EXECUTION
VERSION
among
VARIOUS
DESIGNATED SUBSIDIARY BORROWERS,
VARIOUS
LENDING INSTITUTIONS,
and
JPMORGAN
CHASE BANK, N.A.
as
ADMINISTRATIVE AGENT
Dated as
of May 8, 2007
$1,175,000,000
X.X.
XXXXXX SECURITIES INC.,
and
WACHOVIA
CAPITAL MARKETS, LLC
as JOINT
LEAD ARRANGERS AND JOINT BOOKRUNNERS,
and
WACHOVIA
BANK, NATIONAL ASSOCIATION,
as
SYNDICATION AGENT
and
ING BANK
N.V., LONDON BRANCH,
BANK OF AMERICA, N.A.,
BARCLAYS BANK PLC,
LLOYDS TSB BANK PLC,
THE BANK OF NEW YORK,
CALYON NEW YORK
BRANCH,
as
DOCUMENTATION AGENTS
TABLE
OF CONTENTS
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Page
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SECTION
1. Amount
and Terms of Credit |
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1
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1.01
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Revolving
Loans |
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1
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1.02
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Minimum
Amount of Each Borrowing; Maximum Number of Borrowings |
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2
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1.03
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Notice
of Borrowing |
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2
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1.04
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Disbursement
of Funds |
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3
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1.05
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Notes
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4
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1.06
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Conversions
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5
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1.07
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Pro Rata
Borrowings |
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5
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1.08
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Interest
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6
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1.09
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Interest
Periods |
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6
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1.10
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Increased
Costs, Illegality, etc |
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7
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1.11
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Compensation
|
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9
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1.12
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Change
of Lending Office |
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10
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1.13
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Replacement
of Lenders |
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10
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1.14
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Designated
Subsidiary Borrowers |
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11
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1.15
|
Additional
Tranche 1 Commitments |
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12
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1.16
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Additional
Tranche 2 Commitments |
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14
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SECTION
2. |
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16
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SECTION
2A. Tranche
1 Letters of Credit |
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16
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2A.01
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Tranche
1 Letters of Credit |
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16
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2A.02
|
Tranche
1 Letter of Credit Requests |
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19
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2A.03
|
Agreement
to Repay Tranche 1 Letter of Credit Drawings |
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20
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2A.04
|
Increased
Costs |
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21
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2A.05
|
Tranche
1 Letter of Credit Expiration Extensions |
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22
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2A.06
|
Changes
to Stated Amount |
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22
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2A.07
|
Representations
and Warranties of Tranche 1 Lenders |
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23
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2A.08
|
Existing
Tranche 1 Letters of Credit |
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23
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2A.09
|
Tranche
1 Fronted Letter of Credit Participations |
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25
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SECTION
2B. Tranche
2 Letters of Credit |
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27
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2B.01
|
Tranche
2 Letters of Credit |
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27
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2B.02
|
Tranche
2 Letter of Credit Requests |
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31
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2B.03
|
Agreement
to Repay Tranche 2 Letter of Credit Drawings |
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31
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2B.04
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Increased
Costs |
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32
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2B.05
|
Tranche
2 Letter of Credit Expiration Extensions |
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33
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2B.06
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Changes
to Stated Amount |
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33
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2B.07
|
Representations
and Warranties of Tranche 2 Lenders |
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34
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2B.08
|
Existing
Tranche 2 Letters of Credit |
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34
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2B.09
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Tranche
2 Fronted Letter of Credit Participations |
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36
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SECTION
3. Fees;
Commitments |
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39
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3.01
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Fees
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39
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3.02
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Voluntary
Reduction of Commitments |
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41
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3.03
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Mandatory
Reduction of Commitments |
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42
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SECTION
4.
Payments |
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42
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4.01
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Voluntary
Prepayments |
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42
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4.02
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Mandatory
Repayments |
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42
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4.03
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Method
and Place of Payment |
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45
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4.04
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Net
Payments |
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45
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SECTION
5.
Conditions Precedent |
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48
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5.01
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Conditions
Precedent to the Effective Date |
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48
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5.02
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Conditions
Precedent to All Revolving Loans and Letters of Credit |
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50
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SECTION
6.
Representations, Warranties and Agreements |
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51
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6.01
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Corporate
Status |
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51
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6.02
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Corporate
Power and Authority |
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52
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6.03
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No
Contravention of Laws, Agreements or Organizational Documents
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52
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6.04
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Litigation
and Contingent Liabilities |
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52
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6.05
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Use of
Proceeds; Margin Regulations |
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52
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6.06
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Approvals
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53
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6.07
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Investment
Company Act |
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53
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6.08
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True and
Complete Disclosure; Projections and Assumptions |
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53
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6.09
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Financial
Condition; Financial Statements |
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53
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6.10
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Tax
Returns and Payments |
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54
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6.11
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Compliance
with ERISA |
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54
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6.12
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Subsidiaries
|
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54
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6.13
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Capitalization
|
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55
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6.14
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Indebtedness
|
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55
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6.15
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Compliance
with Statutes, etc |
|
55
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6.16
|
Insurance
Licenses |
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55
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6.17
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Security
Documents |
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56
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SECTION
7.
Affirmative Covenants |
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56
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7.01
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Information
Covenants |
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56
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7.02
|
Books,
Records and Inspections |
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58
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7.03
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Insurance
|
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58
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7.04
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Payment
of Taxes |
|
59
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7.05
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Maintenance
of Existence |
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59
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7.06
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Compliance
with Statutes, etc |
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59
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7.07
|
ERISA
|
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59
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7.08
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Maintenance
of Property |
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60
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7.09
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Maintenance
of Licenses and Permits |
|
60
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7.10
|
Claims
Paying Ratings |
|
60
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7.11
|
End of
Fiscal Years; Fiscal Quarters |
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60
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7.12
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Borrowing
Base Requirement |
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61
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7.13
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Further
Assurances |
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61
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SECTION
8.
Negative Covenants |
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61
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8.01
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Changes
in Business |
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61
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8.02
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Consolidations,
Amalgamations, Mergers, Sales of Assets and Acquisitions |
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61
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8.03
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Liens
|
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62
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8.04
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Indebtedness
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63
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8.05
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Issuance
of Stock |
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64
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8.06
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Dissolution
|
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64
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8.07
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Restricted
Payments |
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64
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8.08
|
Transactions
with Affiliates |
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64
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8.09
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Maximum
Leverage Ratio |
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64
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8.10
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Minimum
Consolidated Tangible Net Worth |
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64
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8.11
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Private
Act |
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65
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8.12
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Restrictions
on Transfers |
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65
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SECTION
9. Events
of Default |
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65
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9.01
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Payments
|
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65
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9.02
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Representations,
etc |
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65
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9.03
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Covenants
|
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65
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9.04
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Default
Under Other Agreements |
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65
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9.05
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Bankruptcy,
etc |
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66
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9.06
|
ERISA
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66
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9.07
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Judgments
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67
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9.08
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Insurance
Licenses |
|
67
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9.09
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Parent
Borrower Guaranty |
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67
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9.10
|
Security
Documents |
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67
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9.11
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Ownership
|
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67
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SECTION
10.
Definitions |
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68
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SECTION
11. The
Agents |
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92
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11.01
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Appointment
|
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92
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11.02
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Delegation
of Duties |
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92
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11.03
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Exculpatory
Provisions |
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92
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11.04
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Reliance
by Agents |
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93
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11.05
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Notice
of Default |
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93
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11.06
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Non-Reliance
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94
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11.07
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Indemnification
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94
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11.08
|
The
Agents in Their Individual Capacities |
|
95
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11.09
|
Successor
Agents |
|
95
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SECTION
12.
Miscellaneous |
|
95
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12.01
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Payment
of Expenses, etc |
|
95
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12.02
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Right of
Setoff |
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96
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12.03
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Notices
|
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96
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12.04
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Benefit
of Agreement |
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97
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12.05
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No
Waiver; Remedies Cumulative |
|
99
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12.06
|
Payments
Pro Rata |
|
99
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12.07
|
Calculations;
Computations |
|
100
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12.08
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GOVERNING
LAW; SUBMISSION TO JURISDICTION; VENUE |
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100
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12.09
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Counterparts
|
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101
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12.10
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Headings
Descriptive |
|
102
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12.11
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Amendment
or Waiver |
|
102
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12.12
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Survival
|
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103
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12.13
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Domicile
of Revolving Loans |
|
103
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12.14
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Confidentiality
|
|
103
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12.15
|
WAIVER
OF JURY TRIAL |
|
104
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12.16
|
Register
|
|
104
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12.17
|
USA
Patriot Act |
|
105
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SECTION
13. Parent
Borrower Guaranty |
|
105
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13.01
|
The
Guaranty |
|
105
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13.02
|
Bankruptcy
|
|
105
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13.03
|
Nature
of Liability |
|
105
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13.04
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Independent
Obligation |
|
106
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13.05
|
Authorization
|
|
106
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13.06
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Reliance
|
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107
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13.07
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Subordination
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107
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13.08
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Waiver
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108
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ANNEX
I |
List of
Lenders and Commitments |
ANNEX
II |
Lender
Addresses |
ANNEX
III |
Subsidiaries
|
ANNEX
IV |
Capitalization
|
ANNEX
V |
Indebtedness
|
ANNEX
VI |
[Intentionally
Deleted] |
ANNEX
VII |
Liens
|
ANNEX
VIII |
Existing
Letters of Credit |
|
|
EXHIBIT
A |
Form of
Notice of Borrowing |
EXHIBIT
B-1 |
Form of
Tranche 1 Note |
EXHIBIT
B-2 |
Form of
Tranche 2 Note |
EXHIBIT
C-1 |
Form of
Tranche 1 Letter of Credit Request |
EXHIBIT
C-2 |
Form of
Tranche 2 Letter of Credit Request |
EXHIBIT
D |
Form of
Section 4.04(b)(ii) Certificate |
EXHIBIT
E-1 |
Form of
Opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP |
EXHIBIT
E-2 |
Form of
Opinion of Xxxxxxx Xxxxxxxx Xxxxxx |
EXHIBIT
E-3 |
Form of
Opinion of Ashurst |
EXHIBIT
F |
Form of
Officer’s Certificate |
EXHIBIT
G |
Form of
Assignment Agreement |
EXHIBIT
H |
Form of
DSB Assumption Agreement |
EXHIBIT
I-1 |
Form of
Additional Tranche 1 Commitment Agreement |
EXHIBIT
I-2 |
Form of
Additional Tranche 2 Commitment Agreement |
EXHIBIT
J |
Form of
Borrowing Base Certificate |
EXHIBIT
K |
Form of
Amended and Restated Pledge and Security Agreement |
EXHIBIT
L |
Form of
Existing Lender Agreement |
EXHIBIT
M |
Form of
Account Control Agreement |
This
AMENDED AND RESTATED CREDIT AGREEMENT, dated as of May 8, 2007, among ENDURANCE
SPECIALTY HOLDINGS LTD., a company organized under the laws of Bermuda (the
“Parent Borrower”), the Designated Subsidiary Borrowers (as
hereinafter defined) from time to time party hereto, the lending institutions
listed from time to time on Schedule I hereto under the captions
“Continuing Lenders” (the “Continuing Lenders”) and
“Additional Lenders” (the “Additional Lenders”, and
together with the Continuing Lenders, (each a “Lender” and,
collectively, the “Lenders”), and JPMORGAN CHASE BANK, N.A., as
Administrative Agent (the “Administrative Agent”) amends and restates
in full the Credit Agreement dated as of August 6, 2004, as amended on April
18, 2005, among the Parent Borrower, certain affiliates of the Parent Borrower,
each lender party from time to time party thereto (“Original
Lenders”) and JPMorgan Chase Bank, N.A., as administrative agent (as
amended, restated supplemented or otherwise modified from time to time, the
“Existing Credit Agreement”). Unless otherwise defined herein, all
capitalized terms used herein and defined in Section 10 are used herein as so
defined.
WITNESSETH:
WHEREAS,
each of the lenders to the Existing Credit Agreement that is not a Continuing
Lender (collectively, the “Retiring Lenders”) will cease being a
“Lender” under the Existing Credit Agreement, and each of the
Additional Lenders will become a “Lender” under the Amended and
Restated Credit Agreement, in each case as of the effectiveness of this
Agreement; and
WHEREAS,
the Continuing Lenders and the Additional Lenders are willing, subject to the
terms and conditions of this Amendment Agreement, to amend the Existing Credit
Agreement as provided herein.
NOW,
THEREFORE, in consideration of the mutual agreements contained in this
Agreement and other good and valuable consideration, the sufficiency and
receipt of which are hereby acknowledged, the parties hereto hereby agree as
follows:
SECTION
1. Amount
and Terms of Credit.
1.01 Revolving
Loans. (a) Subject
to and upon the terms and conditions set forth herein (including, on and after
the initial Additional Tranche 1 Commitment Date, Section 1.15), each Tranche 1
Lender severally agrees, at any time and from time to time after the Effective
Date and prior to the Commitment Expiration Date, to make a loan or loans
(each, a “Tranche 1 Revolving Loan” and, collectively, the
“Tranche 1 Revolving Loans”) to one or more of the Borrowers (on a
several basis), which Tranche 1 Revolving Loans (i) shall be denominated in
Dollars, (ii) shall, at the option of the respective Borrower, be incurred and
maintained as and/or converted into Base Rate Loans or Eurodollar Loans,
provided that,
except as otherwise specifically provided in Section 1.10(b), all Tranche 1
Revolving Loans comprising the same Borrowing shall at all times be of the same
Type, (iii) may be repaid and reborrowed at any time in accordance with the
provisions hereof, (iv) shall not exceed for any Tranche 1 Lender at any
time
outstanding that aggregate principal amount which, when added to such Tranche 1
Lender’s Tranche 1 Percentage of the aggregate amount of all Tranche 1
Letter of Credit Outstandings (if any) (exclusive of Tranche 1 Unpaid Drawings
which are repaid with the proceeds of, and simultaneously with the incurrence
of, the respective incurrence of Tranche 1 Revolving Loans) at such time,
equals the Tranche 1 Commitment of such Tranche 1 Lender at such time, (v)
shall not exceed for any Borrower at any time outstanding that aggregate amount
which, when added to all Tranche 1 Letter of Credit Outstandings (if any)
(exclusive of Tranche 1 Unpaid Drawings which are repaid with the proceeds of,
and simultaneously with the incurrence of, Tranche 1 Revolving Loans)
attributable to such Borrower at such time, equals such Borrower’s
Borrowing Base at such time, and (vi) shall not exceed at any time outstanding
that aggregate principal amount which, when added to all Tranche 1 Letter of
Credit Outstandings at such time, equals the Total Tranche 1 Commitment at such
time.
(b) Subject
to and upon the terms and conditions set forth herein, each Tranche 2 Lender
severally agrees, at any time and from time to time after the Effective Date
and prior to the Commitment Expiration Date, to make a loan or loans (each, a
“Tranche 2 Revolving Loan” and, collectively, the “Tranche 2
Revolving Loans”) to one or more of the Borrowers (on a several basis),
which Tranche 2 Revolving Loans (i) shall be denominated in Dollars, (ii)
shall, at the option of the respective Borrower, be incurred and maintained as
and/or converted into Base Rate Loans or Eurodollar Loans, provided that,
except as otherwise specifically provided in Section 1.10(b), all Tranche 2
Revolving Loans comprising the same Borrowing shall at all times be of the same
Type, (iii) may be repaid and reborrowed at any time in accordance with the
provisions hereof, (iv) shall not exceed for any Tranche 2 Lender at any time
outstanding that aggregate principal amount which, when added to such Tranche 2
Lender’s Tranche 2 Percentage of the aggregate amount of all Tranche 2
Letter of Credit Outstandings (if any) (exclusive of Tranche 2 Unpaid Drawings
which are repaid with the proceeds of, and simultaneously with the incurrence
of, the respective incurrence of Tranche 2 Revolving Loans) at such time,
equals the Tranche 2 Commitment of such Tranche 2 Lender at such time and (v)
shall not exceed at any time outstanding that aggregate principal amount which,
when added to all Tranche 2 Letter of Credit Outstandings at such time, equals
the Total Tranche 2 Commitment as such time.
1.02 Minimum
Amount of Each Borrowing; Maximum Number of Borrowings. The
aggregate principal amount of each Borrowing hereunder shall not be less than
$5,000,000. More than one Borrowing may be incurred on any day; provided that at
no time shall there be outstanding more than ten Borrowings of Eurodollar Loans
in the aggregate for all Tranches.
1.03 Notice
of Borrowing. (a)
Whenever a Borrower desires to incur Revolving Loans, it shall give the
Administrative Agent at its Notice Office, (x) prior to 11:00 A.M. (New York
time), at least three Business Days’ prior written notice (or telephonic
notice promptly confirmed in writing) of each Borrowing of Eurodollar Loans or
(y) prior to 10:00 A.M. (New York time) on the day of each Borrowing of Base
Rate Loans, prior written notice (or telephonic notice promptly confirmed in
writing). Each such notice (a “Notice of Borrowing”), except as
otherwise expressly provided in Section 1.10, shall be irrevocable, and, in the
case of a written notice and a confirmation of telephonic notice, shall be in
the form of Exhibit A hereto, appropriately completed to specify (i) the
aggregate principal amount of the Revolving Loans to be made pursuant to such
Borrowing, (ii) the date of such Borrowing (which
shall be
a Business Day), (iii) whether the respective Borrowing shall consist of
Tranche 1 Revolving Loans or Tranche 2 Revolving Loans, and (iv) whether the
respective Borrowings shall consist of Base Rate Loans or Eurodollar Loans and,
if Eurodollar Loans, the Interest Period to be initially applicable thereto.
The Administrative Agent shall promptly give each Lender written notice (or
telephonic notice promptly confirmed in writing) of each proposed Borrowing, of
such Lender’s proportionate share thereof and of the other matters covered
by the Notice of Borrowing.
(b) Without
in any way limiting the obligation of each Borrower to confirm in writing any
notice it may give hereunder by telephone, the Administrative Agent may act
prior to receipt of written confirmation without liability upon the basis of
such telephonic notice, believed by the Administrative Agent in good faith to
be from an Authorized Officer of such Borrower. In each such case, the
Administrative Agent’s record of the terms of any such telephonic notice
shall be conclusive absent manifest error.
1.04 Disbursement
of Funds. (a)
Subject to the terms and conditions herein set forth, no later than 11:00 A.M.
(New York time) on the date of each incurrence of Revolving Loans, each Lender
with a Commitment of the respective Tranche will make available to the
Administrative Agent its pro rata share
of each Borrowing requested to be made on such date in the manner provided
below.
(b) Each
Lender with a Commitment of the respective Tranche shall make available all
amounts it is to fund under any Borrowing in Dollars and immediately available
funds to the Administrative Agent at the Payment Office and the Administrative
Agent will make available to the respective Borrower as promptly as practicable
by depositing to its account at the Payment Office the aggregate of the amounts
so made available in the type of funds received. Unless the Administrative
Agent shall have been notified by any Lender prior to the date of any such
Borrowing that such Lender does not intend to make available to the
Administrative Agent its portion of the Borrowing or Borrowings to be made on
such date, the Administrative Agent may assume that such Lender has made such
amount available to the Administrative Agent on the date of such Borrowing, and
the Administrative Agent, in reliance upon such assumption, may (in its sole
discretion and without any obligation to do so) make available to the
respective Borrower a corresponding amount. If such corresponding amount is not
in fact made available to the Administrative Agent by such Lender and the
Administrative Agent has made available same to the respective Borrower, the
Administrative Agent shall be entitled to recover such corresponding amount
from such Lender. If such Lender does not pay such corresponding amount
forthwith upon the Administrative Agent’s demand therefor, the
Administrative Agent shall promptly notify the respective Borrower, and such
Borrower shall pay such corresponding amount to the Administrative Agent within
two Business Days. The Administrative Agent shall also be entitled to recover
from the Lender or the applicable Borrower, as the case may be, interest on
such corresponding amount in respect of each day from the date such
corresponding amount was made available by the Administrative Agent to such
Borrower to the date such corresponding amount is recovered by the
Administrative Agent, at a rate per annum equal to (x) if paid by such Lender,
the overnight Federal Funds Effective Rate or (y) if paid by such Borrower, the
then applicable rate of interest, calculated in accordance with Section 1.08(a)
or (b), as the case may be, for the respective Revolving Loans.
(c) Nothing
in this Section 1.04 shall be deemed to relieve any Lender from its obligation
to fulfill its commitments hereunder or to prejudice any rights which any
Borrower may have against any Lender as a result of any default by such Lender
hereunder.
1.05 Notes. (a)
Each Borrower’s obligation to pay the principal of, and interest on, all
of the Revolving Loans made to it by each Lender shall be evidenced in the
Register maintained by the Administrative Agent pursuant to Section 12.16 and
shall, if requested by such Lender, also be evidenced by (i) in the case of
Tranche 1 Revolving Loans, a promissory note substantially in the form of
Exhibit B-1 with blanks appropriately completed in conformity herewith (each, a
“Tranche 1 Note” and collectively, the “Tranche 1 Notes”)
and (ii) in the case of Tranche 2 Revolving Loans, a promissory note
substantially in the form of Exhibit B-2 with blanks appropriately completed in
conformity herewith (each, a “Tranche 2 Note” and collectively, the
“Tranche 2 Notes”).
(b) The
Tranche 1 Note issued to each Tranche 1 Lender that has requested same shall
(i) be executed by the respective Borrower, (ii) be payable to the order
of such Tranche 1 Lender and be dated the Effective Date (or if issued after
the Effective Date, be dated the date of the issuance thereof), (iii) be in a
stated principal amount equal to the Tranche 1 Commitment of such Tranche 1
Lender and be payable in a principal amount equal to the amount of the Tranche
1 Revolving Loans made by such Tranche 1 Lender and which are outstanding from
time to time, (iv) mature on the Commitment Expiration Date, (v) bear
interest as provided in the appropriate clause of Section 1.08 in respect of
the Base Rate Loans and Eurodollar Loans, as the case may be, evidenced
thereby, (vi) be subject to voluntary prepayment as provided in Section 4.01
and mandatory repayment as provided in Section 4.02 and (vii) be entitled to
the benefits of this Agreement and the other Credit Documents. Upon receipt of
an affidavit of an officer of a Tranche 1 Lender (together with a customary
indemnity from such Tranche 1 Lender in form and substance satisfactory to the
respective Borrower) that a Tranche 1 Note has been lost, stolen, destroyed or
mutilated, such Borrower will issue a replacement Tranche 1 Note in the same
principal amount thereof and otherwise of like tender.
(c) The
Tranche 2 Note issued to each Tranche 2 Lender that has requested same shall
(i) be executed by the respective Borrower, (ii) be payable to the order
of such Tranche 2 Lender and be dated the Effective Date (or if issued after
the Effective Date, be dated the date of the issuance thereof), (iii) be in a
stated principal amount equal to the Tranche 2 Commitment of such Tranche 2
Lender and be payable in a principal amount equal to the amount of the Tranche
2 Revolving Loans made by such Tranche 2 Lender and which are outstanding from
time to time, (iv) mature on the Commitment Expiration Date, (v) bear
interest as provided in the appropriate clause of Section 1.08 in respect of
the Base Rate Loans and Eurodollar Loans, as the case may be, evidenced
thereby, (vi) be subject to voluntary prepayment as provided in Section 4.01
and mandatory repayment as provided in Section 4.02 and (vii) be entitled to
the benefits of this Agreement and the other Credit Documents (other than the
Security Documents). Upon receipt of an affidavit of an officer of a Tranche 2
Lender (together with a customary indemnity from such Tranche 2 Lender in form
and substance satisfactory to the respective Borrower) that a Tranche 2 Note
has been lost, stolen, destroyed or mutilated, such Borrower will issue a
replacement Tranche 2 Note in the same principal amount thereof and otherwise
of like tender.
(d) Each
Lender will record on its internal records the amount of each Revolving Loan
made by it and each payment in respect thereof and will prior to any transfer
of its Note endorse on the reverse side thereof the outstanding principal
amount of Revolving Loans evidenced thereby. Failure to make any such notation
or any error in any such notation shall not affect the respective
Borrower’s obligations in respect of such Revolving Loans.
(e) Notwithstanding
anything to the contrary contained above in this Section 1.05 or elsewhere in
this Agreement, Notes shall only be delivered to Lenders which at any time
specifically request the delivery of such Notes. No failure of any Lender to
request or obtain a Note evidencing its Revolving Loans to the respective
Borrower shall affect or in any manner impair the obligations of such Borrower
to pay the Revolving Loans (and all related Obligations) incurred by such
Borrower which would otherwise be evidenced thereby in accordance with the
requirements of this Agreement. Any Lender which does not have a Note
evidencing its outstanding Revolving Loans shall in no event be required to
make the notations otherwise described in preceding clause (e). At any time
when any Lender requests the delivery of a Note to evidence any of its
Revolving Loans, each Borrower shall promptly execute and deliver to the
respective Lender the requested Note in the appropriate amount or amounts to
evidence such Revolving Loans.
1.06 Conversions. Each
Borrower shall have the option to convert on any Business Day all or a portion
at least equal to $1,000,000 of the outstanding principal amount of its
Revolving Loans of one Type and Tranche into a Borrowing or Borrowings of the
same Tranche but other Type of Revolving Loans; provided that
(i) no partial conversion of a Borrowing of Eurodollar Loans shall reduce the
outstanding principal amount of the Eurodollar Loans pursuant to such Borrowing
to less than $1,000,000, (ii) Base Rate Loans may not be converted into
Eurodollar Loans if any Default or Event of Default is in existence on the date
of the conversion if the Administrative Agent or the Required Lenders have
previously advised the Borrowers that conversions will not be permitted while
such Default or Event of Default, as the case may be, remains in existence,
(iii) Borrowings of Eurodollar Loans resulting from this Section 1.06
shall be limited in number as provided in Section 1.02, (iv) Eurodollar Loans
may only be converted into Base Rate Loans on the last day of the Interest
Period applicable thereto, and (v) each such conversion shall be made
pro rata among
the Revolving Loans of each Lender of the Type and Tranche being converted.
Each such conversion shall be effected by the respective Borrower by giving the
Administrative Agent at its Notice Office, prior to 11:00 A.M. (New York
time), at least three Business Days’ (or one Business Day’s in the
case of a conversion into Base Rate Loans) prior written notice (or telephonic
notice promptly confirmed in writing) (each a “Notice of Conversion”)
specifying the Revolving Loans to be so converted, the Type and Tranche of
Revolving Loans to be converted into and, if to be converted into a Borrowing
of Eurodollar Loans, the Interest Period to be initially applicable thereto.
The Administrative Agent shall give each Lender prompt notice of any such
proposed conversion affecting any of its Revolving Loans.
1.07 Pro
Rata Borrowings. All
Borrowings of Revolving Loans under this Agreement shall be incurred by the
respective Borrower from the Lenders pro rata on the
basis of their Tranche 1 Commitments or Tranche 2 Commitments, as the case may
be. It is understood that no Lender shall be responsible for any default by any
other Lender in its obligation to make Revolving Loans hereunder and that each
Lender shall be obligated to make the Revolving
Loans
provided to be made by it hereunder, regardless of the failure of any other
Lender to fulfill its commitments hereunder.
1.08 Interest. (a)
The unpaid principal amount of each Base Rate Loan shall bear interest from the
date of the Borrowing thereof until the earlier of (i) the maturity (whether by
acceleration or otherwise) of such Base Rate Loan and (ii) the conversion of
such Base Rate Loan to a Eurodollar Loan pursuant to Section 1.06, at a rate
per
annum which
shall at all times be the Applicable Margin then in effect for Base Rate Loans
plus the Base Rate in effect from time to time.
(b) The
unpaid principal amount of each Eurodollar Loan shall bear interest from the
date of the Borrowing thereof until the earlier of (i) the maturity (whether by
acceleration or otherwise) of such Eurodollar Loan or (ii) the conversion of
such Eurodollar Loan to a Base Rate Loan pursuant to Sections 1.06, 1.09 or
1.10(b), as applicable, at a rate per
annum which
shall at all times be the Applicable Margin then in effect for Eurodollar Loans
plus the relevant Eurodollar Rate for the Interest Period applicable to such
Eurodollar Loan.
(c) Overdue
principal and, to the extent permitted by law, overdue interest in respect of
each Revolving Loan and any other overdue amount payable hereunder shall be
payable on demand and shall bear interest at a rate per annum equal
to the Applicable Margin then in effect for Base Rate Loans of the respective
Tranche plus the Base Rate in effect from time to time plus 2%, provided that
overdue principal in respect of Eurodollar Loans shall bear interest until the
end of the Interest Period applicable to such Eurodollar Loans at a rate
per
annum equal
to 2% in excess of the rate otherwise applicable to such Eurodollar
Loans.
(d) Interest
shall accrue from and including the date of any Borrowing to but excluding the
date of any repayment thereof and shall be payable (i) in respect of each Base
Rate Loan, quarterly in arrears on the last Business Day of each calendar
quarter, (ii) in respect of each Eurodollar Loan, on the last day of each
Interest Period applicable thereto and, in the case of an Interest Period of
six months, on the date occurring three months after the first day of such
Interest Period and (iii) in respect of each Revolving Loan, on any conversion
or prepayment (on the amount so converted or prepaid), at maturity (whether by
acceleration or otherwise) and, after such maturity, on demand.
(e) All
computations of interest on Revolving Loans hereunder shall be made in
accordance with Section 12.07(b).
(f) The
Administrative Agent, upon determining the interest rate for any Borrowing of
Eurodollar Loans for any Interest Period, shall promptly notify the respective
Borrower and the Lenders thereof.
1.09 Interest
Periods. At the
time a Borrower gives a Notice of Borrowing or Notice of Conversion in respect
of the making of, or conversion into, a Borrowing of Eurodollar Loans (in the
case of the initial Interest Period applicable thereto) or prior to 11:00 A.M.
(New York time) on the third Business Day prior to the expiration of an
Interest Period applicable to a Borrowing of Eurodollar Loans, it shall have
the right to elect by giving the Administrative Agent written notice (or
telephonic notice promptly confirmed in writing) of the
6
Interest
Period to be applicable to such Borrowing, which Interest Period shall, at the
option of the respective Borrower, be a one, two, three or six month period.
Notwithstanding anything to the contrary contained above:
(i) the
initial Interest Period for any Borrowing of Eurodollar Loans shall commence on
the date of such Borrowing (including the date of any conversion from a
Borrowing of Base Rate Loans) and each Interest Period occurring thereafter in
respect of such Borrowing shall commence on the day on which the next preceding
Interest Period expires;
(ii) if any
Interest Period begins on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period, such Interest
Period shall end on the last Business Day of such calendar month;
(iii) if any
Interest Period would otherwise expire on a day which is not a Business Day,
such Interest Period shall expire on the next succeeding Business Day,
provided that if
any Interest Period would otherwise expire on a day which is not a Business Day
but is a day of the month after which no further Business Day occurs in such
month, such Interest Period shall expire on the next preceding Business
Day;
(iv) no
Interest Period may be elected if it would extend beyond the Commitment
Expiration Date; and
(v) no
Interest Period may be selected at any time when a Default or Event of Default
is then in existence if the Administrative Agent or the Required Lenders have
previously advised the Borrowers that the selection of Interest Periods will
not be permitted while such Default or Event of Default, as the case may be,
remains in existence.
If upon
the expiration of any Interest Period, the respective Borrower has failed, or
is not permitted, to elect a new Interest Period to be applicable to the
respective Borrowing of Eurodollar Loans as provided above, such Borrower shall
be deemed to have elected to convert such Borrowing into a Borrowing of Base
Rate Loans effective as of the expiration date of such current Interest
Period.
1.10 Increased
Costs, Illegality, etc. (a) In
the event that (x) in the case of clause (i) below, the Administrative Agent,
or (y) in the case of clauses (ii) and (iii) below, any Lender, shall have
determined in good faith (which determination shall, absent manifest error, be
final and conclusive and binding upon all parties hereto):
(i) on any
date for determining the Eurodollar Rate for any Interest Period, that, by
reason of any changes arising after the Effective Date affecting the interbank
Eurodollar market, adequate and fair means do not exist for ascertaining the
applicable interest rate on the basis provided for in the definition of
Eurodollar Rate; or
(ii) at any
time, that such Lender shall incur increased costs or reductions in the amounts
received or receivable hereunder with respect to any Eurodollar Loans (other
than any increased cost or reduction in the amount received or receivable
resulting from a
change
in the rate of taxes or similar charges) because of (x) any change since the
Effective Date in any applicable law, governmental rule, regulation, guideline,
order or request (whether or not having the force of law), or in the
interpretation or administration thereof and including the introduction of any
new law or governmental rule, regulation, guideline, order or request (such as,
for example, but not limited to, (A) a change in the basis of taxation of
payment to any Lender of the principal of, or interest on, the Revolving Loans
or any other amounts payable hereunder (except for changes in the rate of tax
on, or determined by reference to, the net income or net profits of such Lender
pursuant to the laws of the jurisdiction in which it is organized or in which
its principal office or applicable lending office is located or any subdivision
thereof or therein), but without duplication of any amounts owed to such Lender
under Section 4.04(a), or (B) a change in official reserve requirements, but,
in all events, excluding reserves required under Regulation D to the extent
included in the computation of the Eurodollar Rate) and/or (y) other
circumstances affecting the interbank Eurodollar market or the position of such
Lender in such market; or
(iii) at any
time, that the making or continuance of any Eurodollar Loan has become unlawful
by compliance by such Lender in good faith with any change since the Effective
Date in any law, governmental rule, regulation, guideline or order, or the
interpretation or application thereof, or would conflict with any thereof not
having the force of law but with which such Lender customarily complies, or has
become impracticable as a result of a contingency occurring after the Effective
Date which materially adversely affects the interbank Eurodollar
market;
then,
and in any such event, such Lender (or the Administrative Agent in the case of
clause (i) above) shall (x) on such date and (y) within 10 Business Days of the
date on which such event no longer exists give notice (by telephone confirmed
in writing) to the Parent Borrower and to the Administrative Agent of such
determination and the reason therefor (which notice the Administrative Agent
shall promptly transmit to each of the other Lenders). Thereafter (x) in the
case of clause (i) above, Eurodollar Loans shall no longer be available until
such time as the Administrative Agent notifies the Parent Borrower and the
Lenders that the circumstances giving rise to such notice by the Administrative
Agent no longer exist, and any Notice of Borrowing or Notice of Conversion
given by a Borrower with respect to Eurodollar Loans which have not yet been
incurred shall be deemed rescinded by such Borrower or, in the case of a Notice
of Borrowing, shall, at the option of such Borrower, be deemed converted into a
Notice of Borrowing for Base Rate Loans to be made on the date of Borrowing
contained in such Notice of Borrowing, (y) in the case of clause (ii) above,
the Parent Borrower agrees to pay to such Lender, within 10 Business Days
following receipt of written demand therefor, such additional amounts (in the
form of an increased rate of, or a different method of calculating, interest or
otherwise as such Lender shall determine in good faith) as shall be required to
compensate such Lender for such increased costs or reductions in amounts
receivable hereunder (a written notice as to the additional amounts owed to
such Lender, showing the basis for the calculation thereof, which basis shall
be reasonable and consistently applied, submitted to the Parent Borrower by
such Lender shall, absent manifest error, be final and conclusive and binding
upon all parties hereto) and (z) in the case of clause (iii) above, the
respective Borrower or Borrowers shall take one of the actions specified in
Section 1.10(b) as promptly as possible and, in any event, within the time
period required by law.
(b) At any
time that any Eurodollar Loan is affected by the circumstances described in
Section 1.10(a)(ii) or (iii), the respective Borrower may (and, in the case of
a Eurodollar Loan affected pursuant to Section 1.10(a)(iii), the respective
Borrower shall) either (i) if the affected Eurodollar Loan is then being made
pursuant to a Borrowing, by giving the Administrative Agent telephonic notice
(confirmed promptly in writing) thereof on the same date that the applicable
Borrower was notified by a Lender (or on the next Business Day if the
applicable Borrower received such notice after 3:00 p.m. (New York time))
pursuant to Section 1.10(a)(ii) or (iii), cancel said Borrowing, convert the
related Notice of Borrowing into one requesting a Borrowing of Base Rate Loans
or require the affected Lender to make its requested Revolving Loan as a Base
Rate Loan, or (ii) if the affected Eurodollar Loan is then outstanding, upon at
least one Business Day’s notice to the Administrative Agent, require the
affected Lender to convert each such affected Eurodollar Loan into a Base Rate
Loan, provided that if
more than one Lender is affected at any time, then all affected Lenders must be
treated the same pursuant to this Section 1.10(b).
(c) If any
Lender shall have determined in good faith that after the Effective Date the
adoption or effectiveness of any applicable law, rule or regulation regarding
capital adequacy, or any change therein, or any change in the interpretation or
administration thereof by any Governmental Authority, central bank or
comparable agency charged by law with the interpretation or administration
thereof, or compliance by such Lender or its parent corporation 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, in each
case made subsequent to the Effective Date, has or would have the effect of
reducing the rate of return on such Lender’s or its parent
corporation’s capital or assets as a consequence of such Lender’s
commitments or obligations hereunder to a level below that which such Lender or
its parent corporation could have achieved but for such adoption,
effectiveness, change or compliance (taking into consideration such
Lender’s or its parent corporation’s policies with respect to capital
adequacy), then from time to time, upon demand by such Lender (with a copy to
the Administrative Agent), the Parent Borrower agrees to pay such Lender such
additional amount or amounts as will compensate such Lender or its parent
corporation for such reduction. Each Lender, upon determining in good faith
that any additional amounts will be payable pursuant to this Section 1.10(c),
will give prompt written notice thereof to the Parent Borrower, which notice
shall set forth the basis of the calculation of such additional amounts, which
basis must be reasonable and consistently applied, although the failure to give
any such notice shall not release or diminish the Parent Borrower’s
obligations to pay additional amounts pursuant to this Section 1.10(c) upon the
subsequent receipt of such notice.
1.11 Compensation. The
Parent Borrower agrees to compensate each Lender, upon its written request
(which request shall set forth the basis for requesting such compensation), for
all reasonable losses, expenses and liabilities (including, without limitation,
any loss, expense or liability incurred by reason of the liquidation or
reemployment of deposits or other funds required by such Lender to fund its
Eurodollar Loans but excluding any loss of anticipated profit with respect to
such Revolving Loans) which such Lender may sustain: (i) if for any reason
(other than a default by such Lender or the Administrative Agent) a Borrowing
of Eurodollar Loans does not occur on a date specified therefor in a Notice of
Borrowing or Notice of Conversion (whether or not withdrawn by the respective
Borrower or deemed withdrawn pursuant to Section 1.10(a)); (ii) if any
repayment, prepayment, assignment or conversion of any
of its
Eurodollar Loans occurs on a date which is not the last day of an Interest
Period applicable thereto; (iii) if any prepayment of any of its Eurodollar
Loans is not made on any date specified in a notice of prepayment given by the
respective Borrower; or (iv) as a consequence of (x) any other failure by
the respective Borrower to repay its Revolving Loans when required by the terms
of this Agreement or (y) an election made pursuant to Section
1.10(b).
1.12 Change
of Lending Office. Each
Lender agrees that, upon the occurrence of any event giving rise to the
operation of Section 1.10(a)(ii) or (iii) or Section 4.04 with respect to such
Lender, or if any Lender that is currently an NAIC approved lender ceases to be
an NAIC approved lender, it will, if requested by the respective Borrower, use
reasonable efforts (subject to overall policy considerations of such Lender) to
designate another lending office for any Revolving Loans or Letters of Credit
affected by such event; provided that
such designation is made on such terms that, in the opinion of such Lender,
such Lender and its lending office suffer no economic, legal or regulatory
disadvantage, with the object of avoiding the consequence of the event giving
rise to the operation of any such Section. Nothing in this Section 1.12 shall
affect or postpone any of the obligations of the Borrowers or the right of any
Lender provided in Section 1.10 or Section 4.04.
1.13 Replacement
of Lenders. (a)
Upon the occurrence of any event giving rise to the operation of
Section 1.10(a)(ii) or (iii) or Section 4.04 with respect to any Lender
which results in such Lender charging to one or more Borrowers increased costs
in excess of those being generally charged by the other Lenders, (b) if a
Lender becomes a Defaulting Lender, (c) in the case of a refusal by a Lender to
consent to a proposed change, waiver, discharge or termination with respect to
this Agreement which has been approved by the Required Lenders and/or
(d) if any Lender that is currently an NAIC approved lender ceases to be
an NAIC approved lender, the Parent Borrower shall have the right, if no
Default or Event of Default then exists and in accordance with the requirements
of Section 12.04(b), to replace such Lender (the “Replaced Lender”),
upon prior written notice to the Administrative Agent and such Replaced Lender,
with one or more NAIC approved banks or other financial institutions (unless
otherwise agreed by the Parent Borrower and the Administrative Agent) (none of
whom shall constitute a Defaulting Lender at the time of such replacement)
reasonably acceptable to the Administrative Agent (collectively, the
“Replacement Lender”) or, in the case of a replacement as provided in
the immediately preceding clause (c) of this Section 1.13 where the consent of
the respective Lender is required with respect to less than all Tranches of its
Revolving Loans, Letters of Credit or Commitments, at the option of the Parent
Borrower, to replace only the Commitments, outstanding Letters of Credit and/or
outstanding Revolving Loans of such Lender in respect of each Tranche where the
consent of such Lender would otherwise be individually required, with identical
Commitments, Letters of Credit and/or Revolving Loans of the respective Tranche
provided by the Replacement Lender, provided that
(i) at the time of any replacement pursuant to this Section 1.13, the
Replacement Lender and the Replaced Lender shall enter into one or more
Assignment Agreements pursuant to Section 12.04(b) (and with all fees payable
pursuant to said Section 12.04(b) to be paid by the Replacement Lender)
pursuant to which the Replacement Lender shall acquire all of the Commitments
and outstanding Revolving Loans (or, in the case of the replacement of less
than all the Tranches of Commitments, outstanding Letters of Credit and
outstanding Revolving Loans of the respective Replaced Lender, all of the
Commitments and all then outstanding Letters of Credit and Revolving Loans
relating to the Tranche or Tranches with respect to which such Lender is being
replaced) of the
Replaced
Lender and, in connection therewith, shall pay to the Replaced Lender in
respect thereof an amount equal to the sum of (A) an amount equal to the
principal amount of, and all accrued but unpaid interest on, all outstanding
Revolving Loans of the Replaced Lender under each Tranche with respect to which
such Replaced Lender is being replaced, (B) an amount equal to all Unpaid
Drawings that have been funded by (and not reimbursed to) such Replaced Lender,
together with all then unpaid interest with respect thereto at such time and
(C) an amount equal to all accrued, but theretofore unpaid, Fees owing to the
Replaced Lender (but only with respect to the relevant Tranche or Tranches, in
the case of the replacement of less than all Tranches of Revolving Loans,
Letters of Credit and/or Commitments then held by the respective Replaced
Lender pursuant to Section 3.01; (ii) all obligations of the Borrowers under
the Credit Documents owing to the Replaced Lender (other than those
specifically described in clause (i) above in respect of which the assignment
purchase price has been, or is concurrently being, paid), including, without
limitation, all amounts owing to the Replaced Lender under Section 1.11 as a
result of the assignment of its Revolving Loans under clause (i) above, shall
be paid in full to such Replaced Lender concurrently with such replacement; and
(iii) no assignment pursuant to this Section 1.13 shall be effective until all
of the then outstanding Letters of Credit are returned by each respective
beneficiary to the Issuing Agent and either cancelled and/or exchanged for new
or amended Letters of Credit which give effect to such assignment (it being
understood that to the extent the respective beneficiaries do not consent to
such assignment, such assignment cannot occur). Upon the execution of the
respective Assignment Agreements, the payment of amounts referred to in clauses
(i) and (ii) above and the return and cancellation and/or exchange of each then
outstanding Letter of Credit as provided above, if so requested by the
Replacement Lender, delivery to the Replacement Lender of the appropriate Note
or Notes executed by each Borrower, the Replacement Lender shall become a
Lender hereunder and the Replaced Lender shall cease to constitute a Lender
hereunder, except with respect to indemnification provisions applicable to the
Replaced Lender under this Agreement, which shall survive as to such Replaced
Lender.
