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Exhibit 10.6
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364-DAY CREDIT AGREEMENT
DATED AS OF MAY 25, 2000
AMONG
NATIONWIDE MUTUAL INSURANCE COMPANY,
NATIONWIDE LIFE INSURANCE COMPANY,
NATIONWIDE FINANCIAL SERVICES, INC.,
THE LENDERS,
BANK ONE, NA
AS AGENT,
THE CHASE MANHATTAN BANK,
AS SYNDICATION AGENT,
THE BANK OF NEW YORK
AND
CITIBANK USA, INC.,
AS CO-DOCUMENTATION AGENTS,
AND
BANC ONE CAPITAL MARKETS, INC.
AS LEAD ARRANGER AND SOLE BOOK RUNNER
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TABLE OF CONTENTS
SECTION PAGE
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ARTICLE I DEFINITIONS............................................................................................1
ARTICLE II THE CREDITS..........................................................................................16
2.1 The Facility.............................................................................................16
2.2 Ratable Advances.........................................................................................17
2.3 Competitive Bid Advances.................................................................................19
2.4 Method of Borrowing......................................................................................22
2.5 Commitment Fee; Reduction and Increase of Aggregate Commitment...........................................23
2.6 Minimum Amount of Each Ratable Advance; Minimum Amount of
Fixed Rate Advances..............................................................................24
2.7 Optional Principal Payments..............................................................................24
2.8 Changes in Interest Rate, etc............................................................................24
2.9 Rates Applicable After Default...........................................................................25
2.10 Method of Payment........................................................................................25
2.11 Noteless Agreement; Evidence of Indebtedness.............................................................25
2.12 Telephonic Notices.......................................................................................26
2.13 Interest Payment Dates; Interest and Fee Basis...........................................................26
2.14 Notification of Advances, Interest Rates, Prepayments and Commitment Reductions..........................27
2.15 Lending Installations....................................................................................27
2.16 Non-Receipt of Funds by the Agent........................................................................27
2.17 Extension of Facility Termination Date...................................................................27
ARTICLE III YIELD PROTECTION; TAXES.............................................................................28
3.1 Yield Protection.........................................................................................28
3.2 Changes in Capital Adequacy Regulations..................................................................29
3.3 Availability of Types of Advances........................................................................30
3.4 Funding Indemnification..................................................................................30
3.5 Taxes....................................................................................................30
3.6 Lender Statements; Survival of Indemnity.................................................................32
ARTICLE IV CONDITIONS PRECEDENT.................................................................................33
4.1 Initial Advance..........................................................................................33
4.2 Each Advance.............................................................................................34
ARTICLE V REPRESENTATIONS AND WARRANTIES........................................................................35
5.1 Existence and Standing...................................................................................35
5.2 Authorization and Validity...............................................................................35
5.3 No Conflict; Government Consent..........................................................................36
5.4 Financial Statements.....................................................................................36
5.5 Material Adverse Change..................................................................................37
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TABLE OF CONTENTS (CONTINUED)
SECTION PAGE
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5.6 Taxes....................................................................................................37
5.7 Litigation and Contingent Obligations....................................................................37
5.8 Subsidiaries.............................................................................................38
5.9 ERISA....................................................................................................38
5.10 Accuracy of Information..................................................................................38
5.11 Regulation U.............................................................................................38
5.12 Material Agreements......................................................................................38
5.13 Compliance With Laws.....................................................................................38
5.14 Plan Assets; Prohibited Transactions.....................................................................39
5.15 Environmental Matters....................................................................................39
5.16 Investment Company Act...................................................................................39
5.17 Public Utility Holding Company Act.......................................................................39
5.18 Defaults.................................................................................................39
5.19 Insurance Licenses.......................................................................................39
ARTICLE VI COVENANTS............................................................................................40
6.1 Financial Reporting......................................................................................40
6.2 Use of Proceeds..........................................................................................42
6.3 Notice of Default........................................................................................42
6.4 Conduct of Business......................................................................................42
6.5 Taxes....................................................................................................43
6.6 Insurance................................................................................................43
6.7 Compliance with Laws.....................................................................................43
6.8 Maintenance of Properties................................................................................43
6.9 Inspection...............................................................................................43
6.10 Merger...................................................................................................44
6.11 Sale of Assets...........................................................................................44
6.12 Liens....................................................................................................44
6.13 Affiliates...............................................................................................46
6.14 ERISA Compliance.........................................................................................46
6.15 Financial Covenants......................................................................................47
ARTICLE VII DEFAULTS............................................................................................48
7.1 Representation or Warranty...............................................................................48
7.2 Non-Payment of Obligations...............................................................................48
7.3 Specific Defaults........................................................................................48
7.4 Other Defaults...........................................................................................48
7.5 Cross-Default............................................................................................48
7.6 Voluntary Proceedings....................................................................................49
7.7 Involuntary Proceedings..................................................................................49
7.8 Condemnation.............................................................................................49
7.9 Judgments................................................................................................49
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TABLE OF CONTENTS (CONTINUED)
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7.10 Change in Control........................................................................................49
7.11 Rate Management Obligation...............................................................................49
7.12 License..................................................................................................50
7.13 Violation of Insurance Laws..............................................................................50
7.14 Directive or Mandate.....................................................................................50
7.15 Cross-Default With Respect to Other Borrowers............................................................50
ARTICLE VIII ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES.....................................................50
8.1 Acceleration.............................................................................................50
8.2 Amendments...............................................................................................51
8.3 Preservation of Rights...................................................................................52
ARTICLE IX GENERAL PROVISIONS...................................................................................52
9.1 Survival of Representations..............................................................................52
9.2 Governmental Regulation..................................................................................52
9.3 Headings.................................................................................................52
9.4 Entire Agreement.........................................................................................52
9.5 Several Obligations; Benefits of this Agreement..........................................................52
9.6 Expenses; Indemnification................................................................................53
9.7 Numbers of Documents.....................................................................................53
9.8 Accounting...............................................................................................53
9.9 Severability of Provisions...............................................................................53
9.10 Nonliability of Lenders..................................................................................54
9.11 Confidentiality..........................................................................................54
9.12 Nonreliance..............................................................................................54
9.13 Disclosure...............................................................................................54
ARTICLE X THE AGENT.............................................................................................55
10.1 Appointment; Nature of Relationship.....................................................................55
10.2 Powers..................................................................................................55
10.3 General Immunity........................................................................................55
10.4 No Responsibility for Loans, Recitals, etc..............................................................55
10.5 Action on Instructions of Lenders.......................................................................56
10.6 Employment of Agents and Counsel........................................................................56
10.7 Reliance on Documents; Counsel..........................................................................56
10.8 Agent's Reimbursement and Indemnification...............................................................56
10.9 Notice of Default.......................................................................................57
10.10 Rights as a Lender......................................................................................57
10.11 Lender Credit Decision..................................................................................57
10.12 Successor Agent.........................................................................................57
10.13 Agent and Arranger Fees.................................................................................58
10.14 Delegation to Affiliates................................................................................58
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TABLE OF CONTENTS (CONTINUED)
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10.15 Co-Agents, Documentation Agent, Syndication Agent, etc..................................................58
ARTICLE XI SETOFF; RATABLE PAYMENTS.............................................................................59
11.1 Setoff..................................................................................................59
11.2 Ratable Payments........................................................................................59
ARTICLE XII BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS...................................................59
12.1 Successors and Assigns..................................................................................59
12.2 Participations..........................................................................................60
12.3 Assignments.............................................................................................61
12.4 Dissemination of Information............................................................................61
12.5 Tax Treatment...........................................................................................62
ARTICLE XIII NOTICES............................................................................................63
13.1 Notices.................................................................................................63
13.2 Change of Address.......................................................................................63
ARTICLE XIV COUNTERPARTS........................................................................................63
ARTICLE XV CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL.........................................64
15.1 CHOICE OF LAW...........................................................................................64
15.2 CONSENT TO JURISDICTION.................................................................................64
15.3 WAIVER OF JURY TRIAL....................................................................................64
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TABLE OF CONTENTS (CONTINUED)
SECTION PAGE
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SCHEDULES
Pricing Schedule
Schedule 1 Commitments
Schedule 5.08 Subsidiaries
Schedule 6.12 Liens
EXHIBITS
Exhibit A-1 Ratable Note
Exhibit A-2 Competitive Bid Note
Exhibit B Compliance Certificate
Exhibit C Assignment and Acceptance
Exhibit D Wire Money Transfer Instructions
Exhibit E Competitive Bid Quote
Exhibit F Competitive Bid Quote Request
Exhibit G Invitation for Competitive Bid Quotes
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364-DAY CREDIT AGREEMENT
This Agreement, dated as of May 25, 2000, is among Nationwide Mutual
Insurance Company, Nationwide Life Insurance Company, Nationwide Financial
Services, Inc., the Lenders and Bank One, NA, a national banking association
having its principal office in Chicago, Illinois, as Agent. The parties hereto
agree as follows:
ARTICLE I
DEFINITIONS
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As used in this Agreement:
"ABR Advance" means an Advance which, except as otherwise provided in
SECTION 2.9, bears interest at the Alternate Base Rate.
"ABR Loan" means a Loan which, except as otherwise provided in SECTION
2.9, bears interest at the Alternate Base Rate.
"Absolute Rate" means, with respect to an Absolute Rate Loan made by a
given Lender for the relevant Absolute Rate Interest Period, the rate of
interest per annum (rounded to the nearest 1/100 of 1%) offered by such Lender
and accepted by the Requesting Borrower pursuant to SECTION 2.3.
"Absolute Rate Advance" means a borrowing hereunder consisting of the
aggregate amount of the several Absolute Rate Loans made by some or all of the
Lenders to the Requesting Borrower at the same time and for the same Absolute
Rate Interest Period.
"Absolute Rate Auction" means a solicitation of Competitive Bid Quotes
setting forth Absolute Rates pursuant to SECTION 2.3.
"Absolute Rate Interest Period" means, with respect to an Absolute Rate
Advance, a period of not less than 1 and not more than 270 days commencing on a
Business Day selected by the Requesting Borrower pursuant to this Agreement. If
such Absolute Rate Interest Period would end on a day which is not a Business
Day, such Absolute Rate Interest Period shall end on the next succeeding
Business Day.
"Absolute Rate Loan" means a Loan which bears interest at an Absolute
Rate.
"Advance" means a Ratable Advance or a Competitive Bid Advance.
"Affiliate" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control
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another Person if the controlling Person owns 10% or more of any class of voting
securities (or other ownership interests) of the controlled Person or possesses,
directly or indirectly, the power to direct or cause the direction of the
management or policies of the controlled Person, whether through ownership of
stock, by contract or otherwise.
"Agent" means Bank One in its capacity as contractual representative of
the Lenders pursuant to ARTICLE X, and not in its individual capacity as a
Lender, and any successor Agent appointed pursuant to ARTICLE X.
"Aggregate Commitment" means the aggregate of the Commitments of all
the Lenders, as reduced from time to time pursuant to the terms hereof.
"Agreement" means this credit agreement, as it may be amended or
modified and in effect from time to time.
"Agreement Accounting Principles" means generally accepted accounting
principles as in effect from time to time, applied in a manner consistent with
that used in preparing the financial statements referred to in Section 5.4(c);
PROVIDED, HOWEVER, that for the purposes of all computations required to be made
with respect to compliance by any Borrower with SECTION 6.15, such term shall
mean generally accepted accounting principles (excluding where SAP is
applicable) as in effect on the date hereof, applied in a manner consistent with
those used in preparing the financial statements referred to in SECTION 5.4.
"Alternate Base Rate" means, for any day, a rate of interest per annum
equal to the higher of (a) the Prime Rate for such day or (b) the sum of the
Federal Funds Effective Rate for such day plus 1/2% per annum.
"AMH" means Asset Management Holdings plc, which indirectly owns 100%
of the capital stock of Gartmore Investment Management plc.
"AMH Acquisition" means the acquisition by Nationwide Mutual or one of
its Subsidiaries of all or substantially all of the assets of AMH.
"Annual Statement" means the annual statutory financial statement of
any Insurance Company required to be filed with the insurance commissioner (or
similar authority) of its jurisdiction of incorporation, which statement shall
be in the form required by such Insurance Company's jurisdiction of
incorporation or, if no specific form is so required, in the form of financial
statements permitted by such insurance commissioner (or such similar authority)
to be used for filing annual statutory financial statements and shall contain
the type of information permitted by such insurance commissioner (or similar
authority) to be disclosed therein, together with all exhibits or schedules
filed therewith.
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"Applicable Facility Fee Rate" means, at any time, the percentage rate
per annum at which Facility Fees are accruing on the Aggregate Commitment
(without regard to usage) at such time as set forth in the PRICING SCHEDULE.
"Applicable Margin" means, with respect to Ratable Advances at any
time, the percentage rate per annum which is applicable at such time with
respect to Advances as set forth in the PRICING SCHEDULE.
"Applicable Utilization Fee Rate" means, at any time, the percentage
rate per annum at which Utilization Fees are accruing as set forth in the
PRICING SCHEDULE.
"Arranger" means Banc One Capital Markets, Inc., a Delaware
corporation, and its successors, in its capacity as Lead Arranger and Sole Book
Runner.
"Article" means an article of this Agreement unless another document is
specifically referenced.
"Authorized Officer" means any of the Treasurer or any Assistant
Treasurer of a Borrower, acting singly.
"Bank One" means Bank One, NA, a national banking association having
its principal office in Chicago, Illinois, in its individual capacity, and its
successors.
"Borrowers" means, collectively, Nationwide Mutual, Nationwide Life and
NFS, and their respective successors and assigns.
"Borrowing Date" means a date on which an Advance is made hereunder.
"Borrowing Notice" means a Competitive Bid Borrowing Notice or a
Ratable Borrowing Notice, as the context may require.
"Business Day" means (a) with respect to any borrowing, payment or rate
selection of Eurodollar Advances, a day (other than a Saturday or Sunday) on
which banks generally are open in Chicago and New York for the conduct of
substantially all of their commercial lending activities, interbank wire
transfers can be made on the Fedwire system and dealings in United States
dollars are carried on in the London interbank market and (b) for all other
purposes, a day (other than a Saturday or Sunday) on which banks generally are
open in Chicago and New York for the conduct of substantially all of their
commercial lending activities and interbank wire transfers can be made on the
Fedwire system.
"Capitalized Lease" of a Person means any lease of Property by such
Person as lessee which would be capitalized on a balance sheet of such Person
prepared in accordance with Agreement Accounting Principles.
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"Capitalized Lease Obligations" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be shown as a
liability on a balance sheet of such Person prepared in accordance with
Agreement Accounting Principles.
"Cash Equivalent Investments" means (a) short-term obligations of, or
fully guaranteed by, the United States of America, (b) commercial paper rated
A-1 or better by S&P or P-1 or better by Moody's, (c) demand deposit accounts
maintained in the ordinary course of business, and (d) certificates of deposit
issued by and time deposits with commercial banks (whether domestic or foreign)
having capital and surplus in excess of $100,000,000; PROVIDED in each case that
the same provides for payment of both principal and interest (and not principal
alone or interest alone) and is not subject to any contingency regarding the
payment of principal or interest.
"CDOs" means notes or other instruments secured by collateral
consisting primarily of debt securities and/or other types of debt obligations,
including loans.
"Change in Control" means (a) in the case of Nationwide Mutual, it
shall cease to be a mutual insurance company, (b) in the case of Nationwide
Life, it shall cease to be a Wholly-Owned Subsidiary of NFS, and (c) in the case
of NFS, it shall cease to be a Subsidiary of Nationwide Mutual.
"Closing Date" means May 25, 2000.
"Code" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"Combined Annual Statement" means the Annual Statement required to be
filed by Nationwide Mutual and its affiliated property and casualty insurers.
"Commitment" means, (a) with respect to each Lender, the amount
specified for such Lender on SCHEDULE 1 and (b) with respect to each Person
which becomes a Lender after the Closing Date, the amount specified for such
Person on the signature page of the Assignment and Acceptance or in the
Assumption Agreement, as the case may be, to which it is a party, in each case,
as such amount may be permanently terminated or reduced from time to time
pursuant to SECTION 2.5(c) or SECTION 8.1, and as such amount may be increased
from time to time pursuant to SECTION 2.5(d).
"Competitive Bid Advance" means a borrowing hereunder made by some or
all of the Lenders on the same Borrowing Date and consisting of the aggregate
amount of the several Competitive Bid Loans of the same Type and for the same
Interest Period.
"Competitive Bid Borrowing Notice" is defined in SECTION 2.3.6.
