Exhibit 10.7
EXECUTION COPY
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JPMORGAN
CREDIT AGREEMENT
dated as of
June 28, 2006
among
Leucadia National Corporation
The Lenders Party Hereto
and
JPMORGAN CHASE BANK,
NATIONAL ASSOCIATION
as Administrative Agent
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X.X. XXXXXX SECURITIES INC., as Sole
Bookrunner and Sole Lead Arranger
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS.................................................................................1
1.01. Defined Terms...................................................................................1
1.02. Classification of Loans and Borrowings.........................................................15
1.03. Terms Generally................................................................................15
1.04. Accounting Terms; GAAP.........................................................................15
ARTICLE II THE CREDIT.................................................................................15
2.01. Commitments....................................................................................15
2.02. Loans and Borrowings...........................................................................16
2.03. Requests for Revolving Borrowings..............................................................16
2.04. Procedure for Optional Currencies..............................................................17
2.05. Swingline Loans................................................................................18
2.06. Funding of Borrowings..........................................................................19
2.07. Interest Elections.............................................................................20
2.08. Termination and Reduction of Commitments.......................................................21
2.09. Increase of Total Commitment; Additional Lenders...............................................22
2.10. Repayment of Loans; Evidence of Debt...........................................................22
2.11. Prepayment of Loans............................................................................23
2.12. Fees...........................................................................................23
2.13. Interest.......................................................................................24
2.14. Alternate Rate of Interest.....................................................................25
2.15. Increased Costs................................................................................25
2.16. Break Funding Payments.........................................................................26
2.17. Taxes..........................................................................................26
2.18. Payments Generally; Pro Rata Treatment; Sharing of Set-offs...................................28
2.19. Mitigation Obligations; Replacement of Lenders.................................................29
ARTICLE III REPRESENTATIONS AND WARRANTIES.............................................................30
3.01. Organization; Powers...........................................................................30
3.02. Authorization; Enforceability..................................................................30
3.03. Governmental Approvals; No Conflicts...........................................................30
3.04. Financial Condition; No Material Adverse Change................................................30
3.05. Properties.....................................................................................31
3.06. Litigation and Environmental Matters...........................................................31
3.07. Compliance with Laws and Agreements............................................................31
3.08. Investment and Holding Company Status..........................................................31
3.09. Taxes..........................................................................................32
3.10. ERISA..........................................................................................32
3.11. Disclosure.....................................................................................32
3.12. Nonrecourse Indebtedness.......................................................................32
3.13. No Burdensome Restrictions.....................................................................32
3.14. Subsidiaries...................................................................................32
3.15. Federal Regulations............................................................................32
ARTICLE IV CONDITIONS.................................................................................33
4.01. Effective Date.................................................................................33
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TABLE OF CONTENTS
(cont'd)
Page
4.02. Each Credit Event..............................................................................34
ARTICLE V AFFIRMATIVE COVENANTS......................................................................34
5.01. Financial Statements; Ratings Change and Other Information....................................34
5.02. Notices of Material Events.....................................................................35
5.03. Existence; Conduct of Business.................................................................36
5.04. Payment of Obligations.........................................................................36
5.05. Maintenance of Properties; Insurance...........................................................36
5.06. Books and Records; Inspection Rights...........................................................36
5.07. Compliance with Contractual Obligations and Laws...............................................36
5.08. Use of Proceeds................................................................................37
ARTICLE VI NEGATIVE COVENANTS.........................................................................37
6.01. Liquid Assets..................................................................................37
6.02. Maintenance of Consolidated Tangible Net Worth.................................................37
6.03. Debt Leverage Ratio............................................................................38
6.04. Limitations on Liens...........................................................................38
6.05. Prohibition of Fundamental Changes.............................................................39
6.06. Dividends......................................................................................39
6.07. Acquisitions...................................................................................40
6.08. Investments....................................................................................40
6.09. Limitation on Contingent Obligations...........................................................40
6.10. Limitation on Subsidiary Indebtedness..........................................................41
6.11. Transactions with Affiliates...................................................................41
ARTICLE VII EVENTS OF DEFAULT..........................................................................41
7.01. Events of Default..............................................................................41
7.02. Termination....................................................................................43
ARTICLE VIII THE ADMINISTRATIVE AGENT...................................................................44
ARTICLE IX MISCELLANEOUS..............................................................................46
9.01. Notices........................................................................................46
9.02. Waivers; Amendments............................................................................47
9.03. Expenses; Indemnity; Damage Waiver.............................................................47
9.04. Successors and Assigns.........................................................................48
9.05. Survival.......................................................................................51
9.06. Counterparts; Integration; Effectiveness.......................................................51
9.07. Severability...................................................................................52
9.08. Right of Setoff................................................................................52
9.09. Governing Law; Jurisdiction; Consent to Service of Process....................................52
9.10. WAIVER OF JURY TRIAL...........................................................................52
9.11. Headings.......................................................................................53
9.12. Confidentiality................................................................................53
9.13. USA PATRIOT Act................................................................................54
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SCHEDULES:
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Schedule 2.01 -- Commitments
Schedule 3.06 -- Disclosed Matters
Schedule 3.12 -- Nonrecourse Indebtedness
Schedule 6.04 -- Existing Liens
Schedule 6.10 -- Outstanding Indebtedness
EXHIBITS:
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Exhibit A -- Form of Assignment and Assumption
Exhibit B -- Form of Instrument of Adherence
Exhibit C -- Form of Opinion of Borrower's Counsel
iii
This CREDIT AGREEMENT (this "Agreement") dated as of June 28,
2006, is by and among Leucadia National Corporation, a New York corporation (the
"Borrower"), the various financial institutions and other Persons from time to
time party hereto (the "Lenders"), and JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION, as administrative agent for itself and the other Lenders (the
"Administrative Agent").
The parties hereto agree as follows:
ARTICLE I
Definitions
1.01. Defined Terms. As used in this Agreement, the following
terms have the meanings specified below:
"2005 Collateral Agreement" has the meaning set forth in
Section 6.04(k).
"ABR", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Alternate Base Rate.
"Acquired Entity Underfunding" means with respect to any
entity acquired directly or indirectly after the date hereof, the excess of (a)
the present value of all of such an entity's accumulated benefit obligations
under its Plans (based on the assumptions used for purposes of Statement of
Financial Accounting Standards No. 87) over (b) the fair market value of the
assets of such Plan(s) at such time.
"Additional Lender" has the meaning set forth in Section 2.09.
"Administrative Agent" has the meaning set forth in the
preamble and includes any successor in such capacity.
"Administrative Questionnaire" means an Administrative
Questionnaire in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries, Controls
or is Controlled by or is under common Control with the Person specified.
"Agreement" has the meaning set forth in the preamble.
"Alternate Base Rate" means, for any day, a rate per annum
equal to the greater of (a) the Prime Rate in effect on such day, and (b) the
Federal Funds Effective Rate in effect on such day plus 1/2 of 1%. Any change in
the Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.
"Applicable Margin" means for any Interest Period with respect
to a Eurocurrency Loan, the rate per annum specified in the table below as the
Applicable Margin opposite the Borrower's debt ratings for the Index Debt in
effect on the first day of such Interest Period as assigned by Xxxxx'x and S&P:
1
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Rate Applicable
Level Index Debt Ratings Margin
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1 Baal/BBB+ 0.50%
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2 Baa2/BBB 0.625%
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3 Baa3/BBB- 0.750%
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4 Bal/BB+ 0.875%
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5 lower than Bal/BB+ 1.000%
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For purposes of the foregoing, (i) if either Xxxxx'x or S&P
shall not have in effect a rating for the Index Debt (other than by reason of
the circumstances referred to in the last sentence of this definition), then
such rating agency shall be deemed to have established a rating in Rate Level 5
in the table above; and (ii) in the event of a single split rating by such
rating organizations (meaning that the ratings established by such rating
organizations are within different Rate Levels that are adjacent to each other
in the table above), the higher rating will apply, and in the event of a double
(or more) split rating by such rating organizations (meaning that the ratings
established by such rating organizations are within different Rate Levels that
are separated by one or more other Rate Levels in the table above), the
Applicable Margin shall be as set forth in the next Rate Level below the Rate
Level in which the highest rating falls. If the rating system of Xxxxx'x or S&P
shall change, or if either such rating agency shall cease to be in the business
of rating corporate debt obligations, the Borrower and the Lenders shall
negotiate in good faith to amend this definition to reflect such changed rating
system or the unavailability of ratings from such rating agency and, pending the
effectiveness of any such amendment, the Applicable Margin shall be determined
by reference to the rating most recently in effect prior to such change or
cessation.
"Applicable Percentage" means, with respect to any Lender, the
percentage of the total Commitments represented by such Lender's Commitment.. If
the Commitments have terminated or expired, the Applicable Percentages shall be
determined based upon the Commitments most recently in effect, giving effect to
any assignments.
"Approved Fund" has the meaning assigned to such term in
Section 9.04.
"Assignment and Assumption" means an assignment and assumption
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 9.04), and accepted by the Administrative Agent,
in the form of Exhibit A or any other form approved by the Administrative Agent.
"Availability Period" means the period from and including the
Effective Date to but excluding the earlier of the Maturity Date and the date of
termination of the Commitments.
"Banking Subsidiaries" means any Subsidiary of the Borrower
taking Federal Deposit Insurance Corporation (or other similar entity) insured
deposits.
"Baseline Amount" has the meaning set forth in Section 6.02.
"Board" means the Board of Governors of the Federal Reserve
System of the United States of America.
"Borrower" has the meaning set forth in the preamble.
2
"Borrowing" means (a) Revolving Loans of the same Type, made,
converted or continued on the same date and, in the case of Eurocurrency Loans,
as to which a single Interest Period is in effect or (b) a Swingline Loan.
"Borrowing Request" means a request by the Borrower for a
Revolving Borrowing in accordance with Section 2.03.
"Business Day" means any day that is not a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or required
by law to remain closed; provided that, (i) when used in connection with a
Eurocurrency Loan denominated in Dollars, the term "Business Day" shall also
exclude any day on which banks are not open for dealings in Dollar deposits in
the London interbank market and (ii) when used in connection with a Eurocurrency
Loan denominated in an Optional Currency, the term "Business Day" shall also
exclude any day on which banks are not open for dealings and exchanges in
Dollars and the relevant Optional Currency in the Eurocurrency Interbank Market
in which the foreign currency and exchange for eurocurrency funding operations
of the Administrative Agent are customarily conducted.
"Capital Lease Obligations" of any Person means the
obligations of such Person to pay rent or other amounts under any lease of (or
other arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Cash and Cash Equivalents" has the meaning set forth in
Section 6.01(b).
"Change in Law" means (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any Governmental
Authority after the date of this Agreement or (c) compliance by any Lender (or,
for purposes of Section 2.15(b), by any lending office of such Lender or by such
Lender's holding company, if any) with any request, guideline or directive
(whether or not having the force of law) of any Governmental Authority made or
issued after the date of this Agreement.
"Class", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are
Revolving Loans or Swingline Loans.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time.
"Commitment" means, with respect to each Lender, the
commitment of such Lender to make Revolving Loans and to acquire participations
in Swingline Loans hereunder, expressed as an amount representing the maximum
aggregate amount of such Lender's Revolving Credit Exposure hereunder, as such
commitment may be (a) reduced from time to time pursuant to Section 2.08, (b)
increased form time to time pursuant to Section 2.09 and (c) reduced or
increased from time to time pursuant to assignments by or to such Lender
pursuant to Section 9.04. The initial amount of each Lender's Commitment is set
forth on Schedule 2.01, or in the Assignment and Assumption pursuant to which
such Lender shall have assumed its Commitment, as applicable. The initial
aggregate amount of the Lenders' Commitments is $100,000,000.
"Commitment Increase Request" as defined in Section 2.09.
"Common Shares" has the meaning set forth in Section 7.02(b).
3
"Consolidated" or "consolidated" means with reference to any
term defined herein, that term as applied to the accounts of the Borrower and
its Subsidiaries, consolidated in accordance with GAAP
"Consolidated Intangibles" means at a particular date, all
assets of the Borrower and its Subsidiaries, determined on a consolidated basis
at such date, that would be classified as intangible assets in accordance with
GAAP, but in any event including, without limitation, unamortized debt discount
and expense, unamortized organization and reorganization expense, costs in
excess of the net asset value of acquired companies, patents, trade or service
marks, franchises, trade names, goodwill and deferred tax assets.
Notwithstanding anything to the contrary contained in the preceding sentence,
Consolidated Intangibles shall not include deferred insurance policy acquisition
costs or the value of life insurance in force.
"Consolidated Net Worth" means, as to any Person at a
particular date, all amounts which should be included under shareholders' equity
on a balance sheet of such Person and its Subsidiaries determined on a
consolidated basis as at such date; provided that, in calculating shareholders'
equity, marketable securities that have not suffered a decline in value (other
than a decline of a temporary nature) shall be reflected at the amortized cost
thereof and marketable securities that have suffered a decline in value
considered to be other than temporary shall be reflected at the current value
thereof. For purposes of this definition, the recorded value of the Borrower's
outstanding preferred stock shall be included under shareholders' equity.
"Consolidated Tangible Net Worth" means, at a particular date,
the excess, if any, of Consolidated Net Worth over Consolidated Intangibles as
at such date.
"Contingent Obligation" means as to any Person, any
reimbursement obligation of such Person in respect of the face amount of all
letters of credit for the account of such Person and (without duplication) all
drafts thereunder (other than trade letters of credit or interest or currency
swap transactions entered into in the ordinary course of business) and any
obligation of such Person guarantying or in effect guarantying 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 (i) endorsements
of instruments for deposit or collection in the ordinary course of business,
(ii) indemnities granted in the ordinary course of business (including in
connection with acquisitions and dispositions by the Borrower and/or its
Subsidiaries), (iii) any insurance or reinsurance obligation of any Subsidiary
of the Borrower entered into in the ordinary course of the insurance business of
such Subsidiary, (iv) any guaranty by a Subsidiary of the Borrower of the
obligation of another Subsidiary, if the guarantied obligation of the Subsidiary
is reflected in the Borrower's consolidated financial statements as a liability,
(v) any obligation reflected as a liability in the Borrower's consolidated
financial statements, and (vi) any Indebtedness. 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 as determined by the Borrower in good faith.
4
"Contractual Obligation" as to any Person, any provision of
any security issued by such Person or of any agreement, instrument or
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by contract or
otherwise. "Controlling" and "Controlled" have meanings correlative thereto.
"Default" means any event or condition which constitutes an
Event of Default or which upon notice, lapse of time or both would, unless cured
or waived, become an Event of Default.
"Delinquent Lender" means any Lender that fails to make
available when due to the Administrative Agent its pro rata share of any Loan,
or fails to make available when due to the Swingline Lender is pro rata share of
any Swingline Loan.
"Disclosed Matters" means the actions, suits and proceedings
and the environmental matters disclosed in Schedule 3.06.
"Distributable" has the meaning set forth in Section 6.01(b).
"Dollars" or "$" refers to lawful money of the United States
of America.
"Dollar Equivalent" means on any date of determination, with
respect to any amount denominated in Dollars, such amount in Dollars, and with
respect to any amount denominated in a currency other than Dollars, the amount
in Dollars determined in accordance with Section 2.04(b).
"Effective Date" means the date on which the conditions
specified in Section 4.01 are satisfied (or waived in accordance with Section
9.02).
"EMU" means the European Economic and Monetary Union formed
pursuant to the EU Treaties.
"Entity" means any partnership, corporation, limited liability
company, business trust, joint stock company, trust, unincorporated association,
joint venture or other business entity of whatever nature.
"Environmental Laws" means all laws, rules, regulations,
codes, ordinances, orders, decrees, judgments, injunctions, binding agreements
issued, promulgated or entered into by any Governmental Authority, relating to
the environment, preservation or reclamation of natural resources, the
management, release or threatened release of any Hazardous Material or, with
respect to any Governmental Authority in the United States of America only,
health and safety matters.
"Environmental Liability" means any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of the Borrower or any Subsidiary
directly or indirectly resulting from or based upon (a) violation of any
Environmental Law, (b) the generation, use, handling, transportation, storage,
treatment or disposal of any Hazardous Materials, (c) the release or threatened
release of any Hazardous Materials into the environment or (d) any contract,
agreement or other consensual arrangement pursuant to which liability is assumed
or imposed with respect to any of the foregoing.
5
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under any
other subsection of Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived); (b) the
existence with respect to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate
from the PBGC or a plan administrator of any notice relating to an intention to
terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f)
the incurrence by the Borrower or any of its ERISA Affiliates of any liability
with respect to the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan; or (g) the receipt by the Borrower or any ERISA Affiliate of
any notice, or the receipt by any Multiemployer Plan from the Borrower or any
ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability
or a determination that a Multiemployer Plan is, or is expected to be, insolvent
or in reorganization, within the meaning of Title IV of ERISA.
"Euro" means the lawful single currency of the member states
of the EMU adopted in accordance with the EU Treaties.
"Eurocurrency" when used in reference to any Loan or
Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing,
are bearing interest at a rate determined by reference to the Eurocurrency Rate.
"Eurocurrency Interbank Market" means any lawful recognized
market in which deposits of Dollars and the relevant Optional Currencies are
offered by international banking units of United States banking institutions and
by foreign banking institutions to each other and in which foreign currency and
exchange operations or eurocurrency funding operations are customarily
conducted.
"Eurocurrency Loans" means the Loans at any time of reference
bearing interest at a rate based upon the Eurocurrency Rate.
"Eurocurrency Offered Rate" means with respect to any Interest
Period of any Eurocurrency Loan denominated in an Optional Currency, the rate
per annum determined by the Administrative Agent at which deposits in the
relevant Optional Currency for such Interest Period are offered, based on the
offered rates appearing on Page 3750 of the Dow Xxxxx Market Service (or any
successor or substitute page of such service) as of 11:00 a.m. (London time) two
Business Days prior to the beginning of such Interest Period; provided that, if
for any reason the Dow Xxxxx Market Service quotation is unavailable, then the
Eurocurrency Offered Rate shall be the rate per annum determined by the
Administrative Agent at which deposits in the relevant Optional Currency for
such Interest Period are offered, based on the information appearing on Reuters
Page "LIBO" (or any successor or substitute page of such service) as of 11:00
a.m. (London time) two Business Days prior to the beginning of such Interest
Period; and, if for any reason both the Dow Xxxxx Market Service and the Reuters
quotations are unavailable, then the Eurocurrency Offered Rate shall be the rate
per annum (rounded upwards to the nearest 1/16 of one percent) equal to the rate
6
at which the Administrative Agent is offered deposits in the relevant Optional
Currency, at or about 11:00 a.m. (London time) two Business Days prior to the
beginning of such Interest Period, in the Eurocurrency Interbank Market where
the foreign currency and exchange operations or eurocurrency funding operations
of the Administrative Agent for such Optional Currencies are customarily
conducted, for delivery on the first day of such Interest Period, for the number
of days comprised therein and in an amount equal (as nearly as may be) to the
amount of the Eurocurrency Loan to which such Interest Period applies.
