolving
Credit Facility Agreement dated as of June 20, 2001,
as amended (the "Agreement"), among the Company, each
Borrowing Subsidiary party thereto, the
Co-Administrative Agents and the Lenders.
Under the Agreement, the Lenders have agreed, upon the terms
and subject to the conditions therein set forth, to make competitive advance and
revolving credit loans and to issue Letters of Credit to or for the account of
the Company and to Subsidiaries (as defined in the Agreement) of the Company
which execute and deliver to the Administrative Agent Borrowing Subsidiary
Agreements in the form of this Borrowing Subsidiary Agreement. The Company
represents that the Subsidiary is a subsidiary (as so defined) of the Company
and that the guarantee of the Company contained in Article VII of the Agreement
applies to the obligations of the Subsidiary. In consideration of being
permitted to borrow under the Agreement upon the terms and subject to the
conditions set forth therein, the Subsidiary agrees that from and after the date
of this Borrowing Subsidiary Agreement it is, and will be liable for the
observance and performance of all the obligations of, a Borrowing Subsidiary
under the Agreement, as the same may be amended from time to time, to the same
extent as if it had been one of the original parties to the Agreement.
IN WITNESS WHEREOF, the Company and the Subsidiary have caused
this Borrowing Subsidiary Agreement to be duly executed by their authorized
officers as of the date first appearing above.
THE HARTFORD FINANCIAL SERVICES GROUP,
INC.,
by
_______________________
Name:
Title:
[NAME OF SUBSIDIARY],
by
______________________
Name:
Title:
Accepted as of the date
first appearing above:
THE CHASE MANHATTAN BANK,
as Administrative Agent,
by ______________________
Name:
Title:
EXHIBIT E
[FORM OF]
LOCAL CURRENCY ADDENDUM
To: The Chase Manhattan Bank, as Administrative Agent
From: The Hartford Financial Services Group, Inc.
i. This Local Currency Addendum is being delivered to you
pursuant to Section 2.21(b) of the Amended and Restated Five-Year Competitive
Bid and Revolving Credit Facility, dated as of June 20, 2001 (as the same may be
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among The Hartford Financial Services Group, Inc. (the "Company"),
the Borrowing Subsidiaries parties thereto, the Lenders parties thereto, and The
Chase Manhattan Bank and Bank of America, N.A., as Co-Administrative Agents (it
being agreed that all references herein to the Administrative Agent shall be
references to The Chase Manhattan Bank). Terms defined in the Credit Agreement
and used herein shall have the meanings given to them in the Credit Agreement.
ii. The effective date (the "Effective Date") of this Local
Currency Addendum will be [ ].
LOCAL CURRENC(Y)(IES):
LOCAL CURRENCY FACILITY
MAXIMUM BORROWING AMOUNT: $
LOCAL CURRENCY Local Currency Lender
LENDERS: Name of Lender Maximum Borrowing Amount
-------------- ------------------------
$
LIST OF DOCUMENTATION GOVERNING
LOCAL CURRENCY FACILITY
(THE "DOCUMENTATION"): 2/
-
iii. The Company hereby represents and warrants that (i) as of
the Effective Date, an Exchange Rate with respect to each Local Currency is
determinable by reference to the Reuters currency pages (or comparable publicly
available screen), (ii) the Documentation complies in all respects with the
requirements of Section 2.21 of the Credit Agreement and (iii)___________
of__________ 3/ contains an
-
------------------------------
2/ Copies of the Documentation must accompany the Local Currency Addendum,
-
together with, if applicable, an English translation thereof (provided, that the
Company may instead furnish a summary term sheet in English so long as an
English translation of the Documentation is furnished to the Administrative
Agent or its counsel within 90 days after the date of delivery of the Local
Currency Addendum).
3/ Provide citation to relevant provision from the Documentation.
-
express acknowledgement that such Local Currency Loan shall be subject to the
provisions of Sections 2.21 and 2.22 of the Credit Agreement.