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"Competitive Bid Loan" means a Eurodollar Bid Rate Loan or an Absolute
Rate Loan, or both, as the case may be.
"Competitive Bid Margin" means the margin above or below the applicable
Eurodollar Base Rate (adjusted for reserve costs, if applicable) offered for a
Eurodollar Bid Rate Loan, expressed as a percentage (rounded to the nearest
1/100 of 1%) to be added or subtracted from such Eurodollar Base Rate.
"Competitive Bid Note" means any promissory note issued at the request
of a Lender pursuant to SECTION 2.11 to evidence its Competitive Bid Loans in
the form of EXHIBIT A-2 hereto.
"Competitive Bid Quote" means a Competitive Bid Quote substantially in
the form of EXHIBIT E hereto completed and delivered by a Lender to the Agent in
accordance with SECTION 2.3.4.
"Competitive Bid Quote Request" means a Competitive Bid Quote Request
substantially in the form of Exhibit F hereto completed and delivered by the
Borrower to the Agent in accordance with SECTION 2.3.2.
"Consolidated Person" means, for any taxable year of reference, each
Person which is a member of the affiliated group of such Borrower if
consolidated returns are or shall be filed for such affiliated group for federal
income tax purposes or any combined or unitary group of which such Borrower is a
member for state income tax purposes.
"Consolidated Tangible Net Worth" means at any date the consolidated
shareholders' equity of NFS and its consolidated Subsidiaries PLUS any
unrealized losses or LESS (a) any unrealized gains (in each case to the extent
reflected in the determination of such consolidated shareholders' equity)
related, directly or indirectly, to securities available-for-sale, as determined
in accordance with Statement of Financial Accounting Standards No. 115 (or any
successor statements or amendments thereto) (in each case as affected by any
subsequent relevant pronouncements of the Financial Accounting Standards Board
or, if and to the extent applicable, the Securities and Exchange Commission) and
(b) Intangible Assets, all determined as of such date in accordance with
Agreement Accounting Principles based upon its most recent financial statements
prepared in accordance with Agreement Accounting Principles.
"Contingent Obligation" of a Person means any agreement, undertaking or
arrangement by which such Person assumes, guarantees, endorses, contingently
agrees to purchase or provide funds for the payment of, or otherwise becomes or
is contingently liable upon, the obligation or liability of any other Person, or
agrees to maintain the net worth or working capital or other financial condition
of any other Person, or otherwise assures any creditor of such other Person
against loss, including, without limitation, any comfort letter, operating
agreement, take-or-pay contract or the obligations of any such Person as general
partner of a partnership with respect to the liabilities of the partnership, but
excluding Contingent Obligations in respect of insurance
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policies issued in the ordinary course of business or Contingent Obligations
incurred by any Borrower in connection with the issuance of a License to a
Subsidiary.
"Conversion/Continuation Notice" is defined in SECTION 2.2.4.
"Controlled Group" means all members of a controlled group of
corporations or other business entities and all trades or businesses (whether or
not incorporated) under common control which, together with the Borrower or any
of its Subsidiaries, are treated as a single employer under Section 414 of the
Code.
"Default" means an event described in ARTICLE VII.
"Environmental Laws" means any and all federal, state, local and
foreign statutes, laws, judicial decisions, regulations, ordinances, rules,
judgments, orders, decrees, plans, injunctions, permits, concessions, grants,
franchises, licenses, agreements and other governmental restrictions relating to
(a) the protection of the environment, (b) the effect of the environment on
human health, (c) emissions, discharges or releases of pollutants, contaminants,
hazardous substances or wastes into surface water, ground water or land, or (d)
the manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants, hazardous substances or
wastes or the clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any rule or regulation issued thereunder.
"Eurodollar Advance" means a Eurodollar Ratable Advance, a Eurodollar
Bid Rate Advance, or both, as the context may require.
"Eurodollar Auction" means a solicitation of Competitive Bid Quotes
setting forth Competitive Bid Margins pursuant to SECTION 2.3.
"Eurodollar Base Rate" means, with respect to a Eurodollar Advance to a
Borrower for the relevant Eurodollar Interest Period, the applicable British
Bankers' Association Interest Settlement Rate for deposits in U.S. dollars
appearing on Reuters Screen FRBD as of 11:00 a.m. (London time) two Business
Days prior to the first day of such Eurodollar Interest Period, and having a
maturity equal to such Eurodollar Interest Period, PROVIDED that, (a) if Reuters
Screen FRBD is not available to the Agent for any reason, the applicable
Eurodollar Base Rate for the relevant Eurodollar Interest Period shall instead
be the applicable British Bankers' Association Interest Settlement Rate for
deposits in U.S. dollars as reported by any other generally recognized financial
information service as of 11:00 a.m. (London time) two Business Days prior to
the first day of such Eurodollar Interest Period, and having a maturity equal to
such Eurodollar Interest Period, and (b) if no such British Bankers' Association
Interest Settlement Rate is available to the Agent, the applicable Eurodollar
Base Rate for the relevant Eurodollar Interest Period shall instead be the rate
determined by the Agent to be the rate at which Bank One or one of its Affiliate
banks offers to place deposits in U.S. dollars with first-class banks in the
London
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interbank market at approximately 11:00 a.m. (London time) two Business Days
prior to the first day of such Eurodollar Interest Period, in the approximate
amount of Bank One's relevant Eurodollar Ratable Loan, or, in the case of a
Eurodollar Bid Rate Advance, the amount of the Eurodollar Bid Rate Advance
requested by such Borrower, and having a maturity equal to such Eurodollar
Interest Period.
"Eurodollar Bid Rate" means, with respect to a Eurodollar Bid Rate Loan
made by a given Lender for the relevant Eurodollar Interest Period, the sum of
(a) the quotient of (i) the Eurodollar Base Rate applicable to such Interest
Period, divided by (ii) one minus the Reserve Requirement (expressed as a
decimal) applicable to such Interest Period, plus (b) the Competitive Bid Margin
offered by such Lender and accepted by the Requesting Borrower.
"Eurodollar Bid Rate Advance" means a Competitive Bid Advance which
bears interest at a Eurodollar Bid Rate.
"Eurodollar Bid Rate Loan" means a Loan which bears interest at a
Eurodollar Bid Rate.
"Eurodollar Interest Period" means, with respect to a Eurodollar
Advance to a Borrower, a period of one, two, three or six months commencing on a
Business Day selected by such Borrower pursuant to this Agreement. Such
Eurodollar Interest Period shall end on the day which corresponds numerically to
such date one, two, three or six months thereafter; PROVIDED, HOWEVER, that if
there is no such numerically corresponding day in such next, second, third or
sixth succeeding month, such Eurodollar Interest Period shall end on the last
Business Day of such next, second, third or sixth succeeding month. If a
Eurodollar Interest Period would otherwise end on a day which is not a Business
Day, such Eurodollar Interest Period shall end on the next succeeding Business
Day; PROVIDED, HOWEVER, that if said next succeeding Business Day falls in a new
calendar month, such Eurodollar Interest Period shall end on the immediately
preceding Business Day.
"Eurodollar Loan" means a Eurodollar Rate Loan or a Eurodollar Bid Rate
Loan, or both, as the context may require.
"Eurodollar Ratable Advance" means a Ratable Advance to a Borrower
which bears interest at a Eurodollar Rate requested by such Borrower pursuant to
SECTION 2.2.
"Eurodollar Ratable Loan" means a Ratable Loan to a Borrower which
bears interest at a Eurodollar Rate requested by such Borrower pursuant to
SECTION 2.2.
"Eurodollar Rate" means, with respect to a Eurodollar Ratable Advance
for the relevant Eurodollar Interest Period, the sum of (a) the quotient of (i)
the Eurodollar Base Rate applicable to such Eurodollar Interest Period, divided
by (ii) one minus the Reserve Requirement (expressed as a decimal) applicable to
such Eurodollar Interest Period, plus (b) the Applicable Margin.
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"Excluded Taxes" means, in the case of each Lender or applicable
Lending Installation and the Agent, taxes imposed on its overall net income, and
franchise taxes imposed on it, by (a) the jurisdiction under the laws of which
such Lender or the Agent is incorporated or organized or (b) any jurisdiction in
which the Agent or such Lender maintains a lending office.
"Exhibit" refers to an exhibit to this Agreement, unless another
document is specifically referenced.
"Extension Period" is defined in SECTION 2.17(a).
"Extension Request" is defined in SECTION 2.17(a).
"Facility Fee" is defined in SECTION 2.5(a).
"Facility Termination Date" means May 24, 2001, or any later date as
may be specified as the Facility Termination Date in accordance with SECTION
2.17(a) or any earlier date on which the Aggregate Commitment is reduced to zero
or otherwise terminated pursuant to the terms hereof.
"Federal Funds Effective Rate" means, for any day, an interest rate per
annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations at approximately 10:00 a.m. (Chicago
time) on such day on such transactions received by the Agent from three Federal
funds brokers of recognized standing selected by the Agent in its sole
discretion.
"Fixed Rate" means the Eurodollar Rate, the Eurodollar Bid Rate or the
Absolute Rate.
"Fixed Rate Advance" means an Advance which bears interest at a Fixed
Rate.
"Fixed Rate Loan" means a Loan which bears interest at a Fixed Rate.
"Governmental Authority" means any government (foreign or domestic) or
any state or other political subdivision thereof or any governmental body,
agency, authority, department or commission (including without limitation any
board of insurance, insurance department or insurance commissioner and any
taxing authority or political subdivision) or any instrumentality or officer
thereof (including without limitation any court or tribunal) exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government and any corporation, partnership or other entity
directly or indirectly owned by any of the foregoing.
"Indebtedness" of a Person means such Person's (a) obligations for
borrowed money, (b) obligations representing the deferred purchase price of
Property or services (other than
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accounts payable arising in the ordinary course of such Person's business
payable on terms customary in the trade), (c) obligations, whether or not
assumed, secured by Liens or payable out of the proceeds or production from
Property now or hereafter owned or acquired by such Person, (d) obligations
which are evidenced by notes, acceptances, or other instruments, including notes
issued to an Affiliate in connection with the issuance by such Affiliate of
trust preferred securities, (e) obligations of such Person to purchase
securities or other Property arising out of or in connection with the sale of
the same or substantially similar securities or Property, (f) Capitalized Lease
Obligations, (g) Contingent Obligations, (h) obligations in respect of Surplus
Debentures, (i) Net Xxxx-to-Market Exposure under Rate Management Transactions
and (j) any other obligation for borrowed money or other financial accommodation
which in accordance with Agreement Accounting Principles or SAP, as applicable,
would be shown as a liability on the consolidated balance sheet of such Person;
PROVIDED, HOWEVER, that for the purpose of determining compliance with SECTIONS
6.15.4 and, with respect to clauses (ii) and (iv) below, SECTION 6.15.5 on any
date, "Indebtedness" shall exclude (i) Surplus Debentures which mature more than
ten (10) years after such date of determination, (ii) obligations of such Person
arising in respect of securities lending activities and securities repurchase or
reverse-repurchase activities undertaken in the ordinary course of business in
compliance with all applicable laws, (iii) obligations of Nationwide Mutual
under a prepaid equity forward contract in an amount not to exceed $800,000,000,
the proceeds of which prepaid equity forward contract are used exclusively to
finance the AMH Acquisition, and (iv) indebtedness of such Person incurred in
connection with the sale or issuance of CDOs, provided that no Borrower or
Subsidiary has any recourse obligations with respect thereto;
"Insurance Company" means Nationwide Mutual, Nationwide Life or any
Insurance Subsidiary.
"Insurance Subsidiary" means any Subsidiary which is engaged in the
business of underwriting policies of insurance.
"Intangible Assets" means the amount (to the extent reflected in
determining such consolidated shareholders' equity) of all unamortized debt
discount and expense, unamortized deferred charges, goodwill, patents,
trademarks, service marks, trade names, anticipated future benefit of tax loss
carry-forwards, copyrights, organization or developmental expenses and other
intangible assets; PROVIDED, that the deferred policy acquisition costs shall
not be considered Intangible Assets for the purposes of this definition.
"Interest Period" means a Eurodollar Interest Period or an Absolute
Rate Interest Period.
"Invitation for Competitive Bid Quotes" means an Invitation for
Competitive Bid Quotes substantially in the form of EXHIBIT G hereto, completed
and delivered by the Agent to the Lenders in accordance with SECTION 2.3.3.
"Lenders" means the lending institutions listed on the signature pages
of this Agreement and their respective successors and assigns.
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"Lending Installation" means, with respect to a Lender or the Agent,
the office, branch, subsidiary or Affiliate of such Lender or the Agent listed
on the signature pages hereof or on a Schedule or otherwise selected by such
Lender or the Agent pursuant to SECTION 2.15.
"License" means any license, certificate of authority, permit or other
authorization which is required to be obtained from any Governmental Authority
in connection with the operation, ownership or transaction of insurance
business.
"Lien" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever (including, without limitation, the interest of a vendor or
lessor under any conditional sale, Capitalized Lease or other title retention
agreement).
"Loan" means, with respect to a Lender, such Lender's loan made
pursuant to ARTICLE II (or, in the case of a loan made pursuant to SECTION 2.2,
any conversion or continuation thereof).
"Loan Documents" means this Agreement and any Notes issued pursuant to
SECTION 2.11 and the other documents and agreements contemplated hereby and
executed by the Borrower in favor of the Agent or any Lender.
"Material Adverse Effect" means, with respect to any Borrower, a
material adverse effect on (a) the business, Property, condition (financial or
otherwise), results of operations, or prospects of such Borrower and its
Subsidiaries taken as a whole, (b) the ability of such Borrower to perform its
obligations under the Loan Documents, or (c) the validity or enforceability of
any of the Loan Documents or the rights or remedies of the Agent or the Lenders
thereunder.
"Material Affiliate" means:
(a) in respect of Nationwide Mutual, (i) any other Person which is a
party to the Nationwide Insurance Intercompany Pooling Agreement, effective as
of January 1, 1999, as amended or supplemented from time to time, and (ii) any
of its Material Subsidiaries; and
(b) in respect of each of Nationwide Life and NFS, any of its Material
Subsidiaries.
"Material Indebtedness" is defined in SECTION 7.5.
"Material Insurance Subsidiary" means an Insurance Subsidiary which is
a Material Subsidiary.
"Material Subsidiary" means:
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(a) in respect of Nationwide Mutual, any Subsidiary having, as of the
date of the Combined Annual Statement most recently delivered to the Lenders
pursuant to SECTION 5.4 or SECTION 6.1(d), consolidated assets with a value of
at least 1% of the total combined assets set out in such statement; PROVIDED,
that, for the purposes of this Agreement, neither Nationwide Life nor NFS nor
any of their consolidated Subsidiaries shall be considered to be a Material
Subsidiary of Nationwide Mutual; and
(b) in respect of each of Nationwide Life and NFS, any Subsidiary
having, as of the date of the balance sheet most recently delivered to the
Lenders pursuant to SECTION 5.4 or SECTION 6.1(a), consolidated assets with a
value of at least 1% of the total consolidated assets set out in such statement.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" means a Plan maintained pursuant to a collective
bargaining agreement or any other arrangement to which the Borrower or any
member of the Controlled Group is a party to which more than one employer is
obligated to make contributions.
"NAIC" means the National Association of Insurance Commissioners or any
successor thereto, or in lieu thereof, any other association, agency or other
organization performing advisory, coordination or other like functions among
insurance departments, insurance commissioners and similar Governmental
Authorities of the various states of the United States toward the promotion of
uniformity in the practices of such Governmental Authorities.
"Nationwide Life" means Nationwide Life Insurance Company, an Ohio
insurance company.
"Nationwide Mutual" means Nationwide Mutual Insurance Company, an Ohio
mutual insurance company.
"Net Xxxx-to-Market Exposure" of a Person means, as of any date of
determination, the excess (if any) of all unrealized losses over all unrealized
profits of such Person arising from Rate Management Transactions. "Unrealized
losses" means the fair market value of the cost to such Person of replacing such
Rate Management Transaction as of the date of determination (assuming the Rate
Management Transaction were to be terminated as of that date), and "unrealized
profits" means the fair market value of the gain to such Person of replacing
such Rate Management Transaction as of the date of determination (assuming such
Rate Management Transaction were to be terminated as of that date).
"NFS" means Nationwide Financial Services, a Delaware corporation.
"Non-U.S. Lender" is defined in SECTION 3.5(d).
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"Notes" means, collectively, all of the Competitive Bid Notes and all
of the Ratable Notes which may be issued hereunder, and "Note" means any one of
the Notes.