"Eurocurrency Rate" means with respect to the Interest Period
of any Eurocurrency Loan, the annual rate of interest (rounded upwards to the
nearest 1/16 of one percent) determined by the Administrative Agent to be equal
to (a) as to Loans denominated in Dollars, the Eurodollar Offered Rate, and as
to Loans denominated in any Optional Currency, the Eurocurrency Offered Rate,
multiplied by (b) the Statutory Reserve Rate.
"Eurodollar Offered Rate" means with respect to any Interest
Period of any Eurocurrency Loan denominated in Dollars, the rate per annum
determined by the Administrative Agent at which deposits in Dollars for such
Interest Period are offered, based on the offered rates appearing on Page 3750
of the Dow Xxxxx Market Service (or any successor or substitute page of such
service) as of 11:00 a.m. (London time) two Business Days prior to the beginning
of such Interest Period; provided that, if for any reason the Dow Xxxxx Market
Service quotation is unavailable, then the Eurodollar Offered Rate shall be the
rate per annum determined by the Administrative Agent at which deposits in
Dollars for such Interest Period are offered, based on the information appearing
on Reuters Page "LIBO" (or any successor or substitute page of such service) as
of 11:00 a.m. (London time) two Business Days prior to the beginning of such
Interest Period; and, if for any reason both the Dow Xxxxx Market Service and
the Reuters quotations are unavailable, then the Eurocurrency Offered Rate shall
be the rate per annum (rounded upwards to the nearest 1/16 of one percent) equal
to the rate at which the Administrative Agent is offered Dollar deposits at
approximately 11:00 a.m. (London time) two Business Days prior to the beginning
of such Interest Period, in the London interbank market, for delivery on the
first day of such Interest Period, for the number of days comprised therein and
in an amount equal (as nearly as may be) to the amount of the Eurocurrency Loan
to which such Interest Period applies.
"EU Treaties" means the Treaty of Rome of 25 March, 1957,
establishing the European Community, as amended by the Single Xxxxxxxx Xxx 0000
and by the Treaty on European Union signed at Maastricht on 1 February 1992,
pursuant to which the European Union came into being on November 1, 1993, as
further amended from time to time and in effect at any time of reference.
"Event of Default" has the meaning assigned to such term in
Article VII.
"Excluded Taxes" means, with respect to the Administrative
Agent, any Lender, or any other recipient of any payment to be made by or on
account of any obligation of the Borrower hereunder, (a) income or franchise
taxes imposed on (or measured by) its net income by the United States of
America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located, (b) any branch
profits taxes imposed by the United States of America or any similar tax imposed
by any other jurisdiction in which the Borrower is located, (c) in the case of a
Foreign Lender (other than an assignee pursuant to a request by the Borrower
under Section 2.19(b)), any withholding tax that is (x) imposed on amounts
payable to such Foreign Lender at the time such Foreign Lender becomes a party
to this Agreement (or designates a new lending office or, in the case of a
Participant, becomes a Participant hereunder) (y) is attributable to such
Foreign Lender's failure to comply with Section 2.17(e), except to the extent
that such Foreign Lender (or its assignor, if any) was entitled, at the time of
designation of a new lending office (or assignment), to receive additional
amounts from the Borrower with respect to such withholding tax pursuant to
7
Section 2.17(a), or (z) that is required to be withheld from any payment
hereunder on the basis of the information provided by such Foreign Lender
pursuant to this Agreement, and (d) any interest or penalties imposed with
respect to any Excluded Taxes described in (a), (b) and (c) hereof.
"Existing Credit Facility" means the Amended and Restated
Revolving Credit Agreement dated as of March 11, 2003 among the Borrower, the
various financial institutions party thereto as lenders, Fleet National Bank
(now known as Bank of America, N.A.) as administrative agent and JPMorgan Chase
Bank, N.A. as syndication agent.
"Facility Fee" has the meaning set forth in Section 2.12.
"Facility Fee Rate" means for any calendar quarter, with
respect to the Facility Fee, the rate per annum specified in the table below as
the Facility Fee Rate opposite the Borrower's debt ratings for the Index Debt in
effect on the first day of such calendar quarter as assigned by Moody's and S&P,
respectively.
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Rate Facility Fee
Level Index Debt Ratings Rate
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1 Baal/BBB+ 0.250%
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2 Baa2/BBB 0.250%
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3 Baa3/BBB- 0.300%
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4 Bal/BB+ 0.350%
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5 lower than Bal/BB+ 0.500%
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For purposes of the foregoing, (i) if either Moody's or S&P
shall not have in effect a rating for the Index Debt (other than by reason of
the circumstances referred to in the last sentence of this definition), then
such rating agency shall be deemed to have established a rating in Rate Level 5
in the table above; and (ii) in the event of a single split rating by such
rating organizations (meaning that the ratings established by such rating
organizations are within different Rate Levels that are adjacent to each other
in the table above), the higher rating will apply, and in the event of a double
(or more) split rating by such rating organizations (meaning that the ratings
established by such rating organizations are within different Rate Levels that
are separated by one or more other Rate Levels in the table above), the Facility
Fee Rate shall be as set forth in the next Rate Level below the Rate Level in
which the highest rating falls. If the rating system of Moody's or S&P shall
change, or if either such rating agency shall cease to be in the business of
rating corporate debt obligations, the Borrower and the Lenders shall negotiate
in good faith to amend this definition to reflect such changed rating system or
the unavailability of ratings from such rating agency and, pending the
effectiveness of any such amendment, the Facility Fee Rate shall be determined
by reference to the rating most recently in effect prior to such change or
cessation.
"Federal Funds Effective Rate" means, for any day, the
weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for
such day for such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by it.
"Fee Letter" means that confidential fee letter agreement,
dated as of May 9, 2006, between the Administrative Agent, the Lead Arranger and
the Borrower.
8
"Foreign Lender" means any Lender (or Participant that is
treated as if it were a Lender pursuant to Section 9.04(c)(i)) that is a
Non-U.S. Person.
"Funded Debt" means all Indebtedness of the Borrower and its
Subsidiaries on a consolidated basis in respect of (i) Loans under this
Agreement, (ii) any other Indebtedness for borrowed money (other than
Nonrecourse Debt) and (iii) the amount by which any Acquired Entity Underfunding
exceeds $30,000,000 (whether or not such Acquired Entity Underfunding is
Indebtedness); provided that Funded Debt shall not be deemed to include customer
deposits of Banking Subsidiaries.
"GAAP" means generally accepted accounting principles that are
consistent with the principles promulgated or adopted by the Financial
Accounting Standards Board and its predecessors, as in effect from time to time.
"Governmental Authority" means the government of the United
States of America, any other nation or any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
"Hazardous Materials" means all materials, substances or
wastes regulated, classified, defined or characterized as hazardous, toxic,
pollutant, or contaminant pursuant to any Environmental Law, including petroleum
or petroleum distillates, asbestos or asbestos containing materials, and
polychlorinated biphenyls.
"Indebtedness" of any Person means, without duplication, (a)
all obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
under conditional sale or other title retention agreements relating to property
acquired by such Person, (d) all obligations of such Person in respect of the
deferred purchase price of property or services (excluding current accounts
payable incurred in the ordinary course of business), (e) all Indebtedness of
others secured by (or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien on property owned or
acquired by such Person, whether or not the Indebtedness secured thereby has
been assumed, (f) net obligations of such person under any Swap Contract, (g)
all Capital Lease Obligations of such Person, (h) all obligations of such Person
in respect of drafts drawn under letters of credit and letters of guaranty (i)
all obligations of such Person arising in respect of bankers' acceptances; (j)
obligations with respect to interest payable and (k) any asserted liability with
respect to withdrawal or partial withdrawal of such Person or an ERISA Affiliate
of such Person from a Multiemployer Plan. The Indebtedness of any Person shall
include the Indebtedness of any other entity (including any partnership in which
such Person is a general partner) to the extent such Person is liable therefor
as a result of such Person's ownership interest in or other relationship with
such entity, except to the extent the terms of such Indebtedness provide that
such Person is not liable therefor. The amount of any net obligation under any
Swap Contract on any date shall be deemed to be the Swap Termination Value
thereof.
"Indemnitee" has the meaning set forth in Section 9.03(b).
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Index Debt" means senior, unsecured, long-term indebtedness
for borrowed money of the Borrower that is not guaranteed by any other Person or
subject to any other credit enhancement.
"Information" has the meaning set forth in Section 9.12.
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"Instrument of Adherence" has the meaning set forth in Section
9.04(e).
"Insurance Subsidiary" means any Subsidiary of the Borrower
licensed as an insurance company.
"Interest Election Request" means a request by the Borrower to
convert or continue a Revolving Borrowing in accordance with Section 2.07.
"Interest Payment Date" means (a) with respect to any ABR Loan
(other than a Swingline Loan), the last day of each March, June, September and
December (b) with respect to any Eurocurrency Loan, the last day of the Interest
Period applicable to the Borrowing of which such Loan is a part and, in the case
of a Eurocurrency Borrowing with an Interest Period of more than three months'
duration, each day prior to the last day of such Interest Period that occurs at
intervals of three months' duration after the first day of such Interest Period,
and (c) with respect to any Swingline Loan, the day that such Loan is required
to be repaid.
"Interest Period" means (a) with respect to any Eurocurrency
Borrowing, the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two, three or
six months thereafter, as the Borrower may elect; provided that (i) if any
Interest Period would end on a day other than a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless, in the case
of a Eurocurrency Borrowing only, such next succeeding Business Day would fall
in the next calendar month, in which case such Interest Period shall end on the
next preceding Business Day and (ii) any Interest Period pertaining to a
Eurocurrency Borrowing that commences on the last Business Day of a calendar
month (or on a day for which there is no numerically corresponding day in the
last calendar month of such Interest Period) shall end on the last Business Day
of the last calendar month of such Interest Period. For purposes hereof, the
date of a Borrowing initially shall be the date on which such Borrowing is made
and, in the case of a Revolving Borrowing, thereafter shall be the effective
date of the most recent conversion or continuation of such Borrowing.
"Investments" means any advance, loan, extension of credit or
capital contribution to, or purchase of any stocks, bonds, notes, debentures or
other securities of, or any investment in, any Person.
"JPMorgan Chase" means JPMorgan Chase Bank, N.A., in its
individual capacity.
"Lead Arranger" means X.X. Xxxxxx Securities, Inc. acting in
the capacity as sole bookrunner and sole lead arranger.
"Lenders" has the meaning set forth in the preamble and
includes any Person that shall have become a party hereto pursuant to an
Assignment and Assumption or an Instrument of Adherence, other than any such
Person that ceases to be a party hereto pursuant to an Assignment and
Assumption. Unless the context otherwise requires, the term "Lenders" includes
the Swingline Lender.
"Lien" means, with respect to any asset, (a) any mortgage,
deed of trust, lien, pledge, hypothecation, encumbrance, charge or security
interest in, on or of such asset, or (b) the interest of a vendor or a lessor
under any conditional sale agreement, capital lease or title retention agreement
(or any financing lease having substantially the same economic effect as any of
the foregoing) relating to such asset.
"Loans" means the loans made by the Lenders to the Borrower
pursuant to this Agreement.
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"Loan Documents" means, collectively, this Agreement, the Fee
Letter and each other agreement, certificate, document or instrument delivered
in connection with any Loan Document, whether or not specifically mentioned
herein or therein.
"Marketable Securities" has the meaning set forth in Section
6.01(b).
"Market Price" has the meaning set forth in Section 7.02(b).
"Market Value" has the meaning set forth in Section 7.02(b).
"Material Adverse Effect" means a material adverse effect on
(a) the business, operations, assets or financial or other condition of the
Borrower and the Subsidiaries taken as a whole, (b) the ability of the Borrower
to perform any of its obligations under this Agreement and any other Loan
Documents or (c) the validity or enforceability of this Agreement or any other
Loan document or rights or remedies of the Administrative Agent or the Lenders
hereunder of thereunder.
"Maturity Date" means June __, 2011.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Non-U.S. Person" means any Person who is not a "United States
Person" as defined in Section 7701(a)(30) of the Code.
"Nonrecourse Debt" means (x) Indebtedness of any Subsidiary of
the Borrower which is not guaranteed by, is not secured by assets (other than
assets of such Subsidiary) of, and does not otherwise have recourse to, the
Borrower or its assets (other than assets of such Subsidiary) and (y)
Indebtedness of the Borrower incurred to finance one or more assets of the
Borrower, which Indebtedness has recourse only to such asset or assets for
payment.
"OC Request" has the meaning set forth in Section 2.04.
"Optional Currency" means any of the Euro, Sterling and Yen,
so long as any such currency is freely convertible into Dollars and is traded on
any recognized interbank market selected by the Administrative Agent in good
faith (the "Specified Optional Currencies"), and any currency other than Dollars
and the Specified Optional Currencies which is freely convertible into Dollars
and traded on any recognized interbank market selected by the Administrative
Agent in good faith and which is requested by the Borrower and approved by each
of the Lenders at the time of such request.
"Other Taxes" means any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement.
"Participant" has the meaning set forth in Section 9.04.
"PBGC" means the Pension Benefit Guaranty Corporation referred
to and defined in ERISA and any successor entity performing similar functions.
"Permitted Acquisition" has the meaning set forth in Section
6.06.
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"Permitted Distribution" means any distribution to the
Borrower's shareholders of equity shares of one or more Subsidiaries; provided
that (i) the aggregate book value of such Subsidiary or Subsidiaries, when added
together with the aggregate book value of all other Subsidiaries with respect to
which such a Permitted Distribution has been effected from and after April 1,
2006, shall not exceed $400,000,000, and (ii) no Default exists at the time of
declaration of such distribution or at the time of the consummation thereof,
either before or after giving effect thereto.
"Permitted Liens" has the meaning set forth in Section 6.04.
"Permitted Voluntary Proceeding" means the commencement by a
Subsidiary of the Borrower of a voluntary case or proceeding under Title 11,
U.S. Code or any similar federal or state law for the relief of debtors with
respect to any Subsidiary if (i) the sum of the Borrower's total direct or
indirect investment at cost, after write-downs, in such Subsidiary and the
Borrower's Contingent Obligations in respect of liabilities of such Subsidiary
does not exceed $200,000,000, and (ii) the commencement of such case or
proceeding does not create nor occasion any violation or noncompliance with
other provisions of this Agreement.
"Person" means an individual, Entity or Governmental
Authority.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Prime Rate" means the rate of interest per annum publicly
announced from time to time by JPMorgan Chase as its prime rate in effect at its
office located at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx; each change in the Prime
Rate shall be effective from and including the date such change is publicly
announced as being effective.
"Recipient" has the meaning set forth in Section 7.02(b).
"Register" has the meaning set forth in Section 9.04.
"Related Parties" means, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
"Required Lenders" means, at any time, Lenders having
Revolving Credit Exposures and unused Commitments representing at least 51% of
the sum of the aggregate Revolving Credit Exposures and unused Commitments at
such time.
"Requirements of Law" means as to any Person, the Certificate
of Incorporation and By-Laws or other organizational or governing documents of
such Person, and any law, treaty, rule or regulation, or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person or
any of its property is subject.
"Responsible Officer" means the President, a Vice President or
a Financial Officer of the Borrower.
"Reverse Repos" has the meaning set forth in Section 6.04(m).
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"Revolving Credit Exposure" means, with respect to any Lender
at any time, the sum of the outstanding principal amount of such Lender's
Revolving Loans and Swingline Exposure at such time.
"Revolving Loan" means a Loan made pursuant to Section 2.03.
"S&P" means Standard & Poor's.
"Shareholder's Equity" means at any particular date, the total
shareholders' equity of the Borrower (including without limitation equity in
respect of the Borrower's outstanding preferred stock, if any), determined on a
consolidated basis in accordance with GAAP; provided that, if any Nonrecourse
Debt is excluded from the computation of Funded Debt under Section 6.03, then,
for purposes of determining Shareholders' Equity under Section 6.03,
Shareholders' Equity shall be reduced (x) by the carrying value of the assets of
the Borrower to which such Nonrecourse Debt has recourse, to the extent of such
Nonrecourse Debt of the Borrower, and/or (y) by the Borrower's equity investment
in any Subsidiary having such Nonrecourse Debt, to the extent of such
Subsidiary's Nonrecourse Debt.
"SL Loan Request" has the meaning set forth in Section
2.05(b).
"Statutory Reserve Rate" means a fraction (expressed as a
decimal), the numerator of which is the number one and the denominator of which
is the number one minus the aggregate of the maximum reserve percentages
(including any marginal, special, emergency or supplemental reserves) expressed
as a decimal established by the Board to which the Administrative Agent is
subject, for eurocurrency funding (currently referred to as "Eurocurrency
Liabilities" in Regulation D of the Board). Such reserve percentages shall
include those imposed pursuant to such Regulation D. Eurocurrency Loans shall be
deemed to constitute eurocurrency funding and to be subject to such reserve
requirements without benefit of or credit for proration, exemptions or offsets
that may be available from time to time to any Lender under such Regulation D or
any comparable regulation. The Statutory Reserve Rate shall be adjusted
automatically on and as of the effective date of any change in any reserve
percentage.
"Sterling" means pounds sterling in lawful currency for the
time being of the United Kingdom.
"subsidiary" means, with respect to any Person (the "parent")
at any date, any corporation, limited liability company, partnership,
association or other entity the accounts of which would be consolidated with
those of the parent in the parent's consolidated financial statements if such
financial statements were prepared in accordance with GAAP as of such date.
"Subsidiary" means any subsidiary of the Borrower.
"Swap Contract" means any and all rate swap transactions,
basis swaps, credit derivative transactions, forward rate transactions,
commodity swaps, commodity options, forward commodity contracts, equity or
equity index swaps or options, bond or bond price or bond index swaps or options
or forward bond or forward bond price or forward bond index transactions,
interest rate options, forward foreign exchange transactions, cap transactions,
floor transactions, collar transactions, currency swap transactions,
cross-currency rate swap transactions, currency options, spot contracts, or any
other similar transactions or any combination of any of the foregoing (including
any options to enter into any of the foregoing), whether or not any such
transaction is governed by or subject to any master agreement.
"Swap Termination Value" means, in respect of any one or more
Swap Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or after
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the date such Swap Contracts have been closed out and termination value(s)
determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as the
xxxx-to-market value(s) for such Swap Contracts, as determined based upon one or
more mid-market or other readily available quotations provided by any recognized
dealer in such Swap Contracts (which may include a Lender or any Affiliate of a
Lender).
"Swingline Exposure" means, at any time, the aggregate
principal amount of all Swingline Loans outstanding at such time. The Swingline
Exposure of any Lender at any time shall be its Applicable Percentage of the
total Swingline Exposure at such time.
"Swingline Lender" means JPMorgan Chase, in its capacity as
lender of Swingline Loans hereunder.
"Swingline Loan" means a Loan made pursuant to Section 2.05.
"Taxes" means any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Terminating Event" means any of the events specified in
Section 7.02, whether or not any requirement for the lapse of time, or any other
condition, has been satisfied.
"Total Commitment" means, the aggregate amount of the
Commitments of the Lenders to the Borrower as provided herein.
"Total Current Obligations" has the meaning set forth in
Section 6.01(b).