THE HARTFORD FINANCIAL SERVICES GROUP,
INC.
By___________________________________
Name:
Title:
Accepted and Acknowledged:
THE CHASE MANHATTAN BANK,
as Administrative Agent
By _______________________________
Name:
Title:
SCHEDULE 2.01
Contact Person
Name and Address of Lender and Telecopy Number Commitment
-------------------------------------------- --------------------------------- ----------------------------
X.X. Xxxxxx Xxxxx & Co. Xx. Xxxxxxx Xxxxxxxxx $ 100,000,000
000 Xxxx Xxxxxx, 00xx Xxxxx (000) 000-0000
Xxx Xxxx, XX 00000
Bank of America Ms. Xxxxxx Xxxx $ 100,000,000
000 Xxxxx XxXxxxx Xxxxxx (000) 000-0000
Xxxxx 0000
Xxxxxxx, XX 00000
Citibank, N.A. Xx. Xxxxxx Xxxxxx $ 90,000,000
000 Xxxxxxxxx Xxxxxx Xx. Xxxxxx Xxxxxx
22nd Floor (000) 000-0000
Xxx Xxxx, XX 00000
First Union National Bank Mr. Xxx Xxxxxxxx $ 90,000,000
0000 Xxxxxxxx Xxxxxx Mr. Xxxxx Xxxxx
Xxxxxxxxxxxx, XX 00000 (000) 000-0000
Fleet National Bank Xx. Xxx XxXxxxxx $ 90,000,000
000 Xxxx Xxxxxx (000) 000-0000
Xxxxxxxx, XX 00000
The Bank of New York Xx. Xxxxxx Xxxx $ 70,000,000
Xxx Xxxx Xxxxxx, 00xx Xxxxx (000) 000-0000
Xxx Xxxx, XX 00000
State Street Bank and Trust Company Xx. Xxxxxx Xxxxxxxx $ 70,000,000
Lafayette Corporate Center (000) 000-0000
2N
Xxxxxx, XX 00000
SunTrust Banks Atlanta Xx. Xxxxxx Xxxxx $ 70,000,000
X.X. Xxx 0000 (404) 827-6270
000 Xxxxxxxxx Xxxxxx
MAIL CODE 192
Xxxxxxx, XX 00000
XX Bank Nat Assoc. MN Xx. Xxxxx Xxxxxx $ 70,000,000
000 Xxxxxx Xxxxxx Xxxxx (000) 000-0000
Xxxxxxxxxxx, XX 00000
Xxxxx Fargo Bank Xx. Xxxxxx Xxxxx $ 70,000,000
000 X. Xxxxxx (000) 000-0000
Suite 0000
XXX X0000-000
Xxxxxxx, XX 00000
SCHEDULE 2.01
Continued
Contact Person
Name and Address of Lender and Telecopy Number Commitment
-------------------------------------------- --------------------------------- ----------------------------
ABN AMRO Bank Mr. Xxxx Xxxxx $ 45,000,000
000 Xxxx Xxxxxx (000) 000-0000
Xxx Xxxx, XX 00000
Mellon Bank, N.A. Xx. Xxxxxx Xxxxxxx $ 45,000,000
Xxx Xxxxxx Xxxx Xxxxxx, Xx 0000 (412) 234-8087
Xxxxxxxxxx, XX 00000
UBS AG, Stamford Branch Xx. Xxxx Xxxxxx $ 45,000,000
000 Xxxxxxxxxx Xxxx. (000) 000-0000
Xxxxxxxx, XX 00000
Wachovia Bank, N.A. Mr. Xxxx Xxxxxxx $ 45,000,000
000 Xxxxxxxxx Xxxxxx, X.X. (000) 000-0000
MC-GA 374
Xxxxxxx, XX 00000
______________
TOTAL COMMITMENT $1,000,000,000