"Obligations" means all unpaid principal of and accrued and unpaid
interest on the Loans, all accrued and unpaid fees and all expenses,
reimbursements, indemnities and other obligations of the Borrowers or any
Borrower to the Lenders or to any Lender, the Agent or any indemnified party
arising under the Loan Documents.
"Other Taxes" is defined in SECTION 3.5(b).
"Participants" is defined in SECTION 12.2.1.
"Payment Date" means the last day of each March, June, September and
December.
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereto.
"Person" means any natural person, corporation, firm, joint venture,
partnership, limited liability company, association, enterprise, trust or other
entity or organization, or any government or political subdivision or any
agency, department or instrumentality thereof.
"Plan" means an employee pension benefit plan which is covered by Title
IV of ERISA or subject to the minimum funding standards under Section 412 of the
Code as to which a Borrower or any member of the Controlled Group may have any
liability.
"Pricing Schedule" means the Schedule attached hereto identified as
such.
"Prime Rate" means a rate per annum equal to the prime rate of interest
announced from time to time by Bank One or its parent (which is not necessarily
the lowest rate charged to any customer), changing when and as said prime rate
changes.
"Property" of a Person means any and all property, whether real,
personal, tangible, intangible, or mixed, of such Person, or other assets owned,
leased or operated by such Person.
"Purchasers" is defined in SECTION 12.3.1.
"Quarterly Statement" means the quarterly statutory financial statement
of any Insurance Company required to be filed with the insurance commissioner
(or similar authority) of its jurisdiction of incorporation or, if no specific
form is so required, in the form of financial statements permitted by such
insurance commissioner (or such similar authority) to be used for filing
quarterly statutory financial statements and shall contain the type of financial
information permitted by such insurance commissioner (or such similar authority)
to be disclosed therein, together with all exhibits or schedules filed
therewith.
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"Ratable Advance" means a borrowing hereunder (a) made by the Lenders
to a Borrower on the same Borrowing Date, or (b) converted or continued by the
Lenders on the same date of conversion or continuation, consisting, in either
case, of the aggregate amount of the several Ratable Loans of the same Type and,
in the case of Eurodollar Ratable Loans, for the same Interest Period.
"Ratable Borrowing Notice" is defined in SECTION 2.2.3.
"Ratable Loan" means a Loan made by a Lender pursuant to SECTION 2.2
hereof.
"Ratable Note" means any promissory note issued at the request of a
Lender pursuant to SECTION 2.11 to evidence its Ratable Loans in the form of
EXHIBIT A-1 hereto.
"Rate Management Obligations" of a Person means any and all obligations
of such Person, whether absolute or contingent and howsoever and whensoever
created, arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and substitutions therefor), under (a) any and all Rate
Management Transactions, and (b) any and all cancellations, buy backs,
reversals, terminations or assignments of any Rate Management Transactions.
"Rate Management Transaction" means any transaction (including an
agreement with respect thereto) now existing or hereafter entered into by any
Borrower which is a rate swap, basis swap, forward rate transaction, commodity
swap, commodity option, equity or equity index swap, equity or equity index
option, bond option, interest rate option, foreign exchange transaction, cap
transaction, floor transaction, collar transaction, forward transaction,
currency swap transaction, cross-currency rate swap transaction, currency option
or any other similar transaction (including any option with respect to any of
these transactions) or any combination thereof, whether linked to one or more
interest rates, foreign currencies, commodity prices, equity prices or other
financial measures.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor thereto
or other regulation or official interpretation of said Board of Governors
relating to reserve requirements applicable to member banks of the Federal
Reserve System.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by banks for the purpose of purchasing or carrying margin
stocks applicable to member banks of the Federal Reserve System.
"Replacement Lender" is defined in SECTION 2.17(b).
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"Reportable Event" means a reportable event as defined in Section 4043
of ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC has by regulation waived
the requirement of Section 4043(a) of ERISA that it be notified within 30 days
of the occurrence of such event, PROVIDED, HOWEVER, that a failure to meet the
minimum funding standard of Section 412 of the Code and of Section 302 of ERISA
shall be a Reportable Event regardless of the issuance of any such waiver of the
notice requirement in accordance with either Section 4043(a) of ERISA or Section
412(d) of the Code.
"Reports" is defined in SECTION 9.6.
"Requesting Borrower" is defined in SECTION 2.3.2.
"Required Lenders" means Lenders in the aggregate having at least 51%
of the Aggregate Commitment or, if the Aggregate Commitment has been terminated,
Lenders in the aggregate holding at least 51% of the aggregate unpaid principal
amount of the outstanding Advances.
"Reserve Requirement" means, with respect to an Interest Period, the
maximum aggregate reserve requirement (including all basic, supplemental,
marginal and other reserves) which is imposed under Regulation D on Eurocurrency
liabilities.
"Response Date" is defined in SECTION 2.17(a).
"S&P" means Standard and Poor's Ratings Services, a division of The
McGraw Hill Companies, Inc.
"SAP" means, with respect to any Insurance Company, the statutory
accounting practices prescribed or permitted by the insurance commissioner (or
other similar authority) in the jurisdiction of such Person for the preparation
of annual statements and other financial reports by insurance companies of the
same type as such Person in effect from time to time, applied in a manner
consistent with those used in preparing the financial statements referred to in
SECTION 5.4(a) and (b); PROVIDED, that, except as otherwise provided in the
definition of Agreement Accounting Principles, with respect to the financial
covenants contained in SECTION 6.15 hereof, and the related definitions, "SAP"
means such statutory accounting practices in effect on the date hereof, applied
in a manner consistent with those used in preparing the financial statements
referred to in SECTION 5.4(a) and (b).
"Schedule" refers to a specific schedule to this Agreement, unless
another document is specifically referenced.
"Section" means a numbered section of this Agreement, unless another
document is specifically referenced.
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"Single Employer Plan" means a Plan maintained by a Borrower or any
member of the Controlled Group for employees of such Borrower or any member of
the Controlled Group.
"Statutory Surplus" means, with respect to (a) Nationwide Mutual at any
time, the surplus as regards policyholders of Nationwide Mutual at such time, as
determined in accordance with SAP ("Liabilities, Surplus and Other Funds"
statement, page 3, line 27 of the Annual Statement) based upon its most recently
filed Quarterly Statement and (b) Nationwide Life at any time, the statutory
capital and surplus of Nationwide Life at such time, as determined in accordance
with SAP ("Liabilities, Surplus and Other Funds" statement, page 3, line 38 of
the Annual Statement) based upon its most recently filed Quarterly Statement.
"Subsidiary" of a Person means (a) any corporation more than 50% of the
outstanding securities having ordinary voting power of which shall at the time
be owned or controlled, directly or indirectly, by such Person or by one or more
of its Subsidiaries or by such Person and one or more of its Subsidiaries, or
(b) any partnership, limited liability company, association, joint venture or
similar business organization more than 50% of the ownership interests having
ordinary voting power of which shall at the time be so owned or controlled.
"Substantial Portion" means, with respect to the Property of a Borrower
and its Subsidiaries, Property which (a) represents more than 10% of the
consolidated assets of such Borrower and its Subsidiaries as would be shown in
the consolidated financial statements of such Borrower and its Subsidiaries as
at the beginning of the twelve-month period ending with the month in which such
determination is made, or (b) is responsible for more than 10% of the
consolidated net sales or of the consolidated net income of such Borrower and
its Subsidiaries as reflected in the financial statements referred to in clause
(a) above.
"Surplus Debentures" means, as to Nationwide Mutual, debt securities of
Nationwide Mutual the proceeds of which are permitted to be included, in whole
or in part, as Statutory Surplus as approved and permitted by the insurance
department of Nationwide Mutual's state of domicile.
"Taxes" means any and all present or future taxes, duties, levies,
imposts, deductions, charges or withholdings, and any and all liabilities with
respect to the foregoing, but EXCLUDING Excluded Taxes and Other Taxes.
"Total Capitalization" means at any time:
(a) with respect to Nationwide Mutual, the sum of (i) Nationwide
Mutual's outstanding Indebtedness and (ii) Nationwide Mutual's Statutory Surplus
based upon its most recently filed Quarterly Statement; and
(b) with respect to NFS, the sum of (i) the consolidated Indebtedness
of NFS and its Subsidiaries as of such time and (ii) the consolidated
shareholders' equity of NFS and its Subsidiaries as of such time based upon its
most recent financial statements prepared in
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accordance with Agreement Accounting Principles, EXCLUDING, HOWEVER, the effect
of any unrealized gain or loss reported under Statement of Financial Accounting
Standards No. 115.
"Transferee" is defined in SECTION 12.4.
"Type" means, with respect to any Advance, its nature as an ABR
Advance, an Absolute Rate Advance, a Eurodollar Bid Rate Advance or a Eurodollar
Ratable Advance.
"Unfunded Liabilities" means the amount (if any) by which the present
value of all vested and unvested accrued benefits under all Single Employer
Plans exceeds the fair market value of all such Plan assets allocable to such
benefits, all determined as of the then most recent valuation date for such
Plans using PBGC actuarial assumptions for single employer plan terminations.
"Unmatured Default" means an event which but for the lapse of time or
the giving of notice, or both, would constitute a Default.
"Utilization Fee" is defined in SECTION 2.5(b).
"Wholly-Owned Subsidiary" of a Person means (a) any Subsidiary all of
the outstanding voting securities of which shall at the time be owned or
controlled, directly or indirectly, by such Person or one or more Wholly-Owned
Subsidiaries of such Person, or by such Person and one or more Wholly-Owned
Subsidiaries of such Person, or (b) any partnership, limited liability company,
association, joint venture or similar business organization 100% of the
ownership interests having ordinary voting power of which shall at the time be
so owned or controlled.
The foregoing definitions shall be equally applicable to both the
singular and plural forms of the defined terms. References herein to particular
columns, lines or sections of any Person's Annual Statement shall be deemed,
where appropriate, to be references to the corresponding column, line or section
of such Person's Quarterly Statement, or if no such corresponding column, line
or section exists or if any report form changes, then to the corresponding item
referenced thereby. In the event that any changes in Agreement Accounting
Principles or SAP occur after the date of this Agreement and such changes result
in a material variation in the method of calculation of financial covenants or
other terms of this Agreement, then the Borrowers, the Agent and the Lenders
agree to amend such provisions of this Agreement so as to equitably reflect such
changes in order that the criteria for evaluating each Borrower's financial
condition will be the same after such changes as if such changes had not
occurred.
ARTICLE II
THE CREDITS
-----------
2.1 THE FACILITY.
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2.1.1 DESCRIPTION OF FACILITY. The Lenders grant to the Borrowers a
revolving credit facility pursuant to which, and upon the terms and subject to
the conditions herein set forth:
(a) each Lender severally agrees to make Ratable Loans to each of
the Borrowers in accordance with SECTION 2.2; and
(b) each Lender may, in its sole discretion, make bids to make
Competitive Bid Loans to each of the Borrowers in accordance with
SECTION 2.3.
2.1.2 AMOUNT OF FACILITY. In no event may the aggregate principal
amount of all outstanding Advances (including both the Ratable Advances and the
Competitive Bid Advances) to all Borrowers exceed the Aggregate Commitment. The
Commitments may be terminated or reduced from time to time pursuant to SECTION
2.5(c) or Section 8.1, and may be increased from time to time pursuant to
SECTION 2.5(d).
2.1.3 AVAILABILITY OF FACILITY. Subject to the terms of this Agreement,
the facility is available from the date hereof to the Facility Termination Date,
and the Borrowers may borrow, repay and reborrow at any time prior to the
Facility Termination Date. The Commitments to lend hereunder shall expire on the
Facility Termination Date.
2.1.4 REPAYMENT OF FACILITY. Any outstanding Advances and all other
unpaid Obligations shall be paid in full by the Borrowers on the Facility
Termination Date.
2.1.5 SEVERAL OBLIGATIONS. Each Borrower will be severally obligated
for all Advances made to such Borrower and all interest accrued with respect
thereto, and no Borrower will be obligated for any Advances made to any other
Borrower. Except as provided in this SECTION 2.1.5 and as otherwise expressly
provided herein, the Borrowers shall be jointly and severally liable for all
other Obligations hereunder.
2.2 RATABLE ADVANCES.
2.2.1 RATABLE ADVANCES. Each Ratable Advance hereunder shall consist of
Loans made to a Borrower from the several Lenders ratably in proportion to the
ratio that their respective Commitments bear to the Aggregate Commitment. The
aggregate outstanding amount of Competitive Bid Advances shall reduce each
Lender's Commitment ratably in the proportion such Lender's Commitment bears to
the Aggregate Commitment regardless of which Lender or Lenders make such
Competitive Bid Advances.
2.2.2 TYPES OF RATABLE ADVANCES. The Ratable Advances may be ABR
Advances or Eurodollar Ratable Advances, or a combination thereof, selected by
the Borrower requesting such Advance in accordance with Section 2.2.3.
2.2.3 METHOD OF SELECTING TYPES AND INTEREST PERIODS FOR RATABLE
ADVANCES. Each applicable Borrower shall select the Type of Ratable Advance and,
in the case of each Eurodollar
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Ratable Advance, the Interest Period applicable thereto from time to time. Such
Borrower shall give the Agent irrevocable notice (a "RATABLE BORROWING NOTICE")
not later than 10:00 a.m. (Chicago time) at least one Business Day before the
Borrowing Date of each ABR Advance and three Business Days before the Borrowing
Date for each Eurodollar Ratable Advance. Notwithstanding the foregoing, a
Ratable Borrowing Notice for an ABR Advance may be given by a Borrower not later
than 15 minutes after the time which such Borrower is required to reject one or
more bids offered in connection with an Absolute Rate Auction pursuant to
SECTION 2.3.6 and a Ratable Borrowing Notice for a Eurodollar Ratable Advance
may be given not later than 15 minutes after the time such Borrower is required
to reject one or more bids offered in connection with a Eurodollar Auction
pursuant to SECTION 2.3.6. A Ratable Borrowing Notice shall specify:
(a) the Borrowing Date, which shall be a Business Day, of such
Ratable Advance,
(b) the aggregate amount of such Ratable Advance,
(c) the Type of Ratable Advance selected, and
(d) in the case of each Eurodollar Ratable Advance, the Interest
Period applicable thereto (which may not end after the Facility
Termination Date).
2.2.4 CONVERSION AND CONTINUATION OF OUTSTANDING RATABLE ADVANCES. ABR
Advances shall continue as ABR Advances unless and until such ABR Advances are
converted into Eurodollar Advances pursuant to this SECTION 2.2.4 or are repaid
in accordance with SECTION 2.7. Each Eurodollar Ratable Advance shall continue
as a Eurodollar Ratable Advance until the end of the then applicable Eurodollar
Interest Period therefor, at which time such Eurodollar Ratable Advance shall be
automatically converted into an ABR Advance unless (i) such Eurodollar Ratable
Advance is or was repaid in accordance with SECTION 2.7 or (ii) the Borrower to
which such Eurodollar Ratable Advance was made shall have given the Agent a
Conversion/Continuation Notice (as defined below) requesting that, at the end of
such Eurodollar Interest Period, such Eurodollar Ratable Advance continue as a
Eurodollar Ratable Advance for the same or another Eurodollar Interest Period.
Subject to the terms of SECTION 2.6, each Borrower may elect from time to time
to convert all or any part of an ABR Advance made to such Borrower into a
Eurodollar Ratable Advance. Such Borrower shall give the Agent irrevocable
notice (a "CONVERSION/CONTINUATION NOTICE") of each conversion of an ABR Advance
into a Eurodollar Ratable Advance or continuation of a Eurodollar Ratable
Advance not later than 10:00 a.m. (Chicago time) at least three Business Days
prior to the date of the requested conversion or continuation, specifying:
(a) the requested date of such conversion or continuation, which
shall be a Business Day,
(b) the aggregate amount and Type of the Ratable Advance which is
to be converted or continued, and
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(c) the amount of such Ratable Advance which is to be converted
into or continued as a Eurodollar Ratable Advance and the duration of
the Eurodollar Interest Period applicable thereto.
2.3 COMPETITIVE BID ADVANCES.
2.3.1. COMPETITIVE BID OPTION. In addition to Ratable Advances pursuant
to SECTION 2.2, but subject to the terms and conditions of this Agreement
(including, without limitation, the limitation set forth in SECTION 2.1.2 as to
the maximum aggregate principal amount of all outstanding Advances hereunder),
each Borrower may, as set forth in this SECTION 2.3, request the Lenders, prior
to the Facility Termination Date, to make offers to make Competitive Bid
Advances to such Borrower. Each Lender may, but shall have no obligation to,
make such offers and such Borrower may, but shall have no obligation to, accept
any such offers in the manner set forth in this SECTION 2.3. Each Competitive
Bid Advance to a Borrower shall be repaid by such Borrower on the last day of
the Interest Period applicable thereto.