"Total Liquid Assets" has the meaning set forth in Section
6.01(b).
"Trading Day" means any day on which the principal exchange or
quotation system on which the Borrower's Common Shares are listed or traded, is
open for trading.
"Transactions" means the execution, delivery and performance
by the Borrower of this Agreement, the borrowing of Loans and the use of the
proceeds thereof.
"Type", when used in reference to any Loan or Borrowing,
refers to whether the rate of interest on such Loan, or on the Loans comprising
such Borrowing, is determined by reference to the Eurocurrency Rate or the
Alternate Base Rate.
"Voting Stock" means, as to the Borrower, shares of the stock
having ordinary voting power (other than stock having such power only by reason
of the happening of a contingency).
"WilTel Plans" means the WilTel Communications, LLC Pension
Plan and the related trust as amended from time to time, and the WilTel
Communications LLC Supplemental Retirement Plan, as amended from time to time.
"WilTel Underfunding" means at any time of determination, the
excess of (a) the present value at such time of all accumulated benefit
obligations under the WilTel Plans (based on the assumptions used for purposes
of Statement of Financial Accounting Standards No. 87) over (b) the fair market
value of the assets of the WilTel Plans at such time.
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"Withdrawal Liability" means liability to a Multiemployer Plan
as a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
"Yen" means the lawful currency for the time being of Japan.
1.02. Classification of Loans and Borrowings. For purposes of
this Agreement, Loans may be classified and referred to by Class (e.g., a
"Revolving Loan") or by Type (e.g., a "Eurocurrency Loan") or by Class and Type
(e.g., a "Eurocurrency Revolving Loan"). Borrowings also may be classified and
referred to by Class (e.g., a "Revolving Borrowing") or by Type (e.g., a
"Eurocurrency Borrowing") or by Class and Type (e.g., a "Eurocurrency Revolving
Borrowing").
1.03. Terms Generally. The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement and (e) the words
"asset" and "property" shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights.
1.04. Accounting Terms; GAAP. Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; provided
that, if the Borrower notifies the Administrative Agent that the Borrower
requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the application thereof on
the operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
ARTICLE II
The Credit
2.01. Commitments. (a) Subject to the terms and conditions set
forth herein, each Lender agrees to make Revolving Loans in Dollars and/or any
Optional Currency to the Borrower from time to time during the Availability
Period in an aggregate principal amount that will not result in such Lender's
Revolving Credit Exposure exceeding such Lender's Commitment. Within the
foregoing limits and subject to the terms and conditions set forth herein, the
Borrower may borrow, prepay and reborrow Revolving Loans.
15
(b) Notwithstanding any other provision of this Agreement but
subject to Section 2.05(c), at no time shall the Dollar Equivalent of the sum of
the aggregate principal amount of all Revolving Loans outstanding (after giving
effect to all Loans requested) and all Swingline Loans outstanding exceed the
Total Commitment of the Lenders then in effect. The Dollar Equivalent of the
principal amount of the Revolving Loans outstanding from each Lender to the
Borrower shall not at any time exceed in the aggregate an amount (after giving
effect to all Loans requested) equal to such Lender's pro rata portion (based on
its Commitment) times (i) the Total Commitment minus (ii) the sum of the
aggregate principal amount of all Swingline Loans outstanding. Within the
foregoing limits, and subject to all of the other terms and conditions set forth
in this Agreement, the Borrower may borrow, prepay pursuant to Section 2.11
hereof, and reborrow Revolving Loans.
2.02. Loans and Borrowings. (a) Each Revolving Loan shall be
made as part of a Borrowing consisting of Revolving Loans made by the Lenders
ratably in accordance with their respective Commitments. The failure of any
Lender to make any Loan required to be made by it shall not relieve any other
Lender of its obligations hereunder; provided that the Commitments of the
Lenders are several and no Lender shall be responsible for any other Lender's
failure to make Loans as required.
(b) Subject to Section 2.14, (i) each Revolving Borrowing
shall be comprised entirely of ABR Loans or Eurocurrency Loans as the Borrower
may request in accordance herewith. Each Swingline Loan shall be an ABR Loan.
Each Lender at its option may make any Eurocurrency Loan by causing any domestic
or foreign branch or Affiliate of such Lender to make such Loan; provided that
any exercise of such option shall not affect the obligation of the Borrower to
repay such Loan in accordance with the terms of this Agreement. Each ABR Loan or
Swingline Loan shall be denominated in Dollars, and each Eurocurrency Loan shall
be denominated in Dollars or, subject to Section 2.04, in an Optional Currency.
(c) At the commencement of each Interest Period for any
Eurocurrency Revolving Borrowing, such Borrowing shall be in an aggregate amount
that is an integral multiple of $500,000 and not less than $5,000,000. At the
time that each ABR Revolving Borrowing is made, such Borrowing shall be in an
aggregate amount that is an integral multiple of $250,000 and not less than
$5,000,000; provided that an ABR Revolving Borrowing may be in an aggregate
amount that is equal to the entire unused balance of the total Commitments. Each
Swingline Loan shall be in an amount that is an integral multiple of $100,000
and not less than $1,000,000. Borrowings of more than one Type and Class may be
outstanding at the same time; provided that there shall not at any time be more
than a total of 10 Eurocurrency Revolving Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request, or to elect to convert or continue,
any Borrowing if the Interest Period requested with respect thereto would end
after the Maturity Date.
2.03. Requests for Revolving Borrowings. To request a
Revolving Borrowing, the Borrower shall notify the Administrative Agent of such
request by telephone (a) in the case of a Eurocurrency Borrowing, not later than
11:00 a.m., New York City time, three Business Days before the date of the
proposed Borrowing or (b) in the case of an ABR Borrowing, not later than 11:00
a.m., New York City time, one Business Day before the date of the proposed
Borrowing. Each such telephonic Borrowing Request shall be irrevocable and shall
be confirmed promptly by hand delivery or telecopy to the Administrative Agent
of a written Borrowing Request in a form approved by the Administrative Agent
and signed by the Borrower. Each such telephonic and written Borrowing Request
shall specify the following information in compliance with Section 2.02:
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(i) the aggregate amount of the requested Borrowing stated
in either Dollars or (subject to Section 2.04) an Optional Currency;
(ii) the date of such Borrowing, which shall be a Business
Day;
(iii) whether such Borrowing is to be an ABR Borrowing or
a Eurocurrency Borrowing (and, if a Eurocurrency borrowing
denominated in an Optional Currency is requested, such Borrowing
Request must comply with the requirements of a OC Request pursuant to
Section 2.04 hereof);
(iv) in the case of a Eurocurrency Borrowing, the initial
Interest Period to be applicable thereto, which shall be a period
contemplated by the definition of the term "Interest Period"; and
(v) the location and number of the Borrower's account to
which funds are to be disbursed, which shall comply with the
requirements of Section 2.06.
If no election as to the Type of Revolving Borrowing is specified, then the
requested Revolving Borrowing shall be an ABR Borrowing. If no Interest Period
is specified with respect to any requested Eurocurrency Revolving Borrowing,
then the Borrower shall be deemed to have selected an Interest Period of one
month's duration. Promptly following receipt of a Borrowing Request in
accordance with this Section, the Administrative Agent shall advise each Lender
of the details thereof and of the amount of such Lender's Loan to be made as
part of the requested Borrowing.
2.04. Procedure for Optional Currencies. (a) Request for
Optional Currency. Subject to the limitations set forth in Section 2.01, the
Borrower may upon not less than three Business Days' notice to the
Administrative Agent, request that one or more Revolving Loans be made as
Eurocurrency Loans in an Optional Currency (an "OC Request"); provided that any
Eurocurrency Loan requested shall be in an amount not less than $5,000,000, and
shall be in an integral multiple of $500,000 in excess thereof. Each OC Request
shall be in writing (or by confirmed electronic communication or by telephone
confirmed in writing) and shall specify (in addition to compliance with the
requirements of a Borrowing Request pursuant to Section 2.03): (i) the Optional
Currency in which the Eurocurrency Loan is requested to be made and (ii) in the
case of an Optional Currency which is the legal tender of a country in which the
Administrative Agent has no office, the Borrower's account with a depository in
such country to which payment of the proceeds of such Eurocurrency Loan is
requested to be made. If any Lender, on or prior to the second Business Day
preceding the first day of any Interest Period for which an OC Request has been
delivered requesting a Eurocurrency Loan in an Optional Currency or on any
funding date, determines (which determination shall be conclusive) that the
Optional Currency requested is not freely transferable and convertible into
Dollars or that it will be impracticable for such Lender to fund the requested
Revolving Loan in such Optional Currency, then such Lender shall so notify the
Administrative Agent, which notification shall be given immediately by the
Administrative Agent to the Borrower, and such Lender's portion of the requested
Revolving Loan shall, notwithstanding any contrary election by the Borrower or
any other provisions hereof, be denominated in Dollars as an ABR Loan unless the
Borrower, one Business Day prior to the commencement of such Interest Period and
by notice complying with the requirements of Section 2.03 hereof, elects to have
such Lender's Revolving Loan denominated in Dollars as a Eurocurrency Loan. In
the event that the Borrower repays such portion of a Revolving Loan denominated
in Dollars as an ABR Loan or a Eurocurrency Loan, as the case may be, in
accordance with Section 2.01 and such repayment results in Revolving Loans
outstanding that are not pro rata in accordance with the Revolving Credit
Exposure of the Lenders, then all subsequent principal repayments denominated in
the Optional Currency which the applicable Lender did not advance shall be made
by the Borrower to the Administrative Agent for the respective accounts of such
17
Lenders other than the Lender which did not advance the Optional Currency on a
pro rata basis until such time as the Revolving Loans are outstanding on a pro
rata basis. Subject to the foregoing and to the satisfaction of the terms and
conditions of Article IV, each Revolving Loan requested to be made in an
Optional Currency shall be made on the date specified therefor in the related
Borrowing Request, in the currency requested in the related OC Request and, upon
being so made, will have the Interest Period requested in the related Borrowing
Request.
(b) Exchange Rate. For purpose of this Agreement the amount in
one currency which shall be equivalent on any particular date to a specified
amount in another currency shall be that amount (as conclusively ascertained by
the Administrative Agent by its normal banking practices, absent manifest error)
in the first currency which is or could be purchased by the Administrative Agent
in accordance with its normal banking practices with such specified amount in
the second currency in any recognized Eurocurrency Interbank Market selected by
the Administrative Agent in good faith for delivery on such date at the spot
rate of exchange prevailing at 10:00 a.m. (New York City time), or as soon
thereafter as practicable, on such date.
(c) Denominations. In the event that any portion of the funds
available under the terms of this Agreement is denominated in an Optional
Currency, the Dollar Equivalent of such portion of the funds shall be calculated
pursuant to Section 2.04(b) above. The amount so determined shall then be added
to the amount already outstanding in Dollars for the purpose of determining the
remaining availability of funds under Section 2.01 and any required repayments
under clause (d) of this Section 2.04.
(d) Repayment. If at any time prior to the Maturity Date, the
Dollar Equivalent of the aggregate principal amount outstanding of all Revolving
Loans and Swingline Loans shall exceed the Total Commitment for three or more
consecutive Business Days as a result of fluctuations in applicable conversion
rates between Dollars and any Optional Currencies, the Borrower shall pay or
cause to be paid immediately, upon demand made by the Administrative Agent, such
amounts as are sufficient to eliminate such excess and to reduce the aggregate
principal amount outstanding to the Dollar Equivalent of the Total Commitment.
In the event there are any Revolving Loans outstanding which are denominated in
an Optional Currency, the Administrative Agent shall provide the Lenders and the
Borrower with calculations on the last day of each calendar month that such
Loans are outstanding as to the Dollar Equivalents of such Revolving Loans.
(e) Funding. Each Lender may make any Eurocurrency Loan
denominated in an Optional Currency by causing any of its foreign branches or
foreign affiliates to make such Eurocurrency Loan (whether or not such branch or
affiliate is named as a lending office on the signature pages hereof); provided
that in such event the obligation of the Borrower to repay such Eurocurrency
Loan shall nevertheless be to such Lender and shall, for all purposes of this
Agreement (including without limitation for purposes of the definition of the
term "Required Lenders") be deemed made by such Lender, to the extent of such
Eurocurrency Loan, for the account of such branch or affiliate.
2.05. Swingline Loans. (a) Subject to the terms and conditions
set forth herein, the Swingline Lender agrees to make Swingline Loans to the
Borrower from time to time during the Availability Period, in an aggregate
principal amount at any time outstanding that will not result in (i) the
aggregate principal amount of outstanding Swingline Loans exceeding $10,000,000;
provided that the Swingline Lender shall not be required to make a Swingline
Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and
subject to the terms and conditions set forth herein, the Borrower may borrow,
prepay and reborrow Swingline Loans.
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(b) To request a Swingline Loan, the Borrower shall notify the
Administrative Agent of such request (a "SL Loan Request") by telephone
(confirmed by telecopy), not later than 12:00 noon, New York City time, on the
day of a proposed Swingline Loan. Each such notice shall be irrevocable and
shall specify the requested date (which shall be a Business Day) and amount of
the requested Swingline Loan. The Administrative Agent will promptly advise the
Swingline Lender of any such notice received from the Borrower. Upon
satisfaction of the applicable conditions set forth in this Agreement, the
Swingline Lender shall make each Swingline Loan available to the Borrower by
means of a credit to the general deposit account of the Borrower with the
Swingline Lender by 3:00 p.m., New York City time, on the requested date of such
Swingline Loan; provided that the Swingline Lender shall not advance any
Swingline Loans after it has received notice that a Default has occurred and has
not been cured or waived in accordance with the provisions of this Agreement.
The Swingline Lender shall not be obligated to make any Swingline Loans at any
time when any Lender is a Delinquent Lender unless the Swingline Lender has
entered into arrangements satisfactory to it to eliminate the Swingline Lender's
risk with respect to such Delinquent Lender, including by cash collateralizing
such Delinquent Lender's Revolving Credit Exposure of the outstanding Swingline
Loans and any such additional Swingline Loans to be made.
(c) The Swingline Lender may by written notice given to the
Administrative Agent not later than 10:00 a.m., New York City time, on any
Business Day require the Lenders to acquire participations on such Business Day
in all or a portion of the Swingline Loans outstanding. Such notice shall
specify the aggregate amount of Swingline Loans in which Lenders will
participate. Promptly upon receipt of such notice, the Administrative Agent will
give notice thereof to each Lender, specifying in such notice such Lender's
Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby
absolutely and unconditionally agrees, upon receipt of notice as provided above,
to pay to the Administrative Agent, for the account of the Swingline Lender,
such Lender's Applicable Percentage of such Swingline Loan or Loans. Each Lender
acknowledges and agrees that its obligation to acquire participations in
Swingline Loans pursuant to this paragraph is absolute, irrevocable and
unconditional and shall not be affected by any circumstance whatsoever,
including the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever. Each Lender shall
comply with its obligation under this paragraph by wire transfer of immediately
available funds, in the same manner as provided in Section 2.06 with respect to
Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to
the payment obligations of the Lenders), and the Administrative Agent shall
promptly pay to the Swingline Lender the amounts so received by it from the
Lenders. The Administrative Agent shall notify the Borrower of any
participations in any Swingline Loan acquired pursuant to this paragraph, and
thereafter payments in respect of such Swingline Loan shall be made to the
Administrative Agent and not to the Swingline Lender. Any amounts received by
the Swingline Lender from the Borrower (or other party on behalf of the
Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender
of the proceeds of a sale of participations therein shall be promptly remitted
to the Administrative Agent; any such amounts received by the Administrative
Agent shall be promptly remitted by the Administrative Agent to the Lenders that
shall have made their payments pursuant to this paragraph and to the Swingline
Lender, as their interests may appear; provided that any such payment so
remitted shall be repaid to the Swingline Lender or to the Administrative Agent,
as applicable, if and to the extent such payment is required to be refunded to
the Borrower for any reason. The purchase of participations in a Swingline Loan
pursuant to this paragraph shall not relieve the Borrower of any default in the
payment thereof.
2.06. Funding of Borrowings. (a) Each Lender shall make each
Loan to be made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds by 12:00 noon, New York City time, to the account of
the Administrative Agent most recently designated by it for such purpose by
notice to the Lenders; provided that Swingline Loans shall be made as provided
19
in Section 2.05. The Administrative Agent will make such Loans available to the
Borrower by promptly crediting the amounts so received, in like funds, to an
account of the Borrower maintained with the Administrative Agent in New York
City and designated by the Borrower in the applicable Borrowing Request.
(b) Unless the Administrative Agent shall have received notice
from a Lender prior to the proposed date of any Borrowing that such Lender will
not make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share
of the applicable Borrowing available to the Administrative Agent, then the
applicable Lender and the Borrower severally agree to pay to the Administrative
Agent forthwith on demand such corresponding amount with interest thereon, for
each day from and including the date such amount is made available to the
Borrower to but excluding the date of payment to the Administrative Agent, at
(i) in the case of such Lender, the greater of the Federal Funds Effective Rate
and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation; provided that in the case of Loans
denominated in an Optional Currency such Lender shall pay the rate of interest
per annum on which overnight deposits in such Optional Currency would be offered
for such day by the Administrative Agent to major banks in the London interbank
market, or (ii) in the case of the Borrower, the interest rate applicable to ABR
Loans. If such Lender pays such amount to the Administrative Agent, then such
amount shall constitute such Lender's Loan included in such Borrowing.
2.07. Interest Elections. (a) Each Revolving Borrowing
initially shall be of the Type specified in the applicable Borrowing Request
and, in the case of a Eurocurrency Revolving Borrowing, shall have an initial
Interest Period as specified in such Borrowing Request. Thereafter, the Borrower
may elect to convert such Borrowing to a different Type or to continue such
Borrowing and , in the case of a Eurocurrency Revolving Borrowing, may elect
Interest Periods therefor, all as provided in this Section. The Borrower may
elect different options with respect to different portions of the affected
Borrowing, in which case each such portion shall be allocated ratably among the
Lenders holding the Loans comprising such Borrowing, and the Loans comprising
each such portion shall be considered a separate Borrowing. This Section shall
not apply to Swingline Borrowings, which may not be converted or continued.
(b) To make an election pursuant to this Section, the Borrower
shall notify the Administrative Agent of such election by telephone by the time
that a Borrowing Request would be required under Section 2.03 if the Borrower
were requesting a Revolving Borrowing of the Type resulting from such election
to be made on the effective date of such election. Each such telephonic Interest
Election Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Interest Election
Request in a form approved by the Administrative Agent and signed by the
Borrower.
(c) Each telephonic and written Interest Election Request
shall specify the following information in compliance with Section 2.03.
(i) the Borrowing to which such Interest Election Request
applies and, if different options are being elected with respect to
different portions thereof, the portions thereof to be allocated to
each resulting Borrowing (in which case the information to be
specified pursuant to clauses (iii) and (iv) below shall be specified
for each resulting Borrowing);
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(ii) the effective date of the election made pursuant to
such Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR
Borrowing or a Eurocurrency Borrowing; and
(iv) if the resulting Borrowing is a Eurocurrency
Borrowing, the Interest Period to be applicable thereto after giving
effect to such election, which shall be a period contemplated by the
definition of the term "Interest Period".