1.14 Designated
Subsidiary Borrowers. The
Parent Borrower may from time to time after the Effective Date designate one or
more Persons as an additional Designated Subsidiary Borrower, subject to the
following terms and conditions:
(a) each
such Person shall be a Wholly-Owned Subsidiary of the Parent
Borrower;
(b) each
such Person shall be a Material Subsidiary;
(c) on or
prior to the date of designation, each such Person shall enter into an
appropriately completed DSB Assumption Agreement;
(d) on or
prior to the date of designation, the Administrative Agent shall have received
from such Person a certificate, signed by an Authorized Officer of such Person
in the form of Exhibit F with appropriate insertions or deletions, together
with (x) copies of its certificate of incorporation, by-laws or other
equivalent organizational documents and (y) resolutions relating to the Credit
Documents which shall be satisfactory to the Administrative Agent;
(e) on or
prior to the date of designation, the Administrative Agent shall have received
an opinion, addressed to the Administrative Agent and each of the Lenders and
dated the date of designation, from counsel to such Person, which opinion shall
be in form and substance reasonably satisfactory to the Administrative Agent;
and
(f) on or
prior to the date of designation, the Administrative Agent shall have received
such other documentation and/or certificates (including, without limitation,
certificates of existence and/or good standing certificates in the case of
additional Designated Subsidiary Borrowers organized under the laws of the
United States or any State thereof, or any other jurisdiction where the concept
of “good standing” is applicable) as the Administrative Agent may
reasonably request.
1.15 Additional
Tranche 1 Commitments. (a)
The Parent Borrower shall have the right at any time and from time to time
after the Effective Date and prior to the Commitment Expiration Date to request
(so long as no Default or Event of Default is then in existence or would result
therefrom) on one or more occasions that one or more Tranche 1 Lenders (and/or
one or more other Persons which will become Tranche 1 Lenders as provided
pursuant to clause (vi) below) provide Additional Tranche 1 Commitments (and,
in connection therewith, to increase the Aggregate Multicurrency Letter of
Credit Limit and the Fronted Letter of Credit Limit by, in each case, a ratable
amount with respect thereto) and, subject to the applicable terms and
conditions contained in this Agreement and the relevant Additional Tranche 1
Commitment Agreement, make Tranche 1 Revolving Loans and issue Tranche 1
Letters of Credit; it being understood and agreed, however, that (i) no Tranche
1 Lender shall be obligated to provide an Additional Tranche 1 Commitment as a
result of any request by the Parent Borrower, (ii) until such time, if any, as
(x) such Tranche 1 Lender has agreed in its sole discretion to provide an
Additional Tranche 1 Commitment and executed and delivered to the
Administrative Agent an Additional Tranche 1 Commitment Agreement in respect
thereof as provided in Section 1.15(b) and (y) such other conditions set forth
in Section 1.15(b) shall have been satisfied, such Tranche 1 Lender shall not
be obligated to fund any Tranche 1 Revolving Loans, or issue any Tranche 1
Letters of Credit, in excess of the amounts provided for in Section 1.01(a) or
2A.01, as the case may be, before giving effect to such Additional Tranche 1
Commitments provided pursuant to this Section 1.15, (iii) any Tranche 1 Lender
(and/or one or more other Persons which will become Tranche 1 Lenders as
provided pursuant to clause (vi) below) may so provide an Additional Tranche 1
Commitment without the consent of any other Tranche 1 Lender (it being
understood and agreed that the consent of the Administrative Agent and the
Issuing Agent (such consent, in either case, not to be unreasonably withheld or
delayed) shall be required if any such Additional Tranche 1 Commitments are to
be provided by a Person which is not already a Tranche 1 Lender or if any such
Additional Tranche 1 Commitments increase the Fronted Letter of Credit Limit),
(iv) (x) each provision of Additional Tranche 1 Commitments on a given date
pursuant to this Section 1.15 shall be in a minimum aggregate amount (for all
Tranche 1 Lenders (including, in the circumstances contemplated by clause (vi)
below, banks or other financial institutions who will become Tranche 1
Lenders)) of at least $1,000,000 and (y) the aggregate amount of Additional
Tranche 1 Commitments provided pursuant to this Section 1.15 shall not exceed
$500,000,000, less any Additional Tranche 2 Commitments, (v) the up-front fees
payable to any Person providing an Additional Tranche 1 Commitment in
accordance with this Section 1.15 shall be as set forth in the relevant
Additional Tranche 1 Commitment Agreement, (vi) if, on or after the tenth
Business Day following the request by the Parent Borrower of the then
existing
Tranche 1 Lenders (other than Defaulting Lenders) to provide Additional Tranche
1 Commitments pursuant to this Section 1.15 on the terms to be applicable
thereto, the Parent Borrower has not received Additional Tranche 1 Commitments
in an aggregate amount equal to that amount of the Additional Tranche 1
Commitments which the Parent Borrower desires to obtain pursuant to such
request (as set forth in the notice provided by the Parent Borrower to the
Administrative Agent as provided above), then the Parent Borrower may request
Additional Tranche 1 Commitments from other Lenders and/or other NAIC approved
banks or financial institutions (unless otherwise agreed by the Parent Borrower
and the Administrative Agent) in aggregate amount equal to such deficiency on
terms which are no more favorable to such other bank or financial institution
in any respect than the terms offered to the existing Tranche 1 Lenders, and
(vii) all actions taken by the Parent Borrower pursuant to this Section 1.15
shall be done in coordination with the Administrative Agent.
(b) At the
time of any provision of Additional Tranche 1 Commitments pursuant to this
Section 1.15, (i) the Parent Borrower, each Designated Subsidiary Borrower, the
Administrative Agent and each such Tranche 1 Lender or other bank or financial
institution which agrees to provide an Additional Tranche 1 Commitment (each,
an “Additional Tranche 1 Lender”) shall execute and deliver to the
Administrative Agent an Additional Tranche 1 Commitment Agreement substantially
in the form of Exhibit J-1, subject to such modifications in form and substance
reasonably satisfactory to the Administrative Agent as may be necessary or
appropriate (with the effectiveness of such Additional Tranche 1 Lender’s
Additional Tranche 1 Commitment to occur upon delivery of such Additional
Tranche 1 Commitment Agreement to the Administrative Agent, the payment of any
fees required in connection therewith and the satisfaction of the other
conditions in this Section 1.15 to the reasonable satisfaction of the
Administrative Agent), (ii) the Parent Borrower shall, in coordination with the
Administrative Agent, repay all outstanding Tranche 1 Revolving Loans of the
Lenders, and incur additional Tranche 1 Revolving Loans from other Tranche 1
Lenders in each case so that the Tranche 1 Lenders participate in each
Borrowing pro rata on the
basis of their respective Tranche 1 Commitments (after giving effect to any
increase in the Total Tranche 1 Commitment pursuant to this Section 1.15) and
with the Parent Borrower being obligated to pay the respective Tranche 1
Lenders the costs of the type referred to in Section 1.11 in connection with
any such repayment and/or Borrowing, (iii) all of the outstanding Tranche
1 Letters of Credit shall have been returned by each respective beneficiary to
the Issuing Agent and shall either have been cancelled and/or exchanged for new
or amended Tranche 1 Letters of Credit which give effect to such Additional
Tranche 1 Commitment, (iv) if such Additional Tranche 1 Lender is not a United
States person (as such term is defined in Section 7701(a)(3) of the Code) for
U.S. Federal income tax purposes and such Additional Tranche 1 Lender is
issuing Letters of Credit for the account of a U.S. Borrower or U.S. Borrowers,
such Additional Tranche 1 Lender shall provide to such U.S. Borrower or U.S.
Borrowers the appropriate Internal Revenue Service forms (and, if applicable a
Section 4.04(b)(ii) Certificate) described in Section 4.04(b), (v) the Parent
Borrower and each Designated Subsidiary Borrower shall deliver to the
Administrative Agent resolutions authorizing the incurrence of the Obligations
to be incurred pursuant to each Additional Tranche 1 Commitment, together with
evidence of good standing of the Parent Borrower and each Designated Subsidiary
Borrower (if requested) and (vi) the Parent Borrower shall deliver to the
Administrative Agent an opinion, in form and substance reasonably satisfactory
to the Administrative Agent, from counsel to the Parent Borrower reasonably
satisfactory to the Administrative Agent and dated such date, covering such
matters similar to those set forth in the
opinions
of counsel delivered to the Lenders on the Effective Date pursuant to Section
5.01(b) and such other matters as the Administrative Agent may reasonably
request. The Administrative Agent shall promptly notify each Tranche 1 Lender
as to the occurrence of each Additional Tranche 1 Commitment Date, and (w) on
each such date, the Total Tranche 1 Commitment under, and for all purposes of,
this Agreement shall be increased by the aggregate amount of such Additional
Tranche 1 Commitments, (x) on each such date Annex I shall be deemed modified
to reflect the revised Tranche 1 Commitments of the affected Tranche 1 Lenders
and (y) upon surrender of any old Tranche 1 Notes by the respective Additional
Tranche 1 Lender (or, if lost, a standard lost note indemnity in form and
substance reasonably satisfactory to the Parent Borrower), to the extent
requested by any Additional Tranche 1 Lender, a new Tranche 1 Note will be
issued, at the Parent Borrower’s expense, to such Additional Tranche 1
Lender, to be in conformity with the requirements of Section 1.05 (with
appropriate modifications) to the extent needed to reflect the revised Tranche
1 Commitment of such Tranche 1 Lender.
1.16 Additional
Tranche 2 Commitments. (a) The
Parent Borrower shall have the right at any time and from time to time after
the Effective Date and prior to the Commitment Expiration Date to request (so
long as no Default or Event of Default is then in existence or would result
therefrom) on one or more occasions that one or more Tranche 2 Lenders (and/or
one or more other Persons which will become Tranche 2 Lenders as provided
pursuant to clause (vi) below) provide Additional Tranche 2 Commitments (and,
in connection therewith, to increase the Aggregate Multicurrency Letter of
Credit Limit and the Fronted Letter of Credit Limit by, in each case, a ratable
amount with respect thereto) and, subject to the applicable terms and
conditions contained in this Agreement and the relevant Additional Tranche 2
Commitment Agreement, make Tranche 2 Revolving Loans and issue Tranche 2
Letters of Credit; it being understood and agreed, however, that (i) no Tranche
2 Lender shall be obligated to provide an Additional Tranche 2 Commitment as a
result of any request by the Parent Borrower, (ii) until such time, if any, as
(x) such Tranche 2 Lender has agreed in its sole discretion to provide an
Additional Tranche 2 Commitment and executed and delivered to the
Administrative Agent an Additional Tranche 2 Commitment Agreement in respect
thereof as provided in Section 1.16(b) and (y) such other conditions set forth
in Section 1.16(b) shall have been satisfied, such Tranche 2 Lender shall not
be obligated to fund any Tranche 2 Revolving Loans, or issue any Tranche 2
Letters of Credit, in excess of the amounts provided for in Section 1.01(b) or
2B.01, as the case may be, before giving effect to such Additional Tranche 2
Commitments provided pursuant to this Section 1.16, (iii) any Tranche 2 Lender
(and/or one or more other Persons which will become Tranche 2 Lenders as
provided pursuant to clause (vi) below) may so provide an Additional Tranche 2
Commitment without the consent of any other Tranche 2 Lender (it being
understood and agreed that the consent of the Administrative Agent and the
Issuing Agent (such consent, in either case, not to be unreasonably withheld or
delayed) shall be required if any such Additional Tranche 2 Commitments are to
be provided by a Person which is not already a Tranche 2 Lender or if any such
Additional Tranche 2 Commitments increase the Fronted Letter of Credit Limit),
(iv) (x) each provision of Additional Tranche 2 Commitments on a given date
pursuant to this Section 1.16 shall be in a minimum aggregate amount (for all
Tranche 2 Lenders (including, in the circumstances contemplated by clause (vi)
below, banks or other financial institutions who will become Tranche 2
Lenders)) of at least $1,000,000 and (y) the aggregate amount of Additional
Tranche 2 Commitments provided pursuant to this Section 1.16 shall not exceed
$500,000,000, less any Additional Tranche 1 Commitments, (v) the up-front fees
payable to any Person providing an Additional Tranche 2 Commitment in
accordance with this Section
1.16
shall be as set forth in the relevant Additional Tranche 2 Commitment
Agreement, (vi) if, on or after the tenth Business Day following the request by
the Parent Borrower of the then existing Tranche 2 Lenders (other than
Defaulting Lenders) to provide Additional Tranche 2 Commitments pursuant to
this Section 1.16 on the terms to be applicable thereto, the Parent Borrower
has not received Additional Tranche 2 Commitments in an aggregate amount equal
to that amount of the Additional Tranche 2 Commitments which the Parent
Borrower desires to obtain pursuant to such request (as set forth in the notice
provided by the Parent Borrower to the Administrative Agent as provided above),
then the Parent Borrower may request Additional Tranche 2 Commitments from
other Lenders and/or other NAIC approved banks or financial institutions
(unless otherwise agreed by the Parent Borrower and the Administrative Agent)
in aggregate amount equal to such deficiency on terms which are no more
favorable to such other bank or financial institution in any respect than the
terms offered to the existing Tranche 2 Lenders, and (vii) all actions taken by
the Parent Borrower pursuant to this Section 1.16 shall be done in coordination
with the Administrative Agent.
(b) At the
time of any provision of Additional Tranche 2 Commitments pursuant to this
Section 1.16, (i) the Parent Borrower, each Designated Subsidiary Borrower, the
Administrative Agent and each such Tranche 2 Lender or other bank or financial
institution which agrees to provide an Additional Tranche 2 Commitment (each,
an “Additional Tranche 2 Lender”) shall execute and deliver to the
Administrative Agent an Additional Tranche 2 Commitment Agreement substantially
in the form of Exhibit J-2, subject to such modifications in form and substance
reasonably satisfactory to the Administrative Agent as may be necessary or
appropriate (with the effectiveness of such Additional Tranche 2 Lender’s
Additional Tranche 2 Commitment to occur upon delivery of such Additional
Tranche 2 Commitment Agreement to the Administrative Agent, the payment of any
fees required in connection therewith and the satisfaction of the other
conditions in this Section 1.16 to the reasonable satisfaction of the
Administrative Agent), (ii) the Parent Borrower shall, in coordination with the
Administrative Agent, repay all outstanding Tranche 2 Revolving Loans of the
Lenders, and incur additional Tranche 2 Revolving Loans from other Tranche 2
Lenders in each case so that the Tranche 2 Lenders participate in each
Borrowing pro rata on the
basis of their respective Tranche 2 Commitments (after giving effect to any
increase in the Total Tranche 2 Commitment pursuant to this Section 1.16) and
with the Parent Borrower being obligated to pay the respective Tranche 2
Lenders the costs of the type referred to in Section 1.11 in connection with
any such repayment and/or Borrowing, (iii) all of the outstanding Tranche
2 Letters of Credit shall have been returned by each respective beneficiary to
the Issuing Agent and shall either have been cancelled and/or exchanged for new
or amended Tranche 2 Letters of Credit which give effect to such Additional
Tranche 2 Commitment, (iv) if such Additional Tranche 2 Lender is not a United
States person (as such term is defined in Section 7701(a)(3) of the Code) for
U.S. Federal income tax purposes and such Additional Tranche 2 Lender is
issuing Letters of Credit for the account of a U.S. Borrower or U.S. Borrowers,
such Additional Tranche 2 Lender shall provide to such U.S. Borrower or U.S.
Borrowers the appropriate Internal Revenue Service forms (and, if applicable a
Section 4.04(b)(ii) Certificate) described in Section 4.04(b), (v) the Parent
Borrower and each Designated Subsidiary Borrower shall deliver to the
Administrative Agent resolutions authorizing the incurrence of the Obligations
to be incurred pursuant to each Additional Tranche 2 Commitment, together with
evidence of good standing of the Parent Borrower and each such Designated
Subsidiary Borrower (if requested) in the case of Designated Subsidiary
Borrowers organized under the laws of the United States or any State thereof,
or any other jurisdiction
where
the concept of “good standing” is applicable, and (vi) the Parent
Borrower shall deliver to the Administrative Agent an opinion, in form and
substance reasonably satisfactory to the Administrative Agent, from counsel to
the Parent Borrower reasonably satisfactory to the Administrative Agent and
dated such date, covering such matters similar to those set forth in the
opinions of counsel delivered to the Lenders on the Effective Date pursuant to
Section 5.01(b) and such other matters as the Administrative Agent may
reasonably request. The Administrative Agent shall promptly notify each Tranche
2 Lender as to the occurrence of each Additional Tranche 2 Commitment Date, and
(w) on each such date, the Total Tranche 2 Commitment under, and for all
purposes of, this Agreement shall be increased by the aggregate amount of such
Additional Tranche 2 Commitments, (x) on each such date Annex I shall be deemed
modified to reflect the revised Tranche 2 Commitments of the affected Tranche 2
Lenders and (y) upon surrender of any old Tranche 2 Notes by the respective
Additional Tranche 2 Lender (or, if lost, a standard lost note indemnity in
form and substance reasonably satisfactory to the Parent Borrower), to the
extent requested by any Additional Tranche 2 Lender, a new Tranche 2 Note will
be issued, at the Parent Borrower’s expense, to such Additional Tranche 2
Lender, to be in conformity with the requirements of Section 1.05 (with
appropriate modifications) to the extent needed to reflect the revised Tranche
2 Commitment of
such Tranche 2 Lender.
SECTION
2A. Tranche
1 Letters of Credit.
2A.01 Tranche
1 Letters of Credit.
(a) Subject
to and upon the terms and conditions set forth herein, each Designated
Subsidiary Borrower may request the Issuing Agent, at any time and from time to
time after the Effective Date and prior to the date which is 30 days prior to
the Commitment Expiration Date, to issue on behalf of the Tranche 1 Lenders,
for the account of such Designated Subsidiary Borrower and in support of, on a
standby basis, Letter of Credit Supportable Obligations and, subject to and
upon the terms and conditions set forth herein, the Issuing Agent agrees to
issue on behalf of the Tranche 1 Lenders at any time and from time to time
after the Effective Date and prior to the date which is 30 days prior to the
Commitment Expiration Date, one or more irrevocable standby letters of credit
in such form as may be approved by the Issuing Agent (each such letter of
credit, a “Tranche 1 Letter of Credit” and, collectively, the
“Tranche 1 Letters of Credit”). Such Tranche 1 Letters of Credit
shall be denominated, at the relevant Designated Subsidiary Borrower’s
request, in Dollars or any Optional Currency, provided that, after giving
effect to the issuance of any such Tranche 1 Letter of Credit denominated in
any Optional Currency, the aggregate Stated Amount of all Tranche 1 Letters of
Credit denominated in Optional Currencies (exclusive of Tranche 1 Unpaid
Drawings which are repaid on the date of and prior to the issuance of the
respective Tranche 1 Letter of Credit) at such time and the Tranche 2 Letters
of Credit denominated in Optional Currencies (exclusive of Tranche 2 Unpaid
Drawings which are repaid on the date of and prior to the issuance of the
respective Tranche 1 Letter of Credit) at such time will not exceed the
Aggregate Multicurrency Letter of Credit Limit. At the relevant Designated
Subsidiary Borrower’s request, and notwithstanding any provisions in the
first sentence of this Section 2A.01(a) to the contrary, any Tranche 1 Letter
of Credit required to be issued pursuant to this Section 2A.01(a) shall be
issued by an Issuing Lender as a Tranche 1 Fronted Letter of Credit in
accordance with Section 2A.01(d), provided that, after giving effect to the
issuance of any such Tranche 1 Fronted Letter of Credit, the aggregate Stated
Amount of Tranche 1 Fronted Letters of Credit (exclusive of
Tranche
1 Unpaid Drawings which are repaid on the date of and prior to the issuance of
the respective Tranche 1 Letter of Credit) at such time and Tranche 2 Fronted
Letters of Credit (exclusive of Tranche 2 Unpaid Drawings which are repaid on
the date of and prior to the issuance of the respective Tranche 1 Letter of
Credit) at such time will not exceed the Fronted Letter of Credit Limit. At the
Relevant Subsidiary Borrower’s request, Tranche 1 Fronted Letters of
Credit issued pursuant to this Section 2A.01, including Tranche 1 Fronted
Letters of Credit denominated in Optional Currencies, may be issued in the
United Kingdom; such Tranche 1 Fronted Letters of Credit issued in the United
Kingdom shall be governed by the laws of the England and Wales or, at the
request of the applicable Designated Subsidiary Borrower, by the laws of other
jurisdictions as agreed to between such Designated Subsidiary Borrower and the
relevant Issuing Lender. Notwithstanding the foregoing, neither the Issuing
Agent nor any Issuing Lender shall be under any obligation to issue any Tranche
1 Letter of Credit if at the time of such issuance:
(i) any
order, judgment or decree of any Governmental Authority or arbitrator shall
purport by its terms to enjoin or restrain the issuance of such Tranche 1
Letter of Credit or any requirement of law applicable to the Issuing Agent,
such Issuing Lender or any Lender or any request or directive (whether or not
having the force of law) from any Governmental Authority with jurisdiction over
it shall prohibit, or request that it refrain from, the issuance of letters of
credit generally or such Tranche 1 Letter of Credit in particular or shall
impose upon it with respect to such Tranche 1 Letter of Credit any restriction
or reserve or capital requirement (for which the Issuing Agent or any Tranche 1
Lender is not otherwise compensated) not in effect on the Effective Date, or
any unreimbursed loss, cost or expense which was not applicable, in effect or
known to it as of the Effective Date;
(ii) the
conditions precedent set forth in Section 5.02 are not satisfied at that time;
or
(iii) the
Issuing Agent shall have received notice from any Borrower or the Required
Lenders prior to the issuance of such Tranche 1 Letter of Credit of the type
described in clause (vi) of Section 2A.01(b).
(b) Notwithstanding
anything to the contrary contained in this Section 2A.01 or elsewhere in this
Agreement (i) no Tranche 1 Letter of Credit shall be issued the Stated Amount
of which, when added to (x) the Tranche 1 Letter of Credit Outstandings
(exclusive of Tranche 1 Unpaid Drawings which are repaid on the date of, and
prior to the issuance of, the respective Tranche 1 Letter of Credit) at such
time and (y) the aggregate principal amount of all Tranche 1 Revolving Loans
then outstanding, would exceed an amount equal to the Total Tranche 1
Commitment at such time; (ii) no Tranche 1 Letter of Credit shall be issued for
the account of any Intermediate Holding Company the Stated Amount of which,
when added to (x) the Tranche 1 Letter of Credit Outstandings in respect of
outstanding Tranche 1 Letters of Credit issued for the account of all
Intermediate Holding Companies (exclusive of Tranche 1 Unpaid Drawings in
respect of Tranche 1 Letters of Credit issued for the account of Intermediate
Holding Companies which are repaid on the date of, and prior to the issuance
of, the respective Tranche 1 Letter of Credit) at such time and (y) the Tranche
2 Letter of Credit Outstandings (exclusive of Tranche 2 Unpaid Drawings in
respect of Tranche 2 Letters of Credit issued for the
account
of Intermediate Holding Companies which are repaid on the date of and prior to
the issuance of the respective Tranche 1 Letter of Credit) in respect of
outstanding Tranche 2 Letters of Credit issued for the account of all
Intermediate Holding Companies, exceeds $50,000,000; (iii) no Tranche 1 Letter
of Credit for the account of any Borrower shall be issued the Stated Amount of
which, when added to (x) the Tranche 1 Letter of Credit Outstandings applicable
to such Borrower (exclusive of Tranche 1 Unpaid Drawings which are repaid on
the date of, and prior to the issuance of, the respective Tranche 1 Letter of
Credit) at such time and (y) the aggregate principal amount of all Tranche 1
Revolving Loans incurred by such Borrower and then outstanding, would exceed an
amount equal to such Borrower’s Borrowing Base at such time; (iv) each
Tranche 1 Letter of Credit shall have an expiry date occurring not later than
one year after such Tranche 1 Letter of Credit’s date of issuance;
provided that
each such Tranche 1 Letter of Credit may by its terms automatically renew
annually for one additional year unless the Issuing Agent or the relevant
Issuing Lender, as the case may be, notifies the beneficiary thereof, in
accordance with the terms of such Tranche 1 Letter of Credit, that such Tranche
1 Letter of Credit will not be renewed; (v) each Tranche 1 Letter of Credit
shall be denominated in Dollars or in an Optional Currency, subject to the
limitation in the proviso to the second sentence of Section 2A.01(a); and (vi)
the Issuing Agent or the relevant Issuing Lender, as the case may be, will not
issue any Tranche 1 Letter of Credit after the Issuing Agent has received
written notice from any Borrower or the Required Lenders stating that a Default
or an Event of Default exists until such time as the Issuing Agent shall have
received a written notice of (x) rescission of such notice from the party or
parties originally delivering the same or (y) a waiver of such Default or Event
of Default by the Required Lenders (or, to the extent provided by Section
12.11, each of the Lenders).
(c) Each
Tranche 1 Non-Fronted Letter of Credit will be issued by the Issuing Agent on
behalf of the Tranche 1 Lenders and each Tranche 1 Lender will participate in
each Tranche 1 Non-Fronted Letter of Credit pro rata in
accordance with its Tranche 1 Percentage. The obligations of each Tranche 1
Lender under and in respect of each Tranche 1 Non-Fronted Letter of Credit are
several, and the failure by any Tranche 1 Lender to perform its obligations
hereunder or under any Tranche 1 Non-Fronted Letter of Credit shall not affect
the obligations of the respective Designated Subsidiary Borrower toward any
other party hereto nor shall any other such party be liable for the failure by
such Tranche 1 Lender to perform its obligations hereunder or under any Tranche
1 Non-Fronted Letter of Credit.
(d) Subject
to the terms and conditions hereof, each Issuing Lender, in reliance on the
agreements of the other Lenders set forth in Section 2A.09, agrees to issue a
Tranche 1 Fronted Letter of Credit requested by a Designated Subsidiary
Borrower to the extent contemplated by Section 2A.01(a).
(e) Subject
to and on the terms and conditions set forth herein, the Issuing Agent or the
relevant Issuing Lender, as the case may be, is hereby authorized by each
Designated Subsidiary Borrower and the Tranche 1 Lenders to arrange for the
issuance of any Tranche 1 Letter of Credit pursuant to Section 2A.01(a) and the
amendment of any Letter of Credit pursuant to Section 1.13, Section 1.15,
Section 2A.06 and/or Section 12.04(b) by:
(i) completing
the commencement date and the expiry date of such Tranche 1 Letter of
Credit;
(ii) in the
case of an amendment increasing or reducing the amount thereof, amending such
Tranche 1 Letter of Credit in such manner as the Issuing Agent and the
respective beneficiary may agree; and
(iii) (A) in
the case of a Tranche 1 Non-Fronted Letter of Credit, (1) completing such
Tranche 1 Non-Fronted Letter of Credit with the participation of each Tranche 1
Lender as allocated pursuant to the terms hereof, and (2) executing such
Tranche 1 Non-Fronted Letter of Credit on behalf of each Tranche 1 Lender and,
following such execution, delivering such Tranche 1 Non-Fronted Letter of
Credit to the beneficiary of such Tranche 1 Non-Fronted Letter of Credit; or
(B) in the case of Tranche 1 Fronted Letters of Credit, (1) completing such
Tranche 1 Fronted Letter of Credit pursuant to the terms hereof, (2) issuing
and executing such Tranche 1 Fronted Letter of Credit and, following such
execution, delivering such Tranche 1 Fronted Letter of Credit to the
beneficiary of such Tranche 1 Fronted Letter of Credit and (3) promptly
furnishing to the Administrative Agent, which shall in turn promptly furnish to
the Lenders, notice of the issuance of each Tranche 1 Fronted Letter of Credit
(including the amount and currency thereof).
(f) Each
Tranche 1 Non-Fronted Letter of Credit shall be executed and delivered by the
Issuing Agent in the name and on behalf of, and as attorney-in-fact for, each
Tranche 1 Lender party to such Tranche 1 Non-Fronted Letter of Credit, and the
Issuing Agent shall act under each Tranche 1 Non-Fronted Letter of Credit, and
each Tranche 1 Non-Fronted Letter of Credit shall expressly provide that the
Issuing Agent shall act, as the agent of each Tranche 1 Lender to (a) receive
drafts, other demands for payment and other documents presented by the
beneficiary under such Tranche 1 Non-Fronted Letter of Credit, (b) determine
whether such drafts, demands and documents are in compliance with the terms and
conditions of such Tranche 1 Non-Fronted Letter of Credit and (c) notify such
Tranche 1 Lender and such Designated Subsidiary Borrower that a valid drawing
has been made and the date that the related Tranche 1 Unpaid Drawing is to be
made; provided that
the Issuing Agent shall have no obligation or liability for any Tranche 1
Unpaid Drawing under such Tranche 1 Non-Fronted Letter of Credit, and each
Tranche 1 Non-Fronted Letter of Credit shall expressly so provide. Each Tranche
1 Lender hereby irrevocably appoints and designates the Issuing Agent its
attorney-in-fact, acting through any duly authorized officer of the Issuing
Agent, to execute and deliver in the name and on behalf of such Tranche 1
Lender each Tranche 1 Non-Fronted Letter of Credit to be issued by such Tranche
1 Lender hereunder. Promptly upon the request of the Issuing Agent, each
Tranche 1 Lender will furnish to the Issuing Agent such powers of attorney or
other evidence as any beneficiary of any Tranche 1 Non-Fronted Letter of Credit
may reasonably request in order to demonstrate that the Issuing Agent has the
power to act as attorney-in-fact for such Tranche 1 Lender to execute and
deliver such Tranche 1 Non-Fronted Letter of Credit.
2A.02 Tranche
1 Letter of Credit Requests.
(a) Whenever
a Designated Subsidiary Borrower desires that a Tranche 1 Letter of Credit be
issued, such Designated Subsidiary Borrower shall give the Administrative Agent
and the Issuing Agent and, in the case of a Tranche 1 Fronted Letter of Credit,
the relevant Issuing Lender, written notice (including by way of facsimile
transmission, immediately confirmed in writing by submission of the original of
such request by mail to the Issuing Agent or the relevant Issuing Lender, as
the case may be)
thereof
prior to (i) in the case of Tranche 1 Letters of Credit not issued in the
United Kingdom, 11:00 A.M. (New York time), and (ii) in the case of Tranche 1
Letters of Credit issued in the United Kingdom, 11:00 A.M. (London time), at
least five Business Days (or such shorter period as may be acceptable to the
Issuing Agent or the relevant Issuing Lender, as the case may be) prior to the
proposed date of issuance (which shall be a Business Day), which written notice
shall be in the form of Exhibit C-1 (each, a “Tranche 1 Letter of Credit
Request”). Each Tranche 1 Letter of Credit Request shall include any other
documents as the Issuing Agent or the relevant Issuing Lender, as the case may
be, customarily requires in connection therewith.
(b) The
making of each Tranche 1 Letter of Credit Request shall be deemed to be a
representation and warranty by the applicable Designated Subsidiary Borrower
that such Tranche 1 Letter of Credit may be issued in accordance with, and it
will not violate the requirements of, Section 2A.01(a) or (b).
(c) Immediately
prior to the issuance of any Tranche 1 Fronted Letter of Credit the relevant
Issuing Lender shall notify the Administrative Agent and Issuing Agent thereof
and shall obtain confirmation from the Issuing Agent that such Tranche 1
Fronted Letter of Credit may be issued. Upon its issuance of, or amendment to,
any Tranche 1 Letter of Credit, the Issuing Agent shall promptly notify the
respective Designated Subsidiary Borrower and the Tranche 1 Lenders of such
issuance or amendment, which notice shall include a summary description of the
Tranche 1 Letter of Credit actually issued and any amendments thereto. Each
Issuing Lender shall also give prompt notice to the Issuing Agent of the
termination or expiry of any Tranche 1 Fronted Letter of Credit issued by
it.
2A.03 Agreement
to Repay Tranche 1 Letter of Credit Drawings.
(a) Each
Designated Subsidiary Borrower agrees to reimburse each Tranche 1 Lender or the
relevant Issuing Lender, as the case may be, by making payment to the
Administrative Agent in immediately available funds in the currency in which
such Tranche 1 Letter of Credit was issued at the Payment Office, for any
payment or disbursement made by it under any Tranche 1 Letter of Credit which
has been issued for such Designated Subsidiary Borrower’s account (each
such amount so paid or disbursed until reimbursed, a “Tranche 1 Unpaid
Drawing”) no later than one Business Day (or, in the case of any Tranche 1
Letter of Credit denominated in a currency other than Dollars, three Business
Days) following the date of such payment or disbursement, with interest on the
amount so paid or disbursed, to the extent not reimbursed prior to (i) in the
case of Tranche 1 Letters of Credit not issued in the United Kingdom, 1:00 P.M.
(New York time) and (ii) in the case of Letters of Credit issued in the United
Kingdom, 1:00 P.M. (London time), on the date of such payment or disbursement,
from and including the date paid or disbursed to but not including the date of
reimbursement therefor at a rate per annum which shall be (i) for the Tranche 1
Letters of Credit denominated in Dollars, the Base Rate plus the Applicable
Margin for Tranche 1 Revolving Loans maintained as Base Rate Loans as in effect
from time to time (or, if the Total Tranche 1 Commitment has been terminated
and all Tranche 1 Revolving Loans have been repaid, the Applicable Margin that
would have been in effect for Tranche 1 Revolving Loans maintained as Base Rate
Loans) or (ii) for Tranche 1 Letters of Credit denominated in an Optional
Currency, the Overnight Eurodollar Rate for such Optional Currency plus the
Applicable Margin for Tranche 1 Revolving Loans maintained as Eurodollar Loans
as in effect from time to time (or, if the Total Tranche 1 Commitment has been
terminated and all Tranche 1 Revolving Loans have been repaid, the Applicable
Margin that would have been in effect for
Tranche
1 Revolving Loans maintained as Eurodollar Loans) (plus an additional 2% per
annum, payable on demand, if not reimbursed by the third Business Day after the
date such reimbursement is due).
(b) Each
Designated Subsidiary Borrower’s obligation under this Section 2A.03 to
reimburse each Tranche 1 Lender or the relevant Issuing Lender, as the case may
be, with respect to Tranche 1 Unpaid Drawings (including, in each case,
interest thereon) shall be absolute and unconditional under any and all
circumstances and irrespective of any setoff, counterclaim or defense to
payment which such Designated Subsidiary Borrower may have or have had against
such Tranche 1 Lender or such Issuing Lender, as the case may be, or the
Issuing Agent, including, without limitation, any defense based upon the
failure of any drawing under a Tranche 1 Letter of Credit to conform to the
terms of the Tranche 1 Letter of Credit or any non-application or
misapplication by the beneficiary of the proceeds of such drawing; provided,
however, that
no Designated Subsidiary Borrower shall be obligated to reimburse any Tranche 1
Lender or such Issuing Lender, as the case may be, for any wrongful payment
made by it under a Tranche 1 Letter of Credit as a result of acts or omissions
constituting willful misconduct or gross negligence (as determined by a court
of competent jurisdiction in a final and non-appealable decision).
2A.04 Increased
Costs. If
after the Effective Date, the adoption or effectiveness of any applicable law,
rule or regulation, order, guideline or request or any change therein after the
Effective Date, or any change adopted or effective after the Effective Date in
the interpretation or administration thereof by any Governmental Authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Tranche 1 Lender or any Issuing
Lender with any request or directive (whether or not having the force of law)
by any such authority, central bank or comparable agency shall either (i)
impose, modify or make applicable any reserve, deposit, capital adequacy or
similar requirement against letters of credit issued by or participated in by
such Tranche 1 Lender or such Issuing Lender, as the case may be, or (ii)
impose on such Tranche 1 Lender or such Issuing Lender, as the case may be, any
other conditions directly or indirectly affecting this Agreement or any Tranche
1 Letter of Credit; and the result of any of the foregoing is to increase the
cost to such Tranche 1 Lender or such Issuing Lender, as the case may be, of
issuing, maintaining or participating in any Tranche 1 Letter of Credit, or to
reduce the amount of any sum received or receivable by it hereunder or reduce
the rate of return on its capital with respect to Tranche 1 Letters of Credit,
then, upon written demand to the respective Designated Subsidiary Borrower by
such Tranche 1 Lender or such Issuing Lender, as the case may be (with a copy
to the Administrative Agent), such Designated Subsidiary Borrower agrees to pay
to such Tranche 1 Lender or such Issuing Lender, as the case may be, such
additional amount or amounts as will compensate it for such increased cost or
reduction. A certificate submitted to the respective Designated Subsidiary
Borrower by such Tranche 1 Lender or such Issuing Lender, as the case may be
(with a copy to the Administrative Agent), setting forth the basis for the
determination of such additional amount or amounts necessary to compensate such
Tranche 1 Lender or such Issuing Lender, as the case may be, as aforesaid shall
be final and conclusive and binding on such Designated Subsidiary Borrower
absent manifest error, although the failure to deliver any such certificate
shall not release or diminish any Designated Subsidiary Borrower’s
obligations to pay additional amounts pursuant to this Section 2A.04 upon
subsequent receipt of such certificate.
2A.05 Tranche
1 Letter of Credit Expiration Extensions.
Each
Tranche 1 Lender acknowledges that to the extent provided under the terms of
any Tranche 1 Letter of Credit, the expiration date of such Tranche 1 Letter of
Credit will be automatically extended for an additional year, without written
amendment, unless at least 30 days prior to the expiration date of such Tranche
1 Letter of Credit, notice is given by the Issuing Agent or the relevant
Issuing Lender, as the case may be, to the beneficiary of such Tranche 1 Letter
of Credit in accordance with the terms of the respective Tranche 1 Letter of
Credit (a “Notice of Non-Extension”) that the expiration date of such
Tranche 1 Letter of Credit will not be extended beyond its current expiration
date. The Issuing Agent or the relevant Issuing Lender, as the case may be,
will give a Notice of Non-Extension as to any outstanding Tranche 1 Letter of
Credit if requested to do so by the Required Lenders pursuant to Section 9. The
Issuing Agent or the relevant Issuing Lender, as the case may be, will give a
Notice of Non-Extension as to each outstanding Tranche 1 Letter of Credit if
the Commitment Expiration Date has occurred. The Issuing Agent or the relevant
Issuing Lender, as the case may be, will send a copy of each Notice of
Non-Extension to the respective Designated Subsidiary Borrower concurrently
with delivery thereof to the respective beneficiary, unless prohibited by law
from doing so.
2A.06 Changes
to Stated Amount.
Subject to the terms and conditions hereof, at any time when any Tranche 1
Letter of Credit is outstanding, at the request of the respective Designated
Subsidiary Borrower, the Issuing Agent or the relevant Issuing Lender, as the
case may be, will enter into an amendment increasing or reducing the Stated
Amount of such Tranche 1 Letter of Credit, provided that (i) in no event shall
the Stated Amount of any Tranche 1 Letter of Credit be increased to an amount
which, when added to (x) the Tranche 1 Letter of Credit Outstandings (exclusive
of Tranche 1 Unpaid Drawings which are repaid on the date of and prior to the
issuance of the respective Tranche 1 Letter of Credit) at such time and (y) the
aggregate principal amount of all Tranche 1 Revolving Loans then outstanding,
would exceed an amount equal to the Total Tranche 1 Commitment at such time,
(ii) in no event shall the Stated Amount of any Tranche 1 Letter of Credit
issued for the account of any Designated Subsidiary Borrower be increased to an
amount which, when added to (x) the Tranche 1 Letter of Credit Outstandings
(exclusive of Tranche 1 Unpaid Drawings which are repaid on the date of and
prior to the issuance of the respective Tranche 1 Letter of Credit) applicable
to such Borrower at such time and (y) the aggregate principal amount of all
Tranche 1 Revolving Loans incurred by such Borrower and then outstanding, would
exceed an amount equal to such Borrower’s Borrowing Base at such time,
(iii) the Stated Amount of a Tranche 1 Letter of Credit may not be increased at
any time if the conditions precedent set forth in Section 5.02 are not
satisfied at such time, (iv) the Stated Amount of a Tranche 1 Letter of Credit
may not be increased at any time after the date which is 30 days prior to the
Commitment Expiration Date, (v) in no event shall the Stated Amount of any
Tranche 1 Letter of Credit denominated in an Optional Currency issued for the
account of any Designated Subsidiary Borrower be increased to an amount which,
when added to (x) the aggregate Stated Amount of all Tranche 1 Letters of
Credit denominated in Optional Currencies (exclusive of Tranche 1 Unpaid
Drawings which are repaid on the date of and prior to the issuance of the
respective Tranche 1 Letter of Credit) at such time and (y) the Tranche 2
Letters of Credit denominated in Optional Currencies (exclusive of Tranche 2
Unpaid Drawings which are repaid on the date of and prior to the issuance of
the respective Tranche 1 Letter of Credit) at such time, would exceed the
Aggregate Multicurrency Letter of Credit Limit; and (vi) in no event shall the
Stated Amount of any Tranche 1 Fronted Letter of Credit issued for the account
of any Designated Subsidiary Borrower be increased to an amount which, when
added to
(x)
the aggregate Stated Amount of all Tranche 1 Fronted Letters of Credit
(exclusive of Tranche 1 Unpaid Drawings which are repaid on the date of and
prior to the issuance of the respective Tranche 1 Letter of Credit) outstanding
at such time and (y) Tranche 2 Fronted Letters of Credit (exclusive of Tranche
2 Unpaid Drawings which are repaid on the date of and prior to the issuance of
the respective Tranche 1 Letter of Credit) outstanding at such time, would
exceed the Fronted Letter of Credit Limit.