2.3.2. COMPETITIVE BID QUOTE REQUEST. When a Borrower (in such
capacity, a "REQUESTING BORROWER") wishes to request offers to make Competitive
Bid Loans under this SECTION 2.3, it shall transmit to the Agent by telecopy a
Competitive Bid Quote Request so as to be received no later than (i) 10:00 a.m.
(Chicago time) at least five Business Days prior to the Borrowing Date proposed
therein, in the case of a Eurodollar Auction, or (ii) 9:00 a.m. (Chicago time)
at least one Business Day prior to the Borrowing Date proposed therein, in the
case of an Absolute Rate Auction, specifying:
(a) the proposed Borrowing Date, which shall be a Business Day,
for such Competitive Bid Advance,
(b) the aggregate principal amount of such Competitive Bid
Advance,
(c) whether the Competitive Bid Quotes requested are to set
forth a Competitive Bid Margin or an Absolute Rate, or both,
(d) whether the proposed Competitive Bid Advance will be subject
to prepayment, and
(e) the Interest Period applicable thereto (which may not end
after the Facility Termination Date).
The Requesting Borrower may request offers to make Competitive Bid Loans for
more than one Interest Period and for a Eurodollar Auction and an Absolute Rate
Auction in a single Competitive Bid Quote Request. No Competitive Bid Quote
Request shall be given within 5 Business Days (or such other number of days as
the requesting Borrower and the Agent may agree) of any other Competitive Bid
Quote Request. A Competitive Bid Quote Request that does
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not conform substantially to the format of EXHIBIT F hereto shall be rejected,
and the Agent shall promptly notify the Requesting Borrower of such rejection.
2.3.3. INVITATION FOR COMPETITIVE BID QUOTES. Promptly and in any event
before the close of business on the same Business Day of receipt of a
Competitive Bid Quote Request that is not rejected pursuant to SECTION 2.3.2,
the Agent shall send to each of the Lenders by telecopy an Invitation for
Competitive Bid Quotes substantially in the form of EXHIBIT G hereto, which
shall constitute an invitation by the Requesting Borrower to each Lender to
submit Competitive Bid Quotes offering to make the Competitive Bid Loans to
which such Competitive Bid Quote Request relates in accordance with this SECTION
2.3.
2.3.4. SUBMISSION AND CONTENTS OF COMPETITIVE BID QUOTES. (a) Each
Lender may, in its sole discretion, submit a Competitive Bid Quote containing an
offer or offers to make Competitive Bid Loans in response to any Invitation for
Competitive Bid Quotes. Each Competitive Bid Quote must comply with the
requirements of this SECTION 2.3.4 and must be submitted to the Agent by
telecopy at its offices specified in or pursuant to ARTICLE XIII not later than
(i) 9:00 a.m. (Chicago time) at least three Business Days prior to the proposed
Borrowing Date, in the case of a Eurodollar Auction or (ii) 9:00 a.m. (Chicago
time) on the proposed Borrowing Date, in the case of an Absolute Rate Auction
(or, in either case upon reasonable prior notice to the Lenders, such other time
and date as the Requesting Borrower and the Agent may agree); PROVIDED that
Competitive Bid Quotes submitted by Bank One may only be submitted if the Agent
or Bank One notifies the Requesting Borrower of the terms of the offer or offers
contained therein not later than 15 minutes prior to the latest time at which
the relevant Competitive Bid Quotes must be submitted by the other Lenders.
Subject to ARTICLES IV and VIII, any Competitive Bid Quote so made shall be
irrevocable except with the written consent of the Agent given on the
instructions of the Requesting Borrower.
(b) Each Competitive Bid Quote shall be in substantially the
form of EXHIBIT E hereto and shall in any case specify:
(i) the proposed Borrowing Date, which shall be the same as
that set forth in the applicable Invitation for Competitive Bid
Quotes,
(ii) the principal amount of the Competitive Bid Loan for
which each such offer is being made, which principal amount (A)
may be greater than, less than or equal to the Commitment of the
quoting Lender, (B) must be at least $25,000,000 and an integral
multiple of $1,000,000, and (C) may not exceed the principal
amount of Competitive Bid Loans for which offers were requested,
(iii) in the case of a Eurodollar Auction, the Competitive
Bid Margin offered for each such Competitive Bid Loan,
(iv) the minimum amount, if any, of the Competitive Bid Loan
which may be accepted by the Requesting Borrower,
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(v) in the case of an Absolute Rate Auction, the Absolute
Rate offered for each such Competitive Bid Loan,
(vi) the maximum aggregate amount, if any, of Competitive
Bid Loans offered by the quoting Lender which may be accepted by
the Requesting Borrower, and
(vii) the identity of the quoting Lender.
(c) The Agent shall reject any Competitive Bid Quote that:
(i) is not substantially in the form of EXHIBIT E hereto or
does not specify all of the information required by this SECTION
2.3.4(c),
(ii) contains qualifying, conditional or similar language,
other than any such language contained in EXHIBIT E hereto,
(iii) proposes terms other than or in addition to those set
forth in the applicable Invitation for Competitive Bid Quotes,
or
(iv) arrives after the time set forth in SECTION 2.3.4(a).
If any Competitive Bid Quote shall be rejected pursuant to this SECTION
2.3.4(c), then the Agent shall notify the relevant Lender of such rejection as
soon as practical.
2.3.5. NOTICE TO REQUESTING BORROWER. The Agent shall promptly notify
the Requesting Borrower of the terms (a) of any Competitive Bid Quote submitted
by a Lender that is in accordance with SECTION 2.3.4 and (b) of any Competitive
Bid Quote that amends, modifies or is otherwise inconsistent with a previous
Competitive Bid Quote submitted by such Lender with respect to the same
Competitive Bid Quote Request. Any such subsequent Competitive Bid Quote shall
be disregarded by the Agent unless such subsequent Competitive Bid Quote
specifically states that it is submitted solely to correct a manifest error in
such former Competitive Bid Quote. The Agent's notice to the Requesting Borrower
shall specify the aggregate principal amount of Competitive Bid Loans for which
offers have been received for each Interest Period specified in the related
Competitive Bid Quote Request and the respective principal amounts and
Eurodollar Bid Rates or Absolute Rates, as the case may be, so offered.
2.3.6. ACCEPTANCE AND NOTICE BY BORROWER. Not later than (a) 10:00 a.m.
(Chicago time) at least three Business Days prior to the proposed Borrowing
Date, in the case of a Eurodollar Auction or (b) 10:00 a.m. (Chicago time) on
the proposed Borrowing Date, in the case of an Absolute Rate Auction (or, in
either case upon reasonable prior notice to the Lenders, such other time and
date as the Requesting Borrower and the Agent may agree), the Requesting
Borrower shall notify the Agent of its acceptance or rejection of the offers so
notified to it pursuant to
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SECTION 2.3.5; PROVIDED, HOWEVER, that the failure by the Requesting Borrower to
give such notice to the Agent shall be deemed to be a rejection of all such
offers. In the case of acceptance, such notice (a "COMPETITIVE BID BORROWING
NOTICE") shall specify the aggregate principal amount of offers for each
Interest Period that are accepted. The Requesting Borrower may accept any
Competitive Bid Quote in whole or in part (subject to the terms of SECTION
2.3.4(b)(iv)); PROVIDED that:
(a) the aggregate principal amount of each Competitive Bid
Advance may not exceed the applicable amount set forth in the related
Competitive Bid Quote Request,
(b) acceptance of offers may only be made on the basis of
ascending Eurodollar Bid Rates or Absolute Rates, as the case may be,
and
(c) the Requesting Borrower may not accept any offer that is
described in SECTION 2.3.4(c) or that otherwise fails to comply with
the requirements of this Agreement.
2.3.7. ALLOCATION BY AGENT. If offers are made by two or more Lenders
with the same Eurodollar Bid Rates or Absolute Rates, as the case may be, for a
greater aggregate principal amount than the amount in respect of which offers
are accepted for the related Interest Period, the principal amount of
Competitive Bid Loans in respect of which such offers are accepted shall be
allocated by the Agent among such Lenders as nearly as possible (in such
multiples, not greater than $1,000,000, as the Agent may deem appropriate) in
proportion to the aggregate principal amount of such offers; PROVIDED, HOWEVER,
that no Lender shall be allocated a portion of any Competitive Bid Advance which
is less than the minimum amount which such Lender has indicated that it is
willing to accept. Allocations by the Agent of the amounts of Competitive Bid
Loans shall be conclusive in the absence of manifest error. The Agent shall
promptly, but in any event on the same Business Day, notify each Lender of its
receipt of a Competitive Bid Borrowing Notice and the aggregate principal amount
of such Competitive Bid Advance allocated to each participating Lender.
2.3.8. ADMINISTRATION FEE. Each Requesting Borrower hereby agrees to
pay to the Agent an administration fee of $3,000 for each Competitive Bid Quote
Request transmitted by such Requesting Borrower to the Agent pursuant to SECTION
2.3.2. Such administration fee shall be payable in arrears on each Payment Date
hereafter and on the Facility Termination Date (or such earlier date on which
the Aggregate Commitment shall terminate or be cancelled) for any period then
ending for which such fee, if any, shall not have been theretofore paid.
2.4 METHOD OF BORROWING. Not later than noon (Chicago time) on each
Borrowing Date, each Lender shall make available its Loan or Loans in funds
immediately available in Chicago to the Agent at its address specified pursuant
to ARTICLE XIII. Promptly upon its receipt thereof, the Agent will make the
funds so received from the Lenders available to the applicable Borrower at the
Agent's aforesaid address.
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2.5 COMMITMENT FEE; REDUCTION AND INCREASE OF AGGREGATE COMMITMENT.
(a) FACILITY FEE. The Borrowers jointly and severally agree to
pay to the Agent for the account of each Lender a facility fee (the
"FACILITY FEE") at a per annum rate equal to the Applicable Facility
Fee Rate on each Lender's Commitment, regardless of usage. Each
Borrower shall be obligated to pay to the Agent for the account of each
Lender an undivided one-third portion of the Facility Fee, with such
Borrower's portion based on its Status (as defined in the Pricing
Schedule). The Facility Fee is payable quarterly in arrears on each
Payment Date hereafter and on the Facility Termination Date.
(b) UTILIZATION FEE. For each day on which the aggregate
principal amount of all outstanding Advances (including both Ratable
Advances and Competitive Bid Advances) exceeds 50% of the Aggregate
Commitment, the Borrowers jointly and severally agree to pay to the
Agent for the account of each Lender based on each Lender's outstanding
Advances a utilization fee (the "UTILIZATION FEE") at a per annum rate
equal to the Applicable Utilization Fee Rate on the average daily
amount of all outstanding Advances. The Utilization Fee is payable
quarterly in arrears on each Payment Date hereafter and on the Facility
Termination Date.
(c) REDUCTIONS IN AGGREGATE COMMITMENT. The Borrowers may
permanently reduce the Aggregate Commitment in whole, or in part
ratably among the Lenders in integral multiples of $10,000,000, upon at
least three Business Days' written notice to the Agent, which notice
shall specify the amount of any such reduction, PROVIDED, HOWEVER, that
the amount of the Aggregate Commitment may not be reduced below the
aggregate principal amount of the outstanding Advances. All accrued
commitment fees shall be payable on the effective date of any
termination of the obligations of the Lenders to make Loans hereunder.
(d) INCREASE IN AGGREGATE COMMITMENT. The Borrowers may, at
their option, on up to two occasions, seek to increase the Aggregate
Commitment by up to an aggregate amount of $300,000,000 (resulting in a
maximum Aggregate Commitment of $600,000,000) upon at least three (3)
Business Days' written notice to the Agent, which notice shall specify
the amount of such increase and shall be delivered at a time when no
Default or Unmatured Default has occurred and is continuing. The
Borrowers may, after giving such notice, offer the increase in the
Aggregate Commitment on either a ratable basis to the Lenders or on a
non-pro rata basis to one or more Lenders and/or to other banks or
entities reasonably acceptable to the Agent. No increase in the
Aggregate Commitment shall become effective until the existing or new
Lenders extending such incremental Commitment amount and the Borrowers
shall have delivered to the Agent a document in form reasonably
satisfactory to the Agent pursuant to which any such existing Lender
states the amount of its Commitment increase, any such new Lender
states its Commitment amount and agrees to assume and accept the
obligations and rights of a Lender hereunder and the Borrowers accept
such incremental Commitments. The Lenders (new or existing) shall
accept an assignment from the existing Lenders, and the
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existing Lenders shall make an assignment to the new or existing Lender
accepting a new or increased Commitment, of an interest in each then
outstanding Ratable Advance such that, after giving effect thereto, all
Ratable Advances are held ratably by the Lenders in proportion to their
respective Commitments. Assignments pursuant to the preceding sentence
shall be made in exchange for the principal amount assigned plus
accrued and unpaid interest, Commitment Fees and Facility Fees. The
Borrowers shall make any payments under SECTION 3.4 resulting from such
assignments.
2.6 MINIMUM AMOUNT OF EACH RATABLE ADVANCE; MINIMUM AMOUNT OF FIXED
RATE ADVANCES. Each Eurodollar Ratable Advance shall be in the minimum amount of
$25,000,000 (and in multiples of $1,000,000 if in excess thereof), and each ABR
Advance shall be in the minimum amount of $25,000,000 (and in multiples of
$1,000,000 if in excess thereof); PROVIDED, HOWEVER, that any ABR Advance may be
in the amount of the unused Aggregate Commitment. No Borrower shall request a
Fixed Rate Advance if, after giving effect to the requested Fixed Rate Advance,
more than six (6) separate Fixed Rate Advances would be outstanding in respect
of all Borrowers.
2.7 OPTIONAL PRINCIPAL PAYMENTS. Each Borrower may from time to time
pay, without penalty or premium, all outstanding ABR Advances, or, in a minimum
aggregate amount of $10,000,000, any portion of the outstanding ABR Advances,
upon one Business Day's prior notice to the Agent. Each Borrower may from time
to time pay, subject to the payment of any funding indemnification amounts
required by SECTION 3.4 but without penalty or premium, all outstanding
Eurodollar Ratable Advances, or, in a minimum aggregate amount of $10,000,000 or
any integral multiple of $1,000,000 in excess thereof, any portion of the
outstanding Eurodollar Ratable Advances upon three Business Days' prior notice
to the Agent. Except as specifically agreed to by the applicable Borrower and
Lender, a Competitive Bid Loan may not be paid prior to the last day of the
applicable Interest Period. Any optional principal payment of a Competitive Bid
Loan which is permitted by such Borrower and such Lender shall be made subject
to the payment of any funding indemnification amounts required by SECTION 3.4
and to any minimum amounts agreed upon by such Borrower and such Lender.
2.8 CHANGES IN INTEREST RATE, ETC. Each ABR Advance shall bear interest
on the outstanding principal amount thereof, for each day from and including the
date such Advance is made or is automatically converted from a Eurodollar
Ratable Advance into an ABR Advance pursuant to SECTION 2.2.4, to but excluding
the date it is paid or is converted into a Eurodollar Ratable Advance pursuant
to SECTION 2.2.4 hereof, at a rate per annum equal to the Alternate Base Rate
for such day. Changes in the rate of interest on that portion of any Advance
maintained as an ABR Advance will take effect simultaneously with each change in
the Alternate Base Rate. Each Fixed Rate Advance shall bear interest on the
outstanding principal amount thereof from and including the first day of the
Interest Period applicable thereto to (but not including) the last day of such
Interest Period at the interest rate determined by the Agent as applicable to
such Fixed Rate Advance. No Interest Period may end after the Facility
Termination Date.
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2.9 RATES APPLICABLE AFTER DEFAULT. Notwithstanding anything to the
contrary contained in SECTION 2.2.3 or 2.2.4, during the continuance of a
Default or Unmatured Default with respect to any Borrower, the Required Lenders
may, at their option, by notice to such Borrower (which notice may be revoked at
the option of the Required Lenders notwithstanding any provision of SECTION 8.2
requiring unanimous consent of the Lenders to changes in interest rates),
declare that no Ratable Advance to such Borrower may be made as, converted into
or continued as a Eurodollar Ratable Advance. During the continuance of a
Default with respect to such Borrower, the Required Lenders may, at their
option, by notice to such Borrower (which notice may be revoked at the option of
the Required Lenders notwithstanding any provision of SECTION 8.2 requiring
unanimous consent of the Lenders to changes in interest rates), declare that (a)
each Fixed Rate Advance made to such Borrower shall bear interest for the
remainder of the applicable Interest Period at the rate otherwise applicable to
such Interest Period plus 2% per annum and (b) each ABR Advance made to such
Borrower shall bear interest at a rate per annum equal to the Alternate Base
Rate in effect from time to time plus 2% per annum, PROVIDED that, during the
continuance of a Default with respect to any Borrower under SECTION 7.6 or 7.7,
the interest rates set forth in clauses (a) and (b) above shall be applicable to
all Advances of all Borrowers without any election or action on the part of the
Agent or any Lender.