If any such Interest Election Request requests a Eurocurrency Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election
Request, the Administrative Agent shall advise each Lender of the details
thereof and of such Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest
Election Request with respect to a Eurocurrency Revolving Borrowing prior to the
end of the Interest Period applicable thereto, then, (i) as to any Eurocurrency
Loan denominated in Dollars, such Eurocurrency Loan shall be automatically
converted to an ABR Loan on the last day of the first Interest Period relating
thereto, and (ii) as to any Eurocurrency Loan denominated in an Optional
Currency, such Eurocurrency Loan shall be repaid on the last day of the Interest
Period relating thereto. Notwithstanding any contrary provision hereof, if an
Event of Default has occurred and is continuing and the Administrative Agent, at
the request of the Required Lenders, so notifies the Borrower, then, so long as
an Event of Default is continuing (x) as to any Eurocurrency Loan denominated in
Dollars, no such Eurocurrency Loan may be continued as such but shall be
automatically converted to an ABR Loan on the last day of the first Interest
Period relating thereto ending during the continuance of any Event of Default;
(y) as to any Eurocurrency Loan denominated in an Optional Currency, no such
Eurocurrency Loan may be continued as such but shall be repaid by the Borrower
on the last day of the Interest Period relating thereto.
2.08. Termination and Reduction of Commitments. (a) Unless
previously terminated, the Commitments shall terminate on the Maturity Date.
(b) The Borrower may at any time terminate, or from time to
time reduce, the Commitments; provided that (i) each reduction of the
Commitments shall be in an amount that is an integral multiple of $5,000,000 and
not less than $10,000,000 and (ii) the Borrower shall not terminate or reduce
the Commitments if, after giving effect to any concurrent prepayment of the
Loans in accordance with Section 2.11, the Revolving Credit Exposures would
exceed the total Commitments.
(c) The Borrower shall notify the Administrative Agent of any
election to terminate or reduce the Commitments under paragraph (b) of this
Section at least three Business Days prior to the effective date of such
termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the Administrative Agent
shall advise the Lenders of the contents thereof. Each notice delivered by the
Borrower pursuant to this Section shall be irrevocable; provided that a notice
of termination of the Commitments delivered by the Borrower may state that such
notice is conditioned upon the effectiveness of other credit facilities, in
which case such notice may be revoked by the Borrower (by notice to the
Administrative Agent on or prior to the specified effective date) if such
condition is not satisfied. Any termination or reduction of the Commitments
shall be permanent. Each reduction of the Commitments shall be made ratably
among the Lenders in accordance with their respective Commitments. Termination
21
of Commitments shall also terminate the obligation of the Lenders to make Loans.
2.09. Increase of Total Commitment; Additional Lenders. The
Borrower shall have the right upon one or more occasions by written notice to
the Administrative Agent (a "Commitment Increase Request") to request an
increase in the Total Commitment (the amount of increase requested on any
occasion being referred to herein as the "Increase Amount"), up to a maximum
Total Commitment of $175,000,000; provided that, at the time of the Commitment
Increase Request and at the time such request would become effective, no Default
has occurred and is continuing or would exist after giving effect to such
increase in the Total Commitment. Following a Commitment Increase Request, one
or more other Persons (other than individuals) (an "Additional Lender") that
have agreed to provide the Increase Amount and that are acceptable to each of
the Administrative Agent and Borrower may be admitted as a Lender party to this
Agreement in accordance with the provisions of Section 9.04(e); provided that
the Commitment of any such Additional Lender shall not be less than $10,000,000
nor greater than the difference between the new Total Commitment and the
aggregate Commitments of the other Lenders (including the Commitment of any
other Additional Lender being admitted at the same time as a Lender party to
this Agreement). Any such increase in the Total Commitment shall become
effective only upon written notice by the Administrative Agent to the Borrower
and the Lenders specifying the effective date of such increase in Total
Commitment, together with a revised Schedule 2.01 stating the new Total
Commitment, and, in respect thereof, the Commitment Amount of each Additional
Lender, the respective continuing Commitment Amounts of the other Lenders and
the new Revolving Credit Exposure of the Lenders. Upon the effective date of the
increased Total Commitment, each Additional Lender shall make all (if any) such
payments to the Administrative Agent for distribution to the other Lenders as
may be necessary to result in the respective Revolving Loans held by such
Additional Lender and the other Lenders being equal to such applicable Lender's
Revolving Credit Exposure (as set forth in the revised Schedule 2.01) of the
aggregate principal amount of all Revolving Loans outstanding as of such date.
The Borrower hereby agrees that any Additional Lender so paying any such amount
to the other Lenders pursuant to the preceding sentence shall be entitled to all
the rights of a Lender having Commitments hereunder in respect of such amounts,
that such payments to such other Lenders shall thereafter constitute Revolving
Loans made by such Additional Lender hereunder and that such Additional Lender
may, to the fullest extent permitted by law, exercise all of its right of
payment (including the right of set-off) with respect to such amounts as fully
as if such Additional Lender had initially advanced to the Borrower directly the
amount of such payments. If any such adjustment payments pursuant to the
preceding sentences of this Section 2.09 are made by an Additional Lender to
other Lenders at a time other than the end of an Interest Period in the case of
all or any portion of Revolving Loans constituting Eurocurrency Loans, the
Borrower shall pay to each of the Lenders receiving any such payment, at the
time that such payment is made pursuant to this Section 2.09, the amount that
would be required to be paid by the Borrower pursuant to Section 2.16 had such
payments been made directly by the Borrower.
2.10. Repayment of Loans; Evidence of Debt. (a) The Borrower
hereby unconditionally promises to pay (i) to the Administrative Agent for the
account of each Lender the then unpaid principal amount of each Revolving Loan
on the Maturity Date and (ii) to the Swingline Lender the then unpaid principal
amount of each Swingline Loan on the earlier of the Maturity Date and the first
date after such Swingline Loan is made that is the 15th or last day of a
calendar month and is at least two Business Days after such Swingline Loan is
made; provided that on each date that a Revolving Borrowing is made, the
Borrower shall repay all Swingline Loans then outstanding. On the Maturity Date,
there shall become absolutely due and payable and the Borrower will pay all of
the Loans outstanding, together with any and all accrued and unpaid interest
thereon.
22
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of the Borrower to
such Lender resulting from each Loan made by such Lender, including the amounts
of principal and interest payable and paid to such Lender from time to time
hereunder.
(c) The Administrative Agent shall maintain accounts in which
it shall record (i) the amount of each Loan made hereunder, the Class and Type
thereof and the Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) the amount of any sum received by
the Administrative Agent hereunder for the account of the Lenders and each
Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section shall be conclusive evidence of the
existence and amounts of the obligations recorded therein absent manifest error;
provided that the failure of any Lender or the Administrative Agent to maintain
such accounts or any error therein shall not in any manner affect the obligation
of the Borrower to repay the Loans in accordance with the terms of this
Agreement.
(e) Any Lender may request that Loans made by it be evidenced
by a promissory note. In such event, the Borrower shall prepare, execute and
deliver to such Lender a promissory note payable to the order of such Lender
(or, if requested by such Lender, to such Lender and its registered assigns) and
in a form approved by the Administrative Agent. Thereafter, the Loans evidenced
by such promissory note and interest thereon shall at all times (including after
assignment pursuant to Section 9.04(a)) be represented by one or more promissory
notes in such form payable to the order of the payee named therein (or, if such
promissory note is a registered note, to such payee and its registered assigns).
2.11. Prepayment of Loans. (a) The Borrower shall have the
right at any time and from time to time to prepay any Borrowing in whole or in
part, subject to prior notice in accordance with paragraph (b) of this Section.
(b) The Borrower shall notify the Administrative Agent (and,
in the case of prepayment of a Swingline Loan, the Swingline Lender) by
telephone (confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurocurrency Revolving Borrowing, not later than 11:00 a.m., New
York City time, one Business Day before the date of prepayment, (ii) in the case
of prepayment of an ABR Revolving Borrowing, not later than 11:00 a.m., New York
City time, one Business Day before the date of prepayment or (iii) in the case
of prepayment of a Swingline Loan, not later than 12:00 noon, New York City
time, on the date of prepayment. Each such notice shall be irrevocable and shall
specify the prepayment date and the principal amount of each Borrowing or
portion thereof to be prepaid; provided that, if a notice of prepayment is given
in connection with a conditional notice of termination of the Commitments as
contemplated by Section 2.08, then such notice of prepayment may be revoked if
such notice of termination is revoked in accordance with Section 2.08. Promptly
following receipt of any such notice relating to a Revolving Borrowing, the
Administrative Agent shall advise the Lenders of the contents thereof. Each
partial prepayment of any Revolving Borrowing shall be in an amount equal to
$100,000 or a whole multiple thereof. Each prepayment of a Revolving Borrowing
shall be applied ratably to the Loans included in the prepaid Borrowing.
Prepayments shall be accompanied by accrued interest to the extent required by
Section 2.13.
2.12. Fees. (a) The Borrower agrees to pay to the
Administrative Agent for the account of each Lender an annual facility fee (the
"Facility Fee"), calculated at the rate per annum equal to the Facility Fee Rate
on the daily amount of the Commitment of such Lender (whether used or unused)
during the period from and including the Effective Date to but excluding the
date on which such Commitment terminates; provided that, if such Lender
continues to have any Revolving Credit Exposure after its Commitment terminates,
23
then such Facility Fee shall continue to accrue on the daily amount of such
Lender's Revolving Credit Exposure from and including the date on which its
Commitment terminates to but excluding the date on which such Lender ceases to
have any Revolving Credit Exposure. Accrued Facility Fees shall be payable
quarterly in arrears on the last day of March, June, September and December of
each year and on the date on which the Commitments terminate, commencing on the
first such date to occur after the date hereof; provided that any Facility Fees
accruing after the date on which the Commitments terminate shall be payable on
demand. The Facility Fee shall be computed on the basis of a year of 360 days
and shall be payable for the actual number of days elapsed (including the first
day but excluding the last day).
(b) The Borrower agrees to pay to the Administrative Agent or
the Lead Arranger, for its own account, fees payable in the amounts and at the
times provided in the Fee Letter or as separately agreed upon from time to time
between the Borrower, the Administrative Agent and/or the Lead Arranger.
(c) All fees payable hereunder shall be paid on the dates due,
in immediately available funds, to the Administrative Agent for distribution, in
the case of Facility Fees, to the Lenders. Fees paid shall not be refundable
under any circumstances.
2.13. Interest. (a) The Loans comprising each ABR Borrowing
shall bear interest at a rate per annum equal to the Alternative Base Rate.
(b) The Loans comprising each Swingline Loan shall bear
interest at a rate per annum equal to the Alternate Base Rate.
(c) Each Eurocurrency Borrowing shall bear interest, for the
period commencing on the Borrowing Date thereof and ending on the last day of
the Interest Period with respect thereto, on the unpaid principal amount thereof
at a rate per annum equal to the Eurocurrency Rate determined by the
Administrative Agent for the Interest Period therefor plus the Applicable
Margin.
(d) Notwithstanding the foregoing, (i) if any principal of or
interest on any Loan or any fee or other amount payable by the Borrower
hereunder is not paid when due, whether at stated maturity, upon acceleration or
otherwise, such overdue amount shall bear interest, after as well as before
judgment, at a rate per annum equal to (x) in the case of the overdue principal
of any Loan, 2% above the rate otherwise applicable to such Loan as provided in
the preceding clauses of this Section or (y) in the case of any other amount, 2%
above the rate applicable to ABR Loans as provided in paragraph (a) of this
Section, and (ii) during the continuance of a Default and until the same has
been cured, remedied or waived pursuant to Section 9.02, at the request of the
Required Lenders the principal of any Loan not overdue shall bear interest,
after as well as before judgment, at a rate per annum equal to 2% above the rate
otherwise applicable to such Loan as provided in the preceding clauses of this
Section.
(e) Accrued interest on each Loan shall be payable in arrears
on each Interest Payment Date for such Loan and upon termination of the
Commitments; provided that (i) interest accrued pursuant to paragraph (d) of
this Section shall be payable on demand, (ii) in the event of any repayment or
prepayment of any Loan (other than a prepayment of an ABR Revolving Loan prior
to the end of the Availability Period), accrued interest on the principal amount
repaid or prepaid shall be payable on the date of such repayment or prepayment
and (iii) in the event of any conversion of any Eurocurrency Revolving Loan
prior to the end of the current Interest Period therefor, accrued interest on
such Loan shall be payable on the effective date of such conversion.
24
(f) All interest hereunder shall be computed on the basis of a
year of 360 days, except that interest computed by reference to the Alternate
Base Rate at times when the Alternate Base Rate is based on the Prime Rate shall
be computed on the basis of a year of 365 days (or 366 days in a leap year), and
in each case shall be payable for the actual number of days elapsed (including
the first day but excluding the last day). The applicable Alternate Base Rate or
Eurocurrency Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.
2.14. Alternate Rate of Interest. If prior to the commencement
of any Interest Period for a Eurocurrency Borrowing:
(a) the Administrative Agent determines (which determination
shall be conclusive absent manifest error) that adequate and reasonable means do
not exist for ascertaining the Eurocurrency Rate, for such Interest Period; or
(b) the Administrative Agent is advised by the Required
Lenders that the Eurocurrency Rate for such Interest Period will not adequately
and fairly reflect the cost to such Lenders (or Lender) of making or maintaining
their Loans (or its Loan) included in such Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist (i) any Interest
Election Request that requests the conversion of any Revolving Borrowing to, or
continuation of any Revolving Borrowing as, a Eurocurrency Borrowing shall be
ineffective, (ii) if any Borrowing Request requests a Eurocurrency Revolving
Borrowing, such Borrowing shall be made as an ABR Borrowing; provided that if
the circumstances giving rise to such notice affect only one Type of Borrowings,
then the other Type of Borrowings shall be permitted.
2.15. Increased Costs. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or
for the account of, or credit extended by, any Lender (except any
such reserve requirement reflected in the Eurocurrency Rate); or
(ii) impose on any Lender or the London interbank market
any other condition affecting this Agreement or Eurocurrency Loans
made by such Lender;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurocurrency Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender or to
reduce the amount of any sum received or receivable by such Lender hereunder
(whether of principal, interest or otherwise), then the Borrower will pay to
such Lender such additional amount or amounts as will compensate such Lender for
such additional costs incurred or reduction suffered.
(b) If any Lender determines that any Change in Law regarding
capital requirements has or would have the effect of reducing the rate of return
on such Lender's capital or on the capital of such Lender's holding company, if
any, as a consequence of this Agreement or the Loans made by such Lender to a
level below that which such Lender or such Lender's holding company could have
achieved but for such Change in Law (taking into consideration such Lender's
policies and the policies of such Lender's holding company with respect to
capital adequacy), then from time to time the Borrower will pay to such Lender,
25
as the case may be, such additional amount or amounts as will compensate such
Lender or such Lender's holding company for any such reduction suffered.
(c) A certificate of a Lender setting forth the amount or
amounts necessary to compensate such Lender or its holding company, as the case
may be, as specified in paragraph (a) or (b) of this Section shall be delivered
to the Borrower and shall be conclusive absent manifest error. The Borrower
shall pay such Lender the amount shown as due on any such certificate within 10
days after receipt thereof.
(d) Failure or delay on the part of any Lender to demand
compensation pursuant to this Section shall not constitute a waiver of such
Lender's right to demand such compensation; provided that the Borrower shall not
be required to compensate a Lender pursuant to this Section for any increased
costs or reductions incurred more than 270 days prior to the date that such
Lender notifies the Borrower of the Change in Law giving rise to such increased
costs or reductions and of such Lender's intention to claim compensation
therefor; provided further that, if the Change in Law giving rise to such
increased costs or reductions is retroactive, then the 270-day period referred
to above shall be extended to include the period of retroactive effect thereof.
2.16. Break Funding Payments. In the event of (a) the payment
of any principal of any Eurocurrency Loan other than on the last day of an
Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurocurrency Loan other than on the last day
of the Interest Period applicable thereto, (c) the failure to borrow, convert,
continue or prepay any Eurocurrency Loan on the date specified in any notice
delivered pursuant hereto (regardless of whether such notice may be revoked
under Section 2.11(b) and is revoked in accordance therewith), (d) the making of
adjustment payments relating to Eurocurrency Loans other than on the last day of
the Interest Period applicable there to with respect to an increase in the Total
Commitment pursuant to Section 2.09, or (e) the assignment of any Eurocurrency
Loan other than on the last day of the Interest Period applicable thereto as a
result of a request by the Borrower pursuant to Section 2.19, then, in any such
event, the Borrower shall compensate each Lender for the loss, cost and expense
attributable to such event. In the case of a Eurocurrency Loan, such loss, cost
or expense to any Lender shall be deemed to include an amount determined by such
Lender to be the excess, if any, of (i) the amount of interest which would have
accrued on the principal amount of such Loan had such event not occurred, at the
Eurocurrency Rate that would have been applicable to such Loan, for the period
from the date of such event to the last day of the then current Interest Period
therefor (or, in the case of a failure to borrow, convert or continue, for the
period that would have been the Interest Period for such Loan), over (ii) the
amount of interest which would accrue on such principal amount for such period
at the interest rate which such Lender would bid were it to bid, at the
commencement of such period, for Dollar deposits (or, in the case of Loans
denominated in an Optional Currency, deposits in such Optional Currency) of a
comparable amount and period from other banks in the Eurocurrency market. A
certificate of any Lender setting forth any amount or amounts that such Lender
is entitled to receive pursuant to this Section shall be delivered to the
Borrower and shall be conclusive absent manifest error. The Borrower shall pay
such Lender the amount shown as due on any such certificate within 10 days after
receipt thereof.
2.17. Taxes. (a) Any and all payments by or on account of any
obligation of the Borrower hereunder shall be made free and clear of and without
deduction for any Indemnified Taxes or Other Taxes; provided that if the
Borrower shall be required to deduct any Indemnified Taxes or Other Taxes from
such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent or Lender
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions and (iii) the
Borrower shall pay the full amount deducted to the relevant Governmental
Authority in accordance with applicable law.