2A.07 Representations
and Warranties of Tranche 1 Lenders. Each
Tranche 1 Lender represents and warrants that each Tranche 1 Non-Fronted Letter
of Credit constitutes a legal, valid and binding obligation of such Tranche 1
Lender enforceable in accordance with its terms and each Issuing Lender
represents and warrants that each Tranche 1 Fronted Letter of Credit
constitutes a legal, valid and binding obligation of such Issuing Lender
enforceable in accordance with its terms.
2A.08 Existing
Tranche 1 Letters of Credit.
(a) Each
letter of credit issued under the Existing Credit Agreement and outstanding
immediately prior to the Effective Date and which is intended to be a Tranche 1
Letter of Credit hereunder is listed in Part A of Annex VIII (each such letter
of credit, an “Existing Tranche 1 Letter of Credit”). Each Existing
Tranche 1 Letter of Credit shall be deemed to be a Tranche 1 Letter of Credit
hereunder. As soon as possible following the Effective Date, each Existing
Tranche 1 Letter of Credit shall be amended to replace each Original Lender on
such Existing Tranche 1 Letter of Credit with each Tranche 1 Lender party to
this Agreement on the Effective Date in accordance with each such Tranche 1
Lender’s Tranche 1 Percentage. Until an Existing Tranche 1 Letter of
Credit has been amended in accordance with this Section 2A.08, each Original
Lender shall be deemed to have sold and transferred to each Tranche 1 Lender
and each such Tranche 1 Lender (each, a “Tranche 1 Participant”)
shall be deemed irrevocably and unconditionally to have purchased and received
from such Original Lender, without recourse or warranty, an undivided interest
and participation, to the extent of such Tranche 1 Participant’s Tranche 1
Percentage in such Existing Tranche 1 Letter of Credit, each substitute
Existing Tranche 1 Letter of Credit, each drawing made thereunder, the
obligations of any Borrower under this Agreement with respect thereto and any
security therefore or guaranty pertaining thereto. Upon any change in the
Tranche 1 Commitments of the Tranche 1 Lenders pursuant to Section 1.13 or
12.04(b), it is hereby agreed that, with respect to all outstanding Existing
Tranche 1 Letters of Credit and Unpaid Drawings with respect thereto, there
shall be an automatic adjustment to the participations pursuant to this Section
2A.08 to reflect the new Tranche 1 Percentages of the assigning and assignee
Tranche 1 Lender.
(b) In
determining whether to pay under any Existing Tranche 1 Letter of Credit, no
Original Lender shall have any obligation relative to the Tranche 1
Participants other than to determine that any documents required to be
delivered under such Existing Tranche 1 Letter of Credit have been delivered
and that they appear to substantially comply on their face with the
requirements of such Existing Tranche 1 Letter of Credit, which obligation, it
is understood, is being performed by the Issuing Agent, and upon whom each
Original Lender shall be entitled to rely. Any action taken or omitted to be
taken by any Original Lender under or in connection with any Existing Tranche 1
Letter of Credit issued by it shall not create for such Original Lender any
resulting liability to any Borrower, any Tranche 1 Lender or any other Person
unless such action is taken or omitted to be taken with gross negligence or
willful
misconduct
(as determined by a court of competent jurisdiction in a final and
non-appealable decision).
(c) In the
event that any Original Lender makes any payment under any Existing Tranche 1
Letter of Credit issued by it and the respective Borrower shall not have
reimbursed such amount in full to each Original Lender pursuant to Section
2A.03(a), such Original Lender shall promptly notify the Administrative Agent,
and the Administrative Agent shall promptly notify each Tranche 1 Participant
of such failure, and each such Tranche 1 Participant shall promptly and
unconditionally pay to the Administrative Agent for the account of such
Original Lender, the amount of such Tranche 1 Participant’s Tranche 1
Percentage of such payment in Dollars and in same day funds. If the
Administrative Agent so notifies any Tranche 1 Participant required to fund a
payment under an Existing Tranche 1 Letter of Credit prior to 11:00 A.M. (New
York time) on any Business Day, such Tranche 1 Participant shall make available
to the Administrative Agent at the Payment Office for the account of the
respective Original Lender such Tranche 1 Participant’s Tranche 1
Percentage of the amount of such payment on such Business Day in same day funds
(and, to the extent such notice is given after 11:00 A.M. (New York time) on
any Business Day, such Tranche 1 Participant shall make such payment on the
immediately following Business Day). If and to the extent such Tranche 1
Participant shall not make its Tranche 1 Percentage of the amount of such
payment available to the Administrative Agent for the account of the respective
Original Lender on the same Business Day, such Tranche 1 Participant agrees to
pay to the Administrative Agent for the account of such Original Lender,
forthwith on demand such amount, together with interest thereon, for each day
from such date until the date such amount is paid to the Administrative Agent
for the account of such Original Lender at the overnight Federal Funds Rate for
the first three days from the date when due and at the interest rate applicable
to Tranche 1 Revolving Loans that are maintained as Base Rate Loans for each
day thereafter. The failure of any Tranche 1 Participant to make available to
the Administrative Agent for the account of the respective Original Lender its
Tranche 1 Percentage of any payment under any Existing Tranche 1 Letter of
Credit issued by it shall not relieve any other Tranche 1 Participant of its
obligation hereunder to make available to the Administrative Agent for the
account of such Original Lender its Tranche 1 Percentage of any payment under
any such Tranche 1 Letter of Credit on the date required, as specified above,
but no Tranche 1 Participant shall be responsible for the failure of any other
Tranche 1 Participant to make available to the Administrative Agent for the
account of such Original Lender such other Tranche 1 Participant’s Tranche
1 Percentage of any such payment.
(d) Whenever
any Original Lender receives a payment of a reimbursement obligation as to
which the Administrative Agent has received for the account of such Original
Lender any payments from the Tranche 1 Participants pursuant to Section
2A.08(c), such Original Lender shall pay to the Administrative Agent and the
Administrative Agent shall promptly pay to each Tranche 1 Participant which has
paid its Tranche 1 Percentage thereof, in Dollars and in same day funds, an
amount equal to such Tranche 1 Participant’s Tranche 1 Percentage
thereof.
(e) The
obligations of the Tranche 1 Participants to make payments to the
Administrative Agent for the account of the respective Original Lender with
respect to Existing Tranche 1 Letters of Credit issued by it shall be
irrevocable and not subject to counterclaim, set-off or other defense or any
other qualification or exception whatsoever and shall be made in
accordance
with the terms and conditions of this Agreement under all circumstances,
including, without limitation, any of the following circumstances:
(i) any lack
of validity or enforceability of this Agreement or any of the other Credit
Documents;
(ii) the
existence of any claim, set-off, defense or other right which the Parent
Borrower or any of its Subsidiaries may have at any time against a beneficiary
named in an Existing Tranche 1 Letter of Credit, any transferee of any Existing
Tranche 1 Letter of Credit (or any Person for whom any such transferee may be
acting), the Administrative Agent, any Original Lender, or other Person,
whether in connection with this Agreement, any Existing Tranche 1 Letter of
Credit, the transactions contemplated herein or any unrelated transactions
(including any underlying transaction between the Parent Borrower or any of its
Subsidiaries and the beneficiary named in any such Existing Tranche 1 Letter of
Credit);
(iii) any
draft, certificate or other document presented under the Existing Tranche 1
Letter of Credit proving to be forged, fraudulent, invalid or insufficient in
any respect or any statement therein being untrue or inaccurate in any
respect;
(iv) the
surrender or impairment of any security for the performance or observance of
any of the terms of any of the Credit Documents; or
(v) the
occurrence of any Default or Event of Default.
2A.09 Tranche
1 Fronted Letter of Credit Participations. In the
case of Tranche 1 Fronted Letters of Credit:
(a) The
Issuing Lender irrevocably agrees to grant and hereby grants to each Lender
participating in a Tranche 1 Fronted Letter of Credit (the “Tranche 1
Fronted Letter of Credit Participants”), and each such Tranche 1 Fronted
Letter of Credit Participant shall be deemed irrevocably and unconditionally to
have purchased and received from such Issuing Lender, without recourse or
warranty, an undivided interest and participation, to the extent of such
Tranche 1 Fronted Letter of Credit Participant’s Tranche 1 Percentage in
such Tranche 1 Fronted Letter of Credit, each drawing made thereunder, the
obligations of any Borrower under this Agreement with respect thereto and any
security therefore or guaranty pertaining thereto. Upon any change in the
Tranche 1 Commitments of the Tranche 1 Lenders pursuant to Section 1.13 or
12.04(b), it is hereby agreed that, with respect to all outstanding Tranche 1
Fronted Letters of Credit and Unpaid Drawings with respect thereto, there shall
be an automatic adjustment to the participations pursuant to this Section 2A.09
to reflect the new Tranche 1 Percentages of the assigning and assignee Tranche
1 Lender.
(b) In
determining whether to pay under any Tranche 1 Fronted Letter of Credit, no
Issuing Lender shall have any obligation relative to the Tranche 1 Fronted
Letter of Credit Participants other than to determine that any documents
required to be delivered under such Tranche 1 Fronted Letter of Credit have
been delivered and that they appear to substantially comply on their face with
the requirements of such Tranche 1 Fronted Letter of Credit. Any action taken
or omitted to be taken by any Issuing Lender under or in connection with any
Tranche
1 Fronted Letter of Credit issued by it shall not create for such Issuing
Lender any resulting liability to any Borrower, any Tranche 1 Lender or any
other Person unless such action is taken or omitted to be taken with gross
negligence or willful misconduct (as determined by a court of competent
jurisdiction in a final and non-appealable decision).
(c) In the
event that any Issuing Lender makes any payment under any Tranche 1 Fronted
Letter of Credit issued by it and the respective Borrower shall not have
reimbursed such amount in full to such Issuing Lender as and when required
pursuant to Section 2A.03(a), such Issuing Lender shall promptly notify the
Administrative Agent, and the Administrative Agent shall promptly notify each
Tranche 1 Fronted Letter of Credit Participant of such failure, and each such
Tranche 1 Fronted Letter of Credit Participant shall promptly and
unconditionally pay to the Administrative Agent for the account of such Issuing
Lender, the amount of such Tranche 1 Fronted Letter of Credit
Participant’s Tranche 1 Percentage of such payment in such currency
denominated in such Tranche 1 Fronted Letter of Credit and in same day funds.
If the Administrative Agent so notifies any Tranche 1 Fronted Letter of Credit
Participant required to fund a payment under a Tranche 1 Fronted Letter of
Credit prior to 11:00 A.M. (New York time) on any Business Day, such Tranche 1
Fronted Letter of Credit Participant shall make available to the Administrative
Agent at the Payment Office for the account of the respective Issuing Lender
such Tranche 1 Fronted Letter of Credit Participant’s Tranche 1 Percentage
of the amount of such payment on such Business Day (or, in the case of an
amount payable in an Optional Currency, the next Business Day or such later day
as would be customary for interbank payments in such Optional Currency) in same
day funds (and, to the extent such notice is given after 11:00 A.M. (New York
time) on any Business Day, such Tranche 1 Fronted Letter of Credit Participant
shall make such payment on the immediately following Business Day (or, in the
case of an amount payable in an Optional Currency, the next Business Day or
such later day as would be customary for interbank payments in such Optional
Currency)). If and to the extent such Tranche 1 Fronted Letter of Credit
Participant shall not make its Tranche 1 Percentage of the amount of such
payment available to the Administrative Agent for the account of the respective
Issuing Lender on the same Business Day, such Tranche 1 Fronted Letter of
Credit Participant agrees to pay to the Administrative Agent for the account of
such Issuing Lender, forthwith on demand such amount, together with interest
thereon, for each day from such date until the date such amount is paid to the
Administrative Agent for the account of such Issuing Lender at the overnight
Federal Funds Rate for the first three days from the date when due and at the
interest rate applicable to Tranche 1 Revolving Loans that are maintained as
Base Rate Loans for each day thereafter (or, in the case of an amount in a
currency other than Dollars, the customary rate for the settlement of interbank
obligations in such currency plus, after such three days, the Applicable Margin
for Eurodollar Loans). The failure of any Tranche 1 Fronted Letter of Credit
Participant to make available to the Administrative Agent for the account of
the respective Issuing Lender its Tranche 1 Percentage of any payment under any
Tranche 1 Fronted Letter of Credit issued by it shall not relieve any other
Tranche 1 Fronted Letter of Credit Participant of its obligation hereunder to
make available to the Administrative Agent for the account of such Issuing
Lender its Tranche 1 Percentage of any payment under any such Tranche 1 Fronted
Letter of Credit on the date required, as specified above, but no Tranche 1
Fronted Letter of Credit Participant shall be responsible for the failure of
any other Tranche 1 Fronted Letter of Credit Participant to make available to
the Administrative Agent for the account of such Issuing Lender such other
Tranche 1 Fronted Letter of Credit Participant’s Tranche 1 Percentage of
any such payment.
(d) Whenever
any Issuing Lender receives a payment of a reimbursement obligation as to which
the Administrative Agent has received for the account of such Issuing Lender
any payments from the Tranche 1 Fronted Letter of Credit Participants pursuant
to Section 2A.09(c), such Issuing Lender shall pay to the Administrative Agent
and the Administrative Agent shall promptly pay to each Tranche 1 Fronted
Letter of Credit Participant which has paid its Tranche 1 Percentage thereof,
in the same currency as such payment and in same day funds, an amount equal to
such Tranche 1 Fronted Letter of Credit Participant’s Tranche 1 Percentage
thereof.
(e) The
obligations of the Tranche 1 Participants to make payments to the
Administrative Agent for the account of the respective Issuing Lender with
respect to Tranche 1 Fronted Letters of Credit issued by it shall be
irrevocable and not subject to counterclaim, set-off or other defense or any
other qualification or exception whatsoever and shall be made in accordance
with the terms and conditions of this Agreement under all circumstances,
including, without limitation, any of the following circumstances:
(i) any lack
of validity or enforceability of this Agreement or any of the other Credit
Documents;
(ii) the
existence of any claim, set-off, defense or other right which the Parent
Borrower or any of its Subsidiaries may have at any time against a beneficiary
named in a Tranche 1 Fronted Letter of Credit, any transferee of any Tranche 1
Fronted Letter of Credit (or any Person for whom any such transferee may be
acting), the Administrative Agent, any Issuing Lender, or other Person, whether
in connection with this Agreement, any Tranche 1 Fronted Letter of Credit, the
transactions contemplated herein or any unrelated transactions (including any
underlying transaction between the Parent Borrower or any of its Subsidiaries
and the beneficiary named in any such Tranche 1 Fronted Letter of
Credit);
(iii) any
draft, certificate or other document presented under the Tranche 1 Fronted
Letter of Credit proving to be forged, fraudulent, invalid or insufficient in
any respect or any statement therein being untrue or inaccurate in any
respect;
(iv) the
surrender or impairment of any security for the performance or observance of
any of the terms of any of the Credit Documents; or
(v) the
occurrence of any Default or Event of Default.
SECTION
2B. Tranche
2 Letters of Credit.
2B.01 Tranche
2 Letters of Credit.
(a) Subject
to and upon the terms and conditions set forth herein, each Designated
Subsidiary Borrower may request the Issuing Agent, at any time and from time to
time after the Effective Date and prior to the date which is 30 days prior to
the Commitment Expiration Date, to issue on behalf of the Tranche 2 Lenders,
for the account of such Designated Subsidiary Borrower and in support of, on a
standby basis, Letter of Credit Supportable Obligations and, subject to and
upon the terms and conditions set forth herein, the Issuing Agent agrees to
issue on behalf of the Tranche 2 Lenders at any time and from time to time
after the Effective Date and prior to the date which is 30 days prior to the
Commitment
Expiration Date, one or more irrevocable standby letters of credit in such form
as may be approved by the Issuing Agent (each such letter of credit, a
“Tranche 2 Letter of Credit” and, collectively, the “Tranche 2
Letters of Credit”). Such Tranche 2 Letters of Credit shall be
denominated, at the relevant Designated Subsidiary Borrower’s request, in
Dollars or any Optional Currency, provided that, after giving effect to the
issuance of any such Tranche 2 Letter of Credit denominated in any Optional
Currency, the aggregate Stated Amount of all Tranche 2 Letters of Credit
denominated in Optional Currencies (exclusive of Tranche 2 Unpaid Drawings
which are repaid on the date of and prior to the issuance of the respective
Tranche 2 Letter of Credit) at such time and the Tranche 1 Letters of Credit
denominated in Optional Currencies (exclusive of Tranche 1 Unpaid Drawings
which are repaid on the date of and prior to the issuance of the respective
Tranche 2 Letter of Credit) at such time will not exceed the Aggregate
Multicurrency Letter of Credit Limit. At the relevant Designated Subsidiary
Borrower’s request, and notwithstanding any provisions in the first
sentence of this Section 2B.01(a) to the contrary, any Tranche 2 Letter of
Credit required to be issued pursuant to this Section 2B.01(a) shall be issued
by an Issuing Lender as a Tranche 2 Fronted Letter of Credit in accordance with
Section 2B.01(d), provided that, after giving effect to the issuance of any
such Tranche 2 Fronted Letter of Credit, the aggregate Stated Amount of Tranche
2 Fronted Letters of Credit (exclusive of Tranche 2 Unpaid Drawings which are
repaid on the date of and prior to the issuance of the respective Tranche 2
Letter of Credit) at such time and Tranche 1 Fronted Letters of Credit
(exclusive of Tranche 1 Unpaid Drawings which are repaid on the date of and
prior to the issuance of the respective Tranche 2 Letter of Credit) at such
time will not exceed the Fronted Letter of Credit Limit. At the Relevant
Subsidiary Borrower’s request, Tranche 2 Fronted Letters of Credit issued
pursuant to this Section 2B.01, including Tranche 2 Fronted Letters of Credit
denominated in Optional Currencies, may be issued in the United Kingdom; such
Tranche 2 Fronted Letters of Credit issued in the United Kingdom shall be
governed by the laws of the England and Wales or, at the request of the
applicable Designated Subsidiary Borrower, by the laws of other jurisdictions
as agreed to between such Designated Subsidiary Borrower and the Issuing
Lender. Notwithstanding the foregoing, neither the Issuing Agent nor any
Issuing Lender shall be under any obligation to issue any Tranche 2 Letter of
Credit if at the time of such issuance:
(i) any
order, judgment or decree of any Governmental Authority or arbitrator shall
purport by its terms to enjoin or restrain the issuance of such Tranche 2
Letter of Credit or any requirement of law applicable to the Issuing Agent,
such Issuing Lender or any Lender or any request or directive (whether or not
having the force of law) from any Governmental Authority with jurisdiction over
it shall prohibit, or request that it refrain from, the issuance of letters of
credit generally or such Tranche 2 Letter of Credit in particular or shall
impose upon it with respect to such Tranche 2 Letter of Credit any restriction
or reserve or capital requirement (for which the Issuing Agent or any Tranche 2
Lender is not otherwise compensated) not in effect on the Effective Date, or
any unreimbursed loss, cost or expense which was not applicable, in effect or
known to it as of the Effective Date;
(ii) the
conditions precedent set forth in Section 5.02 are not satisfied at that time;
or
(iii) the
Issuing Agent shall have received notice from any Borrower or the Required
Lenders prior to the issuance of such Tranche 2 Letter of Credit of the type
described in clause (vi) of Section 2B.01(b).
(b) Notwithstanding
anything to the contrary contained in this Section 2B.01 or elsewhere in this
Agreement (i) no Tranche 2 Letter of Credit shall be issued the Stated Amount
of which, when added to (x) the Tranche 2 Letter of Credit Outstandings
(exclusive of Tranche 2 Unpaid Drawings which are repaid on the date of, and
prior to the issuance of, the respective Tranche 2 Letter of Credit) at such
time and (y) the aggregate principal amount of all Tranche 2 Revolving Loans
then outstanding, would exceed an amount equal to the Total Tranche 2
Commitment at such time; (ii) no Tranche 2 Letter of Credit shall be issued for
the account of any Intermediate Holding Company the Stated Amount of which,
when added to (x) the Tranche 2 Letter of Credit Outstandings in respect of
outstanding Tranche 2 Letters of Credit issued for the account of all
Intermediate Holding Companies (exclusive of Tranche 2 Unpaid Drawings in
respect of Tranche 2 Letters of Credit issued for the account of Intermediate
Holding Companies which are repaid on the date of, and prior to the issuance
of, the respective Tranche 2 Letter of Credit) at such time and (y) the Tranche
1 Letter of Credit Outstandings (exclusive of Tranche 1 Unpaid Drawings in
respect of Tranche 1 Letters of Credit issued for the account of Intermediate
Holding Companies which are repaid on the date of and prior to the issuance of
the respective Tranche 2 Letter of Credit) in respect of outstanding Tranche 1
Letters of Credit issued for the account of all Intermediate Holding Companies,
exceeds $50,000,000; (iii) no Tranche 2 Letter of Credit for the account of any
Borrower shall be issued the Stated Amount of which, when added to (x) the
Tranche 2 Letter of Credit Outstandings applicable to such Borrower (exclusive
of Tranche 2 Unpaid Drawings which are repaid on the date of, and prior to the
issuance of, the respective Tranche 2 Letter of Credit) at such time and (y)
the aggregate principal amount of all Tranche 2 Revolving Loans incurred by
such Borrower and then outstanding, would exceed an amount equal to such
Borrower’s Borrowing Base at such time; (iv) each Tranche 2 Letter of
Credit shall have an expiry date occurring not later than one year after such
Tranche 2 Letter of Credit’s date of issuance; provided that
each such Tranche 2 Letter of Credit may by its terms automatically renew
annually for one additional year unless the Issuing Agent or the relevant
Issuing Lender, as the case may be, notifies the beneficiary thereof, in
accordance with the terms of such Tranche 2 Letter of Credit, that such Tranche
2 Letter of Credit will not be renewed; (v) each Tranche 2 Letter of Credit
shall be denominated in Dollars or in an Optional Currency, subject to the
limitation in the proviso to the second sentence of Section 2B.01(a); and (vi)
the Issuing Agent or the relevant Issuing Lender, as the case may be, will not
issue any Tranche 2 Letter of Credit after the Issuing Agent has received
written notice from any Borrower or the Required Lenders stating that a Default
or an Event of Default exists until such time as the Issuing Agent shall have
received a written notice of (x) rescission of such notice from the party or
parties originally delivering the same or (y) a waiver of such Default or Event
of Default by the Required Lenders (or, to the extent provided by Section
12.11, each of the Lenders).
(c) Each
Tranche 2 Non-Fronted Letter of Credit will be issued by the Issuing Agent on
behalf of the Tranche 2 Lenders and each Tranche 2 Lender will participate in
each Tranche 2 Non-Fronted Letter of Credit pro rata in
accordance with its Tranche 2 Percentage. The obligations of each Tranche 2
Lender under and in respect of each Tranche 2 Non-Fronted Letter of Credit are
several, and the failure by any Tranche 2 Lender to perform its obligations
hereunder
or under any Tranche 2 Non-Fronted Letter of Credit shall not affect the
obligations of the respective Designated Subsidiary Borrower toward any other
party hereto nor shall any other such party be liable for the failure by such
Tranche 2 Lender to perform its obligations hereunder or under any Tranche 2
Non-Fronted Letter of Credit.
(d) Subject
to the terms and conditions hereof, each Issuing Lender, in reliance on the
agreements of the other Lenders set forth in Section 2B.09, agrees to issue a
Tranche 2 Fronted Letter of Credit requested by a Designated Subsidiary
Borrower to the extent contemplated by Section 2B.01(a).
(e) Subject
to and on the terms and conditions set forth herein, the Issuing Agent or the
relevant Issuing Lender, as the case may be, is hereby authorized by each
Designated Subsidiary Borrower and the Tranche 2 Lenders to arrange for the
issuance of any Tranche 2 Letter of Credit pursuant to Section 2B.01(a) and the
amendment of any Letter of Credit pursuant to Section 1.13, Section 1.15,
Section 2B.06 and/or Section 12.04(b) by:
(i) completing
the commencement date and the expiry date of such Tranche 2 Letter of
Credit;
(ii) in the
case of an amendment increasing or reducing the amount thereof, amending such
Tranche 2 Letter of Credit in such manner as the Issuing Agent and the
respective beneficiary may agree; and
(iii) (A) in
the case of a Tranche 2 Non-Fronted Letter of Credit, (1) completing such
Tranche 2 Non-Fronted Letter of Credit with the participation of each Tranche 2
Lender as allocated pursuant to the terms hereof, and (2) executing such
Tranche 2 Non-Fronted Letter of Credit on behalf of each Tranche 2 Lender and,
following such execution, delivering such Tranche 2 Non-Fronted Letter of
Credit to the beneficiary of such Tranche 2 Non-Fronted Letter of Credit; or
(B) in the case of Tranche 2 Fronted Letters of Credit, (1) completing such
Tranche 2 Fronted Letter of Credit pursuant to the terms hereof, (2) issuing
and executing such Tranche 2 Fronted Letter of Credit and, following such
execution, delivering such Tranche 2 Fronted Letter of Credit to the
beneficiary of such Tranche 2 Fronted Letter of Credit and (3) promptly
furnishing to the Administrative Agent, which shall in turn promptly furnish to
the Lenders, notice of the issuance of each Tranche 2 Fronted Letter of Credit
(including the amount and currency thereof).
(f) Each
Tranche 2 Non-Fronted Letter of Credit shall be executed and delivered by the
Issuing Agent in the name and on behalf of, and as attorney-in-fact for, each
Tranche 2 Lender party to such Tranche 2 Non-Fronted Letter of Credit, and the
Issuing Agent shall act under each Tranche 2 Non-Fronted Letter of Credit, and
each Tranche 2 Non-Fronted Letter of Credit shall expressly provide that the
Issuing Agent shall act, as the agent of each Tranche 2 Lender to (a) receive
drafts, other demands for payment and other documents presented by the
beneficiary under such Tranche 2 Non-Fronted Letter of Credit, (b) determine
whether such drafts, demands and documents are in compliance with the terms and
conditions of such Tranche 2 Non-Fronted Letter of Credit and (c) notify such
Tranche 2 Lender and such Designated Subsidiary Borrower that a valid drawing
has been made and the date that the related
Tranche
2 Unpaid Drawing is to be made; provided that
the Issuing Agent shall have no obligation or liability for any Tranche 2
Unpaid Drawing under such Tranche 2 Non-Fronted Letter of Credit, and each
Tranche 2 Non-Fronted Letter of Credit shall expressly so provide. Each Tranche
2 Lender hereby irrevocably appoints and designates the Issuing Agent its
attorney-in-fact, acting through any duly authorized officer of the Issuing
Agent, to execute and deliver in the name and on behalf of such Tranche 2
Lender each Tranche 2 Non-Fronted Letter of Credit to be issued by such Tranche
2 Lender hereunder. Promptly upon the request of the Issuing Agent, each
Tranche 2 Lender will furnish to the Issuing Agent such powers of attorney or
other evidence as any beneficiary of any Tranche 2 Non-Fronted Letter of Credit
may reasonably request in order to demonstrate that the Issuing Agent has the
power to act as attorney-in-fact for such Tranche 2 Lender to execute and
deliver such Tranche 2 Non-Fronted Letter of Credit.
2B.02 Tranche
2 Letter of Credit Requests.
(a)
Whenever a Designated Subsidiary Borrower desires that a Tranche 2 Letter of
Credit be issued, such Designated Subsidiary Borrower shall give the
Administrative Agent and the Issuing Agent and, in the case of a Tranche 2
Fronted Letter of Credit, the relevant Issuing Lender, written notice
(including by way of facsimile transmission, immediately confirmed in writing
by submission of the original of such request by mail to the Issuing Agent or
the relevant Issuing Lender, as the case may be) thereof prior to (i) in the
case of Tranche 2 Letters of Credit not issued in the United Kingdom, 11:00
A.M. (New York time), and (ii) in the case of Tranche 2 Letters of Credit
issued in the United Kingdom, 11:00 A.M. (London time), at least five Business
Days (or such shorter period as may be acceptable to the Issuing Agent or the
relevant Issuing Lender, as the case may be) prior to the proposed date of
issuance (which shall be a Business Day), which written notice shall be in the
form of Exhibit C-2 (each, a “Tranche 2 Letter of Credit Request”).
Each Tranche 2 Letter of Credit Request shall include any other documents as
the Issuing Agent or the relevant Issuing Lender, as the case may be,
customarily requires in connection therewith.
(b) The
making of each Tranche 2 Letter of Credit Request shall be deemed to be a
representation and warranty by the applicable Designated Subsidiary Borrower
that such Tranche 2 Letter of Credit may be issued in accordance with, and it
will not violate the requirements of, Section 2B.01(a) or (b).
(c) Immediately
prior to the issuance of any Tranche 2 Fronted Letter of Credit the relevant
Issuing Lender shall notify the Administrative Agent and Issuing Agent thereof
and shall obtain confirmation from the Issuing Agent that such Tranche 2
Fronted Letter of Credit may be issued. Upon its issuance of, or amendment to,
any Tranche 2 Letter of Credit, the Issuing Agent shall promptly notify the
respective Designated Subsidiary Borrower and the Tranche 2 Lenders of such
issuance or amendment, which notice shall include a summary description of the
Tranche 2 Letter of Credit actually issued and any amendments thereto. Each
Issuing Lender shall also give prompt notice to the Issuing Agent of the
termination or expiry of any Tranche 2 Fronted Letter of Credit issued by
it.
2B.03 Agreement
to Repay Tranche 2 Letter of Credit Drawings.
(a) Each
Designated Subsidiary Borrower agrees to reimburse each Tranche 2 Lender or the
relevant Issuing Lender, as the case may be, by making payment to the
Administrative Agent in immediately available funds in the currency in which
such Tranche 2 Letter of Credit was issued
31
at the
Payment Office, for any payment or disbursement made by it under any Tranche 2
Letter of Credit which has been issued for such Designated Subsidiary
Borrower’s account (each such amount so paid or disbursed until
reimbursed, a “Tranche 2 Unpaid Drawing”) no later than one Business
Day (or, in the case of any Tranche 2 Letter of Credit denominated in a
currency other than Dollars, three Business Days) following the date of such
payment or disbursement, with interest on the amount so paid or disbursed, to
the extent not reimbursed prior to (i) in the case of Tranche 2 Letters of
Credit not issued in the United Kingdom, 1:00 P.M. (New York time) and (ii) in
the case of Letters of Credit issued in the United Kingdom, 1:00 P.M. (London
time), on the date of such payment or disbursement, from and including the date
paid or disbursed to but not including the date of reimbursement therefor at a
rate per annum which shall be (i) for the Tranche 2 Letters of Credit
denominated in Dollars, the Base Rate plus the Applicable Margin for Tranche 2
Revolving Loans maintained as Base Rate Loans as in effect from time to time
(or, if the Total Tranche 2 Commitment has been terminated and all Tranche 2
Revolving Loans have been repaid, the Applicable Margin that would have been in
effect for Tranche 2 Revolving Loans maintained as Base Rate Loans) or (ii) for
Tranche 2 Letters of Credit denominated in an Optional Currency, the Overnight
Eurodollar Rate for such Optional Currency plus the Applicable Margin for
Tranche 2 Revolving Loans maintained as Eurodollar Loans as in effect from time
to time (or, if the Total Tranche 2 Commitment has been terminated and all
Tranche 2 Revolving Loans have been repaid, the Applicable Margin that would
have been in effect for Tranche 2 Revolving Loans maintained as Eurodollar
Loans) (plus an additional 2% per annum, payable on demand, if not reimbursed
by the third Business Day after the date such reimbursement is
due).
(b) Each
Designated Subsidiary Borrower’s obligation under this Section 2B.03 to
reimburse each Tranche 2 Lender or the relevant Issuing Lender, as the case may
be, with respect to Tranche 2 Unpaid Drawings (including, in each case,
interest thereon) shall be absolute and unconditional under any and all
circumstances and irrespective of any setoff, counterclaim or defense to
payment which such Designated Subsidiary Borrower may have or have had against
such Tranche 2 Lender or such Issuing Lender, as the case may be, or the
Issuing Agent, including, without limitation, any defense based upon the
failure of any drawing under a Tranche 2 Letter of Credit to conform to the
terms of the Tranche 2 Letter of Credit or any non-application or
misapplication by the beneficiary of the proceeds of such drawing; provided,
however, that
no Designated Subsidiary Borrower shall be obligated to reimburse any Tranche 2
Lender or such Issuing Lender, as the case may be, for any wrongful payment
made by it under a Tranche 2 Letter of Credit as a result of acts or omissions
constituting willful misconduct or gross negligence (as determined by a court
of competent jurisdiction in a final and non-appealable decision).
2B.04 Increased
Costs. If
after the Effective Date, the adoption or effectiveness of any applicable law,
rule or regulation, order, guideline or request or any change therein after the
Effective Date, or any change adopted or effective after the Effective Date in
the interpretation or administration thereof by any Governmental Authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Tranche 2 Lender or any Issuing
Lender with any request or directive (whether or not having the force of law)
by any such authority, central bank or comparable agency shall either (i)
impose, modify or make applicable any reserve, deposit, capital adequacy or
similar requirement against letters of credit issued by or participated in by
such Tranche 2 Lender or such Issuing
Lender,
as the case may be, or (ii) impose on such Tranche 2 Lender or such Issuing
Lender, as the case may be, any other conditions directly or indirectly
affecting this Agreement or any Tranche 2 Letter of Credit; and the result of
any of the foregoing is to increase the cost to such Tranche 2 Lender or such
Issuing Lender, as the case may be, of issuing, maintaining or participating in
any Tranche 2 Letter of Credit, or to reduce the amount of any sum received or
receivable by it hereunder or reduce the rate of return on its capital with
respect to Tranche 2 Letters of Credit, then, upon written demand to the
respective Designated Subsidiary Borrower by such Tranche 2 Lender or such
Issuing Lender, as the case may be (with a copy to the Administrative Agent),
such Designated Subsidiary Borrower agrees to pay to such Tranche 2 Lender or
such Issuing Lender, as the case may be, such additional amount or amounts as
will compensate it for such increased cost or reduction. A certificate
submitted to the respective Designated Subsidiary Borrower by such Tranche 2
Lender or such Issuing Lender, as the case may be (with a copy to the
Administrative Agent), setting forth the basis for the determination of such
additional amount or amounts necessary to compensate such Tranche 2 Lender or
such Issuing Lender, as the case may be, as aforesaid shall be final and
conclusive and binding on such Designated Subsidiary Borrower absent manifest
error, although the failure to deliver any such certificate shall not release
or diminish any Designated Subsidiary Borrower’s obligations to pay
additional amounts pursuant to this Section 2B.04 upon subsequent receipt of
such certificate.
2B.05 Tranche
2 Letter of Credit Expiration Extensions. Each
Tranche 2 Lender acknowledges that to the extent provided under the terms of
any Tranche 2 Letter of Credit, the expiration date of such Tranche 2 Letter of
Credit will be automatically extended for an additional year, without written
amendment, unless at least 30 days prior to the expiration date of such Tranche
2 Letter of Credit, a Notice of Non-Extension is given by the Issuing Agent to
the beneficiary of such Tranche 2 Letter of Credit in accordance with the terms
of the respective Tranche 2 Letter of Credit that the expiration date of such
Tranche 2 Letter of Credit will not be extended beyond its current expiration
date. The Issuing Agent or the relevant Issuing Lender, as the case may be,
will give a Notice of Non-Extension as to any outstanding Tranche 2 Letter of
Credit if requested to do so by the Required Lenders pursuant to Section 9. The
Issuing Agent or the relevant Issuing Lender, as the case may be, will give a
Notice of Non-Extension as to each outstanding Tranche 2 Letter of Credit if
the Commitment Expiration Date has occurred. The Issuing Agent or the relevant
Issuing Lender, as the case may be, will send a copy of each Notice of
Non-Extension to the respective Designated Subsidiary Borrower concurrently
with delivery thereof to the respective beneficiary, unless prohibited by law
from doing so.
2B.06 Changes
to Stated Amount.
Subject to the terms and conditions hereof, at any time when any Tranche 2
Letter of Credit is outstanding, at the request of the respective Designated
Subsidiary Borrower, the Issuing Agent or the relevant Issuing Lender, as the
case may be, will enter into an amendment increasing or reducing the Stated
Amount of such Tranche 2 Letter of Credit, provided that (i) in no event shall
the Stated Amount of any Tranche 2 Letter of Credit be increased to an amount
which, when added to (x) the Tranche 2 Letter of Credit Outstandings (exclusive
of Tranche 2 Unpaid Drawings which are repaid on the date of and prior to the
issuance of the respective Tranche 2 Letter of Credit) at such time and (y) the
aggregate principal amount of all Tranche 2 Revolving Loans then outstanding,
would exceed an amount equal to the Total Tranche 2 Commitment at such time,
(ii) in no event shall the Stated Amount of any Tranche 2 Letter of Credit
issued for the account of any Designated Subsidiary Borrower
be
increased to an amount which, when added to (x) the Tranche 2 Letter of Credit
Outstandings (exclusive of Tranche 2 Unpaid Drawings which are repaid on the
date of and prior to the issuance of the respective Tranche 2 Letter of Credit)
applicable to such Borrower at such time and (y) the aggregate principal amount
of all Tranche 2 Revolving Loans incurred by such Borrower and then
outstanding, would exceed an amount equal to such Borrower’s Borrowing
Base at such time, (iii) the Stated Amount of a Tranche 2 Letter of Credit may
not be increased at any time if the conditions precedent set forth in Section
5.02 are not satisfied at such time, (iv) the Stated Amount of a Tranche 2
Letter of Credit may not be increased at any time after the date which is 30
days prior to the Commitment Expiration Date, (v) in no event shall the Stated
Amount of any Tranche 2 Letter of Credit denominated in an Optional Currency
issued for the account of any Designated Subsidiary Borrower be increased to an
amount which, when added to (x) the aggregate Stated Amount of all Tranche 2
Letters of Credit denominated in Optional Currencies (exclusive of Tranche 2
Unpaid Drawings which are repaid on the date of and prior to the issuance of
the respective Tranche 2 Letter of Credit) at such time and (y) the Tranche 1
Letters of Credit denominated in Optional Currencies (exclusive of Tranche 1
Unpaid Drawings which are repaid on the date of and prior to the issuance of
the respective Tranche 2 Letter of Credit) at such time, would exceed the
Aggregate Multicurrency Letter of Credit Limit; and (vi) in no event shall the
Stated Amount of any Tranche 2 Fronted Letter of Credit issued for the account
of any Designated Subsidiary Borrower be increased to an amount which, when
added to (x) the aggregate Stated Amount of all Tranche 2 Fronted Letters of
Credit (exclusive of Tranche 2 Unpaid Drawings which are repaid on the date of
and prior to the issuance of the respective Tranche 2 Letter of Credit)
outstanding at such time and (y) Tranche 1 Fronted Letters of Credit (exclusive
of Tranche 1 Unpaid Drawings which are repaid on the date of and prior to the
issuance of the respective Tranche 2 Letter of Credit) outstanding at such
time, would exceed the Fronted Letter of Credit Limit.
2B.07 Representations
and Warranties of Tranche 2 Lenders. Each
Tranche 2 Lender represents and warrants that each Tranche 2 Non-Fronted Letter
of Credit constitutes a legal, valid and binding obligation of such Tranche 2
Lender enforceable in accordance with its terms and each Issuing Lender
represents and warrants that each Tranche 2 Fronted Letter of Credit
constitutes a legal, valid and binding obligation of such Issuing Lender
enforceable in accordance with its terms.
2B.08 Existing
Tranche 2 Letters of Credit.
(a) Each
letter of credit issued under the Existing Credit Agreement and outstanding
immediately prior to the Effective Date and which is intended to be a Tranche 2
Letter of Credit hereunder is listed in Part B of Annex VIII (each such letter
of credit, an “Existing Tranche 2 Letter of Credit”). Each Existing
Tranche 2 Letter of Credit shall be deemed to be a Tranche 2 Letter of Credit
hereunder. As soon as possible following the Effective Date, each Existing
Tranche 2 Letter of Credit shall be amended to replace each Original Lender on
such Existing Tranche 2 Letter of Credit with each Tranche 2 Lender party to
this Agreement on the Effective Date in accordance with each such Tranche 2
Lender’s Tranche 2 Percentage. Until an Existing Tranche 2 Letter of
Credit has been amended in accordance with this Section 2B.08, each Original
Lender shall be deemed to have sold and transferred to each Tranche 2 Lender
and each such Tranche 2 Lender (each, a “Tranche 2 Participant”)
shall be deemed irrevocably and unconditionally to have purchased and received
from such Original Lender, without recourse or warranty, an undivided interest
and participation, to the extent of such Tranche 2 Participant’s Tranche 2
Percentage in such Existing Tranche 2
34
Letter
of Credit, each substitute Existing Tranche 2 Letter of Credit, each drawing
made thereunder, the obligations of any Borrower under this Agreement with
respect thereto and any security therefore or guaranty pertaining thereto. Upon
any change in the Tranche 2 Commitments of the Tranche 2 Lenders pursuant to
Section 1.13 or 12.04(b), it is hereby agreed that, with respect to all
outstanding Existing Tranche 2 Letters of Credit and Unpaid Drawings with
respect thereto, there shall be an automatic adjustment to the participations
pursuant to this Section 2B.08 to reflect the new Tranche 2 Percentages of the
assigning and assignee Tranche 2 Lender.
(b) In
determining whether to pay under any Existing Tranche 2 Letter of Credit, no
Original Lender shall have any obligation relative to the Tranche 2
Participants other than to determine that any documents required to be
delivered under such Existing Tranche 2 Letter of Credit have been delivered
and that they appear to substantially comply on their face with the
requirements of such Existing Tranche 2 Letter of Credit, which obligation, it
is understood, is being performed by the Issuing Agent, and upon whom each
Original Lender shall be entitled to rely. Any action taken or omitted to be
taken by any Original Lender under or in connection with any Existing Tranche 2
Letter of Credit issued by it shall not create for such Original Lender any
resulting liability to any Borrower, any Tranche 2 Lender or any other Person
unless such action is taken or omitted to be taken with gross negligence or
willful misconduct (as determined by a court of competent jurisdiction in a
final and non-appealable decision).