2.10 METHOD OF PAYMENT. All payments of the Obligations hereunder shall
be made, without setoff, deduction, or counterclaim, in immediately available
funds to the Agent at the Agent's address specified pursuant to ARTICLE XIII, or
at any other Lending Installation of the Agent specified in writing by the Agent
to the Borrowers, by noon (Chicago time) on the date when due and shall be
applied ratably by the Agent among the Lenders. Each payment delivered to the
Agent for the account of any Lender shall be delivered promptly by the Agent to
such Lender in the same type of funds that the Agent received at its address
specified pursuant to ARTICLE XIII or at any Lending Installation specified in a
notice received by the Agent from such Lender. The Agent is hereby authorized to
charge the account of each Borrower maintained with Bank One for each payment of
principal, interest and fees as it becomes due hereunder with respect to such
Borrower.
2.11 NOTELESS AGREEMENT; EVIDENCE OF INDEBTEDNESS. (a) Each Lender
shall maintain in accordance with its usual practice an account or accounts
evidencing the indebtedness of each Borrower to such Lender resulting from each
Loan made by such Lender to such Borrower from time to time, including the
amounts of principal and interest payable and paid to such Lender from time to
time hereunder.
(b) The Agent shall also maintain accounts in which it will record
(i) the amount of each Loan made to each Borrower hereunder, the Type
thereof and the Interest Period with respect thereto, (ii) the amount
of any principal or interest due and payable or to become due and
payable from each Borrower to each Lender hereunder and (iii) the
amount of any sum received by the Agent hereunder from each Borrower
and each Lender's share thereof.
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(c) The entries maintained in the accounts maintained pursuant to
paragraphs (a) and (b) above shall be PRIMA FACIE evidence of the
existence and amounts of the Obligations therein recorded; PROVIDED,
HOWEVER, that the failure of the Agent or any Lender to maintain such
accounts or any error therein shall not in any manner affect the
obligation of the Borrowers to repay the Obligations in accordance with
their terms.
(d) Any Lender may request that its Ratable Loans or its
Competitive Bid Loans be evidenced by Ratable Notes or Competitive Bid
Notes, respectively. In such event, each Borrower shall prepare,
execute and deliver to such Lender a Ratable Note or a Competitive Bid
Note, as the case may be, payable to the order of such Lender.
Thereafter, the Loans evidenced by such Note and interest thereon shall
at all times (including after any assignment pursuant to SECTION 12.3)
be represented by one or more Notes payable to the order of the payee
named therein or any assignee pursuant to SECTION 12.3, except to the
extent that any such Lender or assignee subsequently returns any such
Note for cancellation and requests that such Loans once again be
evidenced as described in paragraphs (a) and (b) above.
2.12 TELEPHONIC NOTICES. Each Borrower hereby authorizes the Lenders
and the Agent to extend, convert or continue Advances, effect selections of
Types of Advances, submit Competitive Bid Quotes and transfer funds based on
telephonic notices made by any person or persons the Agent or any Lender in good
faith believes to be acting on behalf of such Borrower, it being understood that
the foregoing authorization is specifically intended to allow Borrowing Notices,
Conversion/Continuation Notices and Competitive Bid Quote Requests to be given
telephonically. Each Borrower agrees to deliver promptly to the Agent a written
confirmation, if such confirmation is requested by the Agent or any Lender, of
each telephonic notice signed by an Authorized Officer. If the written
confirmation differs in any material respect from the action taken by the Agent
and the Lenders, the records of the Agent and the Lenders shall govern absent
manifest error.
2.13 INTEREST PAYMENT DATES; INTEREST AND FEE BASIS. Interest accrued
on each ABR Advance shall be payable on each Payment Date, commencing with the
first such date to occur after the date hereof, on any date on which the ABR
Advance is prepaid, whether due to acceleration or otherwise, and at maturity.
Interest accrued on that portion of the outstanding principal amount of any ABR
Advance converted into a Eurodollar Ratable Advance on a day other than a
Payment Date shall be payable on the date of conversion. Interest accrued on
each Fixed Rate Advance shall be payable on the last day of its applicable
Interest Period, on any date on which the Fixed Rate Advance is prepaid, whether
by acceleration or otherwise, and at maturity. Interest accrued on each Fixed
Rate Advance having an Interest Period longer than three months shall also be
payable on the last day of each three-month interval during such Interest
Period. Interest on Fixed Rate Advances and fees shall be calculated for actual
days elapsed on the basis of a 360-day year, and interest on ABR Advances shall
be calculated for actual days elapsed on the basis of a 365 or 366 day year, as
applicable. Interest shall be payable for the day an Advance is made but not for
the day of any payment on the amount paid if payment is received prior to noon
(local time) at the place of payment. If any payment of
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principal of or interest on an Advance shall become due on a day which is not a
Business Day, such payment shall be made on the next succeeding Business Day
and, in the case of a principal payment, such extension of time shall be
included in computing interest in connection with such payment.
2.14 NOTIFICATION OF ADVANCES, INTEREST RATES, PREPAYMENTS AND
COMMITMENT REDUCTIONS. Promptly after receipt thereof, the Agent will notify
each Lender of the contents of each Aggregate Commitment reduction notice,
Ratable Borrowing Notice, Conversion/Continuation Notice, Competitive Bid
Borrowing Notice, and repayment notice received by it hereunder. The Agent will
notify each Lender of the interest rate applicable to each Fixed Rate Advance
promptly upon determination of such interest rate and will give each Lender
prompt notice of each change in the Alternate Base Rate.
2.15 LENDING INSTALLATIONS. Each Lender may book its Loans at any
Lending Installation selected by such Lender and may change its Lending
Installation from time to time. All terms of this Agreement shall apply to any
such Lending Installation and the Loans and any Notes issued hereunder shall be
deemed held by each Lender for the benefit of any such Lending Installation.
Each Lender may, by written notice to the Agent and the Borrowers in accordance
with ARTICLE XIII, designate replacement or additional Lending Installations
through which Loans will be made by it and for whose account Loan payments are
to be made.
2.16 NON-RECEIPT OF FUNDS BY THE AGENT. Unless a Borrower or a Lender,
as the case may be, notifies the Agent prior to the date on which it is
scheduled to make payment to the Agent of (a) in the case of a Lender, the
proceeds of a Loan or (b) in the case of a Borrower, a payment of principal,
interest or fees to the Agent for the account of the Lenders, that it does not
intend to make such payment, the Agent may assume that such payment has been
made. The Agent may, but shall not be obligated to, make the amount of such
payment available to the intended recipient in reliance upon such assumption. If
such Lender or such Borrower, as the case may be, has not in fact made such
payment to the Agent, the recipient of such payment shall, on demand by the
Agent, repay to the Agent the amount so made available together with interest
thereon in respect of each day during the period commencing on the date such
amount was so made available by the Agent until the date the Agent recovers such
amount at a rate per annum equal to (i) in the case of payment by a Lender, the
Federal Funds Effective Rate for such day for the first three days and,
thereafter, the interest rate applicable to the relevant Loan or (ii) in the
case of payment by a Borrower, the interest rate applicable to the relevant
Loan.
2.17 EXTENSION OF FACILITY TERMINATION DATE. (a) The Borrowers may
request an extension of the Facility Termination Date by submitting a request
for an extension to the Agent (an "EXTENSION REQUEST") no more than 60 days
prior to the Facility Termination Date. The Extension Request must specify the
new Facility Termination Date requested by the Borrowers and the date (which
must be at least 30 days after the Extension Request is delivered to the Agent)
as of which the Lenders must respond to the Extension Request (the "RESPONSE
DATE"). The new Facility Termination Date shall be no more than 364 days (the
"EXTENSION PERIOD") after the Facility Termination Date in effect at the time
the Extension Request is received,
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including the Facility Termination Date as one of the days in the calculation of
the days elapsed. Promptly upon receipt of an Extension Request, the Agent shall
notify each Lender of the contents thereof and shall request each Lender to
approve the Extension Request. Each Lender approving the Extension Request shall
deliver its written consent no later than the Response Date, and the failure of
a Lender to deliver its written consent to an Extension Request on or before the
Response Date shall be deemed a rejection of the requested extension by such
Lender. If the consent of the Required Lenders is received by the Agent, the
Facility Termination Date specified in the Extension Request shall become
effective on the existing Facility Termination Date as to such consenting
Lenders only (and not as to any Lender which has not consented to such
extension) and the Agent shall promptly notify the Borrowers and each Lender of
the new Facility Termination Date. Notwithstanding anything contained in this
Agreement to the contrary, (i) subject to the provisions of SECTION 2.17(b), all
Obligations owing to the non-extending Lenders shall be due and payable on the
Facility Termination Date without giving effect to any requested extension and
(ii) the Aggregate Commitment as of the commencement of the Extension Period
shall be reduced to an amount equal to the sum of the Commitments of the Lenders
ultimately granting the Extension Request.
(b) A nonconsenting Lender shall be obligated, at the request of
the Borrowers, and subject to the nonconsenting Lender receiving
payment in full of (i) the principal amount of all Advances owing to
such nonconsenting Lender, and (ii) all accrued interest and fees owing
to such nonconsenting Lender and all other amounts owing to such
nonconsenting Lender hereunder, to assign without representation,
warranty (other than good title to its Advances) or expense to such
nonconsenting Lender, at any time prior to the Facility Termination
Date applicable to such nonconsenting Lender, all of its rights (other
than rights that would survive the termination of this Agreement
pursuant to SECTION 9.6) and obligations hereunder to one or more banks
or other entities (the "REPLACEMENT LENDERS") nominated by the
Borrowers and willing to take the place of such nonconsenting Lender;
PROVIDED, that each such Replacement Lender satisfies all the
requirements of this Agreement and the Agent shall have consented to
such assignment, which consent shall not be unreasonably withheld. Each
such Replacement Lender shall be deemed to be a consenting Lender
hereunder in replacement of the nonconsenting Lender.
ARTICLE III
YIELD PROTECTION; TAXES
-----------------------
3.1 YIELD PROTECTION. If, on or after the date of this Agreement, the
adoption of any law or any governmental or quasi-governmental rule, regulation,
policy, guideline or directive (whether or not having the force of law), or any
change in the interpretation or administration thereof by any governmental or
quasi-governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender or
applicable Lending Installation with any request or directive (whether or not
having the force of law) of any such authority, central bank or comparable
agency:
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(a) subjects any Lender or any applicable Lending Installation to
any Taxes, or changes the basis of taxation of payments (other than
with respect to Excluded Taxes) to any Lender in respect of its Fixed
Rate Loans, or
(b) imposes or increases or deems applicable any reserve,
assessment, insurance charge, special deposit or similar requirement
against assets of, deposits with or for the account of, or credit
extended by, any Lender or any applicable Lending Installation (other
than reserves and assessments taken into account in determining the
interest rate applicable to Fixed Rate Advances), or
(c) imposes any other condition the result of which is to increase
the cost to any Lender or any applicable Lending Installation of
making, funding or maintaining its Fixed Rate Loans or reduces any
amount receivable by any Lender or any applicable Lending Installation
in connection with its Fixed Rate Loans, or requires any Lender or any
applicable Lending Installation to make any payment calculated by
reference to the amount of Fixed Rate Loans held or interest received
by it, by an amount deemed material by such Lender,
and the result of any of the foregoing is to increase the cost to such Lender or
applicable Lending Installation of making or maintaining its Fixed Rate Loans or
Commitment or to reduce the return received by such Lender or applicable Lending
Installation in connection with such Fixed Rate Loans or Commitment, then,
within 15 days of demand by such Lender, the Borrowers shall pay such Lender
such additional amount or amounts as will compensate such Lender for such
increased cost or reduction in amount received.
3.2 CHANGES IN CAPITAL ADEQUACY REGULATIONS. If a Lender determines the
amount of capital required or expected to be maintained by such Lender, any
Lending Installation of such Lender or any corporation controlling such Lender
is increased as a result of a Change, then, within 15 days of demand by such
Lender, the Borrowers shall pay such Lender the amount necessary to compensate
for any shortfall in the rate of return on the portion of such increased capital
which such Lender determines is attributable to this Agreement, its Loans or its
Commitment to make Loans hereunder (after taking into account such Lender's
policies as to capital adequacy). "Change" means (a) any change after the date
of this Agreement in the Risk-Based Capital Guidelines or (b) any adoption of or
change in any other law, governmental or quasi-governmental rule, regulation,
policy, guideline, interpretation, or directive (whether or not having the force
of law) after the date of this Agreement which affects the amount of capital
required or expected to be maintained by any Lender or any Lending Installation
or any corporation controlling any Lender. "Risk-Based Capital Guidelines" means
(i) the risk-based capital guidelines in effect in the United States on the date
of this Agreement, including transition rules, and (ii) the corresponding
capital regulations promulgated by regulatory authorities outside the United
States implementing the July 1988 report of the Basle Committee on Banking
Regulation and Supervisory Practices Entitled "International Convergence of
Capital Measurements and Capital Standards," including transition rules, and any
amendments to such regulations adopted prior to the date of this Agreement.
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3.3 AVAILABILITY OF TYPES OF ADVANCES. If (a) any Lender determines
that maintenance of its Eurodollar Ratable Loans or Eurodollar Bid Rate Loans at
a suitable Lending Installation would violate any applicable law, rule,
regulation, or directive, whether or not having the force of law, or (b) if the
Required Lenders determine that (i) deposits of a type and maturity appropriate
to match fund Eurodollar Ratable Advances are not available or (ii) the interest
rate applicable to Eurodollar Ratable Advances does not accurately reflect the
cost of making or maintaining Eurodollar Ratable Advances, then the Agent shall,
in the case of clause (a) above, suspend the availability of Eurodollar Ratable
Advances and Eurodollar Bid Rate Advances and, pursuant to a notice given to the
applicable Borrowers from the Agent, require any affected Eurodollar Rate
Advances and Eurodollar Bid Rate Advances to be repaid or converted to ABR
Advances, subject to the payment of any funding indemnification amounts required
by SECTION 3.4, and, in the case of clause (b) above, suspend the availability
of Eurodollar Ratable Advances and, pursuant to a notice given to the applicable
Borrowers from the Agent, require any affected Eurodollar Ratable Advances to be
repaid or converted to ABR Rate Advances, subject to the payment of any funding
indemnification amounts required by SECTION 3.4.
3.4 FUNDING INDEMNIFICATION. If any payment of a Fixed Rate Advance
occurs on a date which is not the last day of the applicable Interest Period,
whether because of acceleration, prepayment or otherwise, or a Fixed Rate
Advance is not made on the date specified by the requesting Borrower for any
reason other than default by the Lenders, such Borrower will indemnify each
Lender for any loss or cost incurred by it resulting therefrom, including,
without limitation, any loss or cost in liquidating or employing deposits
acquired to fund or maintain such Fixed Rate Advance.
3.5 TAXES. (a) All payments by the Borrowers to or for the account of
any Lender or the Agent hereunder or under any Note shall be made free and clear
of and without deduction for any and all Taxes. If any Borrower shall be
required by law to deduct any Taxes from or in respect of any sum payable
hereunder to any Lender or the Agent, (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 3.5) such Lender or the
Agent (as the case may be) receives an amount equal to the sum it would have
received had no such deductions been made, (ii) such Borrower shall make such
deductions, (iii) such Borrower shall pay the full amount deducted to the
relevant authority in accordance with applicable law and (iv) such Borrower
shall furnish to the Agent the original copy of a receipt evidencing payment
thereof within 30 days after such payment is made.
(b) In addition, the Borrowers hereby agree to pay any present or
future stamp or documentary taxes and any other excise or property
taxes, charges or similar levies which arise from any payment made
hereunder or under any Note or from the execution or delivery of, or
otherwise with respect to, this Agreement or any Note ("OTHER TAXES").
(c) The Borrowers hereby agree to indemnify the Agent and each
Lender for the full amount of Taxes or Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed on amounts payable under
this SECTION 3.5) paid by the Agent or
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such Lender and any liability (including penalties, interest and
expenses) arising therefrom or with respect thereto. Payments due under
this indemnification shall be made within 30 days of the date the Agent
or such Lender makes demand therefor pursuant to SECTION 3.6.