26
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent and
each Lender, within 10 days after written demand therefor, for the full amount
of any Indemnified Taxes or Other Taxes paid by the Administrative Agent or such
Lender, as the case may be, on or with respect to any payment by or on account
of any obligation of the Borrower hereunder (including Indemnified Taxes or
Other Taxes imposed or asserted on or attributable to amounts payable under this
Section) and any penalties, interest and reasonable expenses arising therefrom
or with respect thereto, whether or not such Indemnified Taxes or Other Taxes
were correctly or legally imposed or asserted by the relevant Governmental
Authority. A certificate as to the amount of such payment or liability delivered
to the Borrower by a Lender, or by the Administrative Agent on its own behalf or
on behalf of a Lender, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by the Borrower to a Governmental Authority, the Borrower
shall deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is a Non-U.S. Person shall, at the
time or times such Foreign Lender becomes a Lender hereunder (or, in the case of
a Participant that is a Non-U.S. Person, becomes a Participant hereunder),
deliver to the Administrative Agent and the Borrower (or, in the case of a
Participant, to the relevant Lender), properly completed originals, as
applicable, of the following: (A) IRS Form W-8ECI (claiming an exemption from
U.S. federal withholding tax because the income at issue is effectively
connected with a U.S. trade or business); (B) in the case of a Foreign Lender
claiming exemption under Sections 871(h) or 881(c) of the Code, IRS Form W-8BEN
(or any successor form) and a certificate that such Foreign Lender (i) is not a
"bank" for purposes of Section 881(c)(3)(A) of the Code, (ii) is not a ten
percent (10%) shareholder for purposes of Section 881(c)(3)(B) of the Code and
(iii) is not a controlled foreign corporation receiving interest from a related
person for purposes of Section 881(c)(3)(C) of the Code, (C) in the case of a
Foreign Lender that is a pass-through entity, or that ceases to act for its own
account with respect to any payments paid to such Foreign Lender hereunder, an
IRS Form W-8IMY (with required supporting documentation), and (D) any other
documentation prescribed by the Internal Revenue Service certifying as to the
entitlement of such Lender to an exemption from United States withholding tax as
to payments to be made to such Lender under this Agreement. Each Lender that is
not a Foreign Lender shall, at the time or times such Lender becomes a Lender
hereunder (or, in the case of a Participant that is a Non-U.S. Person, becomes a
Participant hereunder), deliver to the Administrative Agent and the Borrower
(or, in the case of a Participant, to the relevant Lender), properly completed
originals of IRS Form W-9 (or any successor form) certifying as to such Person's
eligibility for an exemption from United States federal backup withholding. If
any Lender determines that it is unable to submit any form or certificate
otherwise required under this Section 2.17(e), or that it is required to
withdraw or cancel any such form or certificate, or that any such form or
certificate previously submitted pursuant to this Section 2.17(e) has become
incorrect or ineffective, such Lender shall promptly notify the Borrower or
Administrative Agent of that fact.
(f) If the Administrative Agent or a Lender determines, in its
reasonable discretion, that it has received a refund of any Taxes or Other Taxes
as to which it has been indemnified by the Borrower or with respect to which the
Borrower has paid additional amounts pursuant to this Section 2.17, it shall pay
over such refund to the Borrower (but only to the extent of indemnity payments
made, or additional amounts paid, by the Borrower under this Section 2.17 with
respect to the Taxes or Other Taxes giving rise to such refund), net of all
out-of-pocket expenses of the Administrative Agent or such Lender and without
27
interest (other than any interest paid by the relevant Governmental Authority
with respect to such refund); provided that the Borrower, upon the request of
the Administrative Agent or such Lender, agrees to repay the amount paid over to
the Borrower (plus any penalties, interest or other charges imposed by the
relevant Governmental Authority) to the Administrative Agent or such Lender in
the event the Administrative Agent or such Lender is required to repay such
refund to such Governmental Authority. This Section shall not be construed to
require the Administrative Agent or any Lender to make available its tax returns
(or any other information relating to its taxes which it deems confidential) to
the Borrower or any other Person.
(g) The Borrower shall not be obligated to gross up any
payments to any Lender or Administrative Agent, nor to indemnify any Lender or
Administrative Agent, pursuant to this Section 2.17 to the extent that any Taxes
are imposed as a result of the failure of any of the exemption forms delivered
by such Lender or Administrative Agent pursuant to Section 2.17(e) to establish
a complete exemption from the relevant Tax (other than as a result of a Change
in Law occurring after the Closing Date) or that results from a change in the
branch or lending office of such Lender, provided that the Borrower shall be
obligated to gross up any payments to any such Lender pursuant to Section
2.17(a) and to indemnify any such Lender pursuant to Section 2.17(c) in respect
of United States federal withholding Taxes if (i) the redesignation of the
Lender's lending office was made at the request of the Borrower or (ii) the
obligation to gross up payments to any such Lender pursuant to Section 2.17(a)
or to indemnify any such Lender pursuant to Section 2.17(c) is with respect to
an assignee Lender that becomes an assignee Lender as a result of an assignment
made at the request of any Borrower.
2.18. Payments Generally; Pro Rata Treatment; Sharing of
Set-offs. (a) The Borrower shall make each payment required to be made by it
hereunder (whether of principal, interest, fees or of amounts payable under
Sections 2.15, 2.16 or 2.17, or otherwise) prior to 12:00 noon, New York City
time, on the date when due, in immediately available funds, without set-off or
counterclaim. Any amounts received after such time on any date may, in the
discretion of the Administrative Agent, be deemed to have been received on the
next succeeding Business Day for purposes of calculating interest thereon. All
such payments shall be made to the Administrative Agent at its offices at 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, except payments to be made directly to the
Swingline Lender as expressly provided herein and except that payments pursuant
to Sections 2.15, 2.16 or 2.17 and 9.03 shall be made directly to the Persons
entitled thereto. The Administrative Agent shall distribute any such payments
received by it for the account of any other Person to the appropriate recipient
promptly following receipt thereof. If any payment hereunder shall be due on a
day that is not a Business Day, the date for payment shall be extended to the
next succeeding Business Day, and, in the case of any payment accruing interest,
interest thereon shall be payable for the period of such extension. All payments
hereunder shall be made in Dollars; provided that payments of principal and
interest in respect of a Loan denominated in an Optional Currency shall be made
in such Optional Currency.
(b) If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of principal,
interest and fees then due hereunder, such funds shall be applied (i) first,
towards payment of interest and fees then due hereunder, ratably among the
parties entitled thereto in accordance with the amounts of interest and fees
then due to such parties, and (ii) second, towards payment of principal then due
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of principal then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans or Swingline Loans resulting in such
Lender receiving payment of a greater proportion of the Dollar Equivalent of the
aggregate amount of its Revolving Loans and Swingline Loans and accrued interest
thereon than the proportion received by any other Lender, then the Lender
receiving such greater proportion shall purchase (for cash at face value)
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participations in the Revolving Loans and Swingline Loans of other Lenders to
the extent necessary so that the benefit of all such payments shall be shared by
the Lenders ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Revolving Loans and Swingline Loans;
provided that (i) if any such participations are purchased and all or any
portion of the payment giving rise thereto is recovered, such participations
shall be rescinded and the purchase price restored to the extent of such
recovery, without interest, and (ii) the provisions of this paragraph shall not
be construed to apply to any payment made by the Borrower pursuant to and in
accordance with the express terms of this Agreement or any payment obtained by a
Lender as consideration for the assignment of or sale of a participation in any
of its Loans to any assignee or participant, other than to the Borrower or any
Subsidiary or Affiliate thereof (as to which the provisions of this paragraph
shall apply). The Borrower consents to the foregoing and agrees, to the extent
it may effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against the
Borrower rights of set-off and counterclaim with respect to such participation
as fully as if such Lender were a direct creditor of the Borrower in the amount
of such participation.
(d) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders hereunder that the Borrower
will not make such payment, the Administrative Agent may assume that the
Borrower has made such payment on such date in accordance herewith and may, in
reliance upon such assumption, distribute to the Lenders, as the case may be,
the amount due. In such event, if the Borrower has not in fact made such
payment, then each of the Lenders severally agrees to repay to the
Administrative Agent forthwith on demand the amount so distributed to such
Lender with interest thereon, for each day from and including the date such
amount is distributed to it to but excluding the date of payment to the
Administrative Agent, at the greater of the Federal Funds Effective Rate and a
rate determined by the Administrative Agent in accordance with banking industry
rules on interbank compensation.
(e) If any Lender shall fail to make any payment required to
be made by it pursuant to Sections 2.04(a), 2.05(c), 2.06(b), 2.18(d) or
9.03(c), then the Administrative Agent may, in its discretion (notwithstanding
any contrary provision hereof), apply any amounts thereafter received by the
Administrative Agent for the account of such Lender to satisfy such Lender's
obligations under such Sections until all such unsatisfied obligations are fully
paid.
2.19. Mitigation Obligations; Replacement of Lenders. (a) If
any Lender requests compensation under Section 2.15, or if the Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.17, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the judgment
of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.15 or 2.17, as the case may be, in the
future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. The Borrower
hereby agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 2.15, or
if the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.17,
or if any Lender defaults in its obligation to fund Loans hereunder, then the
Borrower may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 9.04), all its interests, rights and obligations under this Agreement to
29
an assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); provided that (i) the Borrower
shall have received the prior written consent of the Administrative Agent, which
consent shall not unreasonably be withheld, (ii) such Lender shall have received
payment of an amount equal to the outstanding principal of its Loans and
Swingline Loans, accrued interest thereon, accrued fees and all other amounts
payable to it hereunder, from the assignee (to the extent of such outstanding
principal and accrued interest and fees) or the Borrower (in the case of all
other amounts) and (iii) in the case of any such assignment resulting from a
claim for compensation under Section 2.15 or payments required to be made
pursuant to Section 2.17, such assignment will result in a reduction in such
compensation or payments. A Lender shall not be required to make any such
assignment and delegation if, prior thereto, as a result of a waiver by such
Lender or otherwise, the circumstances entitling the Borrower to require such
assignment and delegation cease to apply.
ARTICLE III
Representations and Warranties
The Borrower represents and warrants to the Lenders that:
3.01. Organization; Powers. Each of the Borrower and its
Subsidiaries is duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization, has all requisite power and
authority to carry on its business as now conducted and, except where the
failure to do so, individually or in the aggregate, would not reasonably be
expected to result in a Material Adverse Effect, is qualified to do business in,
and is in good standing in, every jurisdiction where such qualification is
required.
3.02. Authorization; Enforceability. The Transactions are
within the Borrower's corporate powers and have been duly authorized by all
necessary corporate and, if required, stockholder action. This Agreement has
been duly executed and delivered by the Borrower and constitutes a legal, valid
and binding obligation of the Borrower, enforceable in accordance with its
terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium
or other laws affecting creditors' rights generally and subject to general
principles of equity, regardless of whether considered in a proceeding in equity
or at law.
3.03. Governmental Approvals; No Conflicts. The Transactions
(a) do not require any consent or approval of, registration or filing with, or
any other action by, any Governmental Authority, except such as have been
obtained or made and are in full force and effect, (b) will not violate any
Requirements of Law applicable to the Borrower or any of its Subsidiaries or any
order of any Governmental Authority, (c) will not violate or result in a default
under any Contractual Obligation binding upon the Borrower or any of its
Subsidiaries or its assets, or give rise to a right thereunder to require any
payment to be made by the Borrower or any of its Subsidiaries, and (d) will not
result in the creation or imposition of any Lien on any asset of the Borrower or
any of its Subsidiaries, except in the case of clauses (c) or (d) violations of
Contractual Obligations and/or incurrence of Liens which would not reasonably be
expected to result in a Material Adverse Effect.
3.04. Financial Condition; No Material Adverse Change. (a) The
Borrower has heretofore furnished to the Lenders its consolidated balance sheet
and statements of income, statements of changes in stockholders equity and
statements of cash flows (i) as of and for the fiscal year ended December 31,
2005, reported on by PricewaterhouseCoopers LLP, independent public accountants,
and (ii) as of and for the fiscal quarter ended March 31, 2006, certified by a
Responsible Officer. Such financial statements present fairly, in all material
respects, the financial position and results of operations and cash flows of the
Borrower and its consolidated Subsidiaries as of such date and for such period
30
in accordance with GAAP consistently applied, subject to the absence of full
footnote disclosure in the case of the statements referred to in clause (ii)
above.
(b) Except as set forth in the filings of the Borrower with
the Securities and Exchange Commission prior to the date hereof, since December
31, 2005, there has been no material adverse change in the business, operations,
assets, financial or other condition, of the Borrower and its Subsidiaries taken
as a whole.
3.05. Properties. (a) Each of the Borrower and its
Subsidiaries (i) has good title to, or valid leasehold interests in, all its
real and personal property material to its business (except that such
representation is not made for any such property with a book value of $1,000,000
or less provided that the aggregate book value of such property for which such
representation is not made shall not exceed $10,000,000), and (ii) none of such
property is subject to any Lien, except as permitted in Section 6.04, except
(with reference to clauses (i) and (ii)), for minor defects in title or Liens
which in the aggregate would not reasonably be expected to result in a Material
Adverse Effect.
(b) Each of the Borrower and its Subsidiaries owns, or is
licensed to use, all trademarks, tradenames, copyrights, patents and other
intellectual property material to its business, and the use thereof by the
Borrower and its Subsidiaries does not infringe upon the rights of any other
Person, except for any such infringements that, individually or in the
aggregate, would not reasonably be expected to result in a Material Adverse
Effect.
3.06. Litigation and Environmental Matters. (a) There are no
actions, suits or proceedings by or before any arbitrator or Governmental
Authority pending against or, to the knowledge of the Borrower, threatened
against or affecting the Borrower or any of its Subsidiaries (i) as to which
there is a reasonable possibility of an adverse determination and that, if
adversely determined, would reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect (other than the Disclosed
Matters) or (ii) that involve this Agreement or the Transactions.
(b) Except for the Disclosed Matters and except with respect
to any other matters that, individually or in the aggregate, would not
reasonably be expected to result in a Material Adverse Effect, neither the
Borrower nor any of its Subsidiaries (i) has failed to comply with any
Environmental Law or to obtain, maintain or comply with any permit, license or
other approval required under any Environmental Law, (ii) has become subject to
any Environmental Liability, (iii) has received notice of any claim with respect
to any Environmental Liability or (iv) knows of any basis for any Environmental
Liability.
(c) Since the date of this Agreement, there has been no change
in the status of the Disclosed Matters that, individually or in the aggregate,
has resulted in or could reasonably be expected to result in a Material Adverse
Effect.
3.07. Compliance with Laws and Agreements. Each of the
Borrower and its Subsidiaries is in compliance with all Requirements of Law
applicable to it or its property and all Contractual Obligations binding upon it
or its property, except where the failure to do so, individually or in the
aggregate, would not reasonably be expected to result in a Material Adverse
Effect. No Default has occurred and is continuing.
3.08. Investment and Holding Company Status. The Borrower is
not (a) an "investment company" as defined in, or subject to regulation under,
the Investment Company Act of 1940 or (b) a "holding company" as defined in the
Public Utility Holding Company Act of 2005.
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3.09. Taxes. Each of the Borrower and its Subsidiaries has
timely filed or caused to be filed all Tax returns and reports which to the
knowledge of the Borrower or such Subsidiaries are required to be filed and has
paid or caused to be paid all Taxes shown to be due and payable on such returns
or reports, except (a) Taxes that are being contested in good faith by
appropriate proceedings and for which the Borrower or such Subsidiary, as
applicable, has set aside on its books adequate reserves or (b) to the extent
that the failure to do so would not reasonably be expected to result in a
Material Adverse Effect.
3.10. ERISA. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events for
which liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect. The present value of all accumulated
benefit obligations of all Plans (based on the assumptions used for purposes of
Statement of Financial Accounting Standards No. 87) did not, as of the date of
the most recent financial statements reflecting such amounts, exceed by more
than the sum of (i) $30,000,000, (ii) the amount of the WilTel Underfunding and
(iii) the amount of the Acquired Entity Underfunding, the fair market value of
the assets of all such Plans.
3.11. Disclosure. None of the reports, financial statements,
certificates or other information furnished by or on behalf of the Borrower to
the Administrative Agent or any Lender in connection with the negotiation of
this Agreement or delivered hereunder (as modified or supplemented by other
information so furnished) contains any material misstatement of fact or omits to
state any material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading; provided that,
with respect to projected financial information, the Borrower represents only
that such information was prepared in good faith based upon assumptions believed
to be reasonable at the time.
3.12. Nonrecourse Indebtedness. Schedule 3.12 sets forth the
aggregate outstanding amount on a consolidated basis of the Nonrecourse Debt as
of March 31, 2006.
3.13. No Burdensome Restrictions. No Contractual Obligation of
the Borrower or any of its Subsidiaries and no Requirement of Law would
reasonably be expected to result in a Material Adverse Effect.
3.14. Subsidiaries. The Borrower's annual report to
shareholders on Form 10-K for the fiscal year ended December 31, 2005, as filed
with the Securities and Exchange Commission, contains a list of all material
Subsidiaries of the Borrower as of December 31, 2005 that is true, correct and
complete in all material respects. Since December 31, 2005 through the Effective
Date, any new material Subsidiary of the Borrower that has been organized or
acquired (directly or indirectly) by the Borrower has been disclosed in a report
filed with the Securities and Exchange Commission.
3.15. Federal Regulations. Neither the Borrower nor any of its
Subsidiaries is engaged or will engage, principally or as one of its important
activities, in the business of extending credit for the purpose of "purchasing"
or "carrying" any "margin stock" within the respective meanings of each of the
quoted terms under Regulations U and X of the Board of Governors of the Federal
Reserve System as now and from time to time hereafter in effect. No part of the
proceeds of any Loans hereunder will be used (a) for "purchasing" or "carrying"
"margin stock" as so defined unless (i) the Borrower shall have theretofore
furnished to the Lenders a statement on Federal Reserve Form U-1 with respect to
such Loans or (ii) not more than 25% of the value of the assets of either the
Borrower or the Borrower and its Subsidiaries on a consolidated basis,
respectively, is represented by "margin stock" as so defined, or (b) for any
purpose which violates, or which would be inconsistent with, the provisions of
the Regulations of such Board of Governors.
32
ARTICLE IV
Conditions
4.01. Effective Date. The obligations of the Lenders to make
Loans hereunder shall not become effective until the date on which each of the
following conditions is satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have
received from each party hereto either (i) a counterpart of this Agreement
signed on behalf of such party or (ii) written evidence satisfactory to the
Administrative Agent (which may include telecopy transmission of a signed
signature page of this Agreement) that such party has signed a counterpart of
this Agreement.
(b) The Administrative Agent shall have received a favorable
written opinion (addressed to the Administrative Agent and the Lenders and dated
the Effective Date) of Weil, Gotshal & Xxxxxx LLP, counsel for the Borrower,
substantially in the form of Exhibit C, and covering such other matters relating
to the Borrower, this Agreement or the Transactions as the Required Lenders
shall reasonably request. The Borrower hereby requests such counsel to deliver
such opinion.
(c) The Administrative Agent shall have received such
documents and certificates as the Administrative Agent or its counsel may
reasonably request relating to the organization, existence and good standing of
the Borrower, the authorization of the Transactions and any other legal matters
relating to the Borrower, this Agreement or the Transactions, all in form and
substance satisfactory to the Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a
certificate, dated the Effective Date and signed by a Responsible Officer of the
Borrower, confirming compliance with the conditions set forth in paragraphs (a)
and (b) of Section 4.02.
(e) The Administrative Agent shall have received all fees and
other amounts due and payable pursuant to this Agreement or the Fee Letter on or
prior to the Effective Date, including, to the extent invoiced, reimbursement or
payment of all out-of-pocket expenses required to be reimbursed or paid by the
Borrower hereunder.
(f) The Lenders shall have received (i) audited consolidated
financial statements of the Borrower for the most recent fiscal year ended prior
to the Effective Date as to which such financial statements are available and
(ii) satisfactory unaudited interim consolidated financial statements of the
Borrower for each quarterly period ended subsequent to the date of the latest
financial statement delivered pursuant to clause (i) of this paragraph as to
which such financial statements are available.