(c) In the
event that any Original Lender makes any payment under any Existing Tranche 2
Letter of Credit issued by it and the respective Borrower shall not have
reimbursed such amount in full to each Original Lender pursuant to Section
2B.03(a), such Original Lender shall promptly notify the Administrative Agent,
and the Administrative Agent shall promptly notify each Tranche 2 Participant
of such failure, and each such Tranche 2 Participant shall promptly and
unconditionally pay to the Administrative Agent for the account of such
Original Lender, the amount of such Tranche 2 Participant’s Tranche 2
Percentage of such payment in Dollars and in same day funds. If the
Administrative Agent so notifies any Tranche 2 Participant required to fund a
payment under an Existing Tranche 2 Letter of Credit prior to 11:00 A.M. (New
York time) on any Business Day, such Tranche 2 Participant shall make available
to the Administrative Agent at the Payment Office for the account of the
respective Original Lender such Tranche 2 Participant’s Tranche 2
Percentage of the amount of such payment on such Business Day in same day funds
(and, to the extent such notice is given after 11:00 A.M. (New York time) on
any Business Day, such Tranche 2 Participant shall make such payment on the
immediately following Business Day). If and to the extent such Tranche 2
Participant shall not make its Tranche 2 Percentage of the amount of such
payment available to the Administrative Agent for the account of the respective
Original Lender on the same Business Day, such Tranche 2 Participant agrees to
pay to the Administrative Agent for the account of such Original Lender,
forthwith on demand such amount, together with interest thereon, for each day
from such date until the date such amount is paid to the Administrative Agent
for the account of such Original Lender at the overnight Federal Funds Rate for
the first three days from the date when due and at the interest rate applicable
to Tranche 2 Revolving Loans that are maintained as Base Rate Loans for each
day thereafter. The failure of any Tranche 2 Participant to make available to
the Administrative Agent for the account of the respective Original Lender its
Tranche 2 Percentage of any payment under any Existing Tranche 2 Letter of
Credit issued by
35
it shall
not relieve any other Tranche 2 Participant of its obligation hereunder to make
available to the Administrative Agent for the account of such Original Lender
its Tranche 2 Percentage of any payment under any such Tranche 2 Letter of
Credit on the date required, as specified above, but no Tranche 2 Participant
shall be responsible for the failure of any other Tranche 2 Participant to make
available to the Administrative Agent for the account of such Original Lender
such other Tranche 2 Participant’s Tranche 2 Percentage of any such
payment.
(d) Whenever
any Original Lender receives a payment of a reimbursement obligation as to
which the Administrative Agent has received for the account of such Original
Lender any payments from the Tranche 2 Participants pursuant to Section
2B.08(c), such Original Lender shall pay to the Administrative Agent and the
Administrative Agent shall promptly pay to each Tranche 2 Participant which has
paid its Tranche 2 Percentage thereof, in Dollars and in same day funds, an
amount equal to such Tranche 2 Participant’s Tranche 2 Percentage
thereof.
(e) The
obligations of the Tranche 2 Participants to make payments to the
Administrative Agent for the account of the respective Original Lender with
respect to Existing Tranche 2 Letters of Credit issued by it shall be
irrevocable and not subject to counterclaim, set-off or other defense or any
other qualification or exception whatsoever and shall be made in accordance
with the terms and conditions of this Agreement under all circumstances,
including, without limitation, any of the following circumstances:
(i) any lack
of validity or enforceability of this Agreement or any of the other Credit
Documents;
(ii) the
existence of any claim, set-off, defense or other right which the Parent
Borrower or any of its Subsidiaries may have at any time against a beneficiary
named in an Existing Tranche 2 Letter of Credit, any transferee of any Existing
Tranche 2 Letter of Credit (or any Person for whom any such transferee may be
acting), the Administrative Agent, any Original Lender, or other Person,
whether in connection with this Agreement, any Existing Tranche 2 Letter of
Credit, the transactions contemplated herein or any unrelated transactions
(including any underlying transaction between the Parent Borrower or any of its
Subsidiaries and the beneficiary named in any such Existing Tranche 2 Letter of
Credit);
(iii) any
draft, certificate or other document presented under the Existing Tranche 2
Letter of Credit proving to be forged, fraudulent, invalid or insufficient in
any respect or any statement therein being untrue or inaccurate in any
respect;
(iv) the
surrender or impairment of any security for the performance or observance of
any of the terms of any of the Credit Documents; or
(v) the
occurrence of any Default or Event of Default.
2B.09 Tranche
2 Fronted Letter of Credit Participations. In the
case of Tranche 2 Fronted Letters of Credit:
36
(a) The
Issuing Lender irrevocably agrees to grant and hereby grants to each Lender
participating in a Tranche 2 Fronted Letter of Credit (the “Tranche 2
Fronted Letter of Credit Participants”), and each such Tranche 2 Fronted
Letter of Credit Participant shall be deemed irrevocably and unconditionally to
have purchased and received from such Issuing Lender, without recourse or
warranty, an undivided interest and participation, to the extent of such
Tranche 2 Fronted Letter of Credit Participant’s Tranche 2 Percentage in
such Tranche 2 Fronted Letter of Credit, each drawing made thereunder, the
obligations of any Borrower under this Agreement with respect thereto and any
security therefore or guaranty pertaining thereto. Upon any change in the
Tranche 2 Commitments of the Tranche 2 Lenders pursuant to Section 1.13 or
12.04(b), it is hereby agreed that, with respect to all outstanding Tranche 2
Fronted Letters of Credit and Unpaid Drawings with respect thereto, there shall
be an automatic adjustment to the participations pursuant to this Section 2A.09
to reflect the new Tranche 2 Percentages of the assigning and assignee Tranche
2 Lender.
(b) In
determining whether to pay under any Tranche 2 Fronted Letter of Credit, no
Issuing Lender shall have any obligation relative to the Tranche 2 Fronted
Letter of Credit Participants other than to determine that any documents
required to be delivered under such Tranche 2 Fronted Letter of Credit have
been delivered and that they appear to substantially comply on their face with
the requirements of such Tranche 2 Fronted Letter of Credit. Any action taken
or omitted to be taken by any Issuing Lender under or in connection with any
Tranche 2 Fronted Letter of Credit issued by it shall not create for such
Issuing Lender any resulting liability to any Borrower, any Tranche 2 Lender or
any other Person unless such action is taken or omitted to be taken with gross
negligence or willful misconduct (as determined by a court of competent
jurisdiction in a final and non-appealable decision).
(c) In the
event that any Issuing Lender makes any payment under any Tranche 2 Fronted
Letter of Credit issued by it and the respective Borrower shall not have
reimbursed such amount in full to such Issuing Lender as and when required
pursuant to Section 2A.03(a), such Issuing Lender shall promptly notify the
Administrative Agent, and the Administrative Agent shall promptly notify each
Tranche 2 Fronted Letter of Credit Participant of such failure, and each such
Tranche 2 Fronted Letter of Credit Participant shall promptly and
unconditionally pay to the Administrative Agent for the account of such Issuing
Lender, the amount of such Tranche 2 Fronted Letter of Credit
Participant’s Tranche 2 Percentage of such payment in such currency
denominated in such Tranche 2 Fronted Letter of Credit and in same day funds.
If the Administrative Agent so notifies any Tranche 2 Fronted Letter of Credit
Participant required to fund a payment under a Tranche 2 Fronted Letter of
Credit prior to 11:00 A.M. (New York time) on any Business Day, such Tranche 2
Fronted Letter of Credit Participant shall make available to the Administrative
Agent at the Payment Office for the account of the respective Issuing Lender
such Tranche 2 Fronted Letter of Credit Participant’s Tranche 2 Percentage
of the amount of such payment on such Business Day (or, in the case of an
amount payable in an Optional Currency, the next Business Day or such later day
as would be customary for interbank payments in such Optional Currency) in same
day funds (and, to the extent such notice is given after 11:00 A.M. (New York
time) on any Business Day, such Tranche 2 Fronted Letter of Credit Participant
shall make such payment on the immediately following Business Day (or, in the
case of an amount payable in an Optional Currency, the next Business Day or
such later day as would be customary for interbank payments in such Optional
Currency)). If and to the extent such Tranche 2 Fronted Letter of Credit
Participant shall not make its Tranche 2
37
Percentage
of the amount of such payment available to the Administrative Agent for the
account of the respective Issuing Lender on the same Business Day, such Tranche
2 Fronted Letter of Credit Participant agrees to pay to the Administrative
Agent for the account of such Issuing Lender, forthwith on demand such amount,
together with interest thereon, for each day from such date until the date such
amount is paid to the Administrative Agent for the account of such Issuing
Lender at the overnight Federal Funds Rate for the first three days from the
date when due and at the interest rate applicable to Tranche 2 Revolving Loans
that are maintained as Base Rate Loans for each day thereafter (or, in the case
of an amount in a currency other than Dollars, the customary rate for the
settlement of interbank obligations in such currency plus, after such three
days, the Applicable Margin for Eurodollar Loans). The failure of any Tranche 2
Fronted Letter of Credit Participant to make available to the Administrative
Agent for the account of the respective Issuing Lender its Tranche 2 Percentage
of any payment under any Tranche 2 Fronted Letter of Credit issued by it shall
not relieve any other Tranche 2 Fronted Letter of Credit Participant of its
obligation hereunder to make available to the Administrative Agent for the
account of such Issuing Lender its Tranche 2 Percentage of any payment under
any such Tranche 2 Fronted Letter of Credit on the date required, as specified
above, but no Tranche 2 Fronted Letter of Credit Participant shall be
responsible for the failure of any other Tranche 2 Fronted Letter of Credit
Participant to make available to the Administrative Agent for the account of
such Issuing Lender such other Tranche 2 Fronted Letter of Credit
Participant’s Tranche 2 Percentage of any such payment.
(d) Whenever
any Issuing Lender receives a payment of a reimbursement obligation as to which
the Administrative Agent has received for the account of such Issuing Lender
any payments from the Tranche 2 Fronted Letter of Credit Participants pursuant
to Section 2B.09(c), such Issuing Lender shall pay to the Administrative Agent
and the Administrative Agent shall promptly pay to each Tranche 2 Fronted
Letter of Credit Participant which has paid its Tranche 2 Percentage thereof,
in the same currency as such payment and in same day funds, an amount equal to
such Tranche 2 Fronted Letter of Credit Participant’s Tranche 2 Percentage
thereof.
(e) The
obligations of the Tranche 2 Participants to make payments to the
Administrative Agent for the account of the respective Issuing Lender with
respect to Tranche 2 Fronted Letters of Credit issued by it shall be
irrevocable and not subject to counterclaim, set-off or other defense or any
other qualification or exception whatsoever and shall be made in accordance
with the terms and conditions of this Agreement under all circumstances,
including, without limitation, any of the following circumstances:
(i) any lack
of validity or enforceability of this Agreement or any of the other Credit
Documents;
(ii) the
existence of any claim, set-off, defense or other right which the Parent
Borrower or any of its Subsidiaries may have at any time against a beneficiary
named in a Tranche 2 Fronted Letter of Credit, any transferee of any Tranche 2
Fronted Letter of Credit (or any Person for whom any such transferee may be
acting), the Administrative Agent, any Issuing Lender, or other Person, whether
in connection with this Agreement, any Tranche 2 Fronted Letter of Credit, the
transactions contemplated herein or any unrelated transactions (including any
underlying transaction between the Parent Borrower
38
or any
of its Subsidiaries and the beneficiary named in any such Tranche 2 Fronted
Letter of Credit);
(iii) any
draft, certificate or other document presented under the Tranche 2 Fronted
Letter of Credit proving to be forged, fraudulent, invalid or insufficient in
any respect or any statement therein being untrue or inaccurate in any
respect;
(iv) the
surrender or impairment of any security for the performance or observance of
any of the terms of any of the Credit Documents; or
(v) the
occurrence of any Default or Event of Default.
SECTION
3. Fees;
Commitments
3.01 Fees.
(a) The
Parent Borrower agrees to pay the Administrative Agent a facility fee (the
“Tranche 1 Facility Fee”) for the account of the Tranche 1 Lenders
pro rata on the basis of (i) prior to the earlier of the date the Total Tranche
1 Commitment terminates and the Commitment Expiration Date, their respective
Tranche 1 Commitments and (ii) on or after the earlier of the date the Total
Tranche 1 Commitment terminates and the Commitment Expiration Date, their
respective Tranche 1 Percentages of Tranche 1 Letter of Credit Outstandings at
such time, in each case for the period from and including the Effective Date to
but not including the Final Maturity Date, computed at a per
annum rate
equal to the Applicable Margin for Facility Fees of (x) in the case of clause
(i) of this Section 3.01(a), the Total Tranche 1 Commitment (as in effect from
time to time) (regardless of utilization) and (y) in the case of clause (ii) of
this Section 3.01(a), the Tranche 1 Letter of Credit Outstandings at such time.
Accrued Tranche 1 Facility Fees shall be due and payable quarterly in arrears
on the last Business Day of each calendar quarter and on the Final Maturity
Date and, with respect to any Tranche 1 Facility Fee owing to any Tranche 1
Lender who is replaced pursuant to Section 1.13, on the date on which such
Tranche 1 Lender is replaced.
(b) The
Parent Borrower agrees to pay the Administrative Agent a facility fee (the
“Tranche 2 Facility Fee”) for the account of the Tranche 2 Lenders
pro rata on the basis of (i) prior to the earlier of the date the Total Tranche
2 Commitment terminates and the Commitment Expiration Date, their respective
Tranche 2 Commitments and (ii) on or after the earlier of the date the Total
Tranche 2 Commitment terminates and the Commitment Expiration Date, their
respective Tranche 2 Percentage of Tranche 2 Letter of Credit Outstandings at
such time, in each case for the period from and including the Effective Date to
but not including the Final Maturity Date, computed at a per
annum rate
equal to the Applicable Margin for Facility Fees of (x) in the case of clause
(i) of this Section 3.01(b), the Total Tranche 2 Commitment (as in effect
from time to time) (regardless of utilization) and (y) in the case of clause
(ii) of this Section 3.01(b), the Tranche 2 Letter of Credit Outstandings at
such time. Accrued Tranche 2 Facility Fees shall be due and payable quarterly
in arrears on the last Business Day of each calendar quarter and on the Final
Maturity Date and, with respect to any Tranche 2 Facility Fee owing to any
Tranche 2 Lender who is replaced pursuant to Section 1.13, on the date on which
such Tranche 2 Lender is replaced.
39
(c) The
Parent Borrower agrees to pay to the Administrative Agent a utilization fee
(the “Tranche 1 Utilization Fee”) for the account of the Tranche 1
Lenders pro rata on the basis of their respective Tranche 1 Revolving Loans
then outstanding for the period from and including the Effective Date to but
not including the earlier of the date the Total Tranche 1 Commitment terminates
and the Commitment Expiration Date, computed at a rate per annum equal to the
Applicable Margin for Utilization Fees of the aggregate outstanding amount of
Tranche 1 Revolving Loans at any time when the aggregate outstanding amount of
Revolving Loans incurred by all Borrowers is greater than 50% of the Total
Commitment (as in effect from time to time). Accrued Tranche 1 Utilization Fees
shall be due and payable quarterly in arrears on the last Business Day of each
calendar quarter and on the earlier of the date the Total Tranche 1 Commitment
terminates and the Commitment Expiration Date and, with respect to any Tranche
1 Utilization Fee owing to any Tranche 1 Lender who is replaced pursuant to
Section 1.13, on the date on which such Tranche 1 Lender is
replaced.
(d) The
Parent Borrower agrees to pay to the Administrative Agent a utilization fee
(the “Tranche 2 Utilization Fee”) for the account of the Tranche 2
Lenders pro rata on the basis of their respective Tranche 2 Revolving Loans
then outstanding for the period from and including the Effective Date to but
not including the earlier of the date the Total Tranche 2 Commitment terminates
and the Commitment Expiration Date, computed at a rate per annum equal to the
Applicable Margin for Utilization Fees of the aggregate outstanding amount of
Tranche 2 Revolving Loans at any time when the aggregate outstanding amount of
Revolving Loans incurred by all Borrowers is greater than 50% of the Total
Commitment (as in effect from time to time). Accrued Tranche 2 Utilization Fees
shall be due and payable quarterly in arrears on the last Business Day of each
calendar quarter and on the earlier of the date the Total Tranche 2 Commitment
terminates and the Commitment Expiration Date and, with respect to any Tranche
2 Utilization Fee owing to any Tranche 2 Lender who is replaced pursuant to
Section 1.13, on the date on which such Tranche 2 Lender is
replaced.
(e) The
Parent Borrower agrees to pay to the Administrative Agent for pro rata
distribution to each Tranche 1 Lender (based on their respective Tranche 1
Percentages), a fee in respect of each Tranche 1 Letter of Credit (the
“Tranche 1 Letter of Credit Fee”) computed at a rate per annum equal
to the Applicable Margin then in effect for Tranche 1 Revolving Loans
maintained as Eurodollar Loans (or, if the Total Tranche 1 Commitment has been
terminated and all Tranche 1 Revolving Loans have been repaid, the Applicable
Margin that would have been in effect for Tranche 1 Revolving Loans maintained
as Eurodollar Loans), on the daily Stated Amount of such Tranche 1 Letter of
Credit. Accrued Tranche 1 Letter of Credit Fees shall be due and payable
quarterly in arrears on the last Business Day of each calendar quarter and upon
the first day on or after the termination of the Total Tranche 1 Commitment
upon which no Tranche 1 Letters of Credit remain outstanding. In addition, the
Parent Borrower shall pay to the Issuing Lender for its own account a fronting
fee at a rate agreed to by such Issuing Lender with the Parent Borrower (the
“Tranche 1 Fronted Letter of Credit Fee”) on the undrawn and
unexpired amount of each Tranche 1 Fronted Letter of Credit, payable quarterly
in arrears on the last Business Day of each calendar quarter and upon the first
day on or after the termination of the Total Tranche 1 Commitment upon which no
Tranche 1 Letters of Credit remain outstanding.
(f) The
Parent Borrower agrees to pay to the Administrative Agent for pro rata
distribution to each Tranche 2 Lender (based on their respective Tranche 2
Percentages), a
40
fee in
respect of each Tranche 2 Letter of Credit (the “Tranche 2 Letter of
Credit Fee”) computed at a rate per annum equal to the Applicable Margin
then in effect for Tranche 2 Revolving Loans maintained as Eurodollar Loans
(or, if the Total Tranche 2 Commitment has been terminated and all Tranche 2
Revolving Loans have been repaid, the Applicable Margin that would have been in
effect for Tranche 2 Revolving Loans maintained as Eurodollar Loans), on the
daily Stated Amount of such Tranche 2 Letter of Credit. Accrued Tranche 2
Letter of Credit Fees shall be due and payable quarterly in arrears on the last
Business Day of each calendar quarter and upon the first day on or after the
termination of the Total Tranche 2 Commitment upon which no Tranche 2 Letters
of Credit remain outstanding. In addition, the Parent Borrower shall pay to the
Issuing Lender for its own account a fronting fee at a rate agreed to by such
Issuing Lender with the Parent Borrower (the “Tranche 2 Fronted Letter of
Credit Fee”) on the undrawn and unexpired amount of each Tranche 2 Fronted
Letter of Credit, payable quarterly in arrears on the last Business Day of each
calendar quarter and upon the first day on or after the termination of the
Total Tranche 2 Commitment upon which no Tranche 2 Letters of Credit remain
outstanding.
(g) The
Parent Borrower agrees to pay directly to the Issuing Agent upon each issuance
of and/or amendment of, a Letter of Credit such amount as shall at the time of
such issuance or amendment be the administrative charge which the Issuing Agent
is customarily charging for issuances of, or amendments of, letters of credit
issued by it.
(h) The
Parent Borrower agrees to pay to the Administrative Agent, for the account of
the Administrative Agent, when and as due, such fees as have been, or are from
time to time, separately agreed upon.
(i) All
computations of Fees shall be made in accordance with
Section 12.07(b).
3.02 Voluntary
Reduction of Commitments.
(a) Upon at
least three Business Days’ prior written notice (or telephonic notice
promptly confirmed in writing) given by the Parent Borrower to the
Administrative Agent at its Notice Office (which notice shall be deemed to be
given on a certain day only if given before 11:00 A.M. (New York time) on
such day and the Administrative Agent shall promptly transmit such notice to
each of the Tranche 1 Lenders), the Parent Borrower shall have the right,
without premium or penalty, to terminate or partially reduce the Total
Unutilized Tranche 1 Commitment, provided that (x) any such reduction shall
apply to permanently reduce the Total Unutilized Tranche 1 Commitment and to
proportionately reduce the Tranche 1 Commitment of each Tranche 1 Lender, and
(y) any partial reduction pursuant to this Section 3.02(a) shall be in
integral multiples of at least $5,000,000.
(b) Upon at
least three Business Days’ prior written notice (or telephonic notice
promptly confirmed in writing) given by the Parent Borrower to the
Administrative Agent at its Notice Office (which notice shall be deemed to be
given on a certain day only if given before 11:00 A.M. (New York time) on
such day and the Administrative Agent shall promptly transmit such notice to
each of the Tranche 2 Lenders), the Parent Borrower shall have the right,
without premium or penalty, to terminate or partially reduce the Total
Unutilized Tranche 2 Commitment, provided that (x) any such reduction shall
apply to permanently reduce the Total Unutilized Tranche 2 Commitment and to
proportionately reduce the Tranche 2 Commitment of
41
each
Tranche 2 Lender, and (y) any partial reduction pursuant to this Section
3.02(b) shall be in integral multiples of at least $5,000,000.
(c) Notwithstanding
anything to the contrary contained in this Section 3.02 or elsewhere in this
Agreement, any reductions to the Total Unutilized Tranche 1 Commitment or the
Total Unutilized Tranche 2 Commitment made pursuant to Sections 3.02(a) or (b),
respectively, shall be applied pro rata to the
Total Tranche 1 Commitment and the Total Tranche 2 Commitment based on the
Tranche 1 Reduction Percentage and the Tranche 2 Reduction Percentage, in each
case as in effect at the time of any such reduction.
3.03 Termination
or Mandatory Reduction of Commitments.
(a) The
Total Commitment (and the Commitment of each Lender) shall be terminated at
5:00 p.m. (New York time) on the Expiration Date unless the Effective Date has
occurred on or before such date.
(b) Unless
previously terminated pursuant to Section 3.02 or Section 3.03(a) above, the
Total Commitment shall terminate at 9:00 A.M. on the Commitment Expiration
Date.
SECTION
4. Payments.
4.01 Voluntary
Prepayments. Each
Borrower shall have the right to prepay Revolving Loans incurred by it, without
premium or penalty (except for amounts payable to Section 1.11), in whole or in
part, from time to time on the following terms and conditions: (i) such
Borrower shall give the Administrative Agent at the Payment Office written
notice (or telephonic notice promptly confirmed in writing) of its intent to
prepay the Revolving Loans, specifying whether such Revolving Loans are Tranche
1 Revolving Loans or Tranche 2 Revolving Loans, the amount of such prepayment
and (in the case of Eurodollar Loans) the specific Borrowing(s) pursuant to
which such Revolving Loans were made, which notice shall be received by the
Administrative Agent (x) in the case of Base Rate Loans, no later than 11:00
A.M. (New York time) one Business Day prior to the date of such prepayment, or
(y) in the case of Eurodollar Loans, at least three Business Days prior to the
date of such prepayment and which notice shall promptly be transmitted by the
Administrative Agent to each of the Lenders; (ii) each partial prepayment shall
be in an aggregate principal amount of at least $1,000,000, provided that no
partial prepayment of any Revolving Loans shall reduce the aggregate principal
amount of the Revolving Loans outstanding under a single Tranche to an amount
less than $1,000,000; (iii) each prepayment in respect of any Revolving Loans
made pursuant to a Borrowing shall be applied pro rata among
such Revolving Loans; (iv) prepayments of Eurodollar Loans made pursuant to
this Section 4.01 may only be made on the last day of an Interest Period
applicable thereto unless concurrently with such prepayment any payments
required to be made pursuant to Section 1.11 as a result of such prepayment are
made; and (v) each prepayment of Tranche 2 Revolving Loans pursuant to this
Section 4.01 shall be applied pro rata among
such Tranche 2 Revolving Loans.
4.02 Mandatory
Repayments.
(a) If on
any date prior to the Commitment Expiration Date, the sum of the aggregate
outstanding principal amount of Tranche 1 Revolving Loans plus the Tranche 1
Letter of Credit Outstandings exceeds the Total Tranche 1 Commitment as then in
effect, the Parent Borrower shall repay, or cause one or more of the Borrowers
to whom Tranche 1 Revolving Loans were made and/or for whose account Tranche 1
42
Letters
of Credit were issued to repay, on such day the outstanding Tranche 1 Revolving
Loans in an aggregate principal amount equal to the amount by which the
aggregate outstanding principal amount of Tranche 1 Revolving Loans plus the
Tranche 1 Letter of Credit Outstandings exceeds the Total Tranche 1 Commitment
as then in effect. If, after giving effect to the prepayment of all outstanding
Tranche 1 Revolving Loans, as set forth above, the Tranche 1 Letter of Credit
Outstandings exceeds the Total Tranche 1 Commitment, the Parent Borrower shall
pay, or cause one or more Borrowers for whose account Tranche 1 Letters of
Credit were issued to pay, to the Administrative Agent at the Payment Office on
such date an amount of cash and/or Cash Equivalents equal to the amount of such
excess, such cash and/or Cash Equivalents to be held as security for all
obligations of the respective Borrower to the Tranche 1 Lenders hereunder in
the Collateral Account applicable to such Borrower.
(b) If on
any date prior to the Commitment Expiration Date, the sum of the aggregate
outstanding principal amount of Tranche 2 Revolving Loans plus the Tranche 2
Letter of Credit Outstandings exceeds the Total Tranche 2 Commitment as then in
effect, the Parent Borrower shall repay, or cause one or more Borrowers to whom
Tranche 2 Revolving Loans were made and/or for whose account Tranche 2 Letters
of Credit were issued to repay, on such day the outstanding Tranche 2 Revolving
Loans in an aggregate principal amount equal to the amount by which the
aggregate outstanding principal amount of Tranche 2 Revolving Loans plus the
Tranche 2 Letter of Credit Outstandings exceeds the Total Tranche 2 Commitment
as then in effect. If, after giving effect to the prepayment of all outstanding
Tranche 2 Revolving Loans, as set forth above, the Tranche 2 Letter of Credit
Outstandings exceeds the Total Tranche 2 Commitment, the Parent Borrower shall
pay, or cause one or more Borrowers for whose account Tranche 2 Letters of
Credit were issued to pay, to the Administrative Agent at the Payment Office on
such date an amount of cash and/or Cash Equivalents equal to the amount of such
excess, such cash and/or Cash Equivalents to be held as security for all
obligations of the respective Borrowers to the Tranche 2 Lenders hereunder in a
cash collateral account to be established by the Administrative Agent on terms
reasonably satisfactory to the Administrative Agent.
(c) If on
any date prior to the Commitment Expiration Date and for any reason (including
any fluctuations in the U.S. Dollar Equivalent of any amount of any Optional
Currency), the aggregate outstanding amount of all Letters of Credit
Outstanding (less the amount of any cash and/or Cash Equivalents previously
paid to, and currently held by, the Administrative Agent as contemplated by
this sentence) issued in currencies other than U.S. Dollars exceeds the
Aggregate Multicurrency Letter of Credit Limit (as such amount may be increased
as provided for in Sections 1.15(a) and 1.16(a)), the Parent Borrower shall
pay, or cause one or more Borrowers for whose account Letters of Credit were
issued to pay, to the Administrative Agent at the Payment Office on such date
an amount of cash and/or Cash Equivalents equal to the amount of such excess,
such cash and/or Cash Equivalents to be held as security for all obligations of
the respective Borrowers to the Lenders hereunder in a cash collateral account
to be established by the Administrative Agent on terms reasonably satisfactory
to the Administrative Agent.
(d) If on
any date prior to the Commitment Expiration Date and for any reason (including
any fluctuations in the U.S. Dollar Equivalent of any amount of any Optional
Currency), the aggregate outstanding amount of all Fronted Letters of Credit
(less the amount of
43
any cash
and/or Cash Equivalents previously paid to, and currently held by, the
Administrative Agent as contemplated by this sentence) issued in currencies
other than U.S. Dollars exceeds the Fronted Letter of Credit Limit (as such
amount may be increased as provided for in Sections 1.15(a) and 1.16(a)), the
Parent Borrower shall pay, or cause one or more Borrowers for whose account
Letters of Credit were issued to pay, to the Administrative Agent at the
Payment Office on such date an amount of cash and/or Cash Equivalents equal to
the amount of such excess, such cash and/or Cash Equivalents to be held as
security for all obligations of the respective Borrowers to the Lenders
hereunder in a cash collateral account to be established by the Administrative
Agent on terms reasonably satisfactory to the Administrative
Agent.
(e) If on
any date, after giving effect to any prepayment of outstanding Revolving Loans
pursuant to paragraph (a) above, the sum of the aggregate outstanding principal
amount of Tranche 1 Revolving Loans incurred by any Borrower plus the Tranche 1
Letter of Credit Outstandings attributable to such Borrower exceeds the
Borrowing Base of such Borrower at such time, such Borrower shall within one
Business Day of such date repay the outstanding Tranche 1 Revolving Loans
incurred by it in an aggregate principal amount equal to such excess. If, after
giving effect to the prepayment of all outstanding Tranche 1 Revolving Loans
incurred by such Borrower, as set forth above, the Tranche 1 Letter of Credit
Outstandings applicable to such Borrower exceed such Borrower’s Borrowing
Base, such Borrower shall pay or deliver to the Collateral Agent within one
Business Day of such date an amount of cash and/or Eligible Securities (valued
for this purpose based on the respective Advance Rate applicable thereto) in an
aggregate amount equal to the amount of such excess, with any such cash or
Eligible Securities to be held as additional security for all obligations of
the respective Borrower hereunder in the Collateral Account applicable to such
Borrower.
(f) Notwithstanding
anything to the contrary contained elsewhere in this Agreement, all outstanding
Revolving Loans shall be repaid in full on the Commitment Expiration
Date.
(g) With
respect to each prepayment of Revolving Loans required by Sections 4.02(a) and
(b), the respective Borrower may designate the Types of Revolving Loans of the
respective Tranche which are to be prepaid and the specific Borrowing or
Borrowings of the respective Tranche pursuant to which such Revolving Loans
were made, provided that (i) if any prepayment of Eurodollar Loans made
pursuant to a single Borrowing shall reduce the outstanding Eurodollar Loans
made pursuant to such Borrowing to an amount less than $1,000,000 for such
Borrowing, then all Eurodollar Loans outstanding pursuant to such Borrowing
shall be immediately converted into a Borrowing of Base Rate Loans and (ii)
each prepayment of Revolving Loans made pursuant to the same Borrowing shall be
applied pro rata among the Lenders which made such Revolving Loans. In the
absence of a designation by the respective Borrower as described in the
preceding sentence, the Administrative Agent shall, subject to the above, make
such designation in its sole discretion.
(h) Notwithstanding
the foregoing provisions of this Section 4.02, if at any time the mandatory
repayment of Revolving Loans pursuant to Section 4.02(a), (b), (c), (d), (e) or
(f) would result in any Borrower incurring breakage costs under Section 1.11 as
a result of Eurodollar Loans being repaid other than on the last day of an
Interest Period applicable thereto (any such Eurodollar Loans, “Affected
Loans”), such Borrower may elect, by written notice to
44
the
Administrative Agent, to have the provisions of the following sentence be
applicable so long as no Event of Default then exists. At the time any Affected
Loans are otherwise required to be prepaid, such Borrower may elect to deposit
100% (or such lesser percentage elected by such Borrower as not being repaid)
of the principal amounts that otherwise would have been paid in respect of the
Affected Loans with the Administrative Agent to be held as security for the
obligations of such Borrower hereunder pursuant to a cash collateral agreement
to be entered into in form and substance satisfactory to the Administrative
Agent and shall provide for investments of such deposits as directed by such
Borrower and satisfactory to the Administrative Agent, with such cash
collateral to be released from such cash collateral account (and applied to
repay the principal amount of such Eurodollar Loans) upon each occurrence
thereafter of the last day of an Interest Period applicable to such Eurodollar
Loans (or such earlier date or dates as shall be requested by such Borrower),
with the amount to be so released and applied on the last day of each Interest
Period to be the amount of such Eurodollar Loans to which such Interest Period
applies (or, if less, the amount remaining in such cash collateral account);
provided that (i) interest in respect of such Affected Loans shall continue to
accrue thereon at the rate provided hereunder until such Affected Loans have
been repaid in full and (ii) at any time while an Event of Default has occurred
and is continuing, the Required Lenders may direct the Administrative Agent (in
which case the Administrative Agent shall, and is hereby authorized by the
Borrowers to, follow said directions) to apply any or all proceeds then on
deposit in such collateral account to the payment of such Affected Loans. All
risk of loss in respect of investments made as contemplated in this Section
4.02(h) shall be on the respective Borrower. Under no circumstances shall the
Administrative Agent be liable or accountable to any Borrower or any other
Person for any decrease in the value of the cash collateral account or for any
loss resulting from the sale of any investment so made. Any funds remaining in
the cash collateral account following the repayment of all Affected Loans shall
be returned to the applicable Borrower. Fees and expenses related to the
establishment of the cash collateral account shall be borne by the applicable
Borrower and shall not exceed the Administrative Agent’s customary fees
and expenses for the establishment of cash collateral accounts
generally.
4.03 Method
and Place of Payment. Except
as otherwise specifically provided herein, all payments under this Agreement
and the Notes shall be made to the Administrative Agent for the ratable account
of the Lenders entitled thereto, not later than 11:00 A.M. (New York time) on
the date when due and shall be made in immediately available funds and in
lawful money of the United States of America at the Payment Office, it being
understood that written, telex or facsimile notice by a Borrower to the
Administrative Agent to make a payment from the funds in such Borrower’s
account at the Payment Office shall constitute the making of such payment to
the extent of such funds held in such account. Any payments under this
Agreement which are made later than 11:00 A.M. (New York time) shall be deemed
to have been made on the next succeeding Business Day. Whenever any payment to
be made hereunder shall be stated to be due on a day which is not a Business
Day, the due date thereof shall be extended to the next succeeding Business Day
and, with respect to payments of principal, interest shall be payable during
such extension at the applicable rate in effect immediately prior to such
extension.
4.04 Net
Payments.
(a) All
payments made by any Borrower hereunder or under any Note will be made without
setoff, counterclaim or other defense. Except as provided in Section 4.04(b),
all such payments will be made free and clear of, and without deduction or
withholding for, any present or future taxes, levies, imposts, duties, fees,
assessments or other
45
charges
of whatever nature now or hereafter imposed by any jurisdiction or by any
political subdivision or taxing authority thereof or therein with respect to
such payments (but excluding, except as provided in the second succeeding
sentence after taking into account any available tax credit or deduction
related directly thereto, any tax imposed on or measured by the net income or
net profits of a Lender pursuant to the laws of the jurisdiction in which it is
organized or the jurisdiction in which the principal office or applicable
lending office of such Lender is located or any subdivision thereof or therein)
and all interest, penalties or similar liabilities with respect to such
non-excluded taxes, levies, imposts, duties, fees, assessments or other charges
(all such non-excluded taxes, levies, imposts, duties, fees, assessments or
other charges being referred to collectively, as “Taxes”). If any
Taxes are so levied or imposed, the Parent Borrower agrees to pay the full
amount of such Taxes, and such additional amounts as may be necessary so that
every payment of all amounts due under this Agreement or under any Note, after
withholding or deduction for or on account of any Taxes, will not be less than
the amount provided for herein or in such Note. If any amounts are payable in
respect of Taxes pursuant to the preceding sentence, the Parent Borrower agrees
to reimburse each Lender, upon the written request of such Lender, for taxes
imposed on or measured by the net income or net profits of such Lender, and
franchise taxes imposed in lieu of taxes imposed on or measured by net income
or net profits of a Lender, pursuant to the laws of the jurisdiction in which
such Lender is organized or in which the principal office or applicable lending
office of such Lender is located or under the laws of any political subdivision
or taxing authority of any such jurisdiction in which such Lender is organized
or in which the principal office or applicable lending office of such Lender is
located and for any withholding of taxes as such Lender shall determine are
payable by, or withheld from, such Lender, in respect of such amounts so paid
to or on behalf of such Lender pursuant to the preceding sentence and in
respect of any amounts paid to or on behalf of such Lender pursuant to this
sentence. The Parent Borrower will furnish to the Administrative Agent within
45 days after the date the payment of any Taxes is due pursuant to applicable
law certified copies of tax receipts evidencing such payment by the Parent
Borrower. The Parent Borrower agrees to indemnify and hold harmless each
Lender, and reimburse such Lender upon its written request, for the amount of
any Taxes so levied or imposed and paid by such Lender.
(b) Each
Lender that is not a United States person (as such term is defined in Section
7701(a)(30) of the Code) for U.S. Federal income tax purposes agrees to deliver
to each Designated Subsidiary Borrower organized under the laws of the United
States (each, a “U.S. Borrower”) and the Administrative Agent on or
prior to the date that such U.S. Borrower becomes a Designated Subsidiary
Borrower pursuant to Section 1.14, or in the case of a Lender that is an
assignee or transferee of an interest under this Agreement pursuant to Section
1.13 or Section 12.04 (unless the respective Lender was already a Lender
hereunder immediately prior to such assignment or transfer), on the date of
such assignment or transfer to such Lender, or in the case of an Additional
Tranche 1 Lender (unless the respective Additional Tranche 1 Lender was already
a Tranche 1 Lender hereunder immediately prior to such assignment of transfer),
on the respective Additional Tranche 1 Commitment Date, (i) two accurate and
complete original signed copies of Internal Revenue Service Form W-8ECI or Form
W-8BEN (with respect to a complete exemption under an income tax treaty) (or
successor forms) certifying to such Lender’s entitlement as of such date
to a complete exemption from United States withholding tax with respect to
payments to be made under this Agreement and under any Note, or (ii) if the
Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of
the Code and cannot deliver either Internal Revenue Service Form W-8ECI or Form
W-8BEN (with respect to a complete
46
exemption
under an income tax treaty) pursuant to clause (i) above, (x) a certificate
substantially in the form of Exhibit D (any such certificate, a “Section
4.04(b)(ii) Certificate”) and (y) two accurate and complete original
signed copies of Internal Revenue Service Form W-8BEN (with respect to the
portfolio interest exemption) (or successor form) certifying to such
Lender’s entitlement as of such date to a complete exemption from United
States withholding tax with respect to payments of interest to be made under
this Agreement and under any Note. In addition, each Lender that is lending to
and/or issuing Letters of Credit for the account of a U.S. Borrower agrees that
from time to time after the Effective Date, when a lapse in time or change in
circumstances renders the previous certification obsolete or inaccurate in any
material respect, such Lender will deliver to each U.S. Borrower and the
Administrative Agent two new accurate and complete original signed copies of
Internal Revenue Service Form W-8ECI, Form W-8BEN (with respect to the benefits
of any income tax treaty), or Form W-8BEN (with respect to the portfolio
interest exemption) and a Section 4.04(b)(ii) Certificate, as the case may be,
and such other forms as may be required in order to confirm or establish the
entitlement of such Lender to a continued exemption from or reduction in United
States withholding tax with respect to payments under this Agreement and any
Note, or it shall immediately notify each U.S. Borrower and the Administrative
Agent of its inability to deliver any such Form or Certificate, in which case
such Lender shall not be required to deliver any such Form or Certificate
pursuant to this Section 4.04(b). Notwithstanding anything to the contrary
contained in Section 4.04(a), but subject to Section 12.04(b) and the
immediately succeeding sentence, (x) each U.S. Borrower shall be entitled,
to the extent it is required to do so by law, to deduct or withhold income or
similar taxes imposed by the United States (or any political subdivision or
taxing authority thereof or therein) from interest, Fees or other amounts
payable hereunder for the account of any Lender which is not a United States
person (as such term is defined in Section 7701(a)(30) of the Code) for
U.S. Federal income tax purposes to the extent that such Lender has not
provided to such U.S. Borrower, the U.S. Internal Revenue Service Forms that
establish a complete exemption from such deduction or withholding and (y) no
U.S. Borrower shall be obligated pursuant to Section 4.04(a) hereof to gross-up
payments to be made to a Lender in respect of income or similar taxes imposed
by the United States (I) if such Lender has not provided to such U.S. Borrower,
the Internal Revenue Service Forms required to be provided to U.S. Borrower
pursuant to this Section 4.04(b) or (II) in the case of a payment by the U.S.
Borrowers, other than interest, to a Lender described in clause (ii) above, to
the extent that such Forms do not establish a complete exemption from
withholding of such taxes. Notwithstanding anything to the contrary contained
in the preceding sentence or elsewhere in this Section 4.04 and except as set
forth in Section 12.04(b), the Parent Borrower agrees to pay any
additional amounts and to indemnify each Lender in the manner set forth in
Section 4.04(a) (without regard to the identity of the jurisdiction requiring
the deduction or withholding) in respect of any amounts deducted or withheld by
it as described in the immediately preceding sentence as a result of any
changes that are effective after the Effective Date in any applicable law,
treaty, governmental rule, regulation, guideline or order, or in the
interpretation thereof, relating to the deducting or withholding of such income
or similar taxes.
(c) Each
Lender agrees to use reasonable efforts (consistent with legal and regulatory
restrictions and subject to overall policy considerations of such Lender) to
file any certificate or document or to furnish to any Borrower that is not a
U.S. Borrower any information as reasonably requested by such Borrower that may
be necessary to establish any available exemption from, or reduction in the
amount of, any Taxes; provided, however, that nothing in
47
this
Section 4.04(c) shall require a Lender to disclose any confidential information
(including, without limitation, its tax returns or its Tax
calculations).
SECTION
5. Conditions
Precedent.
5.01 Conditions
Precedent to the Effective Date. This
Agreement shall become effective on the date (the “Effective Date”)
on which each of the following conditions shall have been satisfied, or waived
by the Required Lenders:
(a) Execution
of Agreement; Notes. On the
Effective Date, (i) the Parent Borrower, each Initial Designated Subsidiary
Borrower, the Administrative Agent and each Lender shall have signed a copy
hereof (whether the same or different copies) and shall have delivered (or
transmitted by telecopy) the same to the Administrative Agent at its Notice
Office; and (ii) there shall have been delivered to the Administrative Agent
for the account of each Lender that has requested the same the appropriate Note
or Notes, executed by each Borrower, in each case, in the amount, maturity and
as otherwise provided herein.
(b) Opinion
of Counsel. On the
Effective Date, the Administrative Agent shall have received (i) an opinion
addressed to the Administrative Agent and each of the Lenders and dated the
Effective Date, from Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special
United States counsel to the Borrowers, substantially in the form of Exhibit
E-1, (ii) an opinion addressed to the Administrative Agent and each of the
Lenders and dated the Effective Date, from Xxxxxxx Xxxxxxxx Xxxxxx, special
Bermuda counsel to the Borrowers, substantially in the form of Exhibit E-2 and
(iii) an opinion addressed to the Administrative Agent and each of the Lenders
and dated the Effective Date, from Ashurst, special England and Wales counsel
to the Borrowers, substantially in the form of Exhibit E-3.
(c) Officer’s
Certificate; Corporate Proceedings.