(d) Each Lender that is not incorporated under the laws of the
United States of America or a state thereof (each a "NON-U.S. LENDER")
agrees that it will, not more than ten Business Days after the date of
this Agreement, (i) deliver to each of the Borrowers and the Agent two
duly completed copies of United States Internal Revenue Service Form
W-8BEN or W-8ECI, certifying in either case that such Lender is
entitled to receive payments under this Agreement without deduction or
withholding of any United States federal income taxes, and (ii) deliver
to each of the Borrowers and the Agent a United States Internal Revenue
Form W-8 or W-9, as the case may be, and certify that it is entitled to
an exemption from United States backup withholding tax. Each Non-U.S.
Lender further undertakes to deliver to each of the Borrowers and the
Agent (x) renewals or additional copies of such form (or any successor
form) on or before the date that such form expires or becomes obsolete,
and (y) after the occurrence of any event requiring a change in the
most recent forms so delivered by it, such additional forms or
amendments thereto as may be reasonably requested by any Borrower or
the Agent. All forms or amendments described in the preceding sentence
shall certify that such Lender is entitled to receive payments under
this Agreement without deduction or withholding of any United States
federal income taxes, UNLESS an event (including without limitation any
change in treaty, law or regulation) has occurred prior to the date on
which any such delivery would otherwise be required which renders all
such forms inapplicable or which would prevent such Lender from duly
completing and delivering any such form or amendment with respect to it
and such Lender advises the Borrowers and the Agent that it is not
capable of receiving payments without any deduction or withholding of
United States federal income tax.
(e) For any period during which a Non-U.S. Lender has failed to
provide any Borrower with an appropriate form pursuant to clause (d),
above (unless such failure is due to a change in treaty, law or
regulation, or any change in the interpretation or administration
thereof by any Governmental Authority, occurring subsequent to the date
on which a form originally was required to be provided), such Non-U.S.
Lender shall not be entitled to indemnification under this SECTION 3.5
with respect to Taxes imposed by the United States; PROVIDED that,
should a Non-U.S. Lender which is otherwise exempt from or subject to a
reduced rate of withholding tax become subject to Taxes because of its
failure to deliver a form required under clause (d), above, such
Borrower shall take such steps as such Non-U.S. Lender shall reasonably
request to assist such Non-U.S. Lender to recover such Taxes.
(f) Any Lender that is entitled to an exemption from or reduction
of withholding tax with respect to payments under this Agreement or any
Note pursuant to the law of any relevant jurisdiction or any treaty
shall deliver to the Borrowers (with a
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copy to the Agent), at the time or times prescribed by applicable law,
such properly completed and executed documentation prescribed by
applicable law as will permit such payments to be made without
withholding or at a reduced rate.
(g) If the U.S. Internal Revenue Service or any other Governmental
Authority of the United States or any other country or any political
subdivision thereof asserts a claim that the Agent did not properly
withhold tax from amounts paid to or for the account of any Lender
(because the appropriate form was not delivered or properly completed,
because such Lender failed to notify the Agent of a change in
circumstances which rendered its exemption from withholding
ineffective, or for any other reason), such Lender shall indemnify the
Agent fully for all amounts paid, directly or indirectly, by the Agent
as tax, withholding therefor, or otherwise, including penalties and
interest, and including taxes imposed by any jurisdiction on amounts
payable to the Agent under this subsection, together with all costs and
expenses related thereto (including attorneys fees and time charges of
attorneys for the Agent, which attorneys may be employees of the
Agent). The obligations of the Lenders under this SECTION 3.5(g) shall
survive the payment of the Obligations and termination of this
Agreement.
(h) If any Lender receives a refund which it determines in its sole
discretion to be in respect of any Taxes as to which it has been
indemnified by any Borrower or with respect to which such Borrower (or
any Person acting on behalf of such Borrower) has paid additional
amounts pursuant to this SECTION 3.5, then such Lender shall promptly
repay such refund to such Borrower (but only to the extent of indemnity
payments made, or additional amounts paid, by such Borrower (or such
Person acting on behalf of such Borrower) under this SECTION 3.5 with
respect to Taxes giving rise to such refund), net of all amounts paid
pursuant to SECTION 3.5(c) and all out-of-pocket expenses of such
Lender or the Agent, as the case may be; PROVIDED, that such Borrower,
upon the request of such Lender or the Agent, agrees to return such
refund (together with any penalties, interest or other charges due in
connection therewith to the appropriate taxing authority or other
Governmental Authority) to such Lender or the Agent in the event such
Lender or the Agent is required to pay or to return such refund to the
relevant taxing authority or other Governmental Authority.
3.6 LENDER STATEMENTS; SURVIVAL OF INDEMNITY. To the extent reasonably
possible, each Lender shall designate an alternate Lending Installation with
respect to its Eurodollar Loans to reduce any liability of the Borrowers to such
Lender under SECTIONS 3.1, 3.2 and 3.5 or to avoid the unavailability of
Eurodollar Ratable Advances under SECTION 3.3, so long as such designation is
not, in the judgment of such Lender, disadvantageous to such Lender. Each Lender
shall deliver a written statement of such Lender to the Borrowers (with a copy
to the Agent) as to the amount due, if any, under SECTION 3.1, 3.2, 3.4 or 3.5.
Such written statement shall set forth in reasonable detail the calculations
upon which such Lender determined such amount and shall be final, conclusive and
binding on the Borrowers in the absence of manifest error. Determination of
amounts payable under such Sections in connection with a Eurodollar Loan shall
be calculated as though each Lender funded its Eurodollar Loan through the
purchase
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of a deposit of the type and maturity corresponding to the deposit used as a
reference in determining the Eurodollar Rate or Eurodollar Bid Rate, as the case
may be, applicable to such Loan, whether in fact that is the case or not. Unless
otherwise provided herein, the amount specified in the written statement of any
Lender (which statement shall be conclusive absent manifest error) shall be
payable within ten (10) days after receipt by the Borrowers of such written
statement. The obligations of the Borrowers under SECTIONS 3.1, 3.2, 3.4 and 3.5
shall survive payment of the Obligations and termination of this Agreement.
ARTICLE IV
CONDITIONS PRECEDENT
--------------------
4.1 INITIAL ADVANCE. The Lenders shall not be required to make the
initial Advance hereunder unless the Borrowers have furnished to the Agent with
sufficient copies for the Lenders:
(a) CHARTERS AND GOOD STANDING CERTIFICATES. Copies of the articles
or certificate of incorporation of each Borrower, together with all
amendments, and a certificate of good standing, each certified by the
appropriate governmental officer in its jurisdiction of incorporation
and, in the case of Nationwide Mutual and Nationwide Life, a
certificate of authority (or its equivalent) issued by the insurance
department of such Borrower's state of domicile.
(b) BY-LAWS AND RESOLUTIONS. Copies, certified by the Secretary or
Assistant Secretary of each Borrower, of its by-laws or code of
regulations and of its Board of Directors' resolutions and of
resolutions or actions of any other body authorizing the execution of
the Loan Documents to which such Borrower is a party.
(c) INCUMBENCY CERTIFICATES. An incumbency certificate, executed by
the Secretary or Assistant Secretary of each Borrower, which shall
identify by name and title and bear the signatures of the Authorized
Officers and any other officers of each Borrower authorized to sign the
Loan Documents to which such Borrower is a party and to make borrowings
hereunder, upon which certificate the Agent and the Lenders shall be
entitled to rely until informed of any change in writing by such
Borrower.
(d) CLOSING CERTIFICATES. A certificate, signed by the chief
financial officer of each Borrower, stating that on the initial
Borrowing Date no Default or Unmatured Default has occurred and is
continuing.
(e) OPINION. A written opinion of the Borrowers' counsel, addressed
to the Lenders in for and substance acceptable to the Agent and its
counsel.
(f) NOTES. Any Notes requested by a Lender pursuant to SECTION 2.11
payable to the order of each such requesting Lender.
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(g) WRITTEN MONEY TRANSFER INSTRUCTIONS. Written money transfer
instructions, in substantially the form of EXHIBIT D, addressed to the
Agent and signed by an Authorized Officer, together with such other
related money transfer authorizations as the Agent may have reasonably
requested.
(h) PAYMENT OF XXXXXX CREDIT AGREEMENT. All principal, interest and
other amounts due under that certain Credit Agreement, dated as of
August 12, 1996, as amended, among the Borrowers, the financial
institutions party thereto and Xxxxxx Guaranty Trust Company of New
York, as Administrative Agent, and all other documents related thereto
shall have been paid in full and such agreement and all related
documents shall have been terminated, and the Borrowers shall have
executed and delivered to the Agent such documents as the Agent shall
require in connection therewith.
(i) REGULATORY MATTERS. Receipt of regulatory approvals required by
any Governmental Authority as a condition of such Governmental
Authority to the making of the Loans hereunder and the consummation of
the other transactions contemplated hereby and by the other Loan
Documents.
(j) OTHER. Such other documents as any Lender or its counsel may
have reasonably requested.
4.2 EACH ADVANCE. The Lenders shall not be required to make any
Advance unless on the applicable Borrowing Date:
(a) There exists no Default or Unmatured Default with respect to
the applicable Borrower.
(b) The representations and warranties of the applicable Borrower
contained in ARTICLE V are true and correct as of such Borrowing Date
except to the extent any such representation or warranty is stated to
relate solely to an earlier date, in which case such representation or
warranty shall have been true and correct on and as of such earlier
date.
(c) All legal matters incident to the making of such Advance shall
be satisfactory to the Lenders and their counsel.
(d) Immediately after such Borrower, the aggregate outstanding
principal amount of the Loans will not exceed the Aggregate
Commitments.
Each Ratable Borrowing Notice with respect to each such Ratable Advance
and each Competitive Bid Borrowing Notice with respect to each such Competitive
Bid Advance shall constitute a representation and warranty by such Borrower that
the conditions contained in SECTIONS 4.2(a) and (b) have been satisfied. Any
Lender may require a duly completed compliance certificate in substantially the
form of EXHIBIT B as a condition to making an Advance.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES
------------------------------
Each Borrower represents and warrants to the Lenders that:
5.1 EXISTENCE AND STANDING.
(a) In the case of Nationwide Mutual, such Borrower is a mutual
insurance company duly and properly incorporated, validly existing and
in good standing under the laws of its jurisdiction of incorporation or
organization and has all requisite authority to conduct its business in
each jurisdiction in which its business is conducted, except where the
failure to be authorized to conduct business could not reasonably be
expected to have a Material Adverse Effect.
(b) In the case of Nationwide Life, such Borrower is an insurance
company duly and properly incorporated, validly existing and in good
standing under the laws of its jurisdiction of incorporation or
organization and has all requisite authority to conduct its business in
each jurisdiction in which its business is conducted, except where the
failure to be authorized to conduct business could not reasonably be
expected to have a Material Adverse Effect.
(c) In the case of NFS, such Borrower is a corporation duly and
properly incorporated, validly existing and in good standing under the
laws of its jurisdiction of incorporation or organization and has all
requisite authority to conduct its business in each jurisdiction in
which its business is conducted, except where the failure to be
authorized to conduct business could not reasonably be expected to have
a Material Adverse Effect.
(d) Each of such Borrower's Material Subsidiaries is a corporation,
partnership, limited liability company or business trust duly and
properly incorporated or organized, as the case may be, validly
existing and in good standing under the laws of its jurisdiction of
incorporation or organization and has all requisite authority to
conduct its business in each jurisdiction in which its business is
conducted, except where the failure to be so qualified, licensed or
authorized could not reasonably be expected to have a Material Adverse
Effect.
5.2 AUTHORIZATION AND VALIDITY. Such Borrower has the power and
authority and legal right to execute and deliver the Loan Documents to which it
is a party and to perform its obligations thereunder. The execution and delivery
by such Borrower of the Loan Documents to which it is a party and the
performance of its obligations thereunder have been duly authorized by proper
corporate proceedings, and the Loan Documents to which such Borrower is a party
constitute legal, valid and binding obligations of such Borrower enforceable
against such Borrower in accordance with their terms, except as enforceability
may be limited by bankruptcy,
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insolvency or similar laws affecting the enforcement of creditors' rights
generally and by general principles of equity.
5.3 NO CONFLICT; GOVERNMENT CONSENT. Neither the execution and delivery
by such Borrower of the Loan Documents to which it is a party, nor the
consummation of the transactions therein contemplated, nor compliance with the
provisions thereof will violate (a) any law, rule, regulation (including
Regulations T, U and X), order, writ, judgment, injunction, decree or award
binding on such Borrower or any of its Subsidiaries or (b) such Borrower's or
any Subsidiary's articles or certificate of incorporation, partnership
agreement, certificate of partnership, articles or certificate of organization,
by-laws, or operating or other management agreement, as the case may be, or (c)
the provisions of any indenture, instrument or agreement to which such Borrower
or any of its Subsidiaries is a party or is subject, or by which it, or its
Property, is bound, or conflict with or constitute a default thereunder, or
result in, or require, the creation or imposition of any Lien in, of or on the
Property of such Borrower or a Subsidiary of such Borrower pursuant to the terms
of any such indenture, instrument or agreement. No order, consent, adjudication,
approval, license, authorization, or validation of, or filing, recording or
registration with, or exemption by, or other action in respect of any
Governmental Authority, or any subdivision thereof, or any other Person
(including without limitation the shareholders or policyholders, as applicable,
of any Person) which has not been obtained by such Borrower or any of its
Subsidiaries, is required to be obtained by such Borrower or any of its
Subsidiaries in connection with the execution and delivery of the Loan
Documents, the borrowings under this Agreement, the payment and performance by
such Borrower of the Obligations or the legality, validity, binding effect or
enforceability of any of the Loan Documents.
5.4 FINANCIAL STATEMENTS.
(a) In the case of Nationwide Mutual, the December 31, 1999 Annual
Statement of Nationwide Mutual heretofore delivered to the Lenders was
prepared in accordance with SAP, and such Annual Statement was prepared
and fairly presents the financial condition and operations of
Nationwide Mutual as at such date and the results of its operations for
the period then ended.
(b) In the case of Nationwide Life, the December 31, 1999 Annual
Statement of Nationwide Life heretofore delivered to the Lenders was
prepared in accordance with SAP, and such Annual Statement was prepared
and fairly presents the financial condition and operations of
Nationwide Life as at such date and the results of its operations for
the period then ended.
(c) In the case of NFS, the December 31, 1999 consolidated
financial statements of NFS and its Subsidiaries heretofore delivered
to the Lenders were prepared in accordance with Agreement Accounting
Principles, and such statements were prepared and fairly present the
consolidated financial condition and operations of NFS and its
Subsidiaries at such date and the consolidated results of their
operations for the period then ended.
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5.5 MATERIAL ADVERSE CHANGE. Since December 31, 1999, there has been no
change in the business, Property, prospects, condition (financial or otherwise)
or results of operations of such Borrower and its Subsidiaries which could
reasonably be expected to have a Material Adverse Effect except, with respect to
Nationwide Mutual, for the reduction in Nationwide Mutual's Statutory Surplus of
approximately $1.5 Billion resulting from the AMH Acquisition.
5.6 TAXES. Such Borrower and its Subsidiaries have filed all United
States federal tax returns and all other material tax returns which are required
to be filed and have paid all taxes due pursuant to said returns or pursuant to
any assessment received by such Borrower or any of its Subsidiaries, except such
taxes, if any, as are being contested in good faith and as to which adequate
reserves have been provided in accordance with Agreement Accounting Principles
or SAP, as applicable, and as to which no Lien exists; PROVIDED, that for the
purposes of determining compliance with this sentence, all representations and
warranties made with respect to AMH and its Subsidiaries shall be made only with
respect to returns filed and taxes paid from and after the consummation of the
AMH Acquisition. The United States income tax returns of such Borrower and its
Subsidiaries (other than AMH) have been audited by the Internal Revenue Service
through the fiscal year ended December 31, 1995. No tax Liens have been filed
and no material claims are being asserted with respect to any such taxes. The
charges, accruals and reserves on the books of such Borrower and its Material
Subsidiaries in respect of any taxes or other governmental charges are adequate;
PROVIDED, that for the purposes of determining compliance with this sentence,
all representations and warranties made with respect to AMH and its Subsidiaries
shall be made only with respect to Liens filed and claims asserted from and
after the consummation of the AMH Acquisition. For the purpose of this SECTION
5.6, each reference to a Borrower shall be deemed to include a reference to all
predecessor entities thereto. In the case of Nationwide Mutual, (a) for all
periods ending on or prior to the consummation of the AMH Acquisition, AMH and
each of its Subsidiaries paid all taxes due pursuant to said returns or pursuant
to any assessment received by it, except such taxes, if any, the nonpayment of
which could not reasonably be expected to have a Material Adverse Effect and
such taxes, if any, as are being contested in good faith and as to which
adequate reserves have been provided in accordance with generally accepted
accounting principles as in effect in the United Kingdom ("U.K. GAAP"), and as
to which no Lien exists, (b) to the best of Nationwide Mutual's knowledge, for
all periods ending on or prior to the consummation of the AMH Acquisition, AMH
and its Subsidiaries filed all federal tax returns and all other material tax
returns required to be filed by it, and (c) to the best of Nationwide Mutual's
knowledge, for all periods ending on or prior to the consummation of the AMH
Acquisition, the charges, accruals and reserves on the books of AMH and its
Material Subsidiaries in respect of any taxes or other governmental charges were
adequate under U.K. GAAP.