(g) The Administrative Agent shall have received evidence that
the Borrower has permanently terminated all commitments to lend under the
Existing Credit Facility and has repaid in full all amounts outstanding under
the Existing Credit Facility.
(h) The Lenders shall have received such other documents and
instruments as are customary for transactions of this type or as they may
reasonably request.
The Administrative Agent shall notify the Borrower and the Lenders of the
Effective Date, and such notice shall be conclusive and binding. Notwithstanding
the foregoing, the obligations of the Lenders to make Loans hereunder shall not
become effective unless each of the foregoing conditions is satisfied (or waived
pursuant to Section 9.02) at or prior to 3:00 p.m., New York City time, on June
33
15, 2006 (and, in the event such conditions are not so satisfied or waived, the
Commitments shall terminate at such time).
4.02. Each Credit Event. The obligation of each Lender to make
a Loan on the occasion of any Borrowing, is subject to the satisfaction of the
following conditions:
(a) The representations and warranties of the Borrower set
forth in this Agreement shall be true and correct on and as of the date of such
Borrowing.
(b) At the time of and immediately after giving effect to such
Borrowing, no Default shall have occurred and be continuing.
Each Borrowing shall be deemed to constitute a representation and warranty by
the Borrower on the date thereof as to the matters specified in paragraphs (a)
and (b) of this Section.
ARTICLE V
Affirmative Covenants
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full and all Letters of Credit shall have expired or terminated,
the Borrower covenants and agrees with the Lenders that:
5.01. Financial Statements; Ratings Change and Other
Information. The Borrower will furnish to the Administrative Agent and each
Lender:
(a) within 100 days after the end of each fiscal year of the
Borrower, (i) its audited consolidated balance sheet and related statements of
operations, stockholders' equity and cash flows as of the end of and for such
year, setting forth in each case in comparative form the figures for the
previous fiscal year, all reported on by PricewaterhouseCoopers LLP or other
independent public accountants of recognized national standing (without a "going
concern" or like qualification or exception and without any qualification or
exception as to the scope of such audit) to the effect that such consolidated
financial statements present fairly in all material respects the financial
condition and results of operations of the Borrower and its consolidated
Subsidiaries on a consolidated basis in accordance with GAAP consistently
applied (ii) the consolidating balance sheet of the Borrower and its
consolidated Subsidiaries as at the end of such fiscal year and the related
consolidating statements of operations for such fiscal year, showing in each
case inter-company eliminations, certified by a Responsible Officer as being
fairly stated in all material respects when considered in relation to the
consolidated financial statements of the Borrower and its consolidated
Subsidiaries taken as a whole;
(b) within 55 days after the end of each of the first three
fiscal quarters of each fiscal year of the Borrower, (i) its quarterly report to
shareholders on Form 10-Q, as filed with the Securities and Exchange Commission
certified by a Responsible Officer as being fairly stated in all material
respects (subject to normal year-end audit adjustments) and (ii) the
consolidating balance sheet of the Borrower and its Subsidiaries as at the end
of each such quarter, showing inter-company eliminations, and the related
consolidating statements of operations, showing inter-company eliminations,
certified by a Responsible Officer as being fairly stated in all material
respects;
(c) concurrently with any delivery of financial statements
under clause (a) or (b) above, a certificate of a Responsible Officer of the
Borrower (i) certifying as to whether a Default has occurred and, if a Default
has occurred, specifying the details thereof and any action taken or proposed to
be taken with respect thereto, (ii) setting forth reasonably detailed
calculations demonstrating compliance with Sections 6.01, 6.02, 6.03, 6.08, and
34
6.09 and (iii) stating whether any change in GAAP or in the application thereof
has occurred since the date of the audited financial statements referred to in
Section 3.04 and, if any such change has occurred, specifying the effect of such
change on the financial statements accompanying such certificate;
(d) concurrently with any delivery of financial statements
under clause (a) above, a certificate of the accounting firm that reported on
such financial statements stating whether they obtained knowledge during the
course of their examination of such financial statements of any Default (which
certificate may be limited to the extent required by accounting rules or
guidelines);
(e) promptly after the same becomes publicly available, copies
of all periodic and other reports, proxy statements and other materials filed by
the Borrower or any Subsidiary with the Securities and Exchange Commission, or
any Governmental Authority succeeding to any or all of the functions of said
Commission, or with any national securities exchange, or distributed by the
Borrower to its shareholders generally, as the case may be;
(f) promptly after Xxxxx'x or S&P shall have announced a
change in the rating established or deemed to have been established for the
Index Debt, written notice of such rating change;
(g) as soon as available, but in any event within thirty days
after filing with the appropriate insurance department, the annual statements
for each Insurance Subsidiary as filed with the insurance department in its
state of domicile; provided that the Borrower shall deliver one copy thereof to
the Administrative Agent who shall make such copy available upon request to the
Lenders, and upon request by any Lender the Borrower shall deliver additional
copies thereof to such Lender; and
(h) promptly following any request therefor, such other
information regarding the operations, business affairs and financial condition
of the Borrower or any Subsidiary, or compliance with the terms of this
Agreement, as the Administrative Agent or any Lender may reasonably request.
The financial statements referred to in clauses (a) and (b) above shall prepared
in accordance with GAAP applied consistently throughout the periods reflected
therein except as approved by the applicable accountants or Responsible Officer,
as the case may be, and disclosed therein.
5.02. Notices of Material Events. The Borrower will furnish to
the Administrative Agent and each Lender prompt written notice of the following:
(a) the occurrence of any Default, Terminating Event or Event
of Default;
(b) any (i) default or event of default under any Contractual
Obligation of the Borrower or any of its Subsidiaries, and (ii) litigation,
investigation or proceeding between the Borrower or any of its Subsidiaries and
any Governmental Authority that would reasonably be expected to result in a
Material Adverse Effect;
(c) the occurrence of any ERISA Event occurring after the date
of this Agreement that, alone or together with any other ERISA Events that have
occurred after the date of this Agreement (excluding any ERISA Event as to which
notice under this clause (c) has already been given), could reasonably be
expected to result in liability of the Borrower and its Subsidiaries in an
aggregate amount exceeding $30,000,000;
35
(d) of any litigation or proceeding affecting the Borrower or
any of its Subsidiaries in which the relief sought is $30,000,000 or more and
not covered by insurance, or in which injunctive or similar relief is sought
and, if granted, would be reasonably likely to have a Material Adverse Effect;
and
(e) any other development that results in, or could reasonably
be expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Responsible Officer of the Borrower setting forth the details of the event or
development requiring such notice and any action taken or proposed to be taken
with respect thereto.
5.03. Existence; Conduct of Business. The Borrower will, and
will cause each of its Subsidiaries to continue to engage in business of the
same general type as now conducted by it, and preserve, renew and keep in full
force and effect its corporate existence and take all reasonable action to
maintain all rights, privileges and franchises necessary or desirable in the
normal conduct of its business, provided however, that a Permitted Distribution
shall not be prohibited or limited by this Section 5.03 and further provided
that subject to Article VI hereof, this Section 5.03 shall not prohibit the
Borrower or any Subsidiary from taking any action if such action would not
reasonably be likely to have a Material Adverse Effect.
5.04. Payment of Obligations. The Borrower will, and will
cause each of its Subsidiaries to, pay its Indebtedness and other obligations of
whatever nature, including Tax liabilities, that, if not paid, would reasonably
be likely to result in a Material Adverse Effect before the same shall become
delinquent or in default, except where (a) the validity or amount thereof is
being contested in good faith by appropriate proceedings and the Borrower or
such Subsidiary has set aside on its books adequate reserves with respect
thereto in accordance with GAAP or (b) the failure to make payment would not
reasonably be expected to result in a Material Adverse Effect; provided that for
purposes of this Section 5.04 the term "Indebtedness" shall not include any
Nonrecourse Debt.
5.05. Maintenance of Properties; Insurance. The Borrower will,
and will cause each of its Subsidiaries to keep all property useful and
necessary in its business in good working order and condition, except where the
failure to comply herewith would not be reasonably likely to have a material
adverse effect on the business, operations, property, or financial or other
condition of the Borrower and its Subsidiaries taken as a whole; to the extent
obtainable on terms which its management deems reasonable, maintain with
financially sound and reputable insurance companies insurance on all its
property against such casualties and contingencies and in such types and amounts
as, in the judgment of its executive officers, is deemed adequate; and furnish
to the Administrative Agent, upon written request, full information as to the
insurance carried.
5.06. Books and Records; Inspection Rights. The Borrower will,
and will cause each of its Subsidiaries to keep proper books of record and
account in which entries, which are accurate and complete in all material
respects, in conformity with GAAP and Requirements of Law shall be made of all
dealings and transactions in relation to its business and activities; and permit
the Lenders, through the Administrative Agent or any of their designated
representatives, to visit and inspect any of its properties and examine and make
abstracts from any of its books and records at any reasonable time and as often
as may reasonably be desired, and to discuss the business, investments,
operations, properties and financial and other condition of the Borrower and its
Subsidiaries with officers and employees of the Borrower and its Subsidiaries
and with its independent certified public accountants.
5.07. Compliance with Contractual Obligations and Laws. The
Borrower will, and will cause each of its Subsidiaries to, comply with all
Contractual Obligations and Requirements of Law applicable to it or its
36
property, except where the failure to do so, individually or in the aggregate,
would not reasonably be expected to result in a Material Adverse Effect.
5.08. Use of Proceeds. The proceeds of the Loans will be used
only for refinancing outstanding amounts (if any) under the Borrower's Existing
Credit Facility and for general corporate purposes of the Borrower and its
Subsidiaries. No part of the proceeds of any Loan will be used, whether directly
or indirectly, for any purpose that entails a violation of any of the
Regulations of the Board, including Regulations T, U and X.
ARTICLE VI
Negative Covenants
Until the Commitments have expired or terminated and the
principal of and interest on each Loan and all fees payable hereunder have been
paid in full, the Borrower covenants and agrees with the Lenders that:
6.01. Liquid Assets.
(a) At all times, tested at the end of each calendar quarter,
the Borrower will not permit the ratio of Total Liquid Assets to Total Current
Obligations to be less than 1.2 to 1.
(b) For purposes of this Section 6.01: "Total Liquid Assets"
shall mean, at any date of determination, the sum of (i) the aggregate Cash and
Cash Equivalents held by the Borrower, (ii) the aggregate Cash and Cash
Equivalents held by the Borrower's consolidated Subsidiaries (including Banking
Subsidiaries and Insurance Subsidiaries) to the extent Distributable to the
Borrower, and (iii) 90% of the market value (as determined in accordance with
GAAP and adjusted regularly by the net unrealized gain or loss on such
securities not reflected in book value) of all Marketable Securities (without
duplication of amounts included under the preceding clauses (i) and (ii)) held
by the Borrower and/or its consolidated Subsidiaries to the extent Distributable
to the Borrower, after deducting therefrom the amount of any obligations
(including without limitation amounts available for drawing under, and unpaid
reimbursement obligations in respect of, outstanding letters of credit) secured
by Liens on such Marketable Securities. "Cash and Cash Equivalents" shall mean
the sum of cash balances on hand, securities issued or directly and fully
guaranteed or insured by the United States of America or any agency thereof and
investments in registered money market funds. "Distributable" shall mean
immediately and legally accessible for distribution to the Borrower as the
Borrower unilaterally may require without legal restraint (which shall include
without limitation, in the case of the Borrower's Insurance Subsidiaries, that
those regulators with supervisory authority over such Subsidiaries in the state
or states of their incorporation permit such distribution under applicable
statute, regulation or otherwise, and in the case of the Borrower's Banking
Subsidiaries, that those regulators with supervisory authority over such
Subsidiaries either at the national level or in the state of their incorporation
permit such distribution under applicable statute, regulation or otherwise).
"Marketable Securities" shall mean securities that are publicly traded on an
exchange or automated quotation market system. "Total Current Obligations" shall
mean the sum of (i) the principal of all outstanding consolidated Indebtedness
due within twelve months, (ii) the principal amount of all Loans outstanding
under this Agreement (without duplication of amounts included under the
preceding clause (i)), and (iii) interest accruing within the next twelve months
on all outstanding consolidated Indebtedness determined on a pro forma basis
based on the interest rate or rates on such debt in effect on the calculation
date.
6.02. Maintenance of Consolidated Tangible Net Worth. At any
time during each fiscal year or portion thereof commencing on the date hereof
the Borrower will not permit Consolidated Tangible Net Worth to be less than an
37
amount equal to the sum of (i) $1,900,000,000 (the "Baseline Amount"), plus (ii)
an amount equal to the sum of 40% of the Consolidated Net Income of the Borrower
and its Subsidiaries (as determined in accordance with GAAP) for each prior full
calendar year commencing after December 31, 2005; provided that (A) the amount
determined pursuant to clause (ii) shall be equal to zero for any calendar year
for which there is a net loss and (B) the amounts included in net income
(determined in accordance with GAAP) resulting from changes in accounting
principles to the extent that such changes increase intangibles shall not be
included in net income for purposes of this Section).
6.03. Debt Leverage Ratio. The Borrower will not at any time
permit the ratio of (a) Funded Debt to (b) the sum of Shareholders' Equity and
Funded Debt to exceed 0.5 to 1.0.
6.04. Limitations on Liens. The Borrower will not, nor shall
it permit any Subsidiary to, at any time directly or indirectly create, incur,
assume or suffer to exist, any Lien upon any of its property, assets or
revenues, whether now owned or hereafter acquired, other than the following
("Permitted Liens"):
(a) Liens for taxes not yet due or which are being contested
in good faith and by appropriate proceedings if adequate reserves with respect
thereto are maintained on the books of the Borrower or its Subsidiaries, as the
case may be, in accordance with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of business which
are not overdue for a period of more than 30 days or which are being contested
in good faith and by appropriate proceedings;
(c) pledges or deposits in connection with workmen's
compensation, unemployment insurance and other social security legislation;
(d) pledges or deposits to secure the performance of bids,
trade contracts (other than for borrowed money), option agreements (other than
for borrowed money), leases, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature incurred in the
ordinary course of business;
(e) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business which, in the
aggregate, are not substantial in amount, and which do not in any case
materially detract from the value of the property subject thereto or interfere
with the ordinary conduct of the business of the Borrower or its Subsidiaries;
(f) Liens described in Schedule 6.04.;
(g) Liens on assets owned by the Borrower or any Subsidiary
securing an amount not to exceed (i) $600,000,000 in the aggregate for all such
assets or (ii) $400,000,000 in the aggregate for Liens imposed in connection
with any single transaction or related series of transactions; provided that the
aggregate fair market value (determined, as to any asset, at the time the Lien
on such asset is incurred) of all assets securing such Liens shall not exceed
200% of the aggregate amounts secured thereby;
(h) pledges or deposits effected by the Borrower or any
Insurance Subsidiary as a condition to obtaining or maintaining any license,
permit or authorization to transact insurance or reinsurance business;
38
(i) deposits with insurance regulatory authorities;
(j) Liens arising under ceding reinsurance agreements entered
into by any Insurance Subsidiary;
(k) Liens on cash and/or securities deposited with JPMorgan
Chase as collateral for the standby letter of credit referred to in Section 6.09
pursuant to the Collateral Agreement dated as of April 21, 2005 between JPMorgan
Chase and the Borrower (the "2005 Collateral Agreement");
(l) Liens on assets of a Subsidiary securing Indebtedness of a
Subsidiary permitted by 6.10(iv); and
(m) Liens upon assets of a Subsidiary, securing the interest
of counterparties in its portfolio securities pursuant to reverse repurchase
agreement transactions ("Reverse Repos"); provided that the obligations in
respect of such Reverse Repos are not guarantied by or secured by assets of the
Borrower (other than the assets of such Subsidiary) or any other Subsidiary and
does not otherwise have recourse to the Borrower or its assets (other than the
assets of such Subsidiary) or to any other Subsidiary or its assets.
6.05. Prohibition of Fundamental Changes. The Borrower will
not, nor will it permit any Subsidiary to, at any time enter into any
transaction of merger or consolidation or amalgamation, or liquidate, wind up or
dissolve itself (or suffer any liquidation or dissolution), or convey, sell,
lease, transfer or otherwise dispose of, in one transaction or a series of
transactions, all or substantially all of its business or assets, except that:
(a) any Subsidiary of the Borrower may be merged or
consolidated with or into the Borrower (provided, that, the Borrower shall be
the continuing or surviving corporation) or with any one or more Subsidiaries or
other Entity (in connection with a Permitted Acquisition) in each case so long
as the continuing or surviving entity is a Subsidiary of the Borrower;
(b) the Borrower or any Subsidiary may sell, lease, transfer
or otherwise dispose of any or all of its assets (upon voluntary liquidation or
otherwise) to the Borrower or any Subsidiary;
(c) the Borrower may, or may permit a Subsidiary to,
liquidate, sell or dispose of all or substantially all of a Subsidiary's
business or assets at any time for an amount not less than fair market value of
such business or assets; provided that no Default then exists or shall exist
after giving effect to such liquidation, sale or disposition on a pro forma
basis determined as if the transaction occurred at the end of the most recent
fiscal period for which financial statements have been delivered to the
Administrative Agent pursuant to this Agreement;
(d) a Permitted Distribution shall not be prohibited by this
Section 6.05; and
(e) a Permitted Voluntary Proceeding shall not be prohibited
by this Section 6.05.
6.06. Dividends. The Borrower will not declare or make, or
agree to pay or make, directly or indirectly, any dividend or other distribution
(whether in cash or securities) with respect to any equity interests of the
Borrower, except that the Borrower may make Permitted Distributions and may pay
dividends and distributions to the holders of its equity interests; provided
that no Default then exists or shall exist after giving effect to such dividend
or distribution on a pro forma basis determined as if such dividend or
39
distribution was made at the end of the most recent fiscal period for which
financial statements have been delivered to the Administrative Agent pursuant to
this Agreement.
6.07. Acquisitions. The Borrower will not nor will it permit
any Subsidiary to agree to or effect any acquisition of the stock or assets of
another Entity other than any acquisition (a "Permitted Acquisition") satisfying
all of the following conditions:
(a) no Default has occurred and is continuing at the time of
such acquisition or would exist after consummation of such acquisition;
(b) if such acquisition is made by a merger, the Borrower or a
Subsidiary shall be the surviving entity;
(c) the board of directors and (if required by applicable law)
the shareholders, or the equivalent thereof, of the business to be acquired has
approved such acquisition and such acquisition is otherwise considered
"friendly";
(d) the business to be acquired would not subject the
Administrative Agent or any Lender to any additional regulatory or third party
approvals in connection with the exercise of its rights and remedies under this
Agreement;
(e) no contingent obligations or liabilities will be incurred
or assumed in connection with such acquisition which could reasonably be
expected to have a material adverse effect on the business, assets or financial
condition of the Borrower and its Subsidiaries taken as a whole; and
(f) the business and assets acquired shall be acquired by the
Borrower or its Subsidiary, as the case may be, free and clear of all Liens
other than Permitted Liens and all Indebtedness other than Indebtedness
permitted pursuant to Section 6.10.