(i) On the
Effective Date, the Administrative Agent shall have received, from the Parent
Borrower and each Initial Designated Subsidiary Borrower, a certificate, dated
the Effective Date, signed by the President, Secretary or any Vice President of
such Borrower, and attested to by another Authorized Officer of such Borrower,
in the form of Exhibit F hereto with appropriate insertions and deletions,
together with (x) copies of its certificate of incorporation, by-laws or
other organizational documents and (y) the resolutions relating to the
Credit Documents which shall be satisfactory to the Administrative
Agent.
(ii) On or
prior to the Effective Date, all corporate and legal proceedings and all
instruments and agreements in connection with the transactions contemplated by
this Agreement and the other Credit Documents shall be reasonably satisfactory
in form and substance to the Administrative Agent, and the Administrative Agent
shall have received all information and copies of all certificates, documents
and papers, including certificates of existence or good standing certificates,
as applicable, and any other records of corporate proceedings and governmental
approvals, if any, which the Administrative Agent reasonably may have requested
in connection therewith, such documents and papers where appropriate to be
certified by proper corporate or governmental authorities.
48
(d) Adverse
Change, etc. Since
December 31, 2006, nothing shall have occurred or become known to the
Administrative Agent or the Required Lenders which has had, or would reasonably
be expected to have, either individually or in the aggregate, a Material
Adverse Effect.
(e) Litigation. On the
Effective Date, no actions, suits or proceedings by any entity (private or
governmental) shall be pending against the Parent Borrower or any of its
Subsidiaries (i) with respect to this Agreement, any other Credit Document or
any of the transactions contemplated hereby or thereby or (ii) which has had,
or would reasonably be expected to have, either individually or in the
aggregate, a Material Adverse Effect.
(f) Approvals,
etc. On the
Effective Date, all necessary governmental and third-party approvals, permits
and licenses in connection with this Agreement and the other transactions
contemplated by the Credit Documents and otherwise referred to herein or
therein, shall have been obtained and remain in full force and
effect.
(g) Indebtedness,
etc. On the
Effective Date, the Parent Borrower and its Subsidiaries shall have no
outstanding preferred stock or Indebtedness after giving effect to this
Agreement and the incurrence of any Revolving Loans except (w) intercompany
indebtedness permitted pursuant to Section 8.04(b)(ii) hereof, (x) the
Obligations, (y) Indebtedness set forth on Annex V and (z) Indebtedness (on an
individual basis) which has an outstanding principal balance of less than
$15,000,000.
(h) No
Default; Representations and Warranties. On the
Effective Date, there shall exist no Default or Event of Default, and all
representations and warranties made by each Borrower contained herein or in any
other Credit Document shall be true and correct in all material respects (it
being understood and agreed that any representation or warranty which by its
terms is made as of a specified date shall be required to be true and correct
in all material respects only as of such specified date).
(i) A.M.
Best Rating. On the
Effective Date, each Regulated Insurance Company shall have an A.M. Best
financial strength rating of at least “B++”.
(j) Fees. On the
Effective Date, the Borrowers shall have paid the Administrative Agent and the
Lenders all fees, expenses (including, without limitation, legal fees and
expenses) and other compensation contemplated by this Agreement and the other
Credit Documents, agreed upon by such parties to be paid on or prior to the
Effective Date.
(k) [Reserved.]
(l) Security
Documents. On or
prior to the Effective Date, the Administrative Agent shall have received
counterparts of the Security Agreement executed by each Borrower, together
with:
(i) all
documents and instruments, including Uniform Commercial Code financing
statements where applicable, required by law in each applicable jurisdiction or
reasonably requested by the Administrative Agent to be filed, registered or
recorded to create or perfect the Liens intended to be created under the
Security Agreement;
49
(ii) results
of a recent search of the Uniform Commercial Code (or equivalent) filings made
with respect to each Borrower in the jurisdictions contemplated in clause (i)
above (including, without limitation, Washington D.C. and Bermuda) and in such
other jurisdictions in which Collateral is located on the Effective Date which
may be reasonably requested by the Administrative Agent, and copies of the
financing statements (or similar documents) disclosed by such search and
evidence reasonably satisfactory to the Administrative Agent that the Liens
indicated by such financing statements (or similar documents) are permitted by
the Security Agreement or have been released; and
(iii) for each
Collateral Account, a control agreement with The Bank of New York in the form
specified in the Security Agreement (appropriately completed), with such
changes thereto as may be reasonably acceptable to the Administrative Agent and
each such control agreement shall be in full force and effect;
and the
Security Agreement shall be in full force and effect.
(m) Existing
Credit Agreement. On the
Effective Date, the Letters of Credit outstanding under the Existing Credit
Agreement shall continue to be outstanding under this Agreement and the terms
of this Agreement will govern the rights of the Borrowers, the Retiring
Lenders, the Continuing Lenders and the Additional Lenders with respect
thereto;
provided that
any Letters of Credit outstanding immediately prior to or after the Effective
Date issued to ERCA shall not be governed by the terms of this Agreement until
the earlier of such time as (i) ERCA shall have executed a DSB Assumption
Agreement, pursuant to Section 1.14 of this Agreement, and (ii) the Cash
Collateral Agreement shall have terminated pursuant to the terms thereof. The
outstanding Revolving Loans on the Effective Date under the Existing Credit
Agreement shall be repaid on the Effective Date in accordance with the terms of
the Existing Credit Agreement.
(n) Leverage
Ratio. On the
Effective Date, the Administrative Agent shall have received a certificate,
executed by the chief financial officer of the Parent Borrower, setting forth
the Leverage Ratio as of the Effective Date (after giving effect to the
incurrence of Revolving Loans and issuance of Letters of Credit on such day),
which certificate shall contain the calculations required to establish such
Leverage Ratio and be in form and substance satisfactory to the Administrative
Agent.
(o) Existing
Lender Agreement. On the
Effective Date, each Original Lender that will not be a Lender under this
Agreement shall have executed and delivered to the Administrative Agent an
Existing Lender Agreement.
5.02 Conditions
Precedent to All Revolving Loans and
Letters of Credit. The
obligation of each Lender to make each Revolving Loan and the obligation of the
Issuing Agent to issue or amend any Letter of Credit is subject, at the time of
the making of each such Revolving Loan or Letter of Credit issued or amended,
to the satisfaction of the following conditions:
(a) Effective
Date. The
Effective Date shall have occurred.
50
(b) No
Default; Representations and Warranties. (i)
There shall exist no Default or Event of Default and (ii) all representations
and warranties contained herein or in the other Credit Documents shall be true
and correct in all material respects with the same effect as though such
representations and warranties had been made on the date of the making of such
Revolving Loan or such issuance or amendment of a Letter of Credit, as the case
may be (it being understood and agreed that any representation or warranty
which by its terms is made as of a specified date shall be required to be true
and correct in all material respects only as of such specified
date).
(c) Notice
of Borrowing. The
Administrative Agent shall have received (i) a Notice of Borrowing meeting the
requirements of Section 1.03(a) with respect to each incurrence of Revolving
Loans and (ii) a Letter of Credit Request meeting the requirements of Section
2A.02 or 2B.02, as the case may be, with respect to each Letter of Credit to be
issued.
The
occurrence of the Effective Date shall constitute a representation and warranty
by each Borrower to the Administrative Agent and each of the Lenders that all
the conditions specified in Section 5.01 exist as of that time. Thereafter, the
acceptance of the benefits of each Revolving Loan and Letter of Credit shall
constitute a representation and warranty by the respective Borrower to the
Administrative Agent and each of the Lenders that the conditions specified in
Section 5.02 exist as of that time. All of the Notes, certificates, legal
opinion and other documents and papers referred to in this Section 5, unless
otherwise specified, shall be delivered to the Administrative Agent at its
Notice Office for the account of each of the Lenders and, except for the Notes,
in sufficient counterparts or copies for each of the Lenders and shall be in
form and substance reasonably satisfactory to the Administrative Agent. The
Administrative Agent shall give the Parent Borrower and each Lender written
notice that the Effective Date has occurred.
SECTION
6. Representations,
Warranties and Agreements. In
order to induce the Lenders to enter into this Agreement and to make the
Revolving Loans and issue or amend the Letters of Credit provided for herein,
each Borrower (solely as to itself and its Subsidiaries, provided that the
representations and warranties in Sections 6.09 and 6.10 shall be deemed to be
made only by the Parent Borrower) hereby makes the following representations
and warranties to, and agreements with, the Lenders, all of which shall survive
the execution and delivery of this Agreement and the making of the Revolving
Loans and the issuance of any Letters of Credit (with the making of each
Revolving Loan and the issuance or amendment of each Letter of Credit being
deemed to constitute a representation and warranty that the matters specified
in this Section 6 are true and correct in all material respects on and as of
the date of the making of such Revolving Loan or issuance or amendment of such
Letter of Credit, as the case may be, unless such representation and warranty
expressly indicates that it is being made as of any specific date in which case
such representation and warranty shall be true and correct in all material
respects only as of such specified date):
6.01 Corporate
Status. Each
of the Parent Borrower and each of its Subsidiaries (i) is a duly organized and
validly existing corporation or business trust or other entity and in the case
of the Borrowers organized under the laws of the United States or any State
thereof, or any other jurisdiction where the concept of “good
standing” is applicable, is in good standing under the laws of the
jurisdiction of its organization and has the corporate or other
51
organizational
power and authority to own its property and assets and to transact the business
in which it is engaged and presently proposes to engage, and (ii) has been duly
qualified and is authorized to do business and is in good standing in all
jurisdictions where it is required to be so qualified, except, in the case of
this clause (ii), where the failure to be so qualified, authorized or in good
standing would not reasonably be expected to have, either individually or in
the aggregate, a Material Adverse Effect.
6.02 Corporate
Power and Authority. Each
Borrower has the corporate power and authority to execute, deliver and carry
out the terms and provisions of the Credit Documents to which it is a party and
has taken all necessary corporate action to authorize the execution, delivery
and performance of the Credit Documents to which it is a party. Each Borrower
has duly executed and delivered each Credit Document to which it is a party and
each such Credit Document constitutes the legal, valid and binding obligation
of such Borrower enforceable against such Borrower in accordance with its
terms, except to the extent that enforceability thereof may be limited by
applicable bankruptcy, insolvency, moratorium or similar laws affecting
creditors’ rights generally and general principles of equity regardless of
whether enforcement is sought in a proceeding in equity or at law.
6.03 No
Contravention of Laws, Agreements or Organizational Documents.
Neither the execution, delivery and performance by any Borrower of this
Agreement or the other Credit Documents to which it is a party nor compliance
with the terms and provisions thereof, nor the consummation of the transactions
contemplated therein, (i) will contravene any applicable provision of any law,
statute, rule, regulation, order, writ, injunction or decree of any court or
governmental instrumentality, (ii) will conflict or be inconsistent with or
result in any breach of any of the terms, covenants, conditions or provisions
of, or constitute a default under, or result in the creation or imposition of
(or the obligation to create or impose) any material Lien (except Liens created
pursuant to the Security Documents or pursuant to Section 4.02(h)) upon any of
the property or assets of the Parent Borrower or any of its Subsidiaries
pursuant to the terms of, any material indenture, mortgage, deed of trust, loan
agreement, credit agreement or any other material instrument to which the
Parent Borrower or any of its Subsidiaries is a party or by which it or any of
its property or assets are bound or to which it may be subject or (iii) will
violate any provision of the certificate of incorporation, by-laws or other
organizational documents of the Parent Borrower or any of its Subsidiaries,
except to the extent that, in the case of each of the immediately preceding
clauses (i), (ii) and (iii), such contravention, conflict, inconsistency,
breach, default, material Lien or violation would not reasonably be expected to
have, either individually or in the aggregate, a Material Adverse
Effect.
6.04 Litigation
and Contingent Liabilities. To the
best of the knowledge of the Parent Borrower or any Subsidiary of the Parent
Borrower, as applicable, there are no actions, suits or proceedings pending or
threatened in writing involving the Parent Borrower or any of its Subsidiaries
(including, without limitation, with respect to this Agreement or any other
Credit Document) that have had, or would reasonably be expected to have, either
individually or in the aggregate, a Material Adverse Effect.
6.05 Use
of Proceeds;
Margin Regulations.
(a) The
proceeds of the Revolving Loans shall be utilized (i) to finance a potential
acquisition, (ii) for the general corporate and
52
working
capital purposes of the Parent Borrower and its Subsidiaries and (iii) by the
Parent Borrower to purchase its outstanding publicly issued or privately placed
securities.
(b) Neither
the making of any Revolving Loan hereunder or other Indebtedness or financing
of any Borrower, nor the use of the proceeds thereof, will violate or be
inconsistent with the provisions of Regulation T, U or X of the Board of
Governors of the Federal Reserve System and no part of the proceeds of any
Revolving Loan or other Indebtedness or financing of any Borrower will be used
to purchase or carry any Margin Stock or to extend credit for the purpose of
purchasing or carrying any Margin Stock.
6.06 Approvals. Any
order, consent, approval, license, authorization, or validation of, or filing,
recording or registration with, or exemption by, any foreign or domestic
governmental or public body or authority, or any subdivision thereof, which is
required to authorize or is required in connection with (i) the execution,
delivery and performance of any Credit Document or (ii) the legality, validity,
binding effect or enforceability of any Credit Document, has been
obtained.
6.07 Investment
Company Act.
Neither the Parent Borrower nor any of its Subsidiaries is an “investment
company” within the meaning of the Investment Company Act of 1940, as
amended.
6.08 True
and Complete Disclosure.
All
factual information (taken as a whole) heretofore or contemporaneously
furnished by the Parent Borrower or any of its Subsidiaries to the
Administrative Agent or any Lender in writing (including, without limitation,
all information contained in the Credit Documents) for purposes of or in
connection with this Agreement or any transaction contemplated herein is, and
all other factual information (taken as a whole with all other such information
theretofore or contemporaneously furnished) hereafter furnished by any such
Persons in writing to the Administrative Agent will be, true and accurate in
all material respects on the date as of which such information is dated and not
incomplete by omitting to state any material fact necessary to make such
information (taken as a whole with all other such information theretofore or
contemporaneously furnished) not misleading at such time in light of the
circumstances under which such information was provided.
6.09 Financial
Condition; Financial Statements.
(a) The
consolidated balance sheet of the Parent Borrower for the fiscal year ended
December 31, 2006, and the related consolidated statements of income,
shareholders’ equity and cash flows, reported on by Ernst & Young LLP,
copies of which have been delivered to each of the Lenders fairly present in
all material respects, in each case, in conformity with GAAP or SAP, as
applicable, consistently applied, the consolidated financial position and
results of operations and cash flows of the Parent Borrower as of such dates
and their consolidated results of operations and cash flows for such fiscal
year.
(b) Since
December 31, 2006, nothing has occurred which has had, or would reasonably be
expected to have, either individually or in the aggregate, a Material Adverse
Effect.
53
6.10 Tax
Returns and Payments. The
Parent Borrower and its Subsidiaries (i) have timely filed with the appropriate
taxing authority (taking into account any applicable extension within which to
file) all material income and other material tax returns, domestic and foreign,
required to be filed by the Parent Borrower and its Subsidiaries, and (ii) have
paid all material taxes payable by them which have become due and assessments
which have become due, except for those contested in good faith and adequately
disclosed and for which adequate reserves have been established in accordance
with GAAP. Neither the Parent Borrower nor any of its Subsidiaries has entered
into an agreement or waiver or been requested to enter into an agreement or
waiver extending any statute of limitations relating to the payment or
collection of material taxes of the Parent Borrower or any of its Subsidiaries.
No tax Liens, except as permitted under Section 8.03(k) hereof, have been filed
and no claims are pending or, to the best knowledge of the Parent Borrower or
any of its Subsidiaries, proposed or threatened with respect to any material
taxes, fees or other charges for any taxable period.
6.11 Compliance
with ERISA.
(a) The
Parent Borrower and its Subsidiaries and ERISA Affiliates have fulfilled their
respective obligations under the minimum funding standards of ERISA and the
Code with respect to each Plan and are in compliance with the applicable
provisions of ERISA and the Code, and have not incurred any liability to the
PBGC or any Plan or Multiemployer Plan (other than to make contributions in the
ordinary course of business), except to the extent that any of the foregoing
have not had, or would not reasonably be expected to have, either individually
or in the aggregate, a Material Adverse Effect.
(b) Each
Foreign Pension Plan has been maintained in compliance with its terms and with
the requirements of any and all applicable laws, statutes, rules, regulations
and orders and has been maintained, where required, in good standing with
applicable regulatory authorities, except where the failure to do any of the
foregoing has not had, or would not reasonably be expected to have, either
individually or in the aggregate, a Material Adverse Effect. All contributions
required to be made with respect to a Foreign Pension Plan have been timely
made, except where the failure to do any of the foregoing has not had, or would
not reasonably be expected to have, either individually or in the aggregate, a
Material Adverse Effect. Neither the Parent Borrower nor any of its
Subsidiaries has incurred any obligation in connection with the termination of,
or withdrawal from, any Foreign Pension Plan, except for any obligations which
have not had, or would not reasonably be expected to have, either individually
or in the aggregate, a Material Adverse Effect. The present value of the
accrued benefit liabilities (whether or not vested) under each Foreign Pension
Plan, determined as of the end of the Parent Borrower’s most recently
ended fiscal year on the basis of actuarial assumptions, each of which is
reasonable, did not exceed the current value of the assets of such Foreign
Pension Plan allocable to such benefit liabilities (any such excess a
“value shortfall”), except for any such value shortfalls which have
not had, or would not reasonably be expected to have, either individually or in
the aggregate, a Material Adverse Effect.
6.12 Subsidiaries. Set
forth in Annex III is a complete and correct list of all of the Subsidiaries of
the Parent Borrower as of the Effective Date, together with, for each such
Subsidiary, (i) the jurisdiction of organization of such Subsidiary, (ii) each
Person holding direct ownership interests in such Subsidiary and (iii) the
percentage of ownership of such Subsidiary represented by such ownership
interests. Except as disclosed in Annex III, each of the Parent
54
Borrower
and its Subsidiaries owns, free and clear of Liens, and has the unencumbered
right to vote, all outstanding ownership interests in each Person shown to be
held by it in Annex III.
6.13 Capitalization. As of
the Effective Date, the authorized capital stock of the Parent Borrower
consists of 120,000,000 shares, $1.00 par value per share, of which 66,612,980
ordinary shares and 8,000,000 shares of 7.75% Non-Cumulative Preferred Shares,
Series A are issued and outstanding. As of the Effective Date, all such
outstanding shares of the Parent Borrower have been duly and validly issued and
are fully paid and nonassessable. As of the Effective Date, neither the Parent
Borrower nor any of its Subsidiaries has outstanding any securities convertible
into or exchangeable for its capital stock or outstanding any rights to
subscribe for or to purchase, or any options for the purchase of, or any
agreements providing for the issuance (contingent or otherwise) of, or any
calls, commitments or claims of any character relating to, its capital stock
except for options, warrants, grants, restricted share units and unpaid premium
on shares issued by EWHL and EWIL outstanding in the aggregate amounts set
forth on Annex IV.
6.14 Indebtedness. The
Parent Borrower and its Subsidiaries do not have any Indebtedness on the
Effective Date other than (i) intercompany indebtedness permitted pursuant to
Section 8.04(b)(ii) hereof, (ii) the Obligations, (iii) the Indebtedness listed
on Annex V and (iv) Indebtedness (on an individual basis) which has an
outstanding principal balance of less than $15,000,000.
6.15 Compliance
with Statutes, etc. The
Parent Borrower and each of its Subsidiaries is in compliance in all material
respects with all applicable statutes, regulations, rules and orders of, and
all applicable restrictions imposed by, all governmental bodies, domestic or
foreign, in respect of the conduct of its business and the ownership of its
property (including compliance with all applicable environmental laws), except
where the failure to comply would not reasonably be expected to have, either
individually or in the aggregate, a Material Adverse Effect. All required
regulatory approvals are in full force and effect on the date hereof, except
where the failure of such approvals to be in full force and effect would not
reasonably be expected to have, either individually or in the aggregate, a
Material Adverse Effect.
6.16 Insurance
Licenses. There
is (i) no Insurance License that is the subject of a proceeding for suspension,
revocation or limitation or any similar proceedings, (ii) to the best of the
knowledge of the Parent Borrower or any Subsidiary of the Parent Borrower, as
applicable, no sustainable basis for such a suspension, revocation or
limitation, and (iii) to the best of the knowledge of the Parent Borrower or
any Subsidiary of the Parent Borrower, as applicable, no such suspension,
revocation or limitation threatened by any Applicable Insurance Regulatory
Authority, that, in each instance under (i), (ii) and (iii) above, has had, or
would reasonably be expected to have, either individually or in the aggregate,
a Material Adverse Effect. No Regulated Insurance Company transacts any
insurance business, directly or indirectly, in any jurisdiction where such
business requires any Insurance License of an Applicable Insurance Regulatory
Authority or such jurisdiction not validly maintained by such Regulated
Insurance Company, except to the extent that the failure to so maintain has not
had, or would not reasonably be expected to have, either individually or in the
aggregate, a Material Adverse Effect.
55
6.17 Security
Documents. The
Security Documents create, as security for the Tranche 1 Obligations of the
Parent Borrower and each Designated Subsidiary Borrower, valid and enforceable
security interests in and Liens on all of the Collateral, superior to and prior
to the rights of all third persons and subject to no other Liens (other than
Liens permitted pursuant to Section 8.03(a), (k) or (l)). No filings or
recordings are required in order to ensure the enforceability, perfection or
priority of the security interests created under the Security Documents, except
for filings or recordings which shall have been previously made.
SECTION
7. Affirmative
Covenants. Each
Borrower hereby covenants and agrees (solely as to itself and its Subsidiaries)
that on and as of the Effective Date and thereafter, for so long as this
Agreement is in effect and until the Commitments have terminated, no Letters of
Credit or Notes are outstanding and the Revolving Loans and Unpaid Drawings,
together with interest, Fees and all other Obligations (other than indemnities
described in Section 12.12 which are not then owing) incurred hereunder, are
paid in full:
7.01 Information
Covenants. The
Parent Borrower will furnish to each Lender:
(a) Annual
Financial Statements. As
soon as available and in any event within 90 days after the close of each
fiscal year of the Parent Borrower, the consolidated balance sheet of the
Parent Borrower and its Subsidiaries as at the end of such fiscal year and the
related consolidated statements of income, operations, changes in stockholders'
equity and cash flows of the Parent Borrower and its Subsidiaries for such
fiscal year, setting forth in comparative form the consolidated figures for the
previous fiscal year, all in reasonable detail and accompanied by a report
thereon of Ernst & Young LLP or other independent public accountants of
recognized national standing selected by the Parent Borrower, which report
shall state that such consolidated financial statements present fairly the
consolidated financial position of each of the Parent Borrower and its
Subsidiaries as at the dates indicated and the consolidated results of its
operations and cash flows for the periods indicated in conformity with GAAP
applied on a basis consistent with prior years (except as otherwise specified
in such report; provided any exceptions or qualifications thereto must be
acceptable to the Required Lenders) and that the audit by such accountants in
connection with such consolidated financial statements has been made in
accordance with generally accepted auditing standards.
(b) Quarterly
Financial Statements. As
soon as available and in any event within 60 days after the close of each of
the first three quarterly accounting periods in each fiscal year of the Parent
Borrower, consolidated balance sheets of each of the Parent Borrower and its
Subsidiaries as at the end of such period and the related consolidated
statements of income, changes in stockholders’ equity and cash flows of
the Parent Borrower and its Subsidiaries for such period and (in the case of
the second and third quarterly periods) for the period from the beginning of
the current fiscal year to the end of such quarterly period, setting forth in
each case in comparative form the consolidated figures for the corresponding
periods of the previous fiscal year, all in reasonable detail and certified by
the Chief Financial Officer of the Parent Borrower as presenting fairly, in
accordance with GAAP (except as specifically set forth therein; provided any
exceptions or qualifications thereto must be acceptable to the Required
Lenders) on a basis consistent with such prior fiscal periods, the information
contained therein, subject to changes resulting from normal year-end audit
adjustments;
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(c) Officer’s
Certificates. At the
time of the delivery of the financial statements provided for in Sections
7.01(a) and 7.01(b), a certificate of the chief financial officer of the Parent
Borrower to the effect that no Default or Event of Default exists or, if any
Default or Event of Default does exist, specifying the nature and extent
thereof, which certificate shall set forth (i) the calculations required to
establish whether the Parent Borrower and its Subsidiaries were in compliance
with the provisions of Sections 8.09 and 8.10, inclusive, as at the end of such
fiscal year or quarter, as the case may be, and (ii) if delivered with the
financial statements required by Section 7.01(a), the Consolidated Tangible Net
Worth on such Financial Statement Delivery Date.
(d) Notice
of Default or Litigation. (x)
Within five Business Days after any Borrower becomes aware of the occurrence of
any Default, Event of Default and/or any event or condition constituting, or
which would reasonably be expected to have a Material Adverse Effect, a
certificate of an Authorized Officer of each Borrower setting forth the details
thereof and the actions which the Borrowers are taking or proposes to take with
respect thereto and (y) promptly after any Borrower knows of the commencement
thereof, notice, of any litigation, dispute or proceeding involving a claim
against the Parent Borrower and/or any Subsidiary which claim would reasonably
be expected to have a Material Adverse Effect.
(e) Other
Statements and Reports.
Promptly upon the mailing thereof to the security holders of the Parent
Borrower generally, copies of all financial statements, reports and proxy
statements so mailed.
(f) SEC
Filings.
Promptly upon the filing thereof, copies of all registration statements (other
than the exhibits thereto and any registration statements on Form S-8 or its
equivalent) and annual, quarterly or monthly reports which the Parent Borrower
shall have filed with the SEC or any national securities exchange; provided
that any such registration statements and annual, quarterly or monthly reports
shall be deemed delivered to the extent same are publicly available via the
SEC’s “XXXXX” filing system and written notification thereof has
been delivered to the Administrative Agent.
(g) Insurance
Reports and Filings.
(i)
Promptly after the filing thereof, a copy of each Statutory Statement filed by
each Regulated Insurance Company.
(ii) Promptly
following the delivery or receipt, as the case may be, by any Regulated
Insurance Company or any of their respective Subsidiaries, copies of (a)
without duplication, each material examination and/or audit report or other
submitted to any Regulated Insurance Company by any Applicable Insurance
Regulatory Authority, (b) all material information which the Lenders may from
time to time request with respect to the nature or status of any material
deficiencies or violations reflected in any examination report or other similar
report, and (c) without duplication, each material registration, filing,
submission, report, order, direction, instruction, approval, authorization,
license or other notice which any Borrower or any Regulated Insurance Company
may at any time make with, or receive from, any Applicable Insurance Regulatory
Authority.
57
(iii) Upon the
written request of the Administrative Agent, a report by an independent
actuarial consulting firm of recognized national standing reviewing the
adequacy of loss and loss adjustment expense reserves as at the end of the last
fiscal year of each Regulated Insurance Company, determined in accordance with
SAP, and stating an estimated amount of minimum reserves, it being agreed that
in each case (x) such independent firm will be provided access to or copies of
all relevant valuations relating to the insurance business of each such
Regulated Insurance Company in the possession of or available to the Parent
Borrower or its Subsidiaries, (y) the Administrative Agent and any Lender who
may review a report pursuant to this Section 7.01(g)(iii) shall have executed a
confidentiality agreement with such independent actuarial consulting firm and
(z) any reasonable costs or expenses associated with furnishing such reports
(to the extent such reports do not otherwise already exist) shall be borne by
the Lender or Lenders upon whose behalf the Administrative Agent shall make a
request therefor.
(iv) Promptly
following notification thereof from a Governmental Authority (but without
duplication), notification of the suspension, limitation, termination or
non-renewal of, or the taking of any other action in respect of, any material
Insurance License.
(h) Borrowing
Base Certificate. No
later than the tenth Business Day of each month, a Borrowing Base Certificate
from each Borrower of a Tranche 1 Revolving Loan or on whose account a Tranche
1 Letter of Credit has been issued as of the last day of the immediately
preceding month, executed by an Authorized Officer of such
Borrower.
(i) Other
Information. With
reasonable promptness, such other information or existing documents (financial
or otherwise) as the Administrative Agent or any Lender may reasonably request
from time to time.
7.02 Books,
Records and Inspections. The
Borrowers will (i) keep, and will cause each of their respective Subsidiaries
to keep, proper books of record and account in which full, true and correct
entries in conformity with GAAP or SAP, as applicable, shall be made of all
dealings and transactions in relation to its business and activities; and (ii)
subject to Section 12.14, permit, and will cause each of their respective
Subsidiaries to permit, representatives of any Lender at such Lender’s
expense prior to the occurrence and during the continuance of an Event of
Default and at the Borrowers’ expense after the occurrence of an Event of
Default to visit and inspect any of their respective properties, to examine
their respective books and records and to discuss their respective affairs,
finances and accounts with their respective officers, employees and independent
public accountants. The Borrowers agree to cooperate and assist in such visits
and inspections, in each case at such reasonable times and as often as may
reasonably be desired.
7.03 Insurance. Each
Borrower will maintain, and will cause each of its Subsidiaries to maintain
(either in the name of such Borrower or in such Subsidiary’s own name)
with financially sound and reputable insurance companies, insurance on all
their property in at least such amounts and against at least such risks as are
usually insured against in the same general area by companies of established
repute engaged in the same or similar businesses.
58
7.04 Payment
of Taxes. Each
Borrower will pay and discharge, and will cause each of its Subsidiaries to pay
and discharge, all taxes, assessments and governmental charges or levies
imposed upon it or upon its income or profits, or upon any properties belonging
to it, in each case, on a timely basis prior to the date on which penalties
attach thereto, and all lawful claims which, if unpaid, might become a Lien or
charge upon any properties of such Borrower or any of its Subsidiaries;
provided that,
neither any Borrower nor any Subsidiary of any Borrower shall be required to
pay any such tax, assessment, charge, levy or claim which is being contested in
good faith and by proper proceedings if it has maintained adequate reserves
with respect thereto in accordance with GAAP.
7.05 Maintenance
of Existence. Each
Borrower shall maintain, and shall cause each of its Material Subsidiaries to
maintain, its existence and carry on its business in substantially the same
manner and in substantially the same fields as such business is now carried on
and maintained. Each Borrower will qualify and remain qualified, and cause each
of its Subsidiaries to qualify and remain qualified, as a foreign corporation
in each jurisdiction, except these jurisdictions in which the failure to
receive or retain such qualifications would reasonably be expected to have,
either individually or in the aggregate, a Material Adverse Effect.
Notwithstanding anything to the contrary contained in this Section 7.05, the
Borrowers and their respective Subsidiaries may consolidate, amalgamate or
merge and purchase and sell assets to the extent permitted under Section
8.02.
7.06 Compliance
with Statutes, etc. The
Borrowers will, and will cause each Subsidiary to, comply with all applicable
statutes, regulations and orders of, and all applicable restrictions imposed
by, all governmental bodies, domestic or foreign, in respect of the conduct of
its business and the ownership of its property (including applicable statutes,
regulations, orders and restrictions relating to environmental standards and
controls) other than those the non-compliance with which would not reasonably
be expected to have, either individually or in the aggregate, a Material
Adverse Effect.
7.07 ERISA.
Promptly after the Parent Borrower, any of its Subsidiaries or any of its ERISA
Affiliates knows or has reason to know that any of the events or conditions
specified below with respect to any Plan or Multiemployer Plan or Foreign
Pension Plan have occurred or exist, a certificate of the Chief Financial
Officer of the Parent Borrower setting forth details respecting such event or
condition and the action if any, that the Parent Borrower, such Subsidiary or
such ERISA Affiliate proposes to take with respect thereto (and a copy of any
report or notice required to be filed with or given to PBGC or an applicable
foreign governmental agency by the Parent Borrower, such Subsidiary or such
ERISA Affiliate with respect to such event or condition):
(i) any
reportable event, as defined in subsections (c)(1), (2), (5) and (6), and
subsection (d)(2) of Section 4043 of ERISA and the regulations issued
thereunder, with respect to a Plan;
(ii) the
filing under Section 4041(c) of ERISA of a notice of intent to terminate any
Plan under a distress termination or the distress termination of any
Plan;
59
(iii) the
institution by PBGC of proceedings under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any Plan, or the
receipt by the Parent Borrower, any of its Subsidiaries or any of its ERISA
Affiliates of a notice from a Multiemployer Plan that such action has been
taken by PBGC with respect to such Multiemployer Plan;
(iv) the
receipt by the Parent Borrower, any of its Subsidiaries or any of its ERISA
Affiliates of notice from a Multiemployer Plan that the Parent Borrower, any of
its Subsidiaries or any of its ERISA Affiliates has incurred withdrawal
liability under Section 4201 of ERISA in excess of $5,000,000 or that such
Multiemployer Plan is in reorganization or insolvency pursuant to Section 4241
or 4245 of ERISA or that it intends to terminate or has terminated under
Section 4041A of ERISA whereby a deficiency or additional assessment is levied
or threatened to be levied against a Borrower, any of its Subsidiaries or any
of its ERISA Affiliates;
(v) the
institution of a proceeding by a fiduciary of any Plan or Multiemployer Plan
against the Parent Borrower, any of its Subsidiaries or any of its ERISA
Affiliates to enforce Section 515 or 4219(c)(5) of ERISA, which proceeding is
not dismissed within 30 days; and
(vi) that any
material contribution required to be made with respect to a Foreign Pension
Plan has not been timely made, or that the Parent Borrower or any Subsidiary of
the Parent Borrower may incur any material liability pursuant to any Foreign
Pension Plan.
7.08 Maintenance
of Property. Each
Borrower shall, and will cause each of its Subsidiaries to, maintain all of
their material properties and assets in good condition, repair and working
order, ordinary wear and tear excepted, except where failure to maintain the
same would not reasonably be expected to have, either individually or in the
aggregate, a Material Adverse Effect.
7.09 Maintenance
of Licenses and Permits. Each
Borrower will, and will cause each of its Subsidiaries to, maintain all
permits, licenses and consents as may be required for the conduct of its
business by any state, federal or local government agency or instrumentality,
except where failure to maintain the same would not reasonably be expected to
have, either individually or in the aggregate, a Material Adverse
Effect.
7.10 Claims
Paying Ratings. Each
Borrower which is a Regulated Insurance Company or has a Subsidiary which is a
Regulated Insurance Company shall cause such Regulated Insurance Company which
has a claims paying rating from A.M. Best Co. (or its successor) to maintain at
all times a claims-paying rating of at least “B++” from A.M. Best
& Co. (or its successor).
7.11 End
of Fiscal Years; Fiscal Quarters. The
Parent Borrower will cause (i) each of its, and each of its Subsidiaries’,
fiscal years to end on December 31 of each year and (ii) each of its, and each
of its Subsidiaries’, fiscal quarters to end on dates which are consistent
with a fiscal year-end as described above.
60
7.12 Borrowing
Base Requirement.
Subject to Section 4.02(d), each Borrower shall at all times cause its
respective Borrowing Base to equal or exceed the sum of the aggregate principal
amount of Tranche 1 Revolving Loans incurred by such Borrower plus the Tranche
1 Letter of Credit Outstandings attributable to such Borrower at such
time.
7.13 Further
Assurances. Each
Borrower shall promptly and duly execute and deliver to the Administrative
Agent and/or the Collateral Agent such
documents and assurances and take such further action as the
Administrative Agent
may from time to time reasonably request in order to carry out more effectively
the intent and purpose of the Security Documents and to establish, protect and
perfect the rights and remedies created or intended to be created in favor of
the Collateral Agent, the Administrative Agent or the Lenders pursuant to the
Security Documents.
SECTION
8. Negative
Covenants. Each
Borrower hereby covenants and agrees (solely as to itself and its Subsidiaries)
that on and as of the Effective Date and thereafter, for so long as this
Agreement is in effect and until the Commitments have terminated, no Letters of
Credit or Notes are outstanding and the Revolving Loans and Unpaid Drawings
together with interest, Fees and all other Obligations (other than indemnities
described in Section 12.12 which are not then owing) incurred hereunder, are
paid in full:
8.01 Changes
in Business. The
Parent Borrower will not, and will not permit any of its Subsidiaries to,
engage (directly or indirectly) in any business other than substantially the
same lines of business in which they are engaged on the Effective Date and
reasonable extensions thereof and other businesses that are complimentary or
reasonably related thereto.
8.02 Consolidations,
Amalgamations, Mergers, Sales of Assets and
Acquisitions.
(a) The
Parent Borrower will not, and will not permit any of its Subsidiaries to,
consolidate, amalgamate or merge with or into any other Person, provided that
(i) any Borrower may merge or amalgamate with another Person if (x) such
Borrower is the corporation surviving such merger or amalgamation (it being
understood and agreed that in the case of a merger or amalgamation between (A)
a Designated Subsidiary Borrower and the Parent Borrower the survivor
corporation of such merger or amalgamation shall be the Parent Borrower and (B)
a Designated Subsidiary Borrower and a Wholly-Owned Subsidiary of such
Designated Subsidiary Borrower, a Wholly-Owned Subsidiary of the Parent
Borrower or a Wholly-Owned Subsidiary of any Subsidiary of the Parent Borrower,
the survivor corporation of such merger or amalgation shall be a Wholly-Owned
Subsidiary of the Parent Borrower and shall be or shall promptly become a
Designated Subsidiary Borrower) and (y) immediately after giving effect to such
merger or amalgamation, no Default or Event of Default shall have occurred and
be continuing, (ii) Subsidiaries of the Parent Borrower may merge with one
another (subject, in the case of mergers involving Designated Subsidiary
Borrowers, to compliance with the preceding clause (i)) and (iii) the Parent
Borrower may permit the dissolution or liquidation of any non-operating
Subsidiary (x) if the Parent Borrower determines in good faith that such
liquidation or dissolution is in the best interest of the Parent Borrower and
(y) to the extent that the fair market value of the non-operating Subsidiary
(as determined in good faith by the Board of Directors of the Parent Borrower),
when added to the fair market value of the assets affected by any such other
dissolutions or liquidations previously consummated during the same fiscal year
of the
61
Parent
Borrower (as determined in good faith by the Board of Directors of the Parent
Borrower), does not constitute more than 5% of Consolidated Tangible Net
Worth.
(b) No
Borrower will, nor will it permit any of its Subsidiaries to, sell, convey,
assign, lease, abandon or otherwise transfer or dispose of, voluntarily or
involuntarily (any of the foregoing being referred to in this Section 8.02(b)
as a “Disposition” and any series of related Dispositions
constituting but a single Disposition), any of its properties or assets,
tangible or intangible (including but not limited to sale, assignment, discount
or other disposition of accounts, contract rights, chattel paper or general
intangibles with or without recourse), except (i) to the extent that the fair
market value of the assets affected by any Disposition or Dispositions (as
determined in good faith by the Board of Directors of the Parent Borrower),
when added to the fair market value of the assets affected by any such other
Disposition or Dispositions previously consummated during the same fiscal year
of the Parent Borrower (as determined in good faith by the Board of Directors
of the Parent Borrower), does not constitute more than 20% of the consolidated
assets of the Parent Borrower and its Subsidiaries as of the last day of the
most recently ended fiscal year of the Parent Borrower and (ii) any Subsidiary
of the Parent Borrower may make a Disposition of any of its properties or
assets to the Parent Borrower, ESI or any Wholly-Owned Subsidiary of the Parent
Borrower.
(c) No
Borrower will, nor will it permit any of its Subsidiaries to, acquire all or
substantially all of the capital stock or assets of another Person unless at
such time and immediately after giving effect thereto no Default or Event of
Default exists or would result therefrom.
8.03 Liens.
Neither the Parent Borrower nor any of its Subsidiaries will permit, create,
assume, incur or suffer to exist any Lien on any asset tangible or intangible
now owned or hereafter acquired by it, except:
(a) Liens
created pursuant to the Credit Documents;
(b) Liens
existing on the Effective Date and listed on Annex VII;
(c) Liens
not securing Indebtedness which are incurred in the ordinary course of
business;
(d) Liens
securing repurchase agreements constituting a borrowing of funds by the Parent
Borrower or any Subsidiary of the Parent Borrower in the ordinary course of
business for liquidity purposes and in no event for a period exceeding 90 days
in each case;
(e) Liens
arising pursuant to purchase money mortgages, capital leases or security
interests securing Indebtedness representing the purchase price (or financing
of the purchase price within 90 days after the respective purchase) of assets
acquired after the Effective Date;
(f) Liens on
any asset of any Person existing at the time such Person is merged, amalgamated
or consolidated with or into the Parent Borrower or any of its Subsidiaries and
not created in contemplation of such event;
(g) Liens
arising out of the refinancing, extension, renewal or refunding of any
Indebtedness secured by any Lien permitted by any of the clauses of this
Section 8.03, provided that
such Indebtedness is not increased and is not secured by any additional
assets;
(h) Liens
securing obligations owed by the Parent Borrower to any of its Subsidiaries or
owed by any Subsidiary of the Parent Borrower to the Parent Borrower or any
Subsidiary of the Parent Borrower, in each case solely to the extent that such
Liens are required by an Applicable Insurance Regulatory Authority for such
Person to maintain such obligations;
(i) Liens on
investments and cash balances of any Regulated Insurance Company securing
obligations of such Regulated Insurance Company in respect of trust
arrangements formed in the ordinary course of business for the benefit of
cedents to secure reinsurance recoverables owed to them by such Regulated
Insurance Company;
(j) Liens
arising in connection with securities lending arrangements entered into by the
Parent Borrower or any of its Subsidiaries with financial institutions in the
ordinary course of business;
(k) inchoate
Liens for taxes, assessments or governmental charges or levies not yet due or
Liens for taxes, assessments or governmental charges or levies being contested
in good faith and by appropriate proceedings for which adequate reserves have
been established in accordance with generally accepted accounting
principles;
(l) bankers’
Liens, rights of setoff and other similar Liens existing solely with respect to
cash and Cash Equivalents on deposit in one or more accounts maintained by the
Parent Borrower or any of its Subsidiaries, in each case, granted in the
ordinary course of business in favor of the bank or banks with which such
accounts are maintained, securing amounts owing to such bank with respect to
cash management and operating account arrangements; provided, however, that
with respect to the Collateral Accounts, any such Liens shall only be permitted
to the extent the Custodian has agreed to subordinate such Liens as provided in
the Account Control Agreement; and
(m) Liens
not otherwise permitted by the foregoing clauses of this Section 8.03 securing
Indebtedness in an aggregate principal amount not at any time exceeding 10% of
Consolidated Tangible Net Worth.
8.04 Indebtedness.
(a) The
Parent Borrower will not, create, incur, assume or permit to exist any
Indebtedness, or agree, become or remain liable (contingent or otherwise) to do
any of the foregoing, except for the Obligations and other Indebtedness which
is either pari
passu in
right of payment with, or subordinated in right of payment to, the
Obligations.