5.7 LITIGATION AND CONTINGENT OBLIGATIONS. There is no litigation,
arbitration, governmental investigation, proceeding or inquiry pending or, to
the knowledge of any of their officers, threatened against or affecting such
Borrower or any of its Subsidiaries which could reasonably be expected to have a
Material Adverse Effect on such Borrower or which seeks to prevent, enjoin or
delay the making of any Loans. Other than any liability incident to any
litigation, arbitration or proceeding which could not reasonably be expected to
have a Material
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Adverse Effect, neither such Borrower nor any of its Subsidiaries has any
material contingent obligations not provided for or disclosed in the financial
statements referred to in SECTION 5.4.
5.8 SUBSIDIARIES. SCHEDULE 5.8 contains an accurate list of all
Subsidiaries of such Borrower as of the date of this Agreement, setting forth
the percentage of their respective capital stock or other ownership interests
owned by such Borrower or other Subsidiaries of such Borrower. All of the issued
and outstanding shares of capital stock or other ownership interests of such
Subsidiaries have been (to the extent such concepts are relevant with respect to
such ownership interests) duly authorized and issued and are fully paid and
non-assessable.
5.9 ERISA. No Single Employer Plan has an Unfunded Liability. Neither
such Borrower nor any other member of the Controlled Group has incurred, or is
reasonably expected to incur, any withdrawal liability to Multiemployer Plans.
Each Plan complies in all material respects with all applicable requirements of
law and regulations, no Reportable Event has occurred with respect to any Plan.
Neither such Borrower nor any other member of the Controlled Group has (i)
withdrawn from any Plan or initiated steps to do so, or (ii) taken any steps to
reorganize or terminate any Plan; PROVIDED, that if any such action has been
taken, it could not reasonably be expected to result in liability to the
Borrower or any Subsidiary which would have a Material Adverse Effect.
5.10 ACCURACY OF INFORMATION. No information, exhibit or report
furnished by such Borrower or any of its Subsidiaries to the Agent or to any
Lender in connection with the negotiation of, or compliance with, the Loan
Documents contained any material misstatement of fact or omitted to state a
material fact or any fact necessary to make the statements contained therein not
misleading.
5.11 REGULATION U. Margin stock (as defined in Regulation U)
constitutes less than 25% of the value of those assets of such Borrower and its
Subsidiaries which are subject to any limitation on sale, pledge, or other
restriction hereunder.
5.12 MATERIAL AGREEMENTS. Neither such Borrower nor any Material
Subsidiary of such Borrower is a party to any agreement or instrument or subject
to any charter or other corporate restriction which could reasonably be expected
to have a Material Adverse Effect. Neither such Borrower nor any Subsidiary of
such Borrower is in default in the performance, observance or fulfillment of any
of the obligations, covenants or conditions contained in (a) any agreement to
which it is a party, which default could reasonably be expected to have a
Material Adverse Effect or (b) any agreement or instrument evidencing or
governing Indebtedness.
5.13 COMPLIANCE WITH LAWS. Such Borrower and its Subsidiaries have
complied with all applicable statutes, rules, regulations, orders and
restrictions of any domestic or foreign government or any instrumentality or
agency thereof having jurisdiction over the conduct of their respective
businesses or the ownership of their respective Property except for any failure
to comply with any of the foregoing which could not reasonably be expected to
have a Material Adverse Effect.
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5.14 PLAN ASSETS; PROHIBITED TRANSACTIONS. With respect to Nationwide
Mutual and NFS, such Borrower is not an entity deemed to hold "plan assets"
within the meaning of 29 C.F.R. ss.2510.3-101 of an employee benefit plan (as
defined in Section 3(3) of ERISA) which is subject to Title I of ERISA or any
plan within the meaning of Section 4975 of the Code. With respect to Nationwide
Life, such Borrower is not, as a result of the significant participation test
found in 29 C.F.R. ss.2510.3-101(a)(2)(ii) and (f), an entity deemed to hold
"plan assets" of any employee benefit plan (as defined in Section 3(3) of ERISA)
which is subject to Title I of ERISA or any plan within the meaning of Section
4975 of the Code, because less than 25% of the value of any class or type of its
equity interests is, or could be deemed to be, held by benefit plan investors,
as defined in 29 C.F.R. ss.2510.3-101(f)(2). To the knowledge of the Borrower,
neither the execution of this Agreement nor the making of Loans hereunder gives
rise to a prohibited transaction, within the meaning of Section 406(a) of ERISA
or Section 4975 of the Code, that is not the subject of a prohibited transaction
class exemption, all of the conditions of which are satisfied by the Borrower.
5.15 ENVIRONMENTAL MATTERS. In the ordinary course of its business, the
officers of such Borrower consider the effect of Environmental Laws on the
business of such Borrower and its Subsidiaries, in the course of which they
identify and evaluate potential risks and liabilities accruing to such Borrower
due to Environmental Laws. On the basis of this consideration, such Borrower has
concluded that Environmental Laws cannot reasonably be expected to have a
Material Adverse Effect. Neither such Borrower nor any Subsidiary of such
Borrower has received any notice to the effect that its operations are not in
material compliance with any of the requirements of applicable Environmental
Laws or are the subject of any federal or state investigation evaluating whether
any remedial action is needed to respond to a release of any toxic or hazardous
waste or substance into the environment, which non-compliance or remedial action
could reasonably be expected to have a Material Adverse Effect.
5.16 INVESTMENT COMPANY ACT. Such Borrower is not an "investment
company" or a company "controlled" by an "investment company", within the
meaning of the Investment Company Act of 1940, as amended.
5.17 PUBLIC UTILITY HOLDING COMPANY ACT. Neither such Borrower nor any
Subsidiary of such Borrower is a "holding company" or a "subsidiary company" of
a "holding company", or an "affiliate" of a "holding company" or of a
"subsidiary company" of a "holding company", within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
5.18 DEFAULTS. No Default or Unmatured Default has occurred and is
continuing.
5.19 INSURANCE LICENSES. No License of such Borrower (in the case of
Nationwide Mutual and Nationwide Life) or any Material Insurance Subsidiary of
such Borrower, the loss of which could reasonably be expected to have a Material
Adverse Effect, is the subject of a proceeding for suspension or revocation. To
such Borrower's knowledge, there is no sustainable basis for such suspension or
revocation, and no such suspension or revocation has been threatened by any
Governmental Authority.
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ARTICLE VI
COVENANTS
---------
During the term of this Agreement, unless the Required Lenders shall
otherwise consent in writing, each Borrower covenants and agrees that:
6.1 FINANCIAL REPORTING. Such Borrower will maintain, for itself and
each Subsidiary of such Borrower, a system of accounting established and
administered in accordance with Agreement Accounting Principles or SAP, as
applicable, and furnish to the Lenders:
(a) In the case of NFS, within 90 days after the close of each of
its fiscal years, an unqualified audit report certified by independent
certified public accountants acceptable to the Lenders, prepared in
accordance with Agreement Accounting Principles on a consolidated basis
for itself and its Subsidiaries, including balance sheets as of the end
of such period and related statements of income, shareholders' equity
and cash flows, accompanied by any internal control letter prepared by
said accountants.
(b) In the case of NFS, within 60 days after the close of the first
three quarterly periods of each of its fiscal years, for itself and its
Subsidiaries, consolidated unaudited balance sheets as at the close of
each such period and consolidated statements of income, shareholders'
equity and cash flows for the period from the beginning of such fiscal
year to the end of such quarter, all certified by its chief financial
officer.
(c) (i) In the case of each of Nationwide Mutual and Nationwide
Life, upon the earlier of (A) thirty (30) days after the regulatory
filing date or (B) seventy-five (75) days after the close of each
fiscal year of such Borrower, copies of the unaudited Annual Statement
of such Borrower, certified by the chief financial officer or the
treasurer of such Borrower, all such statements to be prepared in
accordance with SAP consistently applied throughout the periods
reflected therein and (ii) in the case of Nationwide Life, no later
than each June 15, copies of such Annual Statement audited and
certified by independent certified public accountants of recognized
national statement.
(d) In the case of Nationwide Mutual, (i) upon the earlier of (A)
thirty (30) days after the regulatory filing date or (B) seventy-five
(75) days after the close of each fiscal year of Nationwide Mutual,
copies of the unaudited Combined Annual Statement of Nationwide Mutual,
certified by the chief financial officer or the treasurer of Nationwide
Mutual, all such statements to be prepared in accordance with SAP
consistently applied throughout the periods reflected therein and (ii)
no later than each June 15, copies of such Combined Annual Statement
audited and certified by independent certified public accountants of
recognized national statement.
(e) In the case of Nationwide Mutual and Nationwide Life, upon the
earlier of (i) thirty (30) days after the regulatory filing date or
(ii) sixty (60) days after the close of each of the first three (3)
fiscal quarters of each fiscal year of Nationwide Mutual and
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Nationwide Life, copies of the unaudited Quarterly Statement of such
Borrower, certified by the chief financial officer or treasurer of such
Borrower, all such statements to be prepared in accordance with SAP
consistently applied through the period reflected therein.
(f) Together with the financial statements required under SECTIONS
6.1(a), (b), (c) and (e), a compliance certificate in substantially the
form of EXHIBIT B signed by its chief financial officer showing the
calculations necessary to determine compliance with this Agreement and
stating that no Default or Unmatured Default exists, or if any Default
or Unmatured Default exists, stating the nature and status thereof.
(g) Promptly and within any event within ten (10) days after
learning thereof, notification of any changes after the Closing Date in
the rating given by Xxxxx'x, S&P or A.M. Best & Co. in respect of any
Borrower.
(h) Within five (5) Business Days after the receipt thereof by such
Borrower, any written communication from the Insurance Department of
the State of Ohio (provided that such communication is directed to such
Borrower specifically with respect to a particular inquiry and not to
insurance companies generally) which asserts in any material respect
that such Borrower has an unsound financial condition;
(i) Within 270 days after the close of each fiscal year, a
statement of the Unfunded Liabilities of each Single Employer Plan,
certified as correct by an actuary enrolled under ERISA.
(j) As soon as possible and in any event within 10 days after such
Borrower knows that any Reportable Event has occurred with respect to
any Plan, a statement, signed by the chief financial officer of such
Borrower, describing said Reportable Event and the action which such
Borrower proposes to take with respect thereto.
(k) Promptly upon the furnishing thereof to the shareholders (in
the case of NFS) or the policyholders (in the case of Nationwide
Mutual), copies of all financial statements, reports and proxy
statements so furnished.
(l) Promptly and in any event within ten (10) days after learning
thereof, notification of (i) any tax assessment, demand, notice of
proposed deficiency or notice of deficiency received by such Borrower
or any other Consolidated Person or (ii) the filing of any tax Lien or
commencement of any judicial proceeding by or against such Consolidated
Person, if any such assessment, demand, notice, Lien or judicial
proceeding (or all such assessments, demands, notices, Liens and
judicial proceedings, in the aggregate) relates to tax liabilities in
excess of ten percent (10%) of (A) in the case of Nationwide Mutual and
Nationwide Life, the Statutory Surplus (determined without reduction
for any reserve for liabilities) of such Borrower or (B) in the case of
NFS, the Consolidated Tangible Net Worth (determined without reduction
for any reserve for liabilities) of NFS.
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(m) Such other information (including non-financial information) as
the Agent or any Lender may from time to time reasonably request.
6.2 USE OF PROCEEDS. Such Borrower will, and will cause each Subsidiary
of such Borrower to, use the proceeds of the Advances for general corporate
purposes. Such Borrower will not, nor will it permit any Subsidiary of such
Borrower to, use any of the proceeds of the Advances to purchase or carry any
"margin stock" (as defined in Regulation U).
6.3 NOTICE OF DEFAULT. Such Borrower will, and will cause each of its
Material Subsidiaries to, give prompt notice in writing to the Lenders of the
occurrence of (a) any Default or Unmatured Default, (b) any other development,
financial or otherwise, relating specifically to such Borrower or any of its
Material Subsidiaries (and not of a general economic or political nature) which
could reasonably be expected to have a Material Adverse Effect on such Borrower,
(c) their receipt of any notice from any Governmental Authority of the
expiration without renewal, revocation or suspension of, or the institution of
any proceedings which could reasonably be expected to result in the revocation
or suspension of, any material License now or hereafter held by any Material
Insurance Subsidiary of such Borrower which is required to conduct insurance
business in compliance with all applicable laws and regulations and the
expiration, revocation or suspension of which could reasonably be expected to
have a Material Adverse Effect, (d) their receipt of any notice from any
Governmental Authority which could reasonably be expected to result in
disciplinary proceedings against or in respect of any Material Insurance
Subsidiary, or the issuance of any order, the taking of any action or any
request for an extraordinary audit for cause by any Governmental Authority
which, if adversely determined, could reasonably be expected to have a Material
Adverse Effect, (e) any material judicial or administrative order of which they
are aware limiting or controlling the insurance business of such Borrower (in
the case of Nationwide Mutual and Nationwide Life) or any Material Insurance
Subsidiary of such Borrower (and not the insurance industry generally) which has
been issued or adopted and which could reasonably be expected to create a
Material Adverse Effect or (f) the commencement of any litigation of which they
are aware which could reasonably be expected to create a Material Adverse
Effect.
6.4 CONDUCT OF BUSINESS. Such Borrower will, and will cause each of its
Material Subsidiaries to, (a) carry on and conduct its business in substantially
the same manner and in substantially the same fields of enterprise as it is
presently conducted, (b) do all things reasonably necessary to remain duly
incorporated or organized, validly existing and (to the extent such concept
applies to such entity) in good standing as a domestic corporation, partnership
or limited liability company in its jurisdiction of incorporation or
organization, as the case may be, and maintain all requisite authority to
conduct its business in each jurisdiction in which its business is conducted
except where the failure to maintain such authority could not reasonably be
expected to have a Material Adverse Effect, and (c) do all things necessary to
renew, extend and continue in effect all Licenses which may at any time and from
time to time be necessary for such Borrower (in the case of Nationwide Mutual or
Nationwide Life) or any Material Insurance Subsidiary of such Borrower to
operate its insurance business in compliance with all applicable laws and
regulations except for any License the loss of which could not
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reasonably be expected to have a Material Adverse Effect; PROVIDED such Borrower
(in the case of Nationwide Mutual or Nationwide Life) or any Material Insurance
Subsidiary of such Borrower may withdraw from one or more states (other than its
state of domicile) as an admitted insurer if such withdrawal is determined by
such Borrower's senior management to be in the best interest of such Borrower
and could not reasonably be expected to have a Material Adverse Effect;
PROVIDED, FURTHER, that nothing provided in this SECTION 6.4 shall prohibit any
consolidation, merger, sale, lease or other transfer permitted under SECTION
6.10. Such Borrower shall not change its state of domicile or incorporation
without the prior written consent of the Required Lenders, which consent shall
not be unreasonably withheld or delayed.
6.5 TAXES. Such Borrower will, and will cause each of its Subsidiaries
to, timely file complete and correct United States federal and applicable
foreign, state and local tax returns required by law and pay when due all taxes,
assessments and governmental charges and levies upon it or its income, profits
or Property, except those which are being contested in good faith by appropriate
proceedings and with respect to which adequate reserves have been set aside in
accordance with Agreement Accounting Principles or SAP, as applicable.
6.6 INSURANCE. Such Borrower will, and will cause each of its
Subsidiaries to, maintain with financially sound and reputable insurance
companies insurance on all their Property in such amounts and covering such
risks as is consistent with sound business practice, and such Borrower will
furnish to any Lender upon request full information as to the insurance carried;
PROVIDED, that such Borrower and its Subsidiaries may self-insure such risks to
the extent it deems it prudent to do so.