6.08. Investments. The Borrower will not nor will it permit
any Subsidiary to make or commit to make any Investment in a single Person,
other than an Investment in any Governmental Authority of the United States of
America, in an aggregate amount exceeding the then Consolidated Tangible Net
Worth of the Borrower.
6.09. Limitation on Contingent Obligations. The Borrower will
not, nor will it permit any Subsidiary to, create, incur, assume, guarantee,
endorse or otherwise in any way be or become responsible or liable for, directly
or indirectly, or suffer to exist Contingent Obligations in an aggregate amount
for the Borrower and its Subsidiaries in excess of $400,000,000; provided that
such amount shall not include (i) the reimbursement obligation of the Borrower
in respect of the 2005 Collateral Agreement, and (ii) any Contingent Obligation
of a Subsidiary the ownership of which is acquired by the Borrower, directly or
indirectly, after the date hereof, or which is established by the Borrower after
the date hereof for the purpose of acquiring assets or equity of any Person not
owned, directly or indirectly, by the Borrower on the date hereof; provided that
such Contingent Obligation is not guarantied by, is not secured by assets (other
than assets of such Subsidiary) of, and does not otherwise have recourse to the
Borrower or its assets (other than the assets of such Subsidiary); and provided
further that as of any time of determination under this Section 6.09, if the
aggregate amount of any then outstanding Contingent Obligations of the Borrower
and/or any Subsidiary would be permitted under Section 6.03 hereof had the
amount of such Contingent Obligations been incurred as Funded Debt, then for the
purposes of this 6.09, only 50% of the amount of such Contingent Obligations
shall be counted towards the $400,000,000 limitation.
40
6.10. Limitation on Subsidiary Indebtedness. At the end of any
calendar quarter commencing April 1, 2006, the Borrower will not permit the
aggregate Indebtedness of all of the Borrower's consolidated Subsidiaries to be
greater than 25% of Consolidated Tangible Net Worth at such date; provided that,
for purpose of this Section, Indebtedness of a Subsidiary shall not include:
(i) any Indebtedness outstanding at March 31, 2006 and
described on Schedule 6.10 attached hereto;
(ii) any Indebtedness secured by Permitted Liens;
(iii) any Indebtedness of the Borrower's Banking
Subsidiaries;
(iv) Indebtedness of any Subsidiary the ownership of which
is acquired by the Borrower, directly or indirectly, after the date
hereof, or which is established by the Borrower after the date hereof
for the purpose of acquiring assets or equity of any Person not
owned, directly or indirectly, by the Borrower on the date hereof;
provided that, such Indebtedness is not guarantied by, is not secured
by assets (other than assets of such Subsidiary) of, and does not
otherwise have recourse to the Borrower or its assets (other than the
assets of such Subsidiary); and
(v) any Indebtedness of a Subsidiary to another Subsidiary
or to the Borrower.
6.11. Transactions with Affiliates. The Borrower will not, nor
will it permit any of its Subsidiaries to, directly or indirectly, enter into
any transaction or series of related transactions with any Affiliate (other than
with the Borrower or a directly or indirectly wholly-owned Subsidiary),
including without limitation, any loan, advance or investment or any purchase,
sale, lease or exchange of property or the rendering of any service, unless such
transaction or series of transactions is in good faith and at arm's-length and
on terms which are at least as favorable as those available in a comparable
transaction from a Person which is not an Affiliate. Any such transaction that
involves in excess of $10,000,000 shall be approved by a majority of the
independent directors on the board of directors of the Borrower; or, in the
event that at the time of any such transaction or series of related transactions
there are no independent directors serving on the board of directors of the
Borrower, such transaction or series of related transactions shall be approved
by a nationally recognized expert with experience in appraising the terms and
conditions of the type of transaction for which approval is required.
ARTICLE VII
Events of Default
7.01. Events of Default.
If any of the following events ("Events of Default") shall
occur:
(a) the Borrower shall fail to pay any principal of any Loan
when and as the same shall become due and payable, whether at the due date
thereof or at a date fixed for prepayment thereof or otherwise; or
(b) the Borrower shall fail to pay any interest on any Loan or
any Facility Fees, Administrative Agent's Fees or any other amount (other than
an amount referred to in clause (a) of this Article) payable under this
41
Agreement, when and as the same shall become due and payable, and such failure
shall continue unremedied for a period of five Business Days; or
(c) any representation or warranty made or deemed made by or
on behalf of the Borrower or any Subsidiary in or in connection with this
Agreement or any amendment or modification hereof or waiver hereunder, or in any
report, certificate, financial statement or other document furnished pursuant to
or in connection with this Agreement or any amendment or modification hereof or
waiver hereunder, shall prove to have been incorrect in any material respect
when made or deemed made; or
(d) the Borrower shall fail to observe or perform any
covenant, condition or agreement contained in Section 5.02, 5.03 or 5.07 or in
Article VI; or
(e) the Borrower shall fail to observe or perform any
covenant, condition or agreement contained in this Agreement (other than those
specified in clause (a), (b) or (d) of this Article), and such failure shall
continue unremedied for a period of 30 days after notice thereof from the
Administrative Agent to the Borrower (which notice will be given at the request
of any Lender); or
(f) the Borrower or any of its Subsidiaries shall (i) default
in any payment of principal of or interest on any Indebtedness (other than any
Nonrecourse Debt) or in the payment of any Contingent Obligation, in any case
having a principal amount exceeding $30,000,000 or in the aggregate having a
principal amount exceeding $50,000,000, in either case beyond the period of
grace (not to exceed 30 days), if any, provided in the instrument or agreement
under which such Indebtedness or Contingent Obligation was created; or (ii)
default in the observance or performance of any other agreement or condition
relating to any such Indebtedness or Contingent Obligation 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 beneficiary or beneficiaries of such Contingent Obligation (or a
trustee or Administrative Agent on behalf of such holder or holders or
beneficiary or beneficiaries) to cause, with the giving of notice if required,
such Indebtedness to become due prior to its stated maturity or such Contingent
Obligation to become payable; or
(g) (i) the Borrower or any Subsidiary shall commence any
case, proceeding or other action (A) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief entered
with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or
seeking reorganization, arrangement, adjustment, rehabilitation, winding-up,
liquidation, dissolution, composition or other relief with respect to it or its
debts (and except for the commencement of a Permitted Voluntary Proceeding), or
(B) seeking appointment of a receiver, trustee, custodian or other similar
official for it or for all or any substantial part of its assets, or the
Borrower or any Subsidiary shall make a general assignment for the benefit of
its creditors; or (ii) there shall be commenced against the Borrower or any
Subsidiary any case, proceeding or other action of a nature referred to in
clause (i) above which (A) results in the entry of an order for relief or any
such adjudication or appointment or (B) remains undismissed, undischarged or
unbonded for a period of 60 days; or (iii) there shall be commenced against the
Borrower or any Subsidiary any case, proceeding or other action seeking issuance
of a warrant of attachment, execution, distraint or similar process against all
or any substantial part of its assets which results in the entry of an order for
any such relief which shall not have been vacated, discharged, or stayed or
bonded pending appeal within 60 days from the entry thereof; or (iv) the
Borrower or any Subsidiary shall have taken any action indicating its consent
to, approval of, or acquiescence in, any of the acts set forth in clause (i),
(ii) or (iii) above; or (v) the Borrower or any Subsidiary shall generally not,
or shall be unable to, or shall admit in writing its inability to, pay its debts
as they become due; or
42
(h) an ERISA Event shall have occurred that, in the opinion of
the Required Lenders, when taken together with all other ERISA Events that have
occurred, could reasonably be expected to result in a Material Adverse Effect;
or
(i) one or more judgments or decrees shall be entered against
the Borrower or any of its Subsidiaries involving in the aggregate a liability
(not paid or fully covered by insurance) of $30,000,000 or more and all such
judgments or decrees shall not have been vacated, discharged, or stayed or
bonded pending appeal within 60 days from the entry thereof;
then, and in every such event (other than an event with respect to the Borrower
described in sub-clauses (i), (ii) or (iv) of clause (g) above), and at any time
thereafter during the continuance of such event, the Administrative Agent may,
and at the request of the Required Lenders shall, by notice to the Borrower,
take either or both of the following actions, at the same or different times:
(i) terminate the Commitments, and thereupon the Commitments shall terminate
immediately, and (ii) declare the Loans then outstanding to be due and payable
in whole (or in part, in which case any principal not so declared to be due and
payable may thereafter be declared to be due and payable), and thereupon the
principal of the Loans so declared to be due and payable, together with accrued
interest thereon and all fees and other obligations of the Borrower accrued
hereunder, shall become due and payable immediately, without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
the Borrower; and in case of any event with respect to the Borrower described in
sub-clauses (i), (ii) or (iv) of clause (g) above, the Commitments shall
automatically terminate and the principal of the Loans then outstanding,
together with accrued interest thereon and all fees and other obligations of the
Borrower accrued hereunder, shall automatically become due and payable, without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower.
7.02. Termination. (a) This Agreement shall terminate in the
event (i) Xxx Xxxxxxx and Xxxxxx Xxxxxxxxx cease to own, directly or indirectly,
32% or more of the Voting Stock of the Borrower; provided that Messrs. Cumming
and/or Xxxxxxxxx may cease to own, directly or indirectly, 32% or more of the
Voting Stock of the Borrower if: (A) in the aggregate, they own, directly or
indirectly, at least 23% of the outstanding Voting Stock, and (B)(x) if during
the lifetime of Xx. Xxxxxxx or Xx. Xxxxxxxxx, the aggregate Market Value of the
Voting Stock owned by them, directly or indirectly, is at least $200,000,000 or
(y) if upon the death of either Xx. Xxxxxxx or Xx. Xxxxxxxxx, the aggregate
Market Value of the Voting Stock owned, directly or indirectly, by the survivor
would be at least $100,000,000 or (ii) either Xx. Xxxxxxx or Xx. Xxxxxxxxx
ceases (if as a result of death, effective as provided below) to be a principal
executive officer (which shall include the office of Chairman of the board of
directors) of the Borrower. Such termination shall be immediate if it arises
from any event other than the death of either or both of Xxx Xxxxxxx and Xxxxxx
Xxxxxxxxx. If such termination shall arise from the death of either or both of
Xxx Xxxxxxx and Xxxxxx Xxxxxxxxx such termination shall take effect 130 days
after such event. Upon any such termination, the Borrower shall pay to the
Administrative Agent for the accounts of the Lenders all amounts owing under
this Agreement. No such termination shall affect any rights acquired by the
Lender under this Agreement prior to or as a result of such termination.
(b) For purposes hereof:
(i) The term "owned, directly or indirectly" shall be
deemed to include all Voting Stock received from Xx. Xxxxxxx or Xx.
Xxxxxxxxx by any member of their respective immediate families or by
any trust for the benefit of either of them or any member of their
respective immediate families (a "Recipient"), which Voting Stock is
held by a Recipient during the lifetime of Xx. Xxxxxxx or Xx.
Xxxxxxxxx. In determining the number of outstanding Common Shares
then held by Messrs. Cumming and Xxxxxxxxx and the total number of
outstanding Common Shares, there shall be excluded Common Shares
issued by the Borrower after December 31, 1991, or the conversion
43
into or exchange for, after December 31, 1991, Common Shares or
securities convertible into or exchangeable for Common Shares.
(ii) The term "Market Price" shall mean, with reference to
the Borrower's common stock ("Common Shares") for any Trading Day,
the last reported sale price of a Common Share as reported on the New
York Stock Exchange or on any principal stock exchange on which the
Common Shares are then listed or admitted to trading or on the
National Association of Securities Dealers National Market System, if
quoted; or, if the Common Shares are not then listed or admitted to
trading on any national securities exchange and there is no reported
last sale price or bid and asked prices available, the average of the
reported high-bid and low-asked prices on such day as reported by a
reputable quotation service or a newspaper of general circulation in
the Borough of Manhattan, City and State of New York, customarily
published on each business day; or, in the absence of one or more
such quotations, the current market price determined in good faith by
the board of directors of the Borrower on the basis of such
quotations or factors as it deems appropriate.
(iii) The term "Market Value" shall mean, with reference
to the Borrower's Common Shares, the average Market Price of such
Common Shares for the twenty Trading Days immediately preceding the
date of the sale, transfer or disposition giving rise to the need to
determine Market Value.
ARTICLE VIII
The Administrative Agent
Each of the Lenders hereby irrevocably appoints the
Administrative Agent as its agent and authorizes the Administrative Agent to
take such actions on its behalf and to exercise such powers as are delegated to
the Administrative Agent by the terms hereof, together with such actions and
powers as are reasonably incidental thereto.
The bank serving as the Administrative Agent hereunder shall
have the same rights and powers in its capacity as a Lender as any other Lender
and may exercise the same as though it were not the Administrative Agent, and
such bank and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Borrower or any Subsidiary or
other Affiliate thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or
obligations except those expressly set forth herein. Without limiting the
generality of the foregoing, (a) the Administrative Agent shall not be subject
to any fiduciary or other implied duties, regardless of whether a Default has
occurred and is continuing, (b) the Administrative Agent shall not have any duty
to take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated hereby that the
Administrative Agent is required to exercise in writing as directed by the
Required Lenders (or such other number or percentage of the Lenders as shall be
necessary under the circumstances as provided in Section 9.02), and (c) except
as expressly set forth herein, the Administrative Agent shall not have any duty
to disclose, and shall not be liable for the failure to disclose, any
information relating to the Borrower or any of its Subsidiaries that is
communicated to or obtained by the bank serving as Administrative Agent or any
of its Affiliates in any capacity. The Administrative Agent shall not be liable
for any action taken or not taken by it with the consent or at the request of
the Required Lenders (or such other number or percentage of the Lenders as shall
be necessary under the circumstances as provided in Section 9.02) or in the
absence of its own gross negligence or willful misconduct. The Administrative
Agent shall be deemed not to have knowledge of any Default other than a payment
44
Default, unless and until written notice thereof is given to the Administrative
Agent by the Borrower or a Lender, and the Administrative Agent shall not be
responsible for or have any duty to ascertain or inquire into (i) any statement,
warranty or representation made in or in connection with this Agreement, (ii)
the contents of any certificate, report or other document delivered hereunder or
in connection herewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth herein, (iv) the
validity, enforceability, effectiveness or genuineness of this Agreement or any
other agreement, instrument or document, or (v) the satisfaction of any
condition set forth in Article IV or elsewhere herein, other than to confirm
receipt of items expressly required to be delivered to the Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and
shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing believed
by it to be genuine and to have been signed or sent by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or by
telephone and believed by it to be made by the proper Person, and shall not
incur any liability for relying thereon. The Administrative Agent may consult
with legal counsel (who may be counsel for the Borrower), independent
accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.
The Administrative Agent may perform any and all its duties
and exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of the Administrative Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided in this paragraph, the Administrative Agent may
resign at any time by notifying the Lenders and the Borrower. Upon any such
resignation, the Required Lenders shall have the right to appoint a successor.
Unless a Default then exists, such successor shall be reasonably acceptable to
the Borrower. If no successor shall have been so appointed by the Required
Lenders and shall have accepted such appointment within 30 days after the
retiring Administrative Agent gives notice of its resignation, then the retiring
Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent which shall be a bank with an office in New York, New York,
or an Affiliate of any such bank. Upon the acceptance of its appointment as
Administrative Agent hereunder by a successor, such successor shall succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring Administrative Agent, and the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder. The fees payable by the
Borrower to a successor Administrative Agent shall be the same as those payable
to its predecessor unless otherwise agreed between the Borrower and such
successor. After the Administrative Agent's resignation hereunder, the
provisions of this Article and Section 9.03 shall continue in effect for the
benefit of such retiring Administrative Agent, its sub-agents and their
respective Related Parties in respect of any actions taken or omitted to be
taken by any of them while it was acting as Administrative Agent.
Each Lender acknowledges that it has, independently and
without reliance upon the Administrative Agent or any other Lender and based on
such documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
45
own decisions in taking or not taking action under or based upon this Agreement,
any related agreement or any document furnished hereunder or thereunder.
The Lead Arranger shall have no duties, responsibilities or
obligations to, no authority to act for, any other party to this Agreement by
virtue of its status as Lead Arranger hereunder.
ARTICLE IX
Miscellaneous
9.01. Notices. (a) Except in the case of notices and other
communications expressly permitted to be given by telephone (and subject to
paragraph (b) below), all notices and other communications provided for herein
shall be in writing and shall be delivered by hand or overnight courier service,
mailed by certified or registered mail or sent by telecopy, as follows:
(i) if to the Borrower, to it at 000 Xxxx Xxxxxx Xxxxx,
Xxx Xxxx, XX 00000, Attention of Xxxxxx X. Orlando (Telecopy No.
212-598-3248), with a copy (which shall not constitute notice) to
Xxxx Xxxxxxx & Xxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000,
Attention of Xxxxxx Xxxxxxxxx(Telecopy No. 212-310-8007);
(ii) if to the Administrative Agent, to JPMorgan Chase
Bank, National Association, Loan and Agency Services Group, 00 Xxxxx
Xxxxxxxx, 00xx Xxxxx, Xxxxxxx, XX 00000-0000, Attention of Xxxxxxx
Xxxx (Telecopy No. (000) 000-0000), with a copy to JPMorgan Chase
Bank, National Association, 000 Xxxx Xxxxxx, Xxx Xxxx 00000,
Attention of Xxxxx Xxxxxxxx Xxxxx (Telecopy No. 212-899-2908), with
an additional copy (which shall not constitute notice) to Xxxxxxx
XxXxxxxxx LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention of
Xxxxxxxxx X. Xxxxxxxxxxxx (Telecopy No. 212-702-3646);
(iii) if to the Swingline Lender, to JPMorgan Chase Bank,
National Association, Loan and Agency Services Group, 00 Xxxxx
Xxxxxxxx, 00xx Xxxxx, Xxxxxxx, XX 00000-0000, Attention of Xxxxxxx
Xxxx (Telecopy No. (000) 000-0000), with a copy to JPMorgan Chase
Bank, National Association, 000 Xxxx Xxxxxx, Xxx Xxxx 00000,
Attention of Xxxxx Xxxxxxxx Xxxxx (Telecopy No. 212-899-2908); and
(iv) if to any other Lender, to it at its address (or
telecopy number) set forth in its Administrative Questionnaire.
(b) Notices and other communications to the Lenders hereunder
may be delivered or furnished by electronic communications pursuant to
procedures approved by the Administrative Agent; provided that the foregoing
shall not apply to notices pursuant to Article II unless otherwise agreed by the
Administrative Agent and the applicable Lender. The Administrative Agent or the
Borrower may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures approved by it; provided that approval of such procedures may be
limited to particular notices or communications.
(c) Any party hereto may change its address or telecopy number
for notices and other communications hereunder by notice to the other parties
hereto. All notices and other communications given to any party hereto in
accordance with the provisions of this Agreement shall be deemed to have been
given on the date of receipt.
46
9.02. Waivers; Amendments. (a) No failure or delay by the
Administrative Agent or any Lender in exercising any right or power hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right or power, or any abandonment or discontinuance of steps to
enforce such a right or power, preclude any other or further exercise thereof or
the exercise of any other right or power. The rights and remedies of the
Administrative Agent and the Lenders hereunder are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver of
any provision of this Agreement or consent to any departure by the Borrower
therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) of this Section, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given.