(b) The
Parent Borrower will not permit any of its Subsidiaries to create, incur,
assume or permit to exist any Indebtedness, or agree, become or remain liable
(contingent or otherwise) to do any of the foregoing, except for (i) the
Obligations, (ii) Indebtedness of Subsidiaries of the Parent Borrower owing to
the Parent Borrower or any other Subsidiary, (iii) Indebtedness of
Subsidiaries incurred under securities lending arrangements entered into in
63
the
ordinary course of business, (iv) Guarantees by any Subsidiary of Indebtedness
of the Parent Borrower or any other Subsidiary, (v) Indebtedness incurred in
transactions described in Sections 8.03(f) and (m) hereof, (vi) Indebtedness
that is subordinated in right of payment to the Obligations, and (vii) other
unsecured Indebtedness, so long as upon the incurrence thereof no Default would
occur or exist, in an aggregate amount not to exceed $5,000,000 and (viii)
letters of credit (other than Letters of Credit issued pursuant to this
Agreement) in an aggregate amount not to exceed $75,000,000.
8.05 Issuance
of Stock. The
Parent Borrower will not, and will not permit any of its Subsidiaries to,
directly or indirectly issue, sell, assign, pledge, charge or otherwise
encumber or dispose of any shares of its preferred or preference equity
securities or options to acquire preferred or preference equity securities,
except the issuance of preferred or preference equity securities, so long as
(x) no part of such preferred or preference equity securities is mandatorily
redeemable (whether on a scheduled basis or as a result of the occurrence of
any event or circumstance) prior to the first anniversary of the Commitment
Expiration Date and (y) such preferred or preference equity securities do not
contain any financial covenants or incurrence covenants that would be more
restrictive with respect to the operations of the issuer thereof than the
covenants contained in this Agreement.
8.06 Dissolution. No
Borrower shall suffer or permit dissolution or liquidation either in whole or
in part, except through corporate reorganization to the extent permitted by
Section 8.02.
8.07 Restricted
Payments. The
Parent Borrower will not declare or pay any dividends, purchase, redeem,
retire, defease or otherwise acquire for value any of its Equity Interests now
or hereafter outstanding, return any capital to its stockholders, partners or
members (or the equivalent Persons thereof) as such, make any distribution of
assets, Equity Interests, obligations or securities to its stockholders,
partners or members (or the equivalent Persons thereof) as such, or permit any
of its Subsidiaries to purchase, redeem, retire, defease or otherwise acquire
for value any Equity Interests in the Parent Borrower, if, in any case referred
to above, a Default or Event of Default shall have occurred and be continuing
at the time of such action or would result therefrom.
8.08 Transactions
with Affiliates.
Neither the Parent Borrower nor any of its Subsidiaries shall enter into or be
a party to, a transaction with any Affiliate of the Parent Borrower or such
Subsidiary (which Affiliate is not the Parent Borrower or a Subsidiary), except
transactions with Affiliates in good faith in the ordinary course of business
consistent with past practice and on terms no less favorable to the Parent
Borrower or such Subsidiary than those that could have been obtained in a
comparable transaction on an arm’s length basis from an unrelated
Person.
8.09 Maximum
Leverage Ratio. The
Parent Borrower will not permit the Leverage Ratio at any time to be greater
than 0.35:1.00.
8.10 Minimum
Consolidated Tangible Net Worth. The
Parent Borrower will not permit Consolidated Tangible Net Worth to be less than
$1,400,000,000 at any time.
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8.11 Private
Act. No
Borrower will become subject to a Private Act.
8.12 Restrictions
on Transfers. The
Parent Borrower will not, and will not permit any of its Subsidiaries to,
prohibit or otherwise restrict the transfer of cash or other assets or suffer
to exist any agreement which prohibits or otherwise restricts the transfer of
cash or other assets from any Subsidiary of the Parent Borrower to the Parent
Borrower, except (i) prohibitions or restrictions existing under or by reason
of this Agreement or the other Credit Documents, (ii) prohibitions or
restrictions existing under or by reason of Legal Requirements, and (iii) other
prohibitions or restrictions which, either individually or in the aggregate,
would not reasonably be expected to have a Material Adverse
Effect.
SECTION
9. Events
of Default. Upon
the occurrence of any of the following specified events (each, an “Event
of Default”):
9.01 Payments. Any
Borrower shall (i) default in the payment when due of any principal of any
Revolving Loan or any Note, (ii) default, and such default shall continue for
three or more Business Days, in the payment when due of any interest on any
Revolving Loan or any Note or any Fees or (iii) default in the prompt payment
following notice or demand in respect of any other amounts owing hereunder or
under any other Credit Document; or
9.02 Representations,
etc. Any
representation, warranty or material statement made or deemed made by any
Borrower herein or in any other Credit Document or in any certificate or
material statement delivered or required to be delivered pursuant hereto or
thereto shall prove to be untrue in any material respect as of the time made or
deemed made; or
9.03 Covenants. Any
Borrower shall (a) default in the due performance or observance by it of any
term, covenant or agreement contained in Section 7.01(d)(x), Section 7.02(ii),
Section 7.05 (with respect to the first sentence of Section 7.05 only), Section
7.10 or Section 8, or (b) default in the due performance or observance by it of
any term, covenant or agreement (other than those referred to in Section 9.01
or clause (a) of this Section 9.03) contained in this Agreement and such
default shall continue unremedied for a period of at least 45 days;
or
9.04 Default
Under Other Agreements.
(a) The
Parent Borrower or any of its Subsidiaries shall (i) default in any payment
with respect to Indebtedness (other than the Obligations) in excess of
$50,000,000 individually or in the aggregate, for the Parent Borrower and its
Subsidiaries, beyond the period of grace, if any, provided in the instrument or
agreement under which such Indebtedness was created or (ii) default in the
observance or performance of any agreement or condition relating to any such
Indebtedness or contained in any instrument or agreement evidencing, securing
or relating thereto, or any other event shall occur or condition exist, the
effect of which default or other event or condition is to cause, or to permit
the holder or holders of such Indebtedness (or a trustee or agent on behalf of
such holder or holders) to cause (determined without regard to whether any
notice of acceleration, or any lapse of time prior to the effectiveness of any
notice of acceleration, is required), any such Indebtedness to become due prior
to its stated maturity; or (b) Indebtedness of the Parent Borrower or its
Subsidiaries in excess of $50,000,000 shall be declared to be due and payable
other than in accordance with the terms of such Indebtedness or required to be
prepaid, other than by a regularly scheduled
65
required prepayment or as a mandatory prepayment (unless such required
prepayment or mandatory prepayment results from a default thereunder or an
event of the type that constitutes an Event of Default), prior to the stated
maturity thereof; or
9.05 Bankruptcy,
etc. The
Parent Borrower or any of its Subsidiaries shall commence a voluntary case
concerning itself under Title 11 of the United States Code entitled
“Bankruptcy,” as now or hereafter in effect, or any successor thereto
(the “Bankruptcy Code”); or an involuntary case is commenced against
the Parent Borrower or any of its Subsidiaries and the petition is not
controverted within 10 days, or is not dismissed within 60 days, after
commencement of the case; or a custodian (as defined in the Bankruptcy Code) is
appointed for, or takes charge of, all or substantially all of the property of
the Parent Borrower or any of its Subsidiaries; or the Parent Borrower or any
of its Subsidiaries commences (including by way of applying for or consenting
to the appointment of, or the taking of possession by, a rehabilitator,
receiver, custodian, trustee, conservator or liquidator (collectively, a
“conservator”) of itself or all or any substantial portion of its
property) any other proceeding under any reorganization, arrangement,
adjustment of debt, relief of debtors, dissolution, insolvency, liquidation,
rehabilitation, supervision, conservatorship or similar law of any jurisdiction
or the Bermuda Companies Law whether now or hereafter in effect relating to the
Parent Borrower or any of its Subsidiaries; or any such proceeding is commenced
against (a) any Regulated Insurance Company which is engaged in the business of
underwriting insurance and/or reinsurance in the United States, or (b) the
Parent Borrower or any of its Subsidiaries (other than (x) any Regulated
Insurance Company described in the immediately preceding clause (a)) to the
extent such proceeding is consented to by such Person, and in the case of
either clause (a) or (b) remains undismissed for a period of 60 days; or the
Parent Borrower or any of its Subsidiaries is adjudicated insolvent or
bankrupt; or any order of relief or other order approving any such case or
proceeding is entered; or (a) any Regulated Insurance Company which is engaged
in the business of underwriting insurance and/or reinsurance in the United
States suffers any appointment of any conservator or the like for it or any
substantial part of its property, or (b) the Parent Borrower or any of its
Subsidiaries (other than any Regulated Insurance Company described in the
immediately preceding clause (a)) suffers any appointment of any conservator or
the like for it or any substantial part of its property which continues
undischarged or unstayed for a period of 60 days; or the Parent Borrower or any
of its Subsidiaries makes a general assignment for the benefit of creditors; or
any corporate action is taken by the Parent Borrower or any of its Subsidiaries
for the purpose of effecting any of the foregoing; or
9.06 ERISA. (a) An
event or condition specified in Section 7.07 shall occur or exist with respect
to any Plan or Multiemployer Plan or Foreign Pension Plan, (b) a Borrower, any
of its Subsidiaries or any of its ERISA Affiliates shall fail to pay when due
any material amount which they shall have become liable to pay to the PBGC or
to a Plan or a Multiemployer Plan under Title IV of ERISA, or (c) a condition
shall exist by reason of which the PBGC would be entitled to obtain a decree
adjudicating that any Plan must be terminated, and, in any of the foregoing
cases, as a result of such event or condition, together with all such other
events or conditions, the Parent Borrower, any of its Subsidiaries or any of
its ERISA Affiliates shall be reasonably likely in the opinion of the general
counsel of such Borrower to (i) in the case of the foregoing clauses (a) and
(b) of this Section 9.06, incur a liability to a Plan, a Multiemployer Plan, a
Foreign Pension Plan or PBGC (or any combination of the foregoing) or (ii) in
the case of the foregoing clause (c) of this Section 9.06, incur a liability to
a Plan, Multiemployer Plan, a
Foreign Pension Plan or PBGC (or any combination of the
foregoing) in excess of $30,000,000; or
9.07 Judgments. One or
more judgments or decrees for the payment of money shall be entered against the
Parent Borrower or any of its Subsidiaries involving a liability, net of
undisputed reinsurance, of $75,000,000 or more in the case of any one such
judgment or decree or in the aggregate for all such judgments and decrees for
the Parent Borrower and its Subsidiaries and any such judgments or decrees
shall not have been vacated, discharged, satisfied, stayed or bonded pending
appeal within 60 days from the entry thereof; or
9.08 Insurance
Licenses. Any
one or more Insurance Licenses of the Parent Borrower or any of its
Subsidiaries shall be suspended, limited or terminated or shall not be renewed,
or any other action shall be taken by any Governmental Authority, and such
suspension, limitation, termination, nonrenewal or other action would
reasonably be expected to have, either individually or in the aggregate, a
Material Adverse Effect; or
9.09 Parent
Borrower Guaranty. The
Parent Borrower Guaranty shall terminate or cease, in whole or part, to be a
legally valid and binding obligation of the Parent Borrower, or the Parent
Borrower, or any Person acting for or on behalf of the Parent Borrower, shall
contest such validity or binding nature of the Parent Borrower Guaranty, or any
other Person shall assert any of the foregoing; or
9.10 Security
Documents. Any
Security Document shall cease to be in full force and effect, or shall cease to
give the Collateral Agent the Liens, rights, powers and privileges purported to
be created thereby (including, without limitation, a first priority security
interest in, and Lien on, all of the Collateral subject thereto, in favor of
the Collateral Agent, superior to and prior to the rights of all third Persons
and subject to no other Liens); or any Borrower party to any Security Documents
or any other pledgor thereunder shall default in the due performance or
observance of any term, covenant or agreement on its part to be performed or
observed pursuant to any Security Document; or
9.11 Ownership. A
Change of Control shall occur;
then,
and in any such event, and at any time thereafter, if any Event of Default
shall then be continuing, the Administrative Agent shall, upon the written
request of the Required Lenders, by written notice to the Parent Borrower, take
any or all of the following actions, without prejudice to the rights of the
Administrative Agent or any Lender to enforce its claims against any Borrower,
except as otherwise specifically provided for in this Agreement (provided that if
an Event of Default specified in Section 9.05 shall occur with respect to any
Borrower, the result which would occur upon the giving of written notice by the
Administrative Agent as specified in clauses (i) and (ii) below shall occur
automatically without the giving of any such notice): (i) declare the Total
Commitment terminated, whereupon the Commitment of each Lender shall forthwith
terminate immediately and any Facility Fees and Utilization Fees shall
forthwith become due and payable without any other notice of any kind, (ii)
declare the principal of, and any accrued interest in respect of, all Revolving
Loans and all Obligations owing hereunder and under the other Credit Documents
to be, whereupon the same shall become, forthwith due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by each Borrower, (iii) terminate any Letter of
Credit or give a Notice of Non-Extension in respect thereof if permitted in
accordance with its terms, (iv) direct the applicable Borrower to pay (and the
applicable Borrower hereby agrees upon receipt of such notice, or upon the
occurrence of any Event of Default specified in Section 9.05, to pay) to the
Administrative Agent at the Payment Office an amount of cash to be held as
security for the respective Borrower’s reimbursement obligations in
respect of all Letters of Credit then outstanding which were issued for the
account of such Borrower, equal to the aggregate Stated Amount of all such
Letters of Credit at such time, and/or (v) direct the Collateral Agent to
enforce any or all of the Liens and security interests created pursuant to the
Security Documents and/or exercise any of the rights and remedies provided
therein. Notwithstanding the foregoing, the Administrative Agent shall have
available to it all other remedies at law or equity, and shall exercise any one
or all of them at the request of the Required Lenders.
SECTION
10. Definitions. As
used herein, the following terms shall have the meanings herein specified
unless the context otherwise requires. Defined terms in this Agreement shall
include in the singular number the plural and in the plural the
singular:
“Account
Control Agreement” means an account control agreement, dated as of the
date of this Agreement, among JPMorgan Chase Bank, N.A., as custodian, the
Grantors (as defined in the Security Agreement) from time to time party thereto
and the Collateral Agent, as amended, modified and supplemented and as in
effect from time to time.
“Additional
Tranche 1 Commitment” shall mean, for each Additional Tranche 1 Lender,
any commitment provided by such Additional Tranche 1 Lender pursuant to Section
1.15, in such amount as agreed to by such Additional Tranche 1 Lender in the
respective Additional Tranche 1 Commitment Agreement; provided that on
the Additional Tranche 1 Commitment Date upon which an Additional Tranche 1
Commitment of any Additional Tranche 1 Lender becomes effective, such
Additional Tranche 1 Commitment of such Additional Tranche 1 Lender shall (x)
in the case of an existing Tranche 1 Lender be added to (and thereafter become
a part of) the existing Tranche 1 Commitment of such existing Tranche 1 Lender
for all purposes of this Agreement as contemplated by Section 1.15 and (y) in
the case of a new Tranche 1 Lender, be converted to a Tranche 1 Commitment and
become a Tranche 1 Commitment for all purposes of this Agreement as
contemplated by Section 1.15.
“Additional
Tranche 2 Commitment” shall mean, for each Additional Tranche 2 Lender,
any commitment provided by such Additional Tranche 2 Lender pursuant to Section
1.16, in such amount as agreed to by such Additional Tranche 2 Lender in the
respective Additional Tranche 2 Commitment Agreement; provided that on
the Additional Tranche 2 Commitment Date upon which an Additional Tranche 2
Commitment of any Additional Tranche 2 Lender becomes effective, such
Additional Tranche 2 Commitment of such Additional Tranche 2 Lender shall (x)
in the case of an existing Tranche 2 Lender be added to (and thereafter become
a part of) the existing Tranche 2 Commitment of such existing Tranche 2 Lender
for all purposes of this Agreement as contemplated by Section 1.16 and (y) in
the case of a new Tranche 2 Lender, be converted to a Tranche 2 Commitment and
become a Tranche 2 Commitment for all purposes of this Agreement as
contemplated by Section 1.16.
“Additional
Tranche 1 Commitment Agreement” shall mean an Additional Tranche 1
Commitment Agreement substantially in the form of Exhibit J-1 (appropriately
completed).
“Additional
Tranche 2 Commitment Agreement” shall mean an Additional Tranche 2
Commitment Agreement substantially in the form of Exhibit J-2 (appropriately
completed).
“Additional
Tranche 1 Commitment Date” shall mean each date upon which an Additional
Tranche 1 Commitment under an Additional Tranche 1 Commitment Agreement becomes
effective as provided in Section 1.15.
“Additional
Tranche 2 Commitment Date” shall mean each date upon which an Additional
Tranche 2 Commitment under an Additional Tranche 1 Commitment Agreement becomes
effective as provided in Section 1.16.
“Additional
Tranche 1 Lender” shall have the meaning provided in Section
1.15(b).
“Additional
Tranche 2 Lender” shall have the meaning provided in Section
1.16(b).
“Administrative
Agent” shall have the meaning provided in the first paragraph of this
Agreement and shall include any successor to the Administrative Agent appointed
pursuant to Section 11.09.
“Advance
Rate” shall mean, for any category of Cash or obligation or investment
specified below in the column entitled “Cash and Eligible Securities”
(other than cash, the “Eligible
Securities”),
the percentage set forth opposite such category of cash or Eligible Securities
below in the column entitled “Advance Rate” and, in each case,
subject to the original term to maturity criteria set forth
therein:
Eligible
Collateral/Advance Rate
Eligible
Collateral:
|
|
Advance
Rate:† |
† |
Advance
rates shall be based upon the value of Eligible Securities, which shall be
determined by a periodic xxxx-to-market to occur on a daily basis.
Notwithstanding the foregoing, (A) Eligible Securities shall be limited to
securities primarily cleared and settled within the United States, (B) if at
any time the securities of any single corporate or municipal issuer (or any
Affiliate thereof) represent more than 10% of the aggregate value of all Cash
and Eligible Securities on the borrowing base certificate then most recently
delivered to the Collateral Agent (the “Borrowing Base”), the value
in excess of 10% shall be excluded from said Borrowing Base and (C) if at any
time asset-backed securities of any single issuer represent more than
$10,000,000 of the aggregate value of all Cash and Eligible Securities of all
Borrowing Bases, the value in excess of $10,000,000 shall be excluded from said
Borrowing Bases (with such exclusion being |
Cash:
U.S.
Dollars. |
|
100%
|
|
|
|
Time
Deposits, CDs and Money Market Deposits:
Time
deposits, certificates of deposit and money market deposits of any commercial
bank incorporated in the United States with a rating of at least (i) AA-
from Standard & Poor’s Ratings Services (“S&P”) and (ii)
Aa3 from Xxxxx’x Investors Service, Inc. (“Moody’s”) and
maturing within two years from the date of acquisition. |
|
90%
|
|
|
|
U.S.
Government Securities:
Securities
issued or directly and fully guaranteed or insured by the United States or any
agency or instrumentality thereof (provided that the full faith and credit of
the United States is pledged in support thereof). |
|
With
maturities of (x) two years or less from the date of acquisition, 95%, (y) 3 to
10 years, 90% and (z) more than 10 years, 85%. |
|
|
|
Agency
Securities:
(i) Single-class
mortgage participation certificates in book-entry form backed by single-family
residential mortgage loans, the full and timely payment of interest at the
applicable certificate rate and the ultimate collection of principal of which
are guaranteed by the Federal Home Loan Mortgage Corporation (excluding REMIC
or other multi-class pass-through certificates, collateralized mortgage
obligations, pass-through certificates backed by adjustable rate mortgages,
securities paying interest or principal only and similar derivative
securities); (ii) single-class mortgage pass-through certificates in book-entry
form backed by single-family residential mortgage loans, the full and timely
payment of interest at the applicable certificate rate and ultimate collection
of principal of which are guaranteed by the Federal National Mortgage
Association (excluding REMIC or other multi-class pass-through certificates,
pass-through certificates backed by adjustable rate mortgages, collateralized
mortgage obligations, securities paying interest or principal only and similar
derivative securities); and (iii) single-class fully modified pass-through
certificates in book-entry form backed by single-family residential mortgage
loans, the full and timely payment of principal and interest of which is
guaranteed by the Government National Mortgage Association (excluding REMIC or
other multi-class pass-through certificates, collateralized mortgage
obligations, pass-through certificates backed by adjustable rate mortgages,
securities paying interest or principal only and similar derivatives
securities). |
|
With
maturities from the date of acquisition of (x) two years or less, 95%, (y) more
than two years and less than 10 years, 90% and (z) more than 10 years,
85%. |
† |
allocated
on the basis of the respective asset-backed securities held in the respective
Borrowing Bases). |
70
Investment
Grade Municipal Bonds Level I:
Municipal
bonds rated at least (i) AAA from S&P and (ii) Aaa from Moody’s and
maturing within five years from the date of acquisition |
|
90%
|
|
|
|
Investment
Grade Municipal Bonds Level II:
Municipal
bonds rated at least (i) BBB from S&P and (ii) Baa2 from Moody’s and
maturing within five years from the date of acquisition, but no higher than (x)
AA+ from S&P and (y) Aa1 from Moody’s. |
|
85%
|
|
|
|
Investment
Grade Nonconvertible Corporate Bonds Level I:
Nonconvertible
corporate bonds that are publicly traded on a nationally recognized exchange,
eligible to be settled by the Depository Trust Company (“DTC”) and
rated at least (i) AA- from S&P and (ii) Aa3 from
Moody’s. |
|
With
maturities of (x) two years or less from the date of acquisition, 90% and
(y) three to ten years from the date of acquisition, 85%.
|
Investment
Grade Nonconvertible Corporate Bonds Level II:
Nonconvertible
corporate bonds that are publicly traded on a nationally recognized exchange,
eligible to be settled by DTC and rated at least (i) BBB from S&P and (ii)
Baa2 from Moody’s, but no higher than (x) A+ from S&P and (y) A1 from
Moody’s. |
|
80%
|
Commercial
Paper:
Commercial
paper issued by any entity organized in the United States rated at least (i)
A-1 or the equivalent thereof by S&P and (ii) P-1 or the equivalent thereof
by Moody’s and maturing not more than one year after the date of
acquisition. |
|
90%
|
|
|
|
Asset-Backed
Securities:
Asset-backed
securities rated at least (i) AAA by S&P and (ii) Aaa by
Moody’s, provided that
(x) such securities are backed by credit card receivables or automobile
loans and have a remaining maturity of 10 years or less and
(y) asset-backed securities will not constitute Eligible Securities if
they are certificated securities that cannot be paid or delivered by book entry
(and all asset-backed securities issued by an issuer incorporated in the United
States of America must be capable of settlement through DTC).
|
|
80%
|
|
|
|
All
other securities |
|
0%
|
“Affected
Loan” shall have the meaning provided in Section 4.02(h).
“Affiliate”
shall mean, with respect to any Person, any other Person directly or indirectly
controlling, controlled by, or under direct or indirect common control with,
such
Person,
provided, that a
Person shall not be deemed to be an Affiliate solely as a result of a title or
position held by such Person. A Person shall be deemed to control a corporation
if such Person possesses, directly or indirectly, the power (i) to vote 10% or
more of the actual voting power for the election of directors of such
corporation or (ii) to direct or cause the direction of the management and
policies of such corporation, whether through the ownership of voting
securities, by contract or otherwise.
“Agents”
shall mean, collectively, the Administrative Agent and the Collateral
Agent.
“Aggregate
Multicurrency Letter of Credit Limit” shall mean $200,000,000, as such
amount may be increased as provided for in Sections 1.15(a) and
1.16(a).
“Agreement”
shall mean this Credit Agreement, as the same may be from time to time
modified, amended and/or supplemented.
“Applicable
Insurance Regulatory Authority” shall mean, when used with respect to any
Regulated Insurance Company, the insurance department or similar administrative
authority or agency located in (x) each state in which such Regulated Insurance
Company is domiciled or (y) to the extent asserting regulatory jurisdiction
over such Regulated Insurance Company, the insurance department, authority or
agency in each state in which such Regulated Insurance Company is licensed, and
shall include any Federal insurance regulatory department, authority or agency
that may be created and that asserts regulatory jurisdiction over such
Regulated Insurance Company.
“Applicable
Margin” shall mean, for any day:
(a) with
respect to interest on any Tranche 1 Revolving Loan, Tranche 1 Facility Fee,
Tranche 1 Utilization Fee or Tranche 1 Letter of Credit Fee, for any Margin
Adjustment Period, from and after any Start Date to and including the
corresponding End Date, the respective percentage per annum set forth below
opposite the respective Level (i.e., Xxxxx
0, Xxxxx 0 or Level 3, as the case may be) indicated to have been achieved on
the applicable Test Date for such Start Date (as shown in the respective
officer’s certificate delivered pursuant to Section 7.01(c)):
|
|
Level
1: |
|
Level
2: |
|
Level
3: |
|
Leverage
Ratio
|
|
less
than or equal to 0.20:1.00 |
|
greater
than 0.20:1.00 and less than or equal to 0.25:1.00 |
|
greater
than 0.25:1.00 |
|
Letter
of Credit Fee and Applicable
Margin for Eurodollar Loans |
|
|
0.165
|
%
|
|
0.215
|
%
|
|
0.29
|
%
|
Applicable
Margin for Base Rate Loans |
|
|
0.00
|
%
|
|
0.00
|
%
|
|
0.00
|
%
|
Applicable
Margin for Facility Fee |
|
|
0.06
|
%
|
|
0.06
|
%
|
|
0.06
|
%
|
Applicable
Margin for Utilization Fee |
|
|
0.10
|
%
|
|
0.10
|
%
|
|
0.10
|
%
|
(b) with
respect to interest on any Tranche 2 Revolving Loan, Tranche 2 Facility Fee,
Tranche 2 Utilization Fee or Tranche 2 Letter of Credit Fee, for any Margin
Adjustment Period, from and after any Start Date to and including the
corresponding End Date, the respective percentage per annum set forth below
opposite the respective Level (i.e., Xxxxx 0, Xxxxx 0 or Level 3, as the case
may be) indicated to have been achieved on the applicable Test Date for such
Start Date (as shown in the respective officer’s certificate delivered
pursuant to Section 7.01(c)):
|
|
Level
1: |
|
Level
2: |
|
Level
3: |
|
Leverage
Ratio
|
|
less
than or equal to 0.20:1.00 |
|
greater
than 0.20:1.00 and less than or equal to 0.25:1.00 |
|
greater
than 0.25:1.00 |
|
Letter
of Credit Fee and Applicable Margin for LIBOR Loans |
|
|
0.275
|
%
|
|
0.35
|
%
|
|
0.375
|
%
|
Applicable
Margin for Base Rate Loans |
|
|
0.00
|
%
|
|
0.00
|
%
|
|
0.00
|
%
|
Applicable
Margin for Facility Fee |
|
|
0.075
|
%
|
|
0.10
|
%
|
|
0.125
|
%
|
Applicable
Margin for Utilization Fee |
|
|
0.10
|
%
|
|
0.10
|
%
|
|
0.10
|
%
|
Notwithstanding
the foregoing, (i) if the Parent Borrower fails to deliver the financial
statements required to be delivered pursuant to Section 7.01(a) or (b)
(accompanied by the officer’s certificate required to be delivered
pursuant to Section 7.01(c) showing the applicable Leverage Ratio on the
relevant Test Date) on or prior to the respective date required by such
Sections, then Level 3 pricing shall apply until such time, if any, as the
financial statements required as set forth above and the accompanying
officer’s certificate have been delivered showing the pricing for the
respective Margin Adjustment Period is at a level below Level 3
(it being understood that, in the case of any late delivery of the financial
statements and officer’s certificate as so required, any reduction in the
Applicable Margin shall apply only from and after the date of the delivery of
the complying financial statements and officer’s certificate);
(ii) except when clause (iii) below is applicable Level 1 pricing shall
apply for the period from the Effective Date to the date of the delivery of the
Parent Borrower’s consolidated financial statements (and related
officer’s certificate) in respect of its fiscal quarter ending June 30,
2007; and (iii) Xxxxx 0 pricing shall apply at all times when any Event of
Default is in existence.
“Assignment
Agreement” shall mean an assignment agreement in the form of Exhibit G
(appropriately completed).
“Authorized
Officer” shall mean any senior officer of a Borrower designated as such in
writing by such Borrower to, and found acceptable by, the Administrative
Agent.
“Bankruptcy
Code” shall have the meaning provided in Section 9.05.
“Base
Rate” at any time shall mean the higher of (x) the rate which is 1/2 of 1%
in excess of the Federal Funds Effective Rate and (y) the Prime Lending Rate as
in effect from time to time.
“Base
Rate Loans” shall mean each Revolving Loan bearing interest at the rates
provided in Section 1.08(a).
“Bermuda
Companies Law” shall mean the Companies Xxx 0000 of Bermuda and other
relevant Bermuda law.
“Borrower”
or “Borrowers” shall mean the Parent Borrower, the Initial Designated
Subsidiary Borrowers and each Person which is designated as a Designated
Subsidiary Borrower after the Effective Date in accordance with Section 1.14.
For the purposes of Sections 5, 6, 7, 8 and 9 (including the defined terms used
therein) any reference to “Borrower” or “Borrowers” shall
also mean, and include, the Parent Borrower in its capacity as guarantor under
Section 13.
“Borrowing”
shall mean the incurrence of one Type of Revolving Loan of a single Tranche
hereunder by any Borrower from all of the Lenders of the respective Tranche on
a pro rata basis
on a given date (or resulting from a conversion or conversions on such date),
having in the case of Eurodollar Loans the same Interest Period, provided that
Base Rate Loans incurred pursuant to Section 1.10(b) shall be considered part
of any related Borrowing of Eurodollar Loans.
“Borrowing
Base” shall mean, at any time, and in respect of each Borrower, the
aggregate amount of Cash and Eligible Securities held in the Collateral
Accounts applicable to such Borrower under the Security Agreement at such time
multiplied in each case by the respective Advance Rates for Cash and such
Eligible Securities; provided that
(a) all Cash and Eligible Securities in respect of any Borrowing Base
shall only be included in such Borrowing Base to the extent same are subject to
a first priority perfected security interest in favor of the
Collateral Agent pursuant to the Security Documents and
(b) Eligible Securities which are subject to a securities lending
arrangement shall not be included in a Borrowing Base.
“Borrowing
Base Certificate” shall mean a Borrowing Base Certificate substantially in
the form of Exhibit K hereto.
“Business
Day” shall mean (i) for all purposes other than as covered by clause (ii)
below, any day, excluding Saturday, Sunday and any day which shall be in the
City of New York a legal holiday or a day on which banking institutions are
authorized by law or other governmental actions to close, and (ii) with respect
to all notices and determinations in connection with, and payments of principal
and interest on, Eurodollar Loans, any day which is a Business Day described in
clause (i) and which is also a day for trading by and between banks in U.S.
dollar deposits in the interbank Eurodollar market.
“Cash
Collateral Agreement”: shall mean the certain agreement dated as of the
Effective Date by and between ERCA and JPMorgan Chase Bank, N.A, as amended or
modified from time to time, relating to the Letters of Credit (as defined
therein).
“Cash
Equivalents” shall mean, as to any Person, (i) securities issued or
directly and fully guaranteed or insured by the United States or any agency or
instrumentality thereof (provided that
the full faith and credit of the United States is pledged in support thereof)
having maturities of not more than one year from the date of acquisition, (ii)
time deposits and certificates of deposit of any commercial bank having, or
which is the principal banking subsidiary of a bank holding company organized
under the laws of the United States, any State thereof, the District of
Columbia or any foreign jurisdiction having capital, surplus and undivided
profits aggregating in excess of $200,000,000, with maturities of not more than
one year from the date of acquisition by such Person, (iii) repurchase
obligations with a term of not more than 90 days for underlying securities of
the types described in clause (i) above entered into with any bank meeting the
qualifications specified in clause (ii) above, (iv) commercial paper issued by
any Person incorporated in the United States rated at least A-1 or the
equivalent thereof by S&P or at least P1 or the equivalent thereof by
Moody’s and in each case maturing not more than one year after the date of
acquisition by such Person, (v) investments in money market funds substantially
all of whose assets are comprised of securities of the types described in
clauses (i) through (iv) above.
“Change
of Control” shall mean the occurrence of any of the following events or
conditions: (a) any Person or group of Persons (as used in Sections 13 and 14
of the Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder), shall have become the beneficial owner (as defined in
rules promulgated by the SEC) of more than 35% of the voting securities of the
Parent Borrower; or (b) a majority of the members of the Parent Borrower’s
board of directors are persons who are then serving on the board of directors
without having been elected by the board of directors or having been nominated
for election by its shareholders.
“Claims”
shall have the meaning provided in Section 12.01.
“Code”
shall mean the Internal Revenue Code of 1986, as amended from time to time, and
the regulations promulgated and rulings issued thereunder. Section references
to the Code are to the Code, as in effect at the date of this Agreement and any
subsequent provisions of the Code, amendatory thereof, supplemental thereto or
substituted therefor.
“Collateral”
shall have the meaning provided in the Security Agreement.
“Collateral
Account” shall have the meaning provided in the Security Agreement.
“Collateral
Agent” shall have the meaning provided in the Security
Agreement.
“Commitment”
shall mean, collectively, the Tranche 1 Commitments and the Tranche 2
Commitments.
“Commitment
Expiration Date” shall mean May 8, 2012.
“Consolidated
Indebtedness” shall mean, as of any date of determination, (i) all
Indebtedness for borrowed money of the Parent Borrower and its Subsidiaries at
such time determined on a consolidated basis in accordance with GAAP
plus (ii)
any Indebtedness for borrowed money of any other Person as to which the Parent
Borrower and/or any of its Subsidiaries has created a guarantee or other
Contingent Obligation (but only to the extent of such guarantee or other
Contingent Obligation). For the avoidance of doubt, “Consolidated
Indebtedness” shall not include any contingent obligations of any Person
under or in connection with letters of credit or similar facilities so long as
no drawings or payments have been made in respect thereof.
“Consolidated
Net Worth” shall mean, as of any date of determination, the Net Worth of
the Parent Borrower and its Subsidiaries determined on a consolidated basis in
accordance with GAAP after appropriate deduction for any minority interests in
Subsidiaries.
“Consolidated
Tangible Net Worth” shall mean, as of the date of any determination,
Consolidated Net Worth of the Parent Borrower and its Subsidiaries on such date
less the amount of all intangible items included therein, including, without
limitation, goodwill, franchises, licenses, patents, trademarks, trade names,
copyrights, service marks, brand names and write-ups of assets.
“Consolidated
Total Capital” shall mean, as of any date of determination, the sum of (i)
Consolidated Indebtedness and (ii) Consolidated Net Worth at such
time.
“Contingent
Obligations” shall mean, as to any Person, any obligation of such Person
guaranteeing or intended to guarantee any Indebtedness, leases, dividends or
other obligations (“primary obligations”) of any other Person (the
“primary obligor”) in any manner, whether directly or indirectly,
including, without limitation, any obligation of such Person, whether or not
contingent, (a) to purchase any such primary obligation or any property
constituting direct or indirect security therefor, (b) to advance or supply
funds (i) for the purchase or payment of any such primary obligation or (ii) to
maintain working capital or equity capital of the primary obligor or otherwise
to maintain the net worth or solvency of the primary obligor, (c) to purchase
property, securities or services primarily for the purpose of assuring the
owner of any such primary obligation of the ability of the primary
obligor to make payment of such primary obligation or (d) otherwise to assure
or hold harmless the owner of such primary obligation against loss in respect
thereof;
provided,
however, that
the term Contingent Obligation shall not include (x) endorsements of
instruments for deposit or collection in the ordinary course of business, (y)
obligations of any Regulated Insurance Company under Insurance Contracts,
Reinsurance Agreements or Retrocession Agreements or (z) trusts or similar
arrangements related to Insurance Contracts, Reinsurance Agreements or
Retrocession Agreements. The amount of any Contingent Obligation shall be
deemed to be an amount equal to the stated or determinable amount of the
primary obligation in respect of which such Contingent Obligation is made or,
if not stated or determinable, the maximum reasonably anticipated liability in
respect thereof (assuming such Person is required to perform thereunder) as
determined by such Person in good faith.
“Credit
Documents” shall mean this Agreement, the Notes, each Assignment
Agreement, each DSB Assumption Agreement, each Security Document and all other
documents, instruments and agreements entered into in connection herewith or
therewith.
“Default”
shall mean any event, act or condition which, with notice or lapse of time, or
both, would constitute an Event of Default.
“Defaulting
Lender” shall mean any Lender with respect to which a Lender Default is in
effect.
“Designated
Subsidiary Borrower” shall mean (a) ESI, (b) EUHC, (c) EWHL, (d) EWIL
and (e) each Person which is designated as an additional Designated Subsidiary
Borrower after the Effective Date in accordance with Section 1.14.
“Dispositions”
shall have the meaning provided in Section 8.02(b).
“Dollar”
and the sign “$” shall each mean freely transferable lawful money of
the United States.
“DSB
Assumption Agreement” shall mean an assumption agreement in the form of
Exhibit H.
“Effective
Date” shall have the meaning set forth in this Amended and Restated Credit
Agreement.
“Eligible
Securities” shall have the meaning provided in the definition of the term
Advance Rates.
“End
Date” shall mean, with respect to any Margin Adjustment Period, the last
day of such Margin Adjustment Period.
“Equity
Interests” shall mean, with respect to any Person, shares of capital stock
of (or other ownership or profit interests in) such Person, warrants, options
or other rights for the purchase or other acquisition from such Person of
shares of capital stock of (or other ownership or profit interests in) such
Person, securities convertible into or exchangeable for shares of
capital stock of (or other ownership or profit interests in) such
Person or warrants, rights or options for the purchase or other acquisition
from such Person of such shares (or such other interests), and other ownership
or profit interests in such Person (including, without limitation, partnership,
member or trust interests therein), whether voting or nonvoting, and whether or
not such shares, warrants, options, rights or other interests are authorized or
otherwise existing on any date of determination.
“ERCA”
shall mean Endurance Reinsurance Corporation of America, a corporation
organized under the laws of the State of New York.
“ERISA”
shall mean the Employee Retirement Income Security Act of 1974, as amended from
time to time and the regulations promulgated and rulings issued thereunder.
Section references to ERISA are to ERISA, as in effect at the date of this
Agreement and any subsequent provisions of ERISA, amendatory thereof,
supplemental thereto or substituted therefor.
“ERISA
Affiliate” shall mean any corporation or trade or business which is a
member of the same controlled group of corporations (within the meaning of
Section 414(b) of the Code) as the Parent Borrower or any of its Subsidiaries
or is under common control (within the meaning of Section 414(c) of the Code)
with the Parent Borrower or any of its Subsidiaries.
“ESI”
shall mean Endurance Specialty Insurance Ltd., a company organized under the
laws of Bermuda.
“EUHC”
shall mean Endurance U.S. Holdings Corp., a corporation organized under the
laws of Delaware.
“Eurodollar
Loans” shall mean each Revolving Loan bearing interest at the rates
provided in Section 1.08(b).
“Eurodollar
Rate” shall mean, with respect to each Interest Period for a Eurodollar
Loan, (i) the rate per annum that appears on Reuters Screen LIBOR01 Page (or
any successor page) for Dollar deposits with maturities comparable to such
Interest Period as of 11:00 A.M. (London time) on the date which is two
Business Days prior to the commencement of such Interest Period or, if such a
rate does not appear on Reuters Screen LIBOR01 Page (or any successor page),
the offered quotations to first-class banks in the London interbank market by
JPMorgan Chase Bank, N.A. for Dollar deposits of amounts in same day funds
comparable to the outstanding principal amount of such Dollar denominated
Revolving Loan with maturities comparable to such Interest Period determined as
of 11:00 A.M. (London time) on the date which is two Business Days prior to the
commencement of such Interest Period divided (and rounded upward to the next
whole multiple of 1/16 of 1%) by (ii) a percentage equal to 100% minus the then
stated maximum rate of all reserve requirements (including, without limitation,
any marginal, emergency, supplemental, special or other reserves) applicable to
any member bank of the Federal Reserve System in respect of Eurocurrency
liabilities as defined in Regulation D (or any successor category of
liabilities under Regulation D).
“Event
of Default” shall have the meaning provided in Section 9.
“EWHL”
shall mean Endurance Worldwide Holdings Limited, a company organized under the
laws of England.
“EWIL”
shall mean Endurance Worldwide Insurance Limited, a company organized under the
laws of England.
“Existing
Credit Agreement” shall have the meaning provided in the recitals.
“Existing
Lender Agreement” shall mean an Existing Lender Agreement substantially in
the form of Exhibit M (appropriately completed).
“Existing
Letters of Credit” shall mean, collectively, Existing Tranche 1 Letters of
Credit and Existing Tranche 2 Letters of Credit.
“Existing
Tranche 1 Letter of Credit” shall have the meaning provided in Section
2A.08(a).
“Existing
Tranche 2 Letter of Credit” shall have the meaning provided in Section
2B.08(a).
“Expiration
Date” shall mean May 8, 2007.
“Facility
Fees” shall mean, collectively, the Tranche 1 Facility Fee and the Tranche
2 Facility Fee.
“Federal
Funds Effective Rate” shall mean for any period, a fluctuating interest
rate equal for each day during such period to the weighted average of the rates
on overnight Federal Funds transactions with members of the Federal Reserve
System arranged by Federal Funds brokers, as published for such day (or, if
such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day which is a Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three Federal Funds
brokers of recognized standing selected in good faith by the Administrative
Agent.
“Federal
Reserve System” shall mean the Federal Reserve System of the United States
of America.
“Fees”
shall mean all amounts payable pursuant to, or referred to in, Section
3.01.
“Final
Maturity Date” shall mean the date when the Commitment Expiration Date has
occurred, all Letters of Credit have expired or terminated and all amounts
owing hereunder have been paid in full.
“Financial
Statement Delivery Date” shall mean each date upon which the respective
officer’s certificate is delivered pursuant to Section 7.01(c) (together
with the related financial statements pursuant to Section
7.01(a)).
“Foreign
Pension Plan” shall mean any plan, fund (including, without limitation,
any superannuation fund) or other similar program established or maintained
outside the United States of America by the Parent Borrower or any one or more
of its Subsidiaries primarily for the benefit of employees of the Parent
Borrower or such Subsidiaries residing outside the United States of America,
which plan, fund or other similar program provides, or results in, retirement
income, a deferral of income in contemplation of retirement or payments to be
made upon termination of employment, and which plan is not subject to ERISA or
the Code.
“Fronted
Letter of Credit Limit” shall mean $300,000,000, as such amount may be
increased as provided for in Sections
1.15(a) and 1.16(a).
“GAAP”
shall mean generally accepted accounting principles in the United States of
America; it being understood and agreed that determinations in accordance with
GAAP for purposes of Section 8, including defined terms as used therein, are
subject (to the extent provided therein) to Section 12.07(a).
“Governmental
Authority” shall mean any nation or government, any state or other
political subdivision thereof and any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to
government, including any Applicable Insurance Regulatory
Authority.
“Guaranteed
Creditors” shall mean and include each of the Administrative Agent, the
Lenders and the Issuing Agent.
“Indebtedness”
of any Person shall mean, without duplication, (i) all indebtedness of such
Person for borrowed money, (ii) the deferred purchase price of assets or
services which in accordance with GAAP would be shown on the liability side of
the balance sheet of such Person, (iii) the face amount of all letters of
credit issued for the account of such Person and, without duplication, all
drafts drawn thereunder, (iv) all indebtedness of a type referred to in clauses
(i) through (iii) or (v) through (vii) of this definition of a second Person
secured by any Lien on any property owned by such first Person, whether or not
such Indebtedness has been assumed, (v) all capitalized lease obligations of
such Person, (vi) all obligations of such Person under Interest Rate Protection
Agreements and (vii) all Contingent Obligations of such Person with respect to
any of the foregoing; provided that,
Indebtedness shall not include (x) trade payables (including payables under
insurance contracts and reinsurance payables) and accrued expenses, in each
case arising in the ordinary course of business and (y) obligations with
respect to Policies.
“Initial
Designated Subsidiary Borrowers” shall mean those Designated Subsidiary
Borrowers set forth in clauses (a) through (d), inclusive, of the definition
thereof.
“Insurance
Business” shall mean one or more aspects of the business of selling,
issuing or underwriting insurance or reinsurance.
“Insurance
Contract” shall mean any insurance contract or policy issued by a
Regulated Insurance Company but shall not include any Reinsurance Agreement or
Retrocession Agreement.
“Insurance
Licenses” shall mean, with respect to each Regulated Insurance Company,
licenses (including, without limitation, licenses or certificates of authority
from Applicable Insurance Regulatory Authorities), permits or authorizations to
transact insurance and reinsurance business held by such Regulated Insurance
Company.
“Interest
Period” shall mean, with respect to any Eurodollar Loan, the interest
period applicable thereto, as determined pursuant to Section 1.09.
“Interest
Rate Protection Agreement” shall mean any interest rate swap agreement,
interest rate cap agreement, interest rate collar agreement, interest rate
hedging agreement or other similar agreement or arrangement.
“Intermediate
Holding Companies” shall mean, collectively, (x) EUHC and (y) any other
Subsidiary of the Parent Borrower that is designated as an additional
Designated Subsidiary Borrower after the Effective Date and is a “holding
company” (i.e. such
Designated Subsidiary Borrower does not own any material assets other than the
equity interests of its direct Subsidiaries).
“Investment
Grade Securities” shall mean and include (i) U.S. Government Obligations
(other than Cash Equivalents), (ii) debt securities or debt instruments with a
rating of BBB- or higher by S&P, Baa3 or higher by Moody’s, Class (2)
or higher by NAIC or the equivalent of such rating by S&P, Moody’s or
NAIC, or if none of S&P, Moody’s and NAIC shall then exist, the
equivalent of such rating by any other nationally recognized securities rating
agency, but excluding any debt securities or instruments constituting loans or
advances among the Parent Borrower and its Wholly-Owned Subsidiaries, and (iii)
any fund investing exclusively in investments of the type described in clauses
(i) and (ii) which funds may also hold immaterial amounts of cash pending
investment and/or distribution.
“Issuing
Agent” shall mean JPMorgan Chase Bank, N.A.
“Issuing
Lender” shall mean JPMorgan Chase Bank, N.A. or any other Lender that
agrees to become an Issuing Lender under Sections 2A or 2B.
“Legal
Requirements” shall mean all applicable laws, rules and regulations made
by any governmental body or regulatory authority (including, without
limitation, any Applicable Insurance Regulatory Authority) having jurisdiction
over the Parent Borrower or a Subsidiary of the Parent Borrower.
“Lender”
shall have the meaning provided in the first paragraph of this
Agreement.
“Lender
Default” shall mean (i) the refusal (which has not been retracted) of a
Lender to make available its portion of any Borrowing or (ii) a Lender having
notified the Administrative Agent and/or the applicable Borrower that it does
not intend to comply with its obligations under Sections 1.01, 2A or 2B, in the
case of either clause (i) or (ii) above as a result of the appointment of a
receiver or conservator with respect to such Lender at the direction or request
of any regulatory agency or authority.
“Letter
of Credit Outstandings” shall mean, collectively, the Tranche 1 Letter of
Credit Outstandings and the Tranche 2 Letter of Credit
Outstandings.
“Letter
of Credit Supportable Obligations” shall mean obligations of the Parent
Borrower or any of its Subsidiaries to any other Person which are permitted to
exist pursuant to the terms of this Agreement.
“Letters
of Credit” shall mean, collectively, the Tranche 1 Letters of Credit and
the Tranche 2 Letters of Credit.
“Leverage
Ratio” shall mean the ratio of (i) Consolidated Indebtedness to (ii)
Consolidated Total Capital.
“Lien”
shall mean any mortgage, pledge, security interest, encumbrance, lien or charge
of any kind (including any agreement to give any of the foregoing, any
conditional sale or other title retention agreement or any lease in the nature
thereof), or any understanding or agreement to repurchase any property or
assets sold by the Parent Borrower or any of its Subsidiaries (including sales
of accounts receivable or notes with recourse to the Parent Borrower or any of
its Subsidiaries), or the assignment of any right to receive income, or the
filing of any financing statement under the UCC or any other similar notice
under any similar recording or notice statute relating to any
property.
“Majority
Tranche 1 Lenders” shall mean, at any time, Tranche 1 Lenders whose
Tranche 1 Commitments (or, after the Tranche 1 Commitments have terminated, the
sum of such Tranche 1 Lenders’ (x) then outstanding Tranche 1 Revolving
Loans plus (y)
Tranche 1 Percentages of the Tranche 1 Letter of Credit Outstandings at such
time) represent an amount greater than 50% of the Total Tranche 1 Commitment
(or after the termination thereof, the sum of (x) the then total outstanding
Tranche 1 Revolving Loans plus (y) the
Tranche 1 Letter of Credit Outstandings at such time).
“Margin
Adjustment Period” shall mean each period which shall commence on the date
upon which the respective officer’s certificate is delivered pursuant to
Section 7.01(c) (together with the related financial statements pursuant to
Section 7.01(a) or (b), as the case may be) and which shall end on the date of
actual delivery of the next officer’s certificate pursuant to
Section 7.01(c) (and related financial statements) or the latest date on
which such next officer’s certificate (and related financial statements)
is required to be so delivered; it being understood that the first Margin
Adjustment Period shall commence with the delivery of the Parent
Borrower’s financial statements (and related officer’s certificate)
in respect of its fiscal quarter ending June 30, 2007.
“Margin
Stock” shall have the meaning provided in Regulation U.
“Material
Adverse Effect” shall mean, (i) a material adverse effect on the business,
operations, property or financial condition of the Parent Borrower and its
Subsidiaries taken as a whole or (ii) a material adverse effect on (x) the
rights and remedies of the Administrative Agent or the Lenders under the Credit
Documents, (y) the ability of any Borrower to perform its obligations under the
Credit Documents to which it is a party or (z) the legality, validity or
enforceability of any Credit Document.
“Material
Subsidiary” shall mean any Subsidiary of the Parent Borrower whose (i)
total assets or total written premiums exceed 10% of the total assets or gross
written premiums, respectively, of the Parent Borrower and its Subsidiaries on
a consolidated basis as of the most recent fiscal quarter end and for the most
recent fiscal quarter period, respectively, determined in accordance with GAAP
or (ii) gross written premiums of such Subsidiary are in excess of
$50,000,000.
“Moody’s”
shall mean Xxxxx’x Investors Service, Inc. and its
successors.
“Multiemployer
Plan” shall mean any multiemployer plan as defined in Section 4001(a)(3)
of ERISA, which is maintained or contributed to by (or to which there is an
obligation to contribute of) the Parent Borrower, any of its Subsidiaries or
any of its ERISA Affiliates, and each such plan for the five year period
immediately following the latest date on which the Parent Borrower, such
Subsidiary or such ERISA Affiliate maintained, contributed to or had an
obligation to contribute to such plan.
“NAIC”
shall mean the National Association of Insurance Commissioners.
“Net
Worth” shall mean, as to any Person, the sum of its capital stock
(including, without limitation, its preferred stock), capital in excess of par
or stated value of shares of its capital stock (including, without limitation,
its preferred stock), retained earnings and any other account which, in
accordance with GAAP, constitutes stockholders equity, but excluding (i) any
treasury stock and (ii) the effects of Financial Accounting Statement No.
115.
“Note”
shall mean, collectively, each Tranche 1 Note and each Tranche 2
Note.
“Notice
of Borrowing” shall have the meaning provided in Section
1.03.
“Notice
of Conversion” shall have the meaning provided in Section
1.06.
“Notice
of Non-Extension” shall have the meaning provided in Section
2A.05.
“Notice
Office” shall mean, with respect to notices related to Revolving Loans,
JPMorgan Chase Bank, N.A., 0000 Xxxxxx Xxxxxx, Xxxxxxx, Xxxxx 00000-0000, Attn:
Xxxxxx Xxxxxxx and, with respect to notices related to Letters of Credit,
XXXxxxxx Xxxxx Xxxx, X.X., 00000 Highland Manor Drive, 0xx Xxxxx, Xxxxx,
Xxxxxxx 00000-0000, Attn: Xxxx Xxxxxx, or such other office as the
Administrative Agent may designate to the Parent Borrower and the Lenders from
time to time.
“Obligations”
shall mean all amounts, direct or indirect, contingent or absolute, of every
type or description, and at any time existing, owing to the Administrative
Agent, the Issuing Agent or any Lender pursuant to the terms of this Agreement
or any other Credit Document.
“Optional
Currency” shall mean Canadian dollars, euros and British pounds sterling
and to the extent generally available to all Lenders, Australian dollars and
Japanese yen (or other currencies as are requested by a Borrower and reasonably
acceptable to the applicable Lenders).
“Original
Lenders” shall mean each Person which was a “Tranche 1 Lender”
or a “Tranche 2 Lender” under, and as defined in, the Existing Credit
Agreement.
“Overnight
Eurodollar Rate” shall mean, with respect to any day in any period during
which a reimbursement obligation in respect of any Letter of Credit denominated
in an Optional Currency is outstanding, (i) the offered quotations by JPMorgan
Chase Bank, N.A. to first-class banks in the New York interbank market (or such
other market in which JPMorgan Chase Bank, N.A. customarily deals at such time)
for deposits in such Optional Currency of amounts in same day funds
approximately comparable to such reimbursement obligations with a maturity of
the next Business Day determined as of 10:00 A.M. (New York time) (or, if
later, the time on such day on which such reimbursement obligation arose) on
such day (or if such day is not a Business Day, the next preceding Business
Day) divided (and rounded upward to the next whole multiple of 1/16 of 1%) by
(ii) a percentage equal to 100% minus the then stated maximum rate of all
reserve requirements (including, without limitation, any marginal, emergency,
supplemental, special or other reserves) applicable to any member bank of the
Federal Reserve System in respect of “Eurocurrency liabilities” as
defined in Regulation D (or any successor category of liabilities under
Regulation D).
“Parent
Borrower” shall have the meaning provided in the first paragraph of this
Agreement. For the purposes of Sections 5, 6, 7, 8 and 9 (including the defined
terms used therein) any reference to “Parent Borrower” shall also
mean, and include, the Parent Borrower in its capacity as a guarantor under
Section 13.
“Parent
Borrower Guaranteed Obligations” shall mean the principal of and interest
on all Revolving Loans incurred by any Designated Subsidiary Borrower and all
reimbursement obligations and Unpaid Drawings with respect to Letters of Credit
issued for the account of any Designated Subsidiary Borrower, together with all
the other obligations (including obligations which, but for the automatic stay
under Section 362(a) of the Bankruptcy Code, would become due) and liabilities
(including, without limitation, indemnities, fees and interest thereon) of any
Designated Subsidiary Borrower to any Lender, the Administrative Agent and the
Issuing Agent now existing or hereafter incurred under, arising out of or in
connection with, this Agreement and each other Credit Document pursuant to
which any Designated Subsidiary Borrower is a party and the due performance and
compliance by any such Designated Subsidiary Borrower with all the terms,
conditions and agreements contained in this Agreement and each such other
Credit Document.
“Parent
Borrower Guaranty” shall mean the guaranty of the Parent Borrower provided
in Section 13.
“Patriot
Act” shall have the meaning set forth in Section 12.17.
“Payment
Office” shall mean the office of the Administrative Agent at 0000 Xxxxxx,
Xxxxxxx, Xxxxx 00000, Attention: Xxxxxx Xxxxxxx, Telephone: (000) 000-0000,
Facsimile: (000) 000-0000, or such other office as the Administrative Agent may
designate to the Parent Borrower and the Lenders from time to
time.
“PBGC”
shall mean the Pension Benefit Guaranty Corporation established pursuant to
Section 4002 of ERISA, or any successor thereto.
“Person”
shall mean any individual, partnership, joint venture, firm, corporation,
association, trust or other enterprise or any government or political
subdivision or any agency, department or instrumentality thereof.
“Plan”
shall mean any pension plan as defined in Section 3(2) of ERISA and subject to
Title IV of ERISA, which is maintained or contributed to by (or to which there
is an obligation to contribute of) the Parent Borrower or any of its
Subsidiaries or any of its ERISA Affiliates, and each such plan for the five
year period immediately following the latest date on which the Parent Borrower,
any of its Subsidiaries or any of its ERISA Affiliates maintained, contributed
to or had an obligation to contribute to such plan.
“Policies”
shall mean all insurance policies, annuity contracts, guaranteed interest
contracts and funding agreements (including riders to any such policies or
contracts, certificates issued with respect to group life insurance or annuity
contracts and any contracts issued in connection with retirement plans or
arrangements) and assumption certificates issued or to be issued (or filed
pending current review by applicable Governmental Authorities) by any Regulated
Insurance Company and any coinsurance agreements entered into or to be entered
into by any Regulated Insurance Company.
“Prime
Lending Rate” shall mean the rate which JPMorgan Chase Bank, N.A.
announces from time to time as its prime commercial lending rate, the Prime
Lending Rate to change when and as such prime commercial lending rate changes.
The Prime Lending Rate is a reference rate and does not necessarily represent
the lowest or best rate actually charged to any customer. JPMorgan Chase Bank,
N.A. may make commercial loans or other loans at rates of interest at, above or
below the Prime Lending Rate.
“Private
Act” shall mean separate legislation enacted in Bermuda with the intention
that such legislation apply specifically to any Borrower, in whole or in
part.
“Register”
shall have the meaning provided in Section 12.16.
“Regulated
Insurance Company” shall mean any Subsidiary of the Parent Borrower,
whether now owned or hereafter acquired, that is authorized or admitted to
carry on or transact Insurance Business in any jurisdiction and is regulated by
any Applicable Insurance Regulatory Authority.
“Regulation
D” shall mean Regulation D of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor to all or a
portion thereof establishing reserve requirements.
“Regulation
U” shall mean Regulation U of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor to all or a
portion thereof establishing margin requirements.
“Reinsurance
Agreement” shall mean any agreement, contract, treaty, certificate or
other arrangement whereby any Regulated Insurance Company agrees to transfer,
cede or retrocede to another insurer or reinsurer all or part of the liability
assumed or assets held by such Regulated Insurance Company under a policy or
policies of insurance issued by such Regulated Insurance Company or under a
reinsurance agreement assumed by such Regulated Insurance Company.
“REMIC”
shall mean Real Estate Mortgage Investment Conduit.
“Replaced
Lender” shall have the meaning provided in Section 1.13.
“Replacement
Lender” shall have the meaning provided in Section 1.13.
“Required
Lenders” shall mean, at any time, Lenders whose Commitments (or, after the
Commitments have terminated, the sum of such Lenders’ (x) then outstanding
Revolving Loans plus (y)
Tranche 1 Percentages of the Tranche 1 Letter of Credit Outstandings at such
time plus (z)
Tranche 2 Percentages of the Tranche 2 Letter of Credit Outstandings at such
time) represent an amount greater than 50% of the Total Commitment (or after
the termination thereof, the sum of (x) the then total outstanding Revolving
Loans plus (y) the
Tranche 1 Letter of Credit Outstandings at such time plus (z) the
Tranche 2 Letter of Credit Outstandings at such time).
“Retrocession
Agreement” shall mean any agreement, contract, treaty or other arrangement
whereby one or more insurers or reinsurers, as retrocessionaires, assume
liabilities of reinsurers under a Reinsurance Agreement or other
retrocessionaires under another Retrocession Agreement.
“Revolving
Loans” shall mean, collectively, each Tranche 1 Revolving Loan and each
Tranche 2 Revolving Loan.
“S&P”
shall mean Standard & Poor’s Ratings Services and its
successors.
“S&P
Equivalent Rating” shall mean, with respect to any Investment Grade
Security, the rating given such security by S&P or the S&P equivalent
rating of the rating given such security by Moody’s or NAIC, it being
understood that if any such security is rated by more than one of S&P,
Moody’s and NAIC and any of such ratings (or the S&P equivalent of
such ratings) differ, then the S&P Equivalent Rating for such security
shall be the lower or lowest, as the case may be, of such ratings (or the
S&P equivalent of such ratings).
“SAP”
shall mean, with respect to any Regulated Insurance Company, the accounting
procedures and practices prescribed or permitted by the Applicable Insurance
Regulatory Authority of the state in which such Regulated Insurance Company is
domiciled; it being understood and agreed that determinations in accordance
with SAP for purposes of Section 8, including defined terms as used
therein, are subject (to the extent provided therein) to Section
12.07(a).
“SEC”
shall mean the Securities and Exchange Commission or any successor
thereto.
“SEC
Regulation D” shall mean Regulation D as promulgated under the Securities
Act of 1933, as amended, as the same may be in effect from time to
time.
“Section
4.04(b)(ii) Certificate” shall have the meaning provided in
Section 4.04(b)(ii).
“Security
Agreement” means the security agreement substantially in the form of
Exhibit L hereto, as the same may be amended, modified or supplemented from
time to time in accordance with the provisions thereof.
“Security
Documents” shall mean (i) the Security Agreement, (ii) the Account Control
Agreement, (iii) each other security agreement executed and delivered pursuant
to Section 7.13 of this Agreement and (iv) each other document, agreement,
certificate and/or financing statement, executed, delivered, made or filed
pursuant to the terms of the documents specified in foregoing clauses (i), (ii)
and (iii).
“Start
Date” shall mean, with respect to any Margin Adjustment Period, the first
day of such Margin Adjustment Period.
“Stated
Amount” of each Letter of Credit shall mean, at any time, the maximum
amount available to be drawn thereunder (regardless of whether any conditions
for drawing could be met).
“Statutory
Statements” shall mean, with respect to any Regulated Insurance Company
for any fiscal year, the annual or quarterly financial statements of such
Regulated Insurance Company as required to be filed with the Insurance
Regulatory Authority of its jurisdiction of domicile and in accordance with the
laws of such jurisdiction, together with all exhibits, schedules, certificates
and actuarial opinions required to be filed or delivered
therewith.
“Subsidiary”
of any Person shall mean and include (i) any corporation more than 50% of whose
stock of any class or classes having by the terms thereof ordinary voting power
to elect a majority of the directors of such corporation (irrespective of
whether or not at the time stock of any class or classes of such corporation
shall have or might have voting power by reason of the happening of any
contingency) is at the time owned by such Person directly or indirectly through
Subsidiaries and (ii) any partnership, association, joint venture or other
entity in which such Person directly or indirectly through Subsidiaries has
more than a 50% voting interest at the time for the board of directors or
equivalent body. Unless otherwise expressly provided, all references to
“Subsidiary” shall mean a Subsidiary of the Parent
Borrower.
“Taxes”
shall have the meaning provided in Section 4.04(a).
“Test
Date” shall mean, with respect to any Start Date, the last day of the most
recent fiscal quarter of the Parent Borrower ended immediately prior to such
Start Date.
“Total
Commitment” shall mean the sum of (i) the Total Tranche 1 Commitment
plus (ii)
the Total Tranche 2 Commitment.
“Total
Tranche 1 Commitment” shall mean the sum of the Tranche 1 Commitments of
each Tranche 1 Lender.
“Total
Tranche 2 Commitment” shall mean the sum of the Tranche 2 Commitments of
each Tranche 2 Lender.
“Total
Unutilized Tranche 1 Commitment” shall mean, at any time, an amount equal
to the remainder of (x) the Total Tranche 1 Commitment then in effect less (y)
the sum of the aggregate principal amount of Tranche 1 Revolving Loans then
outstanding and the Tranche 1 Letter of Credit Outstandings at such
time.
“Total
Unutilized Tranche 2 Commitment” shall mean, at any time, an amount equal
to the remainder of (x) the Total Tranche 2 Commitment then in effect
less (y) the
sum of the aggregate principal amount of Tranche 2 Revolving Loans then
outstanding and the Tranche 2 Letter of Credit Outstandings at such
time.
“Tranche”
shall mean, at any time, the respective facility and commitments utilized in
making Revolving Loans and/or issuing Letters of Credit hereunder, with there
being three separate Tranches hereunder, i.e.,
Tranche 1 Commitments and Tranche 2 Commitments.
“Tranche
1 Commitment” shall mean, with respect to each Tranche 1 Lender, the
amount set forth opposite such Tranche 1 Lender’s name on Annex I under
the heading “Tranche 1 Commitment”, as the same may be (x) reduced or
terminated pursuant to Sections 3.02, 3.03 and/or 9, (y) increased from time to
time pursuant to Section 1.15 or 1.17 or (z) adjusted from time to time as a
result of assignment to or from such Lender pursuant to Section
12.04(b).
“Tranche
1 Facility Fee” shall have the meaning provided in Section
3.01(a).
“Tranche
1 Fees” shall mean the Tranche 1 Facility Fee, the Tranche 1 Utilization
Fee, the Tranche 1 Letter of Credit Fee and the Tranche 1 Fronted Letter of
Credit Fee.
“Tranche
1 Fronted Letter of Credit” shall mean any Tranche 1 Letter of Credit
issued by an Issuing Lender in reliance on the agreements of the other Lenders
set forth in Section 2A.09.
“Tranche
1 Fronted Letter of Credit Fee” shall have the meaning provided in Section
3.01(e).
“Tranche
1 Fronted Letter of Credit Participants” shall have the meaning provided
in Section 2A.09.
“Tranche
1 Lenders” shall mean each Lender with a Tranche 1 Commitment, outstanding
Revolving Loans and/or Tranche 1 Letter of Credit Outstandings.
“Tranche
1 Letter of Credit” shall have the meaning provided in Section
2A.01(a).
“Tranche
1 Letter of Credit Fee” shall have the meaning provided in Section
3.01(e).
“Tranche
1 Letter of Credit Outstandings” shall mean, at any time, the sum of,
without duplication (i) the aggregate Stated Amount of all Tranche 1 Letters of
Credit plus (ii)
the aggregate amount of all Tranche 1 Unpaid Drawings in respect of all Tranche
1 Letters of Credit.
“Tranche
1 Letter of Credit Request” shall have the meaning provided in Section
2A.02(a).
“Tranche
1 Non-Fronted Letter of Credit” shall mean any Tranche 1 Letter of Credit
other than a Tranche 1 Fronted Letter of Credit.
“Tranche
1 Note” shall have the meaning provided in Section 1.05(a).
“Tranche
1 Obligations” shall mean all Obligations owing to any Tranche 1 Lender or
the Issuing Lender in respect of Tranche 1 Revolving Loans and Tranche 1
Letters of Credit.
“Tranche
1 Participant” shall have the meaning provided in Section
2A.08(a).
“Tranche
1 Percentage” shall mean, at any time for each Tranche 1 Lender, the
percentage obtained by dividing such Tranche 1 Lender’s Tranche 1
Commitment at such time by the Total Tranche 1 Commitment then in effect,
provided that,
if the Total Tranche 1 Commitment has been terminated, the Tranche 1 Percentage
of each Tranche 1 Lender shall be determined by dividing such Tranche 1
Lender’s Tranche 1 Commitment as in effect immediately prior to such
termination by the Total Tranche 1 Commitment as in effect immediately prior to
such termination (but also giving effect to any assignments made in accordance
with Section 12.04(b) after the date on which the Total Tranche 1 Commitment
has terminated).
“Tranche
1 Reduction Percentage” shall mean, at any time, a percentage the
numerator of which is the Total Tranche 1 Commitment and the denominator of
which is the Total Commitment.
“Tranche
1 Revolving Loans” shall have the meaning provided in Section
1.01(a).
“Tranche
1 Unpaid Drawings” shall have the meaning provided in Section
2A.03(a).
“Tranche
1 Utilization Fee” shall have the meaning provided in Section
3.01(c).
“Tranche
2 Commitment” shall mean, with respect to each Tranche 2 Lender, the
amount set forth opposite such Tranche 2 Lender’s name on Annex I under
the heading “Tranche 2 Commitment”, as the same may be (x) reduced or
terminated pursuant to Sections 3.02, 3.03 and/or 9, (y) increased from time to
time pursuant to Section 1.16 or 1.17 (z) adjusted from time to time as a
result of assignment to or from such Tranche 2 Lender pursuant to Section
12.04(b).
“Tranche
2 Facility Fee” shall have the meaning provided in Section
3.01(b).
89
“Tranche
2 Fees” shall mean the Tranche 2 Facility Fee, the Tranche 2 Utilization
Fee, the Tranche 2 Letter of Credit Fee and the Tranche 2 Fronted Letter of
Credit Fee.
“Tranche
2 Fronted Letter of Credit” shall mean any Tranche 2 Letter of Credit
issued by an Issuing Lender in reliance on the agreements of the other Lenders
set forth in Section 2B.09.
“Tranche
2 Fronted Letter of Credit Fee” shall have the meaning provided in Section
3.01(f).
“Tranche
2 Fronted Letter of Credit Participants” shall have the meaning provided
in Section 2B.09.
“Tranche
2 Lenders” shall mean each Lender with a Tranche 2 Commitment or with
outstanding Tranche 2 Revolving Loans and/or Tranche 2 Letter of Credit
Outstandings.
“Tranche
2 Letter of Credit” shall have the meaning provided in Section
2B.01(a).
“Tranche
2 Letter of Credit Fee” shall have the meaning provided in Section
3.01(f).
“Tranche
2 Letter of Credit Outstandings” shall mean, at any time, the sum of,
without duplication, (i) the aggregate Stated Amount of all Tranche 2 Letters
of Credit plus (ii)
the aggregate amount of all Tranche 2 Unpaid Drawings in respect of all Tranche
2 Letters of Credit.
“Tranche
2 Letter of Credit Request” shall have the meaning provided in Section
2B.02(a).
“Tranche
2 Non-Fronted Letter of Credit” shall mean any Tranche 2 Letter of Credit
other than a Tranche 2 Fronted Letter of Credit.
“Tranche
2 Note” shall have the meaning provided in Section 1.05(a).
“Tranche
2 Percentage” shall mean, at any time for each Tranche 2 Lender, the
percentage obtained by dividing such Tranche 2 Lender’s Tranche 2
Commitment at such time by the Total Tranche 2 Commitment then in effect,
provided that,
if the Total Tranche 2 Commitment has been terminated, the Tranche 2 Percentage
of each Tranche 2 Lender shall be determined by dividing such Tranche 2
Lender’s Tranche 2 Commitment as in effect immediately prior to such
termination by the Total Tranche 2 Commitment as in effect immediately prior to
such termination (but also giving effect to any assignments made in accordance
with Section 12.04(b) after the date on which the Total Tranche 2 Commitment
has terminated).
“Tranche
2 Reduction Percentage” shall mean, at any time, a percentage the
numerator of which is the Total Tranche 2 Commitment and the denominator of
which is the Total Commitment.
90
“Tranche
2 Revolving Loans” shall have the meaning provided in Section 1.01(b).
“Tranche
2 Unpaid Drawings” shall have the meaning provided in Section 2B.03(a).
“Tranche
2 Utilization Fee” shall have the meaning provided in Section
3.01(d).
“Type”
shall mean any type of Revolving Loan determined with respect to the interest
option applicable thereto, i.e., a Base
Rate Loan or a Eurodollar Loan.
“UCC”
shall mean the Uniform Commercial Code.
“Unpaid
Drawings” shall mean, collectively, the Tranche 1 Unpaid Drawings and the
Tranche 2 Unpaid Drawings.
“U.S.
Borrower” shall have the meaning provided in Section 4.04(b).
“U.S.
Dollar Equivalent” shall mean, on any Business Day with respect to any
amount denominated in any currency other than Dollars, the amount of Dollars
that would be required to purchase such amounts of such other currency, based
upon the spot selling rate at which JPMorgan Chase Bank, N.A. offers to sell
such other currency for Dollars in the New York foreign exchange market at
approximately 10:00 a.m. New York time on such Business Day for delivery two
Business Days later.
“U.S.
Government Obligations” shall mean and include (A) securities that are (x)
direct obligations of the United States of America for the timely payment of
which its full faith and credit is pledged or (y) obligations of a Person
controlled or supervised by and acting as an agency or instrumentality of the
United States of America the timely payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of
America, which, in either case, are not callable or redeemable at the option of
the issuer thereof, and shall also include a depository receipt issued by a
bank (as defined in Section 3(a)(2) of the Securities Act of 1933, as amended),
as custodian with respect to any such U.S. Government Obligation or a specific
payment of principal of or interest on any such U.S. Government Obligation held
by such custodian for the account of the holder of such depository receipt;
provided that
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of principal of or interest on the U.S.
Government Obligation evidenced by such depository receipt and (B) to the
extent in each case having an S&P Equivalent Rating of AAA, obligations
issued or guaranteed by the Federal Home Loan Mortgage Corporation, the Federal
National Mortgage Association, the Government National Mortgage Association,
the Student Loan Marketing Association and the Federal Home Loan
Bank.
“Utilization
Fees” shall mean, collectively, the Tranche 1 Utilization Fees and the
Tranche 2 Utilization Fees.
“Wholly-Owned
Subsidiary” of any Person shall mean any Subsidiary of such Person to the
extent all of the capital stock or other ownership interests in such
Subsidiary, other than directors’ or nominees’ qualifying shares, is
owned directly or indirectly by such Person.
“Written”
or “in writing” shall mean any form of written communication or a
communication by means of telex, facsimile device, telegraph or
cable.
SECTION
11. The
Agents.
11.01 Appointment. Each
Lender hereby irrevocably designates and appoints JPMorgan Chase Bank, N.A. as
Administrative Agent (such term as used in this Section 11 to include JPMorgan
Chase Bank, N.A., acting as Issuing Agent under this Agreement and each Letter
of Credit) to act as specified herein and in the other Credit Documents, and
each such Lender hereby irrevocably authorizes JPMorgan Chase Bank, N.A., as
the Administrative Agent for such Lender, to take such action on its behalf
under the provisions of this Agreement and the other Credit Documents and to
exercise such powers and perform such duties as are expressly delegated to the
Administrative Agent by the terms of this Agreement and the other Credit
Documents, together with such other powers as are reasonably incidental
thereto. Each Lender hereby further irrevocably designates and appoints The
Bank of New York as Collateral Agent, to act as specified herein and in the
other Credit Documents, and each such Lender hereby irrevocably authorizes The
Bank of New York, as the Collateral Agent for such Lender, to take such action
on its behalf under the provisions of this Agreement and the other Credit
Documents and to exercise such powers and perform such duties as are expressly
delegated to the Collateral Agent by the terms of this Agreement and the other
Credit Documents, together with such other powers as are reasonably incidental
thereto. Each Agent agrees to act as such upon the express conditions contained
in this Section 11. Notwithstanding any provision to the contrary elsewhere in
this Agreement, neither Agent shall have any duties or responsibilities, except
those expressly set forth herein or in the other Credit Documents, nor any
fiduciary relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or otherwise exist against such Agent. The provisions of this Section
11 are solely for the benefit of the Agents and the Lenders, and no Borrower
shall have any rights as a third party beneficiary of any of the provisions
hereof. In performing its functions and duties under this Agreement, each Agent
shall act solely as agent of the Lenders and does not assume and shall not be
deemed to have assumed any obligation or relationship of agency or trust with
or for any Borrower.
11.02 Delegation
of Duties. Each
Agent may execute any of its duties under this Agreement or any other Credit
Document by or through agents or attorneys-in-fact and shall be entitled to
advice of counsel concerning all matters pertaining to such duties. Neither
Agent shall be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care except to the extent
otherwise required by Section 11.03.
11.03 Exculpatory
Provisions.
Neither Agent nor any of their officers, directors, employees, agents,
attorneys-in-fact or affiliates shall be (i) liable for any action lawfully
taken or omitted to be taken by it or such Person under or in connection with
this Agreement (except for its or such Person’s own gross negligence or
willful misconduct (as determined by a court of competent jurisdiction in a
final and non-appealable decision)) or (ii) responsible in any manner
to any
of the Lenders for any recitals, statements, representations or warranties made
by the Parent Borrower or any of its Subsidiaries or any of their respective
officers contained in this Agreement, any other Credit Document or in any
certificate, report, statement or other document referred to or provided for
in, or received by the Administrative Agent under or in connection with, this
Agreement or any other Credit Document or for any failure of the Parent
Borrower or any of its Subsidiaries or any of their respective officers to
perform its obligations hereunder or thereunder. Neither Agent shall be under
any obligation to any Lender to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement, or to inspect the properties, books or records of the Parent
Borrower or any of its Subsidiaries. Neither Agent shall be responsible to any
Lender for the effectiveness, genuineness, validity, enforceability,
collectibility or sufficiency of this Agreement or any Credit Document or for
any representations, warranties, recitals or statements made herein or therein
or made in any written or oral statement or in any financial or other
statements, instruments, reports, certificates or any other documents in
connection herewith or therewith furnished or made by such Agent to the Lenders
or by or on behalf of any Borrower to such Agent or any Lender or be required
to ascertain or inquire as to the performance or observance of any of the
terms, conditions, provisions, covenants or agreements contained herein or
therein or as to the use of the proceeds of the Revolving Loans or of the
existence or possible existence of any Default or Event of
Default.
11.04 Reliance
by Agents. Each
Agent shall be entitled to rely, and shall be fully protected in relying, upon
any note, writing, resolution, notice, consent, certificate, affidavit, letter,
cablegram, telegram, facsimile transmission, telex or teletype message,
statement, order or other document or conversation believed by it to be genuine
and correct and to have been signed, sent or made by the proper Person or
Persons and upon advice and statements of legal counsel (including, without
limitation, counsel to the Borrowers), independent accountants and other
experts selected by such Agent. Each Agent shall be fully justified in failing
or refusing to take any action under this Agreement or any other Credit
Document unless it shall first receive such advice or concurrence of the
Required Lenders as it deems appropriate or it shall first be indemnified to
its satisfaction by the Lenders against any and all liability and expense which
may be incurred by it by reason of taking or continuing to take any such
action. Each Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement and the other Credit Documents in
accordance with a request of the Required Lenders, and such request and any
action taken or failure to act pursuant thereto shall be binding upon all the
Lenders.
11.05 Notice
of Default.
Neither Agent shall be deemed to have knowledge or notice of the occurrence of
any Default or Event of Default hereunder unless such Agent has received notice
from a Lender or a Borrower referring to this Agreement, describing such
Default or Event of Default and stating that such notice is a “notice of
default”. In the event that the Administrative Agent receives such a
notice, the Administrative Agent shall give prompt notice thereof to the
Lenders. In the event the Collateral Agent receives such a notice, the
Collateral Agent shall give prompt notice thereof to the Administrative Agent.
The Administrative Agent shall take such action with respect to such Default or
Event of Default as shall be reasonably directed by the Required Lenders,
provided that
unless and until the Administrative Agent shall have received such directions,
the Administrative Agent may (but
shall
not be obligated to) take such action, or refrain from taking such action, with
respect to such Default or Event of Default as it shall deem advisable in the
best interests of the Lenders.
11.06 Non-Reliance. Each
Lender expressly acknowledges that neither Agent nor any of their officers,
directors, employees, agents, attorneys-in-fact or affiliates have made any
representations or warranties to it and that no act by either Agent hereinafter
taken, including any review of the affairs of the Parent Borrower or any of its
Subsidiaries, shall be deemed to constitute any representation or warranty by
such Agent to any Lender. Each Lender represents to each Agent that it has,
independently and without reliance upon either Agent or any other Lender, and
based on such documents and information as it has deemed appropriate, made its
own appraisal of and investigation into the business, assets, operations,
property, financial and other conditions, prospects and creditworthiness of the
Parent Borrower and its Subsidiaries and made its own decision to make its
Revolving Loans hereunder and enter into this Agreement. Each Lender also
represents that it will, independently and without reliance upon either Agent
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 analysis,
appraisals and decisions in taking or not taking action under this Agreement,
and to make such investigation as it deems necessary to inform itself as to the
business, assets, operations, property, financial and other conditions,
prospects and creditworthiness of the Parent Borrower and its Subsidiaries.
Neither Agent shall have any duty or responsibility to provide any Lender with
any credit or other information concerning the business, operations, assets,
property, financial and other conditions, prospects or creditworthiness of the
Parent Borrower or any Subsidiary which may come into the possession of such
Agent or any of its officers, directors, employees, agents, attorneys-in-fact
or affiliates.
11.07 Indemnification. Each
Lender agrees to indemnify each Agent and The Bank of New York as Custodian, in
each case in its capacity as such, ratably according to its respective
“percentages” as used in determining the Required Lenders at such
time from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, reasonable expenses or
disbursements of any kind whatsoever which may at any time (including, without
limitation, at any time following the payment of the Obligations) be imposed
on, incurred by or asserted against such Agent or the Custodian, as the case
may be, in its capacity as such in any way relating to or arising out of this
Agreement or any other Credit Document, or any documents contemplated by or
referred to herein or the transactions contemplated hereby or any action taken
or omitted to be taken by such Agent or the Custodian, as the case may be,
under or in connection with any of the foregoing, but only to the extent that
any of the foregoing is not paid by the Parent Borrower or any of its
Subsidiaries, provided that no
Lender shall be liable to such Agent or the Custodian, as the case may be, for
the payment of any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements
resulting solely from the gross negligence or willful misconduct of such Agent
or the Custodian, as the case may be (as determined by a court of competent
jurisdiction in a final and non-appealable decision). If any indemnity
furnished to either Agent or the Custodian, as the case may be, for any purpose
shall, in the opinion of such Agent or the Custodian, as the case may be, be
insufficient or become impaired, such Agent or the Custodian, as the case may
be, may call for additional indemnity and cease, or not commence, to do the
acts indemnified against until such additional indemnity is furnished. The
agreements in this Section 11.07 shall survive the payment of all
Obligations.
11.08 The
Agents in Their Individual Capacities. Each
Agent and its affiliates may make loans to, accept deposits from and generally
engage in any kind of business with the Parent Borrower and its Subsidiaries as
though not acting as Administrative Agent hereunder. With respect to the
Revolving Loans made by it and all Obligations owing to it, such Agent shall
have the same rights and powers under this Agreement as any Lender and may
exercise the same as though it were not such Agent, and the terms
“Lender” and “Lenders” shall include such Agent in its
individual capacity.
11.09 Successor
Agents.
(a) Either
the Administrative Agent or the Collateral Agent (or both) may resign from the
performance of all its respective functions and duties hereunder and/or under
the other Credit Documents at any time, in each case by giving 20 Business
Days’ prior written notice to the Lenders and the Borrowers.
(b) Upon
such resignation of the Administrative Agent, the Required Lenders shall, with
the consent of the Parent Borrower (such consent not to be unreasonably
withheld), appoint from among the Lenders a successor Administrative Agent for
the Lenders, whereupon such successor agent shall succeed to the rights, powers
and duties of the Administrative Agent, and the term “Administrative
Agent” shall include such successor agent effective upon its appointment,
and the resigning Administrative Agent’s rights, powers and duties as the
Administrative Agent shall be terminated, without any other or further act or
deed on the part of such former Administrative Agent or any of the parties to
this Agreement. After the retiring Administrative Agent’s resignation
hereunder as the Administrative Agent, the provisions of this Section 11 shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Administrative Agent under this Agreement.
(c) Upon
such resignation of the Collateral Agent, the Required Lenders shall, with the
consent of the Parent Borrower (such consent not to be unreasonably withheld),
appoint from among the Lenders a successor Collateral Agent for the Lenders,
whereupon such successor agent shall succeed to the rights, powers and duties
of the Collateral Agent, and the term “Collateral Agent” shall
include such successor agent effective upon its appointment, and the resigning
Collateral Agent’s rights, powers and duties as the Collateral Agent shall
be terminated, without any other or further act or deed on the part of such
former Collateral Agent or any of the parties to this Agreement. After the
retiring Collateral Agent’s resignation hereunder as the Collateral Agent,
the provisions of this Section 11 shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Collateral Agent under this
Agreement.
SECTION
12. Miscellaneous.
12.01 Payment
of Expenses, etc. The
Parent Borrower hereby agrees to: (i) whether or not the transactions herein
contemplated are consummated, pay all reasonable out-of-pocket costs and
expenses of the Administrative Agent in connection with the negotiation,
preparation, syndication, execution, delivery and administration of the Credit
Documents and the documents and instruments referred to therein (including,
without limitation, the reasonable fees and disbursements of Xxxxxxx Xxxxxxx
& Xxxxxxxx LLP and of consultants and advisors to the Administrative Agent
and its counsel); (ii) whether or not the transactions herein contemplated
are consummated, pay all reasonable out-of-pocket costs and expenses of the
Administrative
Agent in
connection with any amendment, waiver or consent relating to this Agreement or
any other Credit Document; (iii) whether or not the transactions herein
contemplated are consummated, pay all reasonable out-of-pocket costs and
expenses of the Administrative Agent and each of the Lenders in connection with
the enforcement of the Credit Documents and the documents and instruments
referred to therein (including, without limitation, the reasonable fees and
disbursements of counsel and consultants for the Administrative Agent and for
each of the Lenders); (iv) pay and hold each of the Lenders harmless from and
against any and all present and future stamp and other similar taxes with
respect to the foregoing matters and save each of the Lenders harmless from and
against any and all liabilities with respect to or resulting from any delay or
omission to pay such taxes; and (v) indemnify the Administrative Agent and each
Lender, and their respective officers, directors, employees, representatives
and agents (each, an “indemnified person”) from and hold each of them
harmless against any and all losses, liabilities, penalties, claims, damages or
expenses (collectively, “Claims”) incurred by any of them as a result
of, or arising out of, or in any way related to, or by reason of, any
investigation, litigation or other proceeding (whether or not the
Administrative Agent or any Lender is a party thereto) related to the entering
into and/or performance of any Credit Document or the use of the proceeds of
any Revolving Loans hereunder or the consummation of any other transactions
contemplated in any Credit Document, including, without limitation, the
reasonable fees and disbursements of counsel incurred in connection with any
such investigation, litigation or other proceeding (but excluding any such
losses, liabilities, claims, damages or expenses to the extent incurred by
reason of the gross negligence or willful misconduct of the Person to be
indemnified (as determined by a court of competent jurisdiction in a final and
non-appealable decision)).
12.02 Right
of Setoff. In
addition to any rights now or hereafter granted under applicable law or
otherwise, and not by way of limitation of any such rights, upon the occurrence
and continuance of an Event of Default, each Lender is hereby authorized at any
time or from time to time, without presentment, demand, protest or other notice
of any kind to any Borrower or to any other Person, any such notice being
hereby expressly waived, to set off and to appropriate and apply any and all
deposits (general or special) and any other Indebtedness at any time held or
owing by such Lender (including, without limitation, by branches and agencies
of such Lender wherever located) to or for the credit or the account of any
Borrower against and on account of the Obligations and liabilities of any such
Borrower to such Lender or any other Lender under this Agreement or under any
of the other Credit Documents, including, without limitation, all interests in
Obligations of any such Borrower purchased by such Lender or any other Lender
pursuant to Section 12.06(b), and all other claims of any nature or description
arising out of or connected with this Agreement or any other Credit Document,
irrespective of whether or not such Lender shall have made any demand hereunder
and although said Obligations, liabilities or claims, or any of them, shall be
contingent or unmatured. Each Lender is hereby designated the agent of all
other Lenders for purposes of effecting set off pursuant to this Section 12.02
and each Borrower hereby grants to each Lender for such Lender’s own
benefit and as agent for all other Lenders a continuing security interest in
any and all deposits, accounts or moneys of the Borrowers maintained from time
to time with such Lender.
12.03 Notices. Except
as otherwise expressly provided herein, all notices and other communications
provided for hereunder shall be in writing (including telegraphic, telex,
facsimile or cable communication) and mailed, telegraphed, telexed, telecopied,
cabled or delivered, if to a Borrower, at the address specified opposite its
signature below; if to any
Lender,
at its address specified for such Lender on Annex II hereto; or, at such other
address as shall be designated by any party in a written notice to the other
parties hereto. All such notices and communications shall be mailed,
telegraphed, telexed, telecopied, cabled or sent by overnight courier and shall
be effective when received.
12.04 Benefit
of Agreement.
(a) This
Agreement shall be binding upon and inure to the benefit of and be enforceable
by the respective successors and assigns of the parties hereto; provided,
however, no
Borrower may assign or transfer any of its rights or obligations hereunder
without the prior written consent of the Lenders. Each Lender may at any time
grant participations in any of its rights hereunder or under any of its Notes
to any bank or other financial institution; provided that in
the case of any such participation, the participant shall not have any rights
under this Agreement or any of the other Credit Documents, including rights of
consent, approval or waiver (the participant’s rights against such Lender
in respect of such participation to be those set forth in the agreement
executed by such Lender in favor of the participant relating thereto) and all
amounts payable by the Borrowers hereunder shall be determined as if such
Lender had not sold such participation, except that the participant shall be
entitled to receive the additional amounts under Sections 1.10, 1.11, 2.04 and
4.04 of this Agreement to, and only to, the extent that such Lender would be
entitled to such benefits if the participation had not been entered into or
sold; and provided,
further, that
no Lender shall transfer, grant or assign any participation under which the
participant shall have rights to approve any amendment to or waiver of this
Agreement or any other Credit Document except to the extent such amendment or
waiver would (i) extend the final scheduled maturity of any Revolving Loan or
Note in which such participant is participating or reduce the rate or extend
the time of payment of interest thereon or Fees, or reduce the principal amount
thereof, or increase such participant’s participating interest in any
Commitment or Revolving Loan over the amount thereof then in effect (it being
understood that a waiver of any Default or Event of Default or of a mandatory
reduction in the Total Commitment shall not constitute a change in the terms of
any Commitment and that an increase in any Commitment shall be permitted
without the consent of any participant if such participant’s participation
is not increased as a result thereof) or (ii) consent to the assignment or
transfer by any Borrower of any of its rights and obligations under this
Agreement or any other Credit Document except in accordance with the terms
hereof and thereof.
(b) Notwithstanding
the foregoing, any Lender may assign all or a portion of its rights and
obligations hereunder to a NAIC approved bank or other financial institution
(unless otherwise agreed by the Parent Borrower and the Administrative Agent)
with the prior written consent of each of (i) the Administrative Agent, (ii) in
the case of an assignment of Tranche 1 Commitments or Tranche 2 Commitments
(and/or the related obligations under such respective Tranche), the Issuing
Agent and (iii) so long as no Default or Event of Default has occurred and is
continuing, the Parent Borrower (such consent, in each case, not to be
unreasonably withheld or delayed). No assignment of less than all of a
Lender’s rights and obligations hereunder pursuant to the immediately
preceding sentence shall, to the extent such transaction represents an
assignment to an institution other than one or more Lenders hereunder, be in an
aggregate amount less than the minimum of $5,000,000 unless otherwise agreed to
by the Administrative Agent and the Parent Borrower in writing and no
assignment shall be effective until all the then outstanding Tranche 1 Letters
of Credit or Tranche 2 Letters of Credit, as the case may be, are returned by
each respective beneficiary to the Issuing Agent either for
cancellation
and/or to be exchanged for new or amended Letters of Credit which give effect
to such assignment. If any Lender so sells or assigns all or a part of its
rights hereunder or under the Notes, any reference in this Agreement or the
Notes to such assigning Lender shall thereafter refer to such Lender and to the
respective assignee to the extent of their respective interests and the
respective assignee shall have, to the extent of such assignment (unless
otherwise provided therein), the same rights and benefits as it would if it
were such assigning Lender. Each assignment pursuant to this Section 12.04(b)
shall be effected by the assigning Lender and the assignee Lender executing an
Assignment Agreement (appropriately completed). At the time of any such
assignment, (i) Annex I shall be deemed to be amended to reflect the
Commitments, if any, and outstanding Revolving Loans, if any, of the respective
assignee (which shall result in a direct reduction to the Commitments, if any,
and outstanding Revolving Loans, if any, of the assigning Lender) and of the
other Lenders, (ii) if any such assignment occurs after the Effective Date, at
the request of the assignor or the assignee, the Parent Borrower will issue new
Notes to the respective assignee and to the assigning Lender in conformity with
the requirements of Section 1.05, (iii) all then outstanding Tranche 1 Letters
of Credit or Tranche 2 Letters of Credit, as the case may be, shall be returned
by each respective beneficiary to the Issuing Agent either for cancellation
and/or to be exchanged for new or amended Letters of Credit to reflect such
assignment (it being understood that to the extent the respective beneficiaries
do not consent to such assignment, such assignment cannot occur) and (iv) the
Administrative Agent shall receive from the assigning Lender and/or the
assignee Lender or financial institution at the time of each assignment the
payment of a nonrefundable assignment fee of $3,500, provided that such
transfer or assignment will not be effective until recorded by the
Administrative Agent on the Register pursuant to Section 12.16 hereof. At the
time of each assignment pursuant to this Section 12.04(b) to a Person which (x)
is not already a Lender hereunder and (y) is not a United States person (as
such term is defined in Section 7701(a)(30) of the Code) for Federal income tax
purposes, the respective assignee Lender shall provide to the Borrowers and the
Administrative Agent the appropriate Internal Revenue Service forms (and, if
applicable a Section 4.04(b)(ii) Certificate) described in Section 4.04(b).
Each Lender and each Borrower agrees to execute such documents (including,
without limitation, amendments to this Agreement and the other Credit
Documents) as shall be necessary to effect the foregoing. Promptly following
any assignment pursuant to this Section 12.04(b), the assigning Lender shall
promptly notify the Borrowers and the Administrative Agent thereof. Nothing in
this Section 12.04 shall prevent or prohibit any Lender from pledging its
Revolving Loans or Notes hereunder to a Federal Reserve Bank in support of
borrowings made by such Lender from such Federal Reserve Bank.
(c) Notwithstanding
any other provisions of this Section 12.04, no transfer or assignment of the
interests or obligations of any Lender hereunder or any grant of participations
therein shall be permitted if such transfer, assignment or grant would require
any Borrower to file a registration statement with the SEC or to qualify the
Revolving Loans under the “Blue Sky” laws of any State of the United
States as may be required or appropriate in any report, statement or testimony
submitted to any municipal, state or Federal regulatory body or self-regulatory
body having or claiming jurisdiction or oversight such Lender and/or its
affiliates.
(d) Each
Lender initially party to this Agreement hereby represents, and each Person
that becomes a Lender pursuant to an assignment permitted by clause (b) above
will upon its becoming party to this Agreement represent, that it is a
commercial lender, other financial institution or other “accredited
investor” (as defined in SEC Regulation D) which makes loans in
the
ordinary course of its business or is acquiring the Revolving Loans without a
view to distribution of the Revolving Loans within the meaning of the federal
securities laws, and that it will make or acquire Revolving Loans for its own
account in the ordinary course of such business, provided that, subject to the
preceding clauses (a) through (c), the disposition of any promissory notes or
other evidences of or interests in Indebtedness held by such Lender shall at
all times be within its exclusive control.
12.05 No
Waiver; Remedies Cumulative. No
failure or delay on the part of the Administrative Agent or any Lender in
exercising any right, power or privilege hereunder or under any other Credit
Document and no course of dealing between any Borrower and the Administrative
Agent or any Lender shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, power or privilege hereunder or under any other
Credit Document preclude any other or further exercise thereof or the exercise
of any other right, power or privilege hereunder or thereunder. The rights and
remedies herein expressly provided are cumulative and not exclusive of any
rights or remedies which the Administrative Agent or any Lender would otherwise
have. No notice to or demand on any Borrower in any case shall entitle such
Borrower to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the rights of the Administrative Agent
or the Lenders to any other or further action in any circumstances without
notice or demand.
12.06 Payments
Pro Rata.
(a) The
Administrative Agent agrees that promptly after its receipt of each payment
from or on behalf of each Borrower in respect of any Obligations of such
Borrower, it shall distribute such payment to the Lenders (other than any
Lender that has consented in writing to waive its pro rata share
of such payment) pro rata based
upon their respective shares, if any, of the Obligations with respect to which
such payment was received.
(b) Each of
the Tranche 1 Lenders agrees that, if it should receive any amount hereunder
(whether by voluntary payment, by realization upon security, by the exercise of
the right of setoff or banker’s lien, by counterclaim or cross action, by
the enforcement of any right under the Credit Documents, or otherwise) which is
applicable to the payment of the principal of, or interest on, the Tranche 1
Revolving Loans, Tranche 1 Unpaid Drawings or Tranche 1 Fees, of a sum which
with respect to the related sum or sums received by other Tranche 1 Lenders is
in a greater proportion than the total of such Tranche 1 Obligation then owed
and due to such Tranche 1 Lender bears to the total of such Tranche 1
Obligation then owed and due to all of the Tranche 1 Lenders immediately prior
to such receipt, then such Tranche 1 Lender receiving such excess payment shall
purchase for cash without recourse or warranty from the other Tranche 1 Lenders
an interest in the Tranche 1 Obligations of the respective Tranche 1 Borrower
to such Tranche 1 Lenders in such amount as shall result in a proportional
participation by all of the Tranche 1 Lenders in such amount, provided that if
all or any portion of such excess amount is thereafter recovered from such
Tranche 1 Lender, such purchase shall be rescinded and the purchase price
restored to the extent of such recovery, but without interest.
(c) Each of
the Tranche 2 Lenders agrees that, if it should receive any amount hereunder
(whether by voluntary payment, by realization upon security, by the exercise of
the right of setoff or banker’s lien, by counterclaim or cross action, by
the enforcement of any right under the Credit Documents, or otherwise) which is
applicable to the payment of the principal of,
or
interest on, the Tranche 2 Revolving Loans, Tranche 2 Unpaid Drawings, Tranche
2 Fees, of a sum which with respect to the related sum or sums received by
other Tranche 2 Lenders is in a greater proportion than the total of such
Tranche 2 Obligation then owed and due to such Tranche 2 Lender bears to the
total of such Tranche 2 Obligation then owed and due to all of the Tranche 2
Lenders immediately prior to such receipt, then such Tranche 2 Lender, as the
case may be, receiving such excess payment shall purchase for cash without
recourse or warranty from the other Tranche 2 Lenders an interest in the
Tranche 2 Obligations of the respective Tranche 2 Borrower to such Tranche 2
Lenders, in such amount as shall result in a proportional participation by all
of the Tranche 2 Lenders in such amount, provided that if
all or any portion of such excess amount is thereafter recovered from such
Tranche 2 Lender such purchase shall be rescinded and the purchase price
restored to the extent of such recovery, but without interest.
12.07 Calculations;
Computations.
(a) The
financial statements to be furnished to the Lenders pursuant hereto shall be
made and prepared in accordance with GAAP or SAP, as the case may be,
consistently applied throughout the periods involved (except as set forth in
the notes thereto or as otherwise disclosed in writing by the Borrowers to the
Lenders). In addition, except as otherwise specifically provided herein, all
computations determining compliance with Section 8, including definitions used
therein, shall utilize accounting principles and policies in effect from time
to time; provided that
(i) if any such accounting principle or policy (whether GAAP or SAP or both)
shall change after the Effective Date, the Borrowers shall give reasonable
notice thereof to the Administrative Agent and each of the Lenders and if
within 30 days following such notice any Borrower, the Administrative Agent or
the Required Lenders shall elect by giving written notice of such election to
the other parties hereto, such computations shall not give effect to such
change unless and until this Agreement shall be amended pursuant to Section
12.11 to give effect to such change, and (ii) if at any time the computations
determining compliance with Section 8 utilize accounting principles different
from those utilized in the financial statements then being furnished to the
Lenders pursuant to Section 7.01, such financial statements shall be
accompanied by reconciliation work-sheets.
(b) All
computations of interest on Revolving Loans and Fees hereunder shall be made on
the actual number of days elapsed over (i) a year of 365/366 days for interest
on Revolving Loans maintained as Base Rate Loans when the Base Rate is based on
the Prime Lending Rate and (ii) a year of 360 days in all cases other than that
set forth in the preceding clause (i).
(c) All
references in this Agreement to amounts in Dollars shall include, unless the
context otherwise requires, amounts in Optional Currencies using the then U.S.
Dollar Equivalent thereof.
12.08 GOVERNING
LAW; SUBMISSION TO JURISDICTION; VENUE.
(a) THIS
AGREEMENT AND THE OTHER CREDIT DOCUMENTS (OTHER THAN LETTERS OF CREDIT ISSUED
UNDER THE LAWS OF ENGLAND AND WALES AND THE LAWS OF OTHER JURISDICTIONS, AS
AGREED TO BETWEEN THE APPLICABLE BORROWER AND THE ISSUING LENDER IN ACCORDANCE
WITH SECTIONS 2A.01 AND 2B.01) AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER AND THEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED
BY THE LAW OF THE STATE OF NEW
YORK.
ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER
CREDIT DOCUMENT (OTHER THAN WITH RESPECT TO LETTERS OF CREDIT ISSUED UNDER THE
LAWS OF THE UNITED KINGDOM IN ACCORDANCE WITH SECTIONS 2A.01 and 2B.01) MAY BE
BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR THE
SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS
AGREEMENT, EACH BORROWER AND EACH LENDER HEREBY IRREVOCABLY ACCEPTS FOR ITSELF
AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION
OF THE AFORESAID COURTS. EACH BORROWER AND EACH LENDER HEREBY FURTHER
IRREVOCABLY WAIVES ANY CLAIM THAT ANY SUCH COURTS LACK JURISDICTION OVER SUCH
BORROWER OR SUCH LENDER, AND AGREES NOT TO PLEAD OR CLAIM, IN ANY LEGAL ACTION
OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT
BROUGHT IN ANY OF THE AFORESAID COURTS, THAT ANY SUCH COURT LACKS JURISDICTION
OVER SUCH BORROWER OR SUCH LENDER. EACH BORROWER AND EACH LENDER FURTHER
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED
COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY
REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO SUCH BORROWER OR SUCH LENDER,
AS THE CASE MAY BE, AT ITS ADDRESS FOR NOTICES PURSUANT TO SECTION 12.03, SUCH
SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING. EACH BORROWER AND EACH
LENDER, AS THE CASE MAY BE, HEREBY IRREVOCABLY WAIVES ANY OBJECTION TO SUCH
SERVICE OF PROCESS AND FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR
CLAIM IN ANY ACTION OR PROCEEDING HEREUNDER OR UNDER ANY OTHER CREDIT DOCUMENT
THAT SERVICE OF PROCESS WAS IN ANY WAY INVALID OR INEFFECTIVE. NOTHING HEREIN
SHALL AFFECT THE RIGHT OF THE ADMINISTRATIVE AGENT OR ANY LENDER TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS
OR OTHERWISE PROCEED AGAINST EACH BORROWER IN ANY OTHER
JURISDICTION.
(b) EACH
BORROWER AND EACH LENDER HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY
NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR
PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER
CREDIT DOCUMENT BROUGHT IN THE COURTS REFERRED TO IN CLAUSE (a) ABOVE AND
HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH
COURT THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM.
12.09 Counterparts. This
Agreement may be executed in any number of counterparts and by the different
parties hereto on separate counterparts, each of which when so executed and
delivered shall be an original, but all of which shall together constitute one
and the
same
instrument. A set of counterparts executed by all the parties hereto shall be
lodged with the Parent Borrower and the Administrative Agent.
12.10 Headings
Descriptive. The
headings of the several sections and subsections of this Agreement are inserted
for convenience only and shall not in any way affect the meaning or
construction of any provision of this Agreement.
12.11 Amendment
or Waiver.
Neither this Agreement nor any other Credit Document (other than the Security
Documents) nor any terms hereof or thereof may be changed, waived, discharged
or terminated unless such change, waiver, discharge or termination is in
writing signed by each Borrower and the Required Lenders, provided that no
such change, waiver, discharge or termination shall, without the consent of
each Lender (other than a Defaulting Lender) directly affected thereby, (i)
extend the scheduled final maturity of any Revolving Loan or Note, or extend
the required payment date of a reimbursement obligation in respect of any
Letter of Credit, or extend the Commitment Expiration Date, or extend the
stated expiration date of any Letter of Credit beyond the date occurring one
year after the Commitment Expiration Date, or reduce the rate or extend the
time of payment of interest on any Revolving Loan or Note (except in connection
with the waiver of applicability of any post-default increase in interest
rates), or reduce the principal amount of any Revolving Loan or Note, or reduce
the amount or extend the time of payment of any Fee (it being understood that
any amendment or modification to the financial definitions in this Agreement or
to Section 12.07(a) shall not constitute a reduction in the rate of interest or
reduction in the amount of Fees for purposes of this clause (i)), (ii) except
as set forth in Section 1.15 or Section 1.16, increase the Commitment of any
Lender over the amount thereof then in effect (it being understood that a
waiver of any Default or Event of Default or of a mandatory reduction in the
Total Commitment shall not constitute a change in the terms of any Commitment
of any Lender), (iii) amend, modify or waive any provision of this Section
12.11 (except for technical amendments with respect to additional extensions of
credit pursuant to this Agreement which afford the protections to such
additional extensions of credit of the type provided to the Revolving Loans and
the Commitments on the Effective Date), (iv) reduce any percentage specified
in, or otherwise modify, the definition of Required Lenders (it being
understood that (A) the Additional Tranche 1 Commitments (and the additional
Tranche 1 Revolving Loans incurred in connection therewith), (B) the Additional
Tranche 2 Commitments (and the additional Tranche 2 Revolving Loans incurred in
connection therewith) and (C) with the consent of the Required Lenders, other
additional extensions of credit pursuant to this Agreement, in each case, may
be included in the determination of the Required Lenders on substantially the
same basis as the extensions of Revolving Loans and Commitments are included on
the Effective Date), (v) release the Parent Borrower from its obligations under
the Parent Borrower Guaranty, or (vi) consent to the assignment or transfer by
any Borrower of any of its rights and obligations under this Agreement;
provided further, that
(A) no such change, waiver, discharge or termination shall (i) release all
or substantially all of the Collateral (except as expressly provided in the
Credit Documents) from the Liens under all of the Security Documents without
the consent of each Tranche 1 Lender, (ii) modify the definitions in
Section 10 of “Advance Rates”, “Borrowing Base” or
“Eligible Securities” without the consent of the Majority Tranche 1
Lenders or (iii) reduce any percentage specified in, or otherwise modify,
the definition of Majority Tranche 1 Lenders (it being understood that the
Additional Tranche 1 Commitments (and the additional Tranche 1 Revolving Loans
incurred in connection therewith) and, with the consent of the
Majority
Tranche 1 Lenders, other additional extensions of credit pursuant to this
Agreement, in each case, may be included in the determination of the Majority
Tranche 1 Lenders on substantially the same basis as the extensions of Tranche
1 Revolving Loans and Tranche 1 Commitments are included on the Effective Date)
and (B) no Security Document may be changed, waived, discharged or terminated
unless each such change, waiver, discharge or termination is in writing signed
by each Borrower and the Majority Tranche 1 Lenders. No provision of Section 11
or any other provision relating to the rights and/or obligations of the
Administrative Agent may be amended without the consent of the Administrative
Agent. No provision of Section 2 or any other provision relating to the rights
and/or obligations of the Issuing Agent may be amended without the consent of
the Issuing Agent.
12.12 Survival. All
indemnities set forth herein including, without limitation, in Section 1.10,
1.11, 2.04, 4.04, 11.07 or 12.01 shall survive the execution and delivery of
this Agreement and the making of the Revolving Loans, the repayment of the
Obligations and the termination of the Total Commitment.
12.13 Domicile
of Revolving Loans. Each
Lender may transfer and carry its Revolving Loans at, to or for the account of
any branch, office, Subsidiary or affiliate of such Lender. Notwithstanding
anything to the contrary contained herein, to the extent that a transfer of
Revolving Loans pursuant to this Section 12.13 would, at the time of such
transfer, result in increased costs under Section 1.10, 1.11, 2.04 or 4.04
from those being charged by the respective Lender prior to such transfer, then
the Parent Borrower shall not be obligated to pay such increased costs
(although the Parent Borrower shall be obligated to pay any other increased
costs of the type described above resulting from changes after the date of the
respective transfer).
12.14 Confidentiality.
(a) Each
Lender shall (i) hold all non-public information (including, without
limitation, all financial projections and analyses) furnished by any Borrower
in connection with such Lender’s evaluation of whether to become a Lender
hereunder or obtained by such Lender pursuant to the requirements of this
Agreement (“Confidential Information”) confidential, (ii) use
Confidential Information only for purposes related to this Agreement and its
position as a Lender hereunder and (iii) not disclose such Confidential
Information other than as provided herein; provided that
any Lender and/or its affiliates may disclose any such Confidential Information
(A) as has become generally available to the public other than as a result of
disclosure in violation of this Section 12.14, (B) as has become available to
such Lender or any such affiliate on a non-confidential basis from a source
other than the Borrowers and their respective affiliates, provided that
the source is not known by such Lender to be prohibited from transmitting such
information to such Lender by a contractual, legal or fiduciary obligation, (C)
as may be required or appropriate in any report, statement or testimony
submitted to any municipal, state or Federal regulatory body or self-regulatory
body having or claiming to have jurisdiction or oversight over such Lender
and/or its affiliates, (D) as may be required or appropriate in respect to any
summons or subpoena or in connection with any litigation or other judicial
process (it being understood that, to the extent reasonably practicable under
the circumstances, each Borrower shall be given prior notice and an opportunity
to contest any proposed disclosure pursuant to this clause (D)), (E) in order
to comply with any law, order, regulation or ruling applicable to such Lender
and/or its affiliates, (F) subject to an agreement to comply with the
provisions of this Section, to any direct or indirect counterparty to any swap
agreement (or any professonal advisor to such counterparty) and (G) to any
permitted
prospective
or actual syndicate member or participant in any Revolving Loans, provided that
such prospective or actual syndicate member or participant agrees with the
respective assigning Lender to be bound by the provisions of this Section
12.14. The provisions of this Section 12.14 shall survive any termination of
this Agreement.
(b) Notwithstanding
anything herein to the contrary, any Lender (and any employee, representative
or other agent of such Lender) may disclose to any and all persons, without
limitation of any kind, such Lender’s U.S. federal income tax treatment
and the U.S. federal income tax structure of the transactions contemplated
hereby relating to such Lender and all materials of any kind (including
opinions or other tax analyses) that are provided to it relating to such tax
treatment and tax structure. However, no disclosure of any information relating
to such tax treatment or tax structure may be made to the extent nondisclosure
is reasonably necessary in order to comply with applicable securities
laws.
12.15 WAIVER
OF JURY TRIAL. EACH
OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL
BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO
THIS AGREEMENT, THE CREDIT DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY.
12.16 Register. Each
Borrower hereby designates the Administrative Agent to serve as its agent,
solely for purposes of this Section 12.16, to maintain a register (the
“Register”) on which it will record the Commitments from time to time
of each of the Lenders, the Revolving Loans made by each of the Lenders and
each repayment in respect of the principal amount of the Revolving Loans of
each Lender. Failure to make any such recordation, or any error in such
recordation shall not affect the obligations any Borrower in respect of such
Revolving Loans. With respect to any Lender, the transfer of the Commitments of
such Lender and the rights to the principal of, and interest on, any Revolving
Loan made pursuant to such Commitments shall not be effective until such
transfer is recorded on the Register maintained by the Administrative Agent
with respect to ownership of such Commitments and Revolving Loans and prior to
such recordation all amounts owing to the transferor with respect to such
Commitments and Revolving Loans shall remain owing to the transferor. The
registration of assignment or transfer of all or part of any Commitments and
any Revolving Loans shall be recorded by the Administrative Agent on the
Register only upon the acceptance by the Administrative Agent of a properly
executed and delivered Assignment Agreement pursuant to Section 12.04(b).
Coincident with the delivery of such an Assignment Agreement to the
Administrative Agent for acceptance and registration of assignment or transfer
of all or part of a Revolving Loan, or as soon thereafter as practicable, the
assigning or transferor Lender shall surrender the Note evidencing such
Revolving Loan, and thereupon one or more new Notes in the same aggregate
principal amount shall be issued to the assigning or transferor Lender and/or
the new Lender. Each Borrower agrees to indemnify the Administrative Agent from
and against any and all losses, claims, damages and liabilities of whatsoever
nature which may be imposed on, asserted against or incurred by the
Administrative Agent in performing its duties under this Section 12.16 (but
excluding any such losses, liabilities, claims, damages or expenses to the
extent incurred by reason of the gross negligence or willful misconduct of the
Administrative Agent (as determined by a court of competent jurisdiction in a
final and non-appealable decision)).
12.17 USA
Patriot Act. Each
Lender hereby notifies each Borrower that, pursuant to the requirements of the
USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the “Patriot Act”), it is required to obtain, verify and
record information that identifies each Borrower, which information includes
the name and address of each Borrower and other information that will allow
such Lender to identify each Borrower in accordance with the Patriot
Act.
SECTION
13. Parent
Borrower Guaranty.
13.01 The
Guaranty. In
order to induce the Lenders to enter into this Agreement and to extend credit
hereunder and in recognition of the direct benefits to be received by the
Parent Borrower from the proceeds of the Revolving Loans and the issuance of
the Letters of Credit, the Parent Borrower hereby agrees with the Lenders as
follows: the Parent Borrower hereby unconditionally and irrevocably guarantees,
as primary obligor and not merely as surety, the full and prompt payment when
due, whether upon maturity, acceleration or otherwise, of any and all of the
Parent Borrower Guaranteed Obligations of each Designated Subsidiary Borrower
to the Guaranteed Creditors. If any or all of the Parent Borrower Guaranteed
Obligations of any Designated Subsidiary Borrower to the Guaranteed Creditors
becomes due and payable hereunder, the Parent Borrower unconditionally promises
to pay such indebtedness to the Guaranteed Creditors, or order, on demand,
together with any and all expenses which may be incurred by the Guaranteed
Creditors in collecting any of the Parent Borrower Guaranteed Obligations. This
Parent Borrower Guaranty is a guaranty of payment and not of collection. If a
claim is ever made upon any Guaranteed Creditor for repayment or recovery of
any amount or amounts received in payment or on account of any of the Parent
Borrower Guaranteed Obligations and any of the aforesaid payees repays all or
part of said amount by reason of (i) any judgment, decree or order of any court
or administrative body having jurisdiction over such payee or any of its
property or (ii) any settlement or compromise of any such claim effected by
such payee with any such claimant, then and in such event the Parent Borrower
agrees that any such judgment, decree, order, settlement or compromise shall be
binding upon the Parent Borrower, notwithstanding any revocation of this Parent
Borrower Guaranty or any other instrument evidencing any liability of any
Designated Subsidiary Borrower, and the Parent Borrower shall be and remain
liable to the aforesaid payees hereunder for the amount so repaid or recovered
to the same extent as if such amount had never originally been received by any
such payee.
13.02 Bankruptcy.
Additionally, the Parent Borrower unconditionally and irrevocably guarantees
the payment of any and all of the Parent Borrower Guaranteed Obligations of
each Designated Subsidiary Borrower hereunder to the Guaranteed Creditors
whether or not due or payable by any Designated Subsidiary Borrower upon the
occurrence of any of the events specified in Section 9.05 with respect to such
Designated Subsidiary Borrower, and unconditionally promises to pay such
indebtedness to the Guaranteed Creditors, or order, on demand, in lawful money
of the United States.
13.03 Nature
of Liability. The
liability of the Parent Borrower hereunder is exclusive and independent of any
security for or other guaranty of the Parent Borrower Guaranteed Obligations of
any Designated Subsidiary Borrower whether executed by the Parent Borrower, any
other guarantor or by any other party, and the liability of the Parent Borrower
hereunder
is not affected or impaired by (a) any direction as to application of payment
by each Designated Subsidiary Borrower or by any other party (other than a
direction by the Guaranteed Creditor receiving such payment), or (b) any other
continuing or other guaranty, undertaking or maximum liability of a guarantor
or of any other party as to the Parent Borrower Guaranteed Obligations of each
Designated Subsidiary Borrower, or (c) any payment on or in reduction of any
such other guaranty or undertaking, or (d) any dissolution, termination or
increase, decrease or change in personnel by any Designated Subsidiary
Borrower, or (e) any payment made to the Guaranteed Creditors on the Parent
Borrower Guaranteed Obligations which any such Guaranteed Creditor repays to
any Designated Subsidiary Borrower pursuant to court order in any bankruptcy,
reorganization, arrangement, moratorium or other debtor relief proceeding, and
the Parent Borrower waives any right to the deferral or modification of its
obligations hereunder by reason of any such proceeding or (f) any action or
inaction of the type described in Section 13.05.
13.04 Independent
Obligation. The
obligations of the Parent Borrower under this Section 13 are independent of the
obligations of any other guarantor, any other party or any Designated
Subsidiary Borrower, and a separate action or actions may be brought and
prosecuted against the Parent Borrower whether or not action is brought against
any other guarantor, any other party or any Designated Subsidiary Borrower and
whether or not any other guarantor, any other party or any Designated
Subsidiary Borrower be joined in any such action or actions. The Parent
Borrower waives, to the full extent permitted by law, the benefit of any
statute of limitations affecting its liability under this Section 13 or the
enforcement thereof. Any payment by any Designated Subsidiary Borrower or other
circumstance which operates to toll any statute of limitations as to any
Designated Subsidiary Borrower shall operate to toll the statute of limitations
as to the Parent Borrower.
13.05 Authorization. The
obligations of the Parent Borrower under this Section 13 shall be unconditional
and absolute and, without limiting the generality of the foregoing, shall not
be released, discharged or otherwise affected by any action taken by any
Guaranteed Creditor to:
(a) change
the manner, place or terms of payment of, and/or change or extend the time of
payment of, renew, increase, accelerate or alter, any of the Parent Borrower
Guaranteed Obligations (including any increase or decrease in the rate of
interest thereon), any security therefor, or any liability incurred directly or
indirectly in respect thereof, and the Parent Borrower Guaranty herein made
shall apply to the Parent Borrower Guaranteed Obligations as so changed,
extended, renewed or altered;
(b) take and
hold security for the payment of the Parent Borrower Guaranteed Obligations and
sell, exchange, release, impair, surrender, realize upon or otherwise deal with
in any manner and in any order any property by whomsoever at any time pledged
or mortgaged to secure, or howsoever securing, the Parent Borrower Guaranteed
Obligations or any liabilities (including any of those hereunder) incurred
directly or indirectly in respect thereof or hereof, and/or any offset there
against;
(c) exercise
or refrain from exercising any rights against any Designated Subsidiary
Borrower or others or otherwise act or refrain from acting;
(d) release
or substitute any one or more endorsers, guarantors, any Designated Subsidiary
Borrower or other obligors;
(e) settle
or compromise any of the Parent Borrower Guaranteed Obligations, any security
therefor or any liability (including any of those hereunder) incurred directly
or indirectly in respect thereof or hereof, and may subordinate the payment of
all or any part thereof to the payment of any liability (whether due or not) of
any Designated Subsidiary Borrower to its creditors other than the Guaranteed
Creditors;
(f) apply
any sums by whomsoever paid or howsoever realized to any liability or
liabilities of any Designated Subsidiary Borrower to the Guaranteed Creditors
regardless of what liability or liabilities of any Designated Subsidiary
Borrower remain unpaid;
(g) consent
to or waive any breach of, or any act, omission or default under, this
Agreement or any other Credit Document or any of the instruments or agreements
referred to herein or therein, or otherwise amend, modify or supplement this
Agreement, any other Credit Document or any of such other instruments or
agreements; and/or
(h) take any
other action which would, under otherwise applicable principles of common law,
give rise to a legal or equitable discharge of the Parent Borrower from its
liabilities under this Parent Borrower Guaranty.
13.06 Reliance. It is
not necessary for the Guaranteed Creditors to inquire into the capacity or
powers of any Designated Subsidiary Borrower or the officers, directors,
partners or agents acting or purporting to act on their behalf, and any Parent
Borrower Guaranteed Obligations made or created in reliance upon the professed
exercise of such powers shall be guaranteed hereunder.
13.07 Subordination. Any
indebtedness of any Designated Subsidiary Borrower now or hereafter owing to
the Parent Borrower is hereby subordinated to the Parent Borrower Guaranteed
Obligations of any Designated Subsidiary Borrower owing to the Guaranteed
Creditors; and if the Administrative Agent so requests at a time when an Event
of Default exists, no Designated Subsidiary Borrower shall make, or be
permitted to make, any payment to the Parent Borrower in respect of such
indebtedness owed to the Parent Borrower, but without affecting or impairing in
any manner the liability of the Parent Borrower under the other provisions of
this Parent Borrower Guaranty. Prior to the transfer by the Parent Borrower of
any note or negotiable instrument evidencing any of the indebtedness of any
Designated Subsidiary Borrower to the Parent Borrower, the Parent Borrower
shall xxxx such note or negotiable instrument with a legend that the same is
subject to this subordination. Without limiting the generality of the
foregoing, the Parent Borrower hereby agrees with the Guaranteed Creditors that
it will not exercise any right of subrogation which it may at any time
otherwise have as a result of this Guaranty (whether contractual, under Section
509 of the Bankruptcy Code or otherwise) until all Parent Borrower Guaranteed
Obligations have been irrevocably paid in full in cash.
13.08 Waiver.
(a) The
Parent Borrower waives any right (except as shall be required by applicable
statute and cannot be waived) to require any Guaranteed Creditor to (i) proceed
against each Designated Subsidiary Borrower, any other guarantor or any other
party, (ii) proceed against or exhaust any security held from any Designated
Subsidiary Borrower, any other guarantor or any other party or (iii) pursue any
other remedy in any Guaranteed Creditor’s power whatsoever. The Parent
Borrower waives any defense based on or arising out of any defense of any
Designated Subsidiary Borrower, any other guarantor or any other party, other
than payment in full of the Parent Borrower Guaranteed Obligations, based on or
arising out of the disability of each Designated Subsidiary Borrower, any other
guarantor or any other party, or the unenforceability of the Parent Borrower
Guaranteed Obligations or any part thereof from any cause, or the cessation
from any cause of the liability of any Designated Subsidiary Borrower other
than payment in full of the Parent Borrower Guaranteed Obligations. The
Guaranteed Creditors may, at their election, foreclose on any security held by
the Administrative Agent or any other Guaranteed Creditor by one or more
judicial or nonjudicial sales, whether or not every aspect of any such sale is
commercially reasonable (to the extent such sale is permitted by applicable
law), or exercise any other right or remedy the Guaranteed Creditors may have
against any Designated Subsidiary Borrower or any other party, or any security,
without affecting or impairing in any way the liability of the Parent Borrower
hereunder except to the extent the Parent Borrower Guaranteed Obligations have
been paid. The Parent Borrower waives any defense arising out of any such
election by the Guaranteed Creditors, even though such election operates to
impair or extinguish any right of reimbursement or subrogation or other right
or remedy of the Parent Borrower against any Designated Subsidiary Borrower or
any other party or any security.
(b) The
Parent Borrower waives all presentments, demands for performance, protests and
notices, including, without limitation, notices of nonperformance, notices of
protest, notices of dishonor, notices of acceptance of this Parent Borrower
Guaranty, and notices of the existence, creation or incurring of new or
additional Parent Borrower Guaranteed Obligations. The Parent Borrower assumes
all responsibility for being and keeping itself informed of each Designated
Subsidiary Borrower’s financial condition and assets, and of all other
circumstances bearing upon the risk of nonpayment of the Parent Borrower
Guaranteed Obligations and the nature, scope and extent of the risks which the
Parent Borrower assumes and incurs hereunder, and agrees that the Guaranteed
Creditors shall have no duty to advise the Parent Borrower of information known
to them regarding such circumstances or risks.
(c) The
Parent Borrower warrants and agrees that each of the waivers set forth above in
this Section 13 is made with full knowledge of its significance and
consequences, and such waivers shall be effective to the maximum extent
permitted by law.
*
* *
IN
WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this
Agreement to be duly executed and delivered as of the date first above
written.
Address:
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Wellesley
Xxxxx
00 Xxxxx
Xxx Xxxx
Xxxxxxxx
XX 00
Xxxxxxx
Xxxxxxxxx:
Xxxxxxx
XxXxxxx
Telephone: x0 (000)
000-0000
Facsimile:
x0 (000)
000-0000 |
|
By: /s/
Xxxx X. Del Col
Title:
General Counsel and Secretary |
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Wellesley
House
90 Xxxxx
Bay Road
Pembroke
HM 08
Bermuda
Xxxxxxx XxXxxxx
Telephone:
x0 (000)
000-0000
Facsimile: x0 (000)
000-0000 |
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ENDURANCE
SPECIALTY INSURANCE LTD.
By:
/s/ Xxxx
X. Del Col
Title:
General Counsel and Secretary |
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0000
Xxxxxx Xxxxxx
Xxxxxxxxxx,
Xxxxxxxx 00000
Attention:
Xxxxx
Xxxxxx, Esq.
Telephone: x0 (000)
000-0000
Facsimile: x0 (000)
000-0000 |
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ENDURANCE
U.S. HOLDINGS CORP.
By: /s/
Xxxxxxx X. XxXxxxxxx
Title:
Chairman of the Board and President |
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0xx Xxxxx,
0 Xxxxxxx Xxxxx
Xxxxxx,
XX0X 0XX
Xxxxxx
Xxxxxxx
Attention:
Xxxxx
Xxxxxxxx
Telephone:
x00
(0)00 0000 0000
Facsimile: x00
(0)00 0000 0000 |
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ENDURANCE
WORLDWIDE HOLDINGS LIMITED
By: /s/ Xxx
Xxxxxxx
Title:
Chief Operating Officer |
0xx Xxxxx,
0 Xxxxxxx Xxxxx
Xxxxxx,
XX0X 0XX
Xxxxxx
Xxxxxxx
Attention:
Xxxxx
Xxxxxxxx
Telephone:
x00
(0)00 0000 0000
Facsimile: x00
(0)00 0000 0000 |
ENDURANCE
WORLDWIDE INSURANCE LIMITED
By:
/s/ Xxx Xxxxxxx
Name:
Xxx Xxxxxxx
Title:
Chief Operating Officer |
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JPMORGAN
CHASE BANK, N.A.,
as
Administrative Agent, Issuing Agent and a Lender
By:
/s/ Xxxx X'Xxxxxx
Title:
Vice President
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WACHOVIA
BANK, N.A.
By:
/s/ Xxxxxxx X. Xxxxx
Title:
Director
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ING BANK
N.V., LONDON BRANCH
By:
/s/ N J Xxxxxxxx
Title:
Director
By:
/s/ M E R Xxxxxxx
Title:
Managing Director |
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BANK OF
AMERICA, N.A.
By:
/s/ Xxxxx Xxxxxx
Title:
Senior Vice President
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BARCLAYS
BANK PLC
By:
/s/ Xxxxxxxx Xxxx
Title:
Director
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LLOYDS
TSB BANK PLC
By:
/s/ Xxxxx Eperon
Title:
Vice President, Financial Institutions,
USA
By:
/s/ Xxxxx Xxxxxxx
Title:
Assistant Vice President, Financial Institutions, USA |
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THE BANK
OF NEW YORK
By:
/s/ Xxxxxxx X. Xxxx
Title:
Vice President |
|
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CALYON
NEW YORK BRANCH
By:
/s/ Xxxxxxxxx Xxxxx
Title:
Managing Director
By:
/s/ Xxxxxxx Xxxxxxxxxx
Title:
Managing Director |
|
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THE
ROYAL BANK OF SCOTLAND PLC
By:
Greenwich Capital Markets, Inc., as agent for
The Royal Bank of
Scotland plc
By:
/s/ Xxxxx Xxxxx
Title:
Vice President |
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DEUTSCHE
BANK AG NEW YORK BRANCH
By:
/s/ Xxxxxxx Xxxxxx
Title:
Managing Director
By:
/s/ Xxxxxxx Xxxxxxxx
Title:
Vice President |
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THE BANK
OF NOVA SCOTIA
By:
/s/ Xxxx Xxxxxx
Name:
Xxxx Xxxxxx
Title:
Managing Director
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LANDESBANK
HESSEN-THÜRINGEN NEW YORK BRANCH
By:
/s/ Xxxxxx X. Xxxxxxx
Title:
Senior Vice President Financial Institutions Public Finance
By:
/s/ Xxxxx Xxxxxxx
Title:
Credit Analyst Financial Institutions Public Finance |
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BNP
PARIBAS
By:
/s/ Xxxxx X. Xxxxxxxxxx
Title:
Director
By:
/s/ Nair P. Raghu
Title:
Vice President |
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COMERICA
BANK
By:
/s/ Chatphet Saipetch
Name:
Chatphet Saipetch
Title:
Vice President |
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XXXXXXX
XXXXX COMMERCIAL FINANCE CORPORATION
By:
/s/ Xxxxx Xxxxx
Name:
Xxxxx Xxxxx
Title:
Director |
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XXXXXXX
SACHS CREDIT PARTNERS L.P.
By:
/s/ Xxxx Xxxxxx
Title:
Managing Director |