6.7 COMPLIANCE WITH LAWS. Such Borrower will, and will cause each of
its Subsidiaries to, comply with all laws, rules, regulations, orders, writs,
judgments, injunctions, decrees or awards to which it may be subject including,
without limitation, all Environmental Laws, the noncompliance with which could
reasonably be expected to have a Material Adverse Effect.
6.8 MAINTENANCE OF PROPERTIES. Such Borrower will, and will cause each
of its Subsidiaries to, do all things necessary to maintain, preserve, protect
and keep its Property in good repair, working order and condition, and make all
necessary and proper repairs, renewals and replacements so that its business
carried on in connection therewith may be properly conducted at all times;
PROVIDED, HOWEVER, that nothing herein contained shall prevent such Borrower and
its Subsidiaries from discontinuing the operation and maintenance of any of its
Property if such discontinuance is desirable in the conduct of its business and
such Borrower or such Subsidiary has concluded that such discontinuance could
not individually or in the aggregate reasonably be expected to have a Material
Adverse Effect.
6.9 INSPECTION. Such Borrower will, and will cause each of its
Subsidiaries to, permit the Agent and the Lenders, by their respective
representatives and agents, to inspect any of the Property, books and financial
records of such Borrower and each
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of its Subsidiaries, to examine and make copies of the books of accounts and
other financial records of such Borrower and each of its Subsidiaries, and to
discuss the affairs, finances and accounts of such Borrower and each of its
Subsidiaries with, and to be advised as to the same by, their respective
officers at such reasonable times and intervals as the Agent or any Lender may
designate. Such Borrower will keep or cause to be kept, and cause each of its
Subsidiaries to keep or cause to be kept, appropriate records and books of
account in which complete entries are to be made reflecting its and their
business and financial transactions, such entries to be made in accordance with
Agreement Accounting Principles or SAP, as applicable, consistently applied.
6.10 MERGER. Such Borrower will not merge or consolidate with or into
any other Person, except that such Borrower may merge with another Person if (a)
such Borrower is the corporation surviving the merger and (b) after giving
effect to such merger, no Unmatured Default or Default shall have occurred and
be continuing.
6.11 SALE OF ASSETS. Such Borrower will not, directly or indirectly
through one of its Subsidiaries, lease, sell or otherwise dispose of all or any
substantial part of the Property of such Borrower and its Subsidiaries, taken as
a whole, to any other Person.
6.12 LIENS. Such Borrower will not, nor will it permit any Subsidiary
to, create, incur, or suffer to exist any Lien in, of or on the Property of such
Borrower or any of its Subsidiaries, except:
(a) Liens existing on the date hereof and described on SCHEDULE
6.12;
(b) any Lien on any Property securing Indebtedness incurred or
assumed for the purpose of financing all or any part of the cost of
acquiring such Property; PROVIDED, that such Lien (i) applies only to
such acquired Property and (ii) attaches to such Property concurrently
with or within 90 days after the acquisition thereof;
(c) any Lien on any Property of any Person existing at the time
such Person is merged or consolidated with or into such Borrower or its
Subsidiary; PROVIDED that such Lien (i) applies only to such acquired
Property and (ii) is not created in contemplation of such merger or
consolidation;
(d) any Lien existing on any Property prior to the acquisition
thereof by such Borrower or its Subsidiary; PROVIDED, that such Lien
(i) applies only to such acquired Property and (ii) is not created in
contemplation of such acquisition;
(e) any Lien arising out of the refinancing, extension, renewal or
refunding of any Indebtedness secured by any Lien permitted by any of
the foregoing clauses of this SECTION 6.12; PROVIDED, that such
Indebtedness is not increased and is not secured by additional
Property;
(f) Liens imposed by law, such as carriers', warehousemen's and
mechanics' liens and other similar Liens arising in the ordinary course
of business which secure payment of obligations not more than 60 days
past due;
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(g) Liens arising in the ordinary course of business which (i) do
not secure Indebtedness, (ii) do not secure any obligation in an amount
exceeding $25,000,000 and (iii) do not in the aggregate materially
detract from the value of its assets or materially impair the use
thereof in the operation of its business;
(h) Liens on cash and cash equivalents securing Rate Management
Obligations; PROVIDED, that the aggregate amount of cash and cash
equivalents subject to such Liens may at no time exceed $100,000,000;
(i) Liens (i) arising from judicial attachments and judgments,
(ii) securing appeal bonds or supersedeas bonds, and (iii) arising in
connection with court proceedings (including, without limitation,
surety bonds and letters of credit or any other instrument serving a
similar purpose); PROVIDED, that (A) the execution or other enforcement
of such Liens is effectively stayed, (B) the claims secured thereby are
being actively contested in good faith and by appropriate proceedings,
and (C) adequate book reserves shall have been established and
maintained and shall exist with respect thereto;
(j) Liens in the nature of reservations, exceptions,
encroachments, easements, rights-of-way, covenants, conditions,
restrictions, leases and other similar title exceptions or encumbrances
affecting real Property; PROVIDED, that such exceptions and
encumbrances do not in the aggregate materially detract from the value
of such Property or materially interfere with the use of such Property
in the ordinary conduct of the business of such Borrower and its
Subsidiaries, taken as a whole;
(k) Liens on Property of a Subsidiary of such Borrower (other than
a Subsidiary which is a Borrower); PROVIDED, that such Liens secure
only obligations owing to such Borrower;
(l) in the case of Nationwide Mutual, Liens on securities owned by
Nationwide Mutual securing its obligations under a prepaid equity
forward contract in an amount not to exceed $800,000,000, the proceeds
of which prepaid equity forward contract are used to finance the AMH
Acquisition exclusively;
(m) in the case of Nationwide Mutual and Nationwide Life, Liens on
securities, cash and cash equivalents granted in connection with
securities lending activities or securities repurchase or
reverse-repurchase activities of such Borrower and its Subsidiaries in
the ordinary course of business in compliance with all applicable laws;
PROVIDED, that the aggregate amount of securities, cash and cash
equivalents subject to such Liens may at no time exceed 5% of such
Borrower's Statutory Surplus;
(n) Liens consisting of deposits made by such Borrower (in the
case of Nationwide Mutual and Nationwide Life) on behalf of itself or
any Insurance Subsidiary or by any Insurance Subsidiary of such
Borrower with the insurance regulatory authority in its jurisdiction of
formation or other statutory Liens or Liens or claims imposed or
required by applicable insurance law or regulation against the assets
of such Borrower or
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any Insurance Subsidiary of such Borrower, in each case in favor of
policyholders of such Borrower or such Insurance Subsidiary and granted
in the ordinary course of such Borrower's or such Insurance
Subsidiary's business;
(o) Liens granted by Nationwide Realty Investors, Ltd. and its
Subsidiaries on real property owned thereby and the improvements
thereon in connection with the development or operation of such real
property and improvements;
(p) Liens granted on assets of Subsidiaries of such Borrower
(other than a Subsidiary which is a Borrower) securing indebtedness of
such Person incurred in connection with the sale or issuance of CDOs,
provided that no Borrower or Subsidiary has any recourse obligations
with respect thereto;
(q) in the case of Nationwide Life, Liens securing Rate Management
Obligations of Nationwide Life incurred in connection with funding
agreements issued by Nationwide Life to support its Medium Term Note
Program; and
(r) Liens not otherwise permitted by the foregoing clauses of this
SECTION 6.12 securing Indebtedness in an aggregate principal or face
amount at any date not to exceed (i) in the case of Nationwide Mutual
and Nationwide Life, 5% of such Borrower's Statutory Surplus and (ii)
in the case of NFS, 5% of the Consolidated Tangible Net Worth of NFS.
Notwithstanding anything to the contrary in this SECTION 6.12, in no event shall
Nationwide Mutual or its Subsidiaries create, incur or suffer to exist any Lien
on the stock of NFS, and in no event shall NFS create, incur or suffer to exist
any Lien on the stock of Nationwide Life.
6.13 AFFILIATES. The Borrower will not, and will not permit any
Subsidiary to, enter into any transaction (including, without limitation, the
purchase or sale of any Property or service) with, or make any payment or
transfer to, any Affiliate except in the ordinary course of business and
pursuant to the reasonable requirements of the Borrower's or such Subsidiary's
business and upon fair and reasonable terms no less favorable to the Borrower or
such Subsidiary than the Borrower or such Subsidiary would obtain in a
comparable arms-length transaction; PROVIDED, that the foregoing provisions of
this SECTION 6.13 shall not prohibit any such Person from declaring or paying
any lawful dividend or other payment ratably in respect of all of its capital
stock of the relevant class so long as, after giving effect thereto, no Default
in respect of such Borrower shall have occurred and be continuing.
6.14 ERISA COMPLIANCE. With respect to any Plan, neither such Borrower
nor any of its Subsidiaries shall or shall permit any other member of the
Controlled Group to:
(a) engage in any "prohibited transaction" (as such term is
defined in Section 406 of ERISA or Section 4975 of the Code) for which
a civil penalty pursuant to Section 502(i) of ERISA or a tax pursuant
to Section 4975 of the Code in excess of $5,000,000
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for all Plans in the aggregate (less amounts determined pursuant to
clauses (b), (c) and (d)) could reasonably be expected to be imposed;
(b) permit an "accumulated funding deficiency" (as such term is
defined in Section 302 of ERISA) in excess of $5,000,000 for all Plans
in the aggregate (less amounts determined pursuant to clauses (a), (c)
and (d)) to be incurred whether or not waived, or permit any Unfunded
Liability which could reasonably be expected to have a Material Adverse
Effect;
(c) permit the occurrence of any Reportable Event which could
reasonably be expected to result in liability (i) to the Borrower or
any Subsidiary in excess of $5,000,000 for all Plans in the aggregate
(less amounts determined pursuant to clauses (a), (b) and (d)) or (ii)
to any other member of the Controlled Group in an amount which could
reasonably be expected to have a Material Adverse Effect;
(d) fail to make any contribution or payment to any Multiemployer
Plan which any member of the Controlled Group may be required to make
under any agreement relating to such Multiemployer Plan or any law
pertaining thereto which results in or could result in a liability (i)
of the Borrower or any Subsidiary in excess of $5,000,000 for all Plans
in the aggregate (less amounts determined pursuant to clauses (a), (b)
and (c)) or (ii) of any other member of the Controlled Group which
could reasonably be expected to have a Material Adverse Effect; or
(e) permit the establishment or amendment of any Plan or cause or
permit any Plan to fail to comply with the applicable provisions of
ERISA and the Code, which establishment, amendment or failure could
reasonably be expected to result in liability to any member of the
Controlled Group which individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect.
6.15 FINANCIAL COVENANTS.
6.15.1 STATUTORY SURPLUS OF NATIONWIDE MUTUAL. Nationwide
Mutual will not permit its Statutory Surplus, determined as at the end
of each fiscal quarter of Nationwide Mutual, to be less than (a) $4.6
billion at any time prior to the AMH Acquisition and (b) $3.6 billion
at any time on or after the consummation of the AMH Acquisition.
6.15.2 STATUTORY SURPLUS OF NATIONWIDE LIFE. Nationwide Life will
not permit its Statutory Surplus, determined as at the end of each
fiscal quarter of Nationwide Life, to be less than $935,000,000 at any
time.
6.15.3 CONSOLIDATED TANGIBLE NET WORTH OF NFS. NFS will not permit
its Consolidated Tangible Net Worth, determined as at the end of each
fiscal quarter of NFS, to be less than $1,685,000,000 at any time.
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6.15.4 LEVERAGE RATIO OF NATIONWIDE MUTUAL. Nationwide Mutual will
not permit the ratio, determined as of the end of each fiscal quarter
of Nationwide Mutual, of (a) Indebtedness of Nationwide Mutual to (b)
Total Capitalization of Nationwide Mutual, to be greater than 0.35 to
1.0.
6.15.5 LEVERAGE RATIO OF NFS. NFS will not permit the ratio,
determined as of the end of each fiscal quarter of NFS, of (a)
Indebtedness of NFS and its Subsidiaries calculated on a consolidated
basis as of such time to (b) Total Capitalization of NFS, to be greater
than 0.35 to 1.0.
ARTICLE VII
DEFAULTS
--------
The occurrence of any one or more of the following events with respect
to any Borrower shall constitute a Default with respect to such Borrower:
7.1 REPRESENTATION OR WARRANTY. Any representation or warranty made or
deemed made by or on behalf of such Borrower or any of its Subsidiaries to the
Lenders or the Agent under or in connection with this Agreement, any Loan, or
any certificate or information delivered by or on behalf of such Borrower or any
of its Subsidiaries in connection with this Agreement or any other Loan Document
shall be materially false on the date as of which made.
7.2 NON-PAYMENT OF OBLIGATIONS. Nonpayment of principal of any Loan
made to such Borrower when due, or nonpayment of interest upon any Loan made to
such Borrower or of any Facility Fee or Utilization Fee or other obligations of
such Borrower under any of the Loan Documents within five days after the same
becomes due.
7.3 SPECIFIC DEFAULTS. The breach by such Borrower of any of the terms
or provisions of SECTION 6.2, 6.10, 6.11, 6.12, 6.14 or 6.15.
7.4 OTHER DEFAULTS. The breach by such Borrower (other than a breach
which constitutes a Default under another Section of this ARTICLE VII) of any of
the terms or provisions of this Agreement which is not remedied within twenty
(20) days after written notice from the Agent or any Lender.
7.5 CROSS-DEFAULT. Failure of such Borrower or any of its Material
Affiliates to pay when due any Indebtedness aggregating in excess of $25,000,000
("MATERIAL INDEBTEDNESS"); or the default by such Borrower or any of its
Material Affiliates in the performance (beyond the applicable grace period with
respect thereto, if any) of any term, provision or condition contained in any
agreement under which any such Material Indebtedness was created or is governed,
or any other event shall occur or condition exist, the effect of which default
or event is to cause, or to permit the holder or holders of such Material
Indebtedness to cause, such Material Indebtedness to become due prior to its
stated maturity; or any Material Indebtedness of such Borrower or any
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of its Material Affiliates shall be declared to be due and payable or required
to be prepaid or repurchased (other than by a regularly scheduled payment) prior
to the stated maturity thereof; or such Borrower or any of its Material
Affiliates shall not pay, or admit in writing its inability to pay, its debts
generally as they become due.
7.6 VOLUNTARY PROCEEDINGS. Such Borrower or any of its Material
Affiliates shall (a) have an order for relief entered with respect to it under
the Federal bankruptcy or state insurance insolvency laws as now or hereafter in
effect, (b) make an assignment for the benefit of creditors, (c) apply for,
seek, consent to, or acquiesce in, the appointment of a receiver, custodian,
trustee, examiner, liquidator or similar official for it or any Substantial
Portion of its Property, (d) institute any proceeding seeking an order for
relief under the Federal bankruptcy or state insurance insolvency laws as now or
hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or
seeking dissolution, winding up, liquidation, reorganization, arrangement,
adjustment or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors or fail to file an
answer or other pleading denying the material allegations of any such proceeding
filed against it, (e) take any corporate or partnership action to authorize or
effect any of the foregoing actions set forth in this SECTION 7.6 or (f) fail to
contest in good faith any appointment or proceeding described in SECTION 7.7.
7.7 INVOLUNTARY PROCEEDINGS. Without the application, approval or
consent of such Borrower or any of its Material Affiliates, a receiver, trustee,
examiner, liquidator or similar official shall be appointed for such Borrower or
any of its Material Affiliates or any Substantial Portion of its Property, or a
proceeding described in SECTION 7.6(d) shall be instituted against such Borrower
or any of its Material Affiliates and such appointment continues undischarged or
such proceeding continues undismissed or unstayed for a period of 60 consecutive
days.
7.8 CONDEMNATION. Any court, government or governmental agency shall
condemn, seize or otherwise appropriate, or take custody or control of, all or
any portion of the Property of such Borrower and its Material Affiliates which,
when taken together with all other Property of such Borrower and its Material
Affiliates so condemned, seized, appropriated, or taken custody or control of,
during the twelve-month period ending with the month in which any such action
occurs, constitutes a Substantial Portion.
7.9 JUDGMENTS. Such Borrower or any of its Material Affiliates shall
fail within 30 days to pay, bond or otherwise discharge one or more (a)
judgments or orders for the payment of money in excess of $25,000,000 (or the
equivalent thereof in currencies other than U.S. Dollars) in the aggregate, or
(b) nonmonetary judgments or orders which, individually or in the aggregate,
could reasonably