Without limiting the generality of the foregoing, the making of a Loan shall not
be construed as a waiver of any Default, regardless of whether the
Administrative Agent, any Lender may have had notice or knowledge of such
Default at the time.
(b) Neither this Agreement nor any provision hereof may be
waived, amended or modified except pursuant to an agreement or agreements in
writing entered into by the Borrower and the Required Lenders or by the Borrower
and the Administrative Agent with the consent of the Required Lenders; provided
that no such agreement shall (i) increase the Commitment of any Lender without
the written consent of such Lender, (ii) reduce the principal amount of any Loan
or reduce the rate of interest thereon, or reduce any fees payable hereunder,
without the written consent of each Lender affected thereby, (iii) postpone the
scheduled date of payment of the principal amount of any Loan, or any interest
thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse
any such payment, or postpone the scheduled date of expiration of any
Commitment, without the written consent of each Lender affected thereby, (iv)
change Section 2.18(b) or (c) in a manner that would alter the pro rata sharing
of payments required thereby, without the written consent of each Lender, or (v)
change any of the provisions of this Section or the definition of "Required
Lenders" or any other provision hereof specifying the number or percentage of
Lenders required to waive, amend or modify any rights hereunder or make any
determination or grant any consent hereunder, without the written consent of
each Lender; provided further that no such agreement shall amend, modify or
otherwise affect the rights or duties of the Administrative Agent or the
Swingline Lender hereunder without the prior written consent of the
Administrative Agent or the Swingline Lender, as the case may be.
9.03. Expenses; Indemnity; Damage Waiver. (a) The Borrower
shall pay (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent or the Lead Arranger, including the reasonable fees,
charges and disbursements of counsel for the Administrative Agent and the Lead
Arranger, in connection with the syndication of the Revolving Loans provided for
herein, the preparation, execution, delivery and administration of this
Agreement or any amendments, modifications or waivers of the provisions hereof
(whether or not the transactions contemplated hereby or thereby shall be
consummated), and (ii) all out-of-pocket expenses incurred by the Administrative
Agent, or any Lender, including the fees, charges and disbursements of any
counsel for the Administrative Agent, or any Lender, in connection with the
enforcement or protection of its rights in connection with this Agreement,
including its rights under this Section, or in connection with the Loans issued
hereunder, including all such out-of-pocket expenses incurred during any
workout, restructuring or negotiations in respect of such Loans.
(b) The Borrower shall indemnify the Administrative Agent, the
Lead Arranger and each Lender, and each Related Party of any of the foregoing
Persons (each such Person being called an "Indemnitee") against, and hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and
related expenses, including the fees, charges and disbursements of any counsel
for any Indemnitee, incurred by or asserted against any Indemnitee arising out
of, in connection with, or as a result of (i) the execution or delivery of this
Agreement or any agreement or instrument contemplated hereby, the performance by
the parties hereto of their respective obligations hereunder or the consummation
47
of the Transactions or any other transactions contemplated hereby, (ii) any Loan
or the use of the proceeds therefrom, (iii) any actual or alleged presence or
release of Hazardous Materials on or from any property owned or operated by the
Borrower or any of its Subsidiaries, or any Environmental Liability related in
any way to the Borrower or any of its Subsidiaries, or (iv) any actual or
prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory and
regardless of whether any Indemnitee is a party thereto; provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses are determined by a
court of competent jurisdiction by final and nonappealable judgment to have
resulted from the gross negligence or willful misconduct of such Indemnitee.
(c) To the extent that the Borrower fails to pay any amount
required to be paid by it to the Administrative Agent or the Swingline Lender
under paragraph (a) or (b) of this Section, each Lender severally agrees to pay
to the Administrative Agent, or the Swingline Lender, as the case may be, such
Lender's Applicable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent, or the Swingline Lender in its capacity as
such.
(d) To the extent permitted by applicable law, the Borrower
shall not assert, and hereby waives, any claim against any Indemnitee, on any
theory of liability, for special, indirect, consequential or punitive damages
(as opposed to direct or actual damages) arising out of, in connection with, or
as a result of, this Agreement or any agreement or instrument contemplated
hereby, the Transactions, any Loan or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable
promptly following written demand therefor.
9.04. Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby, except that (i)
the Borrower may not assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each Lender (and any
attempted assignment or transfer by the Borrower without such consent shall be
null and void) and (ii) no Lender may assign or otherwise transfer its rights or
obligations hereunder except in accordance with this Section. Nothing in this
Agreement, expressed or implied, shall be construed to confer upon any Person
(other than the parties hereto, their respective successors and assigns
permitted hereby), Participants (to the extent provided in paragraph (c) of this
Section) and, to the extent expressly contemplated hereby, the Related Parties
of each of the Administrative Agent and the Lenders) any legal or equitable
right, remedy or claim under or by reason of this Agreement.
(b) (i) Subject to the conditions set forth in paragraph
(b)(ii) below, any Lender may assign to one or more assignees all or a portion
of its rights and obligations under this Agreement (including all or a portion
of its Commitment and the Loans at the time owing to it) with the prior written
consent (such consent not to be unreasonably withheld) of:
(A) the Borrower; provided that no consent of the Borrower
shall be required for an assignment to a Lender, an Affiliate of a
Lender, an Approved Fund or, if an Event of Default has occurred and
is continuing, any other assignee;
48
(B) the Administrative Agent; provided that no consent of
the Administrative Agent shall be required for an assignment of any
Commitment to an assignee that is a Lender with a Commitment
immediately prior to giving effect to such assignment; and
(ii) Assignments shall be subject to the following
additional conditions:
(A) except in the case of an assignment to a Lender or an
Affiliate of a Lender or an assignment of the entire remaining amount
of the assigning Lender's Commitment or Loans of any Class, the
amount of the Commitment or Loans of the assigning Lender subject to
each such assignment (determined as of the date the Assignment and
Assumption with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $2,500,000 unless each
of the Borrower and the Administrative Agent otherwise consent;
provided that no such consent of the Borrower shall be required if an
Event of Default has occurred and is continuing;
(B) each partial assignment shall be made as an assignment
of a proportionate part of all the assigning Lender's rights and
obligations under this Agreement; provided that this clause shall not
be construed to prohibit the assignment of a proportionate part of
all the assigning Lender's rights and obligations in respect of one
Class of Commitments or Loans;
(C) the parties to each assignment shall execute and
deliver to the Administrative Agent an Assignment and Assumption,
together with a processing and recordation fee of $3,500; and
(D) the assignee, if it shall not have been a Lender prior
to the effective date of such assignment, shall deliver to the
Administrative Agent an Administrative Questionnaire in which the
assignee designates one or more credit contacts to whom all
syndicate-level information (which may contain material non-public
information about the Borrower and its related parties or its
securities) will be made available and who may receive such
information in accordance with the assignee's compliance procedures
and applicable laws, including Federal and state securities laws.
For the purposes of this Section 9.04(b), the term "Approved
Fund" has the following meaning:
"Approved Fund" means any Person (other than a natural person)
that is engaged in making, purchasing, holding or investing in bank loans and
similar extensions of credit in the ordinary course of its business and that is
administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an
entity or an Affiliate of an entity that administers or manages a Lender.
(iii) Subject to acceptance and recording thereof pursuant
to paragraph (b)(iv) of this Section, from and after the effective
date specified in each Assignment and Assumption the assignee
thereunder shall be a party hereto and, to the extent of the interest
assigned by such Assignment and Assumption, have the rights and
obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Assumption, be released from its obligations
under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender's rights and
obligations under this Agreement, such Lender shall cease to be a
party hereto but shall continue to be entitled to the benefits of
Sections 2.15, 2.16, 2.17 and 9.03). Any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not
49
comply with this Section 9.04 shall be treated for purposes of this
Agreement as a sale by such Lender of a participation in such rights
and obligations in accordance with paragraph (c) of this Section.
(iv) The Administrative Agent, acting for this purpose as
an agent of the Borrower, shall maintain at one of its offices a copy
of each Assignment and Assumption delivered to it and a register for
the recordation of the names and addresses of the Lenders, and the
Commitment of, and principal amount of the Loans owing to, each
Lender pursuant to the terms hereof from time to time (the
"Register"). The entries in the Register shall be conclusive, and the
Borrower, the Administrative Agent and the Lenders may treat each
Person whose name is recorded in the Register pursuant to the terms
hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrower and any Lender, at any
reasonable time and from time to time upon reasonable prior notice.
(v) Upon its receipt of a duly completed Assignment and
Assumption executed by an assigning Lender and an assignee, the
assignee's completed Administrative Questionnaire (unless the
assignee shall already be a Lender hereunder), the processing and
recordation fee referred to in paragraph (b) of this Section and any
written consent to such assignment required by paragraph (b) of this
Section, the Administrative Agent shall accept such Assignment and
Assumption and record the information contained therein in the
Register; provided that if either the assigning Lender or the
assignee shall have failed to make any payment required to be made by
it pursuant to Sections 2.04(a), 2.05(c), 2.06(b), 2.18(d) or
9.03(c), the Administrative Agent shall have no obligation to accept
such Assignment and Assumption and record the information therein in
the Register unless and until such payment shall have been made in
full, together with all accrued interest thereon. No assignment shall
be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph.
(c) (i) Any Lender may, without the consent of the Borrower,
the Administrative Agent or the Swingline Lender, sell participations to one or
more banks or other entities (a "Participant") in all or a portion of such
Lender's rights and obligations under this Agreement (including all or a portion
of its Commitment and the Loans owing to it); provided that (A) such Lender's
obligations under this Agreement shall remain unchanged, (B) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations and (C) the Borrower, the Administrative Agent and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement. Any
agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision
of this Agreement; provided that such agreement or instrument may provide that
such Lender will not, without the consent of the Participant, agree to any
amendment, modification or waiver described in the first proviso to Section
9.02(b) that affects such Participant. Subject to paragraph (c)(ii) of this
Section, the Borrower agrees that each Participant shall be entitled to the
benefits of Sections 2.15, 2.16 and 2.17 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to paragraph (b) of
this Section. To the extent permitted by law, each Participant also shall be
entitled to the benefits of Section 9.08 as though it were a Lender, provided
such Participant agrees to be subject to Section 2.18(c) as though it were a
Lender.
(ii) A Participant shall not be entitled to receive any
greater payment under Sections 2.15 or 2.17 than the applicable
Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the
participation to such Participant is made with the Borrower's prior
written consent to such greater payment. A Participant that would be
a Foreign Lender if it were a Lender shall not be entitled to the
benefits of Section 2.17 unless the Borrower is notified of the
50
participation sold to such Participant and such Participant agrees,
for the benefit of the Borrower, to comply with Section 2.17(e) as
though it were a Lender.
(iii) Each Lender that sells a Participation to a
Participant shall, as a non-fiduciary agent of the Borrower, keep a
register of each Participant, specifying such Participant's
entitlement to payments of principal and interest pursuant to such
Participation. The entries in such register shall be conclusive, and
each Lender shall treat each Person whose name is recorded in such
register as a Participant, unless it receives notice to the contrary.
(d) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement to secure
obligations of such Lender, including without limitation any pledge or
assignment to secure obligations to a Federal Reserve Bank, and this Section
shall not apply to any such pledge or assignment of a security interest;
provided that no such pledge or assignment of a security interest shall release
a Lender from any of its obligations hereunder or substitute any such pledgee or
assignee for such Lender as a party hereto.
(e) On one or more occasions, one or more Additional Lenders
may be admitted as Lenders party to this Agreement in connection with an
increase of the Total Commitment pursuant to Section 2.09, subject to (i)
execution and delivery by any such Additional Lender to the Administrative
Agent, for recording in the Register, of an Instrument of Adherence
substantially in the form of Exhibit B hereto (an "Instrument of Adherence"),
(ii) acceptance of such Instrument of Adherence by each of the Administrative
Agent and the Borrower by their respective executions thereof, and (iii) the
completion of an Administrative Questionnaire by such Additional Lender promptly
delivered to the Administrative Agent. Upon the satisfaction of the foregoing
conditions, from and after the effective date specified in each such Instrument
of Adherence, which effective date shall be at least five Business Days after
the execution thereof, the Additional Lender shall be a Lender party hereto and
have the rights and obligations of a Lender hereunder.
9.05. Survival. All covenants, agreements, representations and
warranties made by the Borrower herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any
Loans, regardless of any investigation made by any such other party or on its
behalf and notwithstanding that the Administrative Agent or any Lender may have
had notice or knowledge of any Default or incorrect representation or warranty
at the time any credit is extended hereunder, and shall continue in full force
and effect as long as the principal of or any accrued interest on any Loan or
any fee or any other amount payable under this Agreement is outstanding and so
long as the Commitments have not expired or terminated. The provisions of
Sections 2.15, 2.16, 2.17 and 9.03 and Article VIII shall survive and remain in
full force and effect regardless of the consummation of the transactions
contemplated hereby, the repayment of the Loans and the Commitments or the
termination of this Agreement or any provision hereof.
9.06. Counterparts; Integration; Effectiveness. This Agreement
may be executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement and any
separate letter agreements with respect to fees payable to the Administrative
Agent or the Lead Arranger constitute the entire contract among the parties
relating to the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject matter
hereof. Except as provided in Section 4.01, this Agreement shall become
effective when it shall have been executed by the Administrative Agent and when
the Administrative Agent shall have received counterparts hereof which, when
taken together, bear the signatures of each of the other parties hereto, and
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thereafter shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. Delivery of an executed counterpart
of a signature page of this Agreement by telecopy shall be effective as delivery
of a manually executed counterpart of this Agreement.
9.07. Severability. Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
9.08. Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Lender and each of its Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other obligations at any time
owing by such Lender or Affiliate to or for the credit or the account of the
Borrower against any of and all the obligations of the Borrower now or hereafter
existing under this Agreement held by such Lender, irrespective of whether or
not such Lender shall have made any demand under this Agreement and although
such obligations may be unmatured. The rights of each Lender under this Section
are in addition to other rights and remedies (including other rights of setoff)
which such Lender may have.
9.09. Governing Law; Jurisdiction; Consent to Service of
Process. (a) This Agreement shall be construed in accordance with and governed
by the law of the State of New York.
(b) The Borrower hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of the
Supreme Court of the State of New York sitting in New York County and of the
United States District Court of the Southern District of New York sitting in New
York County, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Agreement, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that the
Administrative Agent or any Lender may otherwise have to bring any action or
proceeding relating to this Agreement against the Borrower or its properties in
the courts of any jurisdiction.
(c) The Borrower hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement in any court
referred to in paragraph (b) of this Section. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
(d) Each party to this Agreement irrevocably consents to
service of process in the manner provided for notices in Section 9.01. Nothing
in this Agreement will affect the right of any party to this Agreement to serve
process in any other manner permitted by law.
9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
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BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
9.11. Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
9.12. Confidentiality. (a) Each of the Administrative Agent
and the Lenders agrees to maintain the confidentiality of the Information (as
defined below), except that Information may be disclosed (a) to its and its
Affiliates' directors, officers, employees and agents, including accountants,
legal counsel and other advisors (it being understood that the Persons to whom
such disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to the
extent requested by any regulatory authority, (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process, (d)
to any other party to this Agreement, (e) in connection with the exercise of any
remedies hereunder or any suit, action or proceeding relating to this Agreement
or the enforcement of rights hereunder, (f) subject to an agreement containing
provisions substantially the same as those of this Section, to (i) any assignee
of or Participant in, or any prospective assignee of or Participant in, any of
its rights or obligations under this Agreement or (ii) any actual or prospective
counterparty (or its advisors) to any swap or derivative transaction relating to
the Borrower and its obligations, (g) with the consent of the Borrower or (h) to
the extent such Information (i) becomes publicly available other than as a
result of a breach of this Section or (ii) becomes available to the
Administrative Agent or any Lender on a nonconfidential basis from a source
other than the Borrower or a Subsidiary of the Borrower. For the purposes of
this Section, "Information" means all information received from the Borrower or
a Subsidiary of the Borrower relating to the Borrower or a Subsidiary of the
Borrower or their businesses, other than any such information that is available
to the Administrative Agent or any Lender on a nonconfidential basis prior to
disclosure by the Borrower or a Subsidiary of the Borrower; provided that, in
the case of information received from the Borrower or a Subsidiary of the
Borrower after the date hereof, such information is clearly identified at the
time of delivery as confidential. Any Person required to maintain the
confidentiality of Information as provided in this Section shall be considered
to have complied with its obligation to do so if such Person has exercised the
same degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.
(b) EACH LENDER ACKNOWLEDGES THAT INFORMATION AS DEFINED IN
SECTION 9.12(A) FURNISHED TO IT PURSUANT TO THIS AGREEMENT MAY INCLUDE MATERIAL
NON-PUBLIC INFORMATION CONCERNING THE BORROWER AND ITS RELATED PARTIES OR THEIR
RESPECTIVE SECURITIES, AND CONFIRMS THAT IT HAS DEVELOPED COMPLIANCE PROCEDURES
REGARDING THE USE OF MATERIAL NON-PUBLIC INFORMATION AND THAT IT WILL HANDLE
SUCH MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH THOSE PROCEDURES AND
APPLICABLE LAW, INCLUDING FEDERAL AND STATE SECURITIES LAWS.
(c) ALL INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND
AMENDMENTS, FURNISHED BY THE BORROWER OR THE ADMINISTRATIVE AGENT PURSUANT TO,
OR IN THE COURSE OF ADMINISTERING, THIS AGREEMENT WILL BE SYNDICATE-LEVEL
53
INFORMATION, WHICH MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION ABOUT THE
BORROWER AND ITS RELATED PARTIES OR ITS SECURITIES. ACCORDINGLY, EACH LENDER
REPRESENTS TO THE BORROWER AND THE ADMINISTRATIVE AGENT THAT IT HAS IDENTIFIED
IN ITS ADMINISTRATIVE QUESTIONNAIRE A CREDIT CONTACT WHO MAY RECEIVE INFORMATION
THAT MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH ITS
COMPLIANCE PROCEDURES AND APPLICABLE LAW.
9.13. USA PATRIOT Act. Each Lender that is subject to the
requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into
law October 26, 2001)) (the "Act") hereby notifies the Borrower that pursuant to
the requirements of the Act, it is required to obtain, verify and record
information that identifies the Borrower, which information includes the name
and address of the Borrower and other information that will allow such Lender to
identify the Borrower in accordance with the Act.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
LEUCADIA NATIONAL CORPORATION
By:
------------------------------------------------
Name:
Title:
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,
individually, as Administrative Agent and as
Swingline Lender
By:
------------------------------------------------
Name:
Title:
BANK OF AMERICA, N.A.
By:
------------------------------------------------
Name:
Title:
HSBC BANK USA, NATIONAL ASSOCIATION
By:
------------------------------------------------
Name:
Title:
ISRAEL DISCOUNT BANK OF NEW YORK
By:
------------------------------------------------
Name:
Title:
By:
------------------------------------------------
Name:
Title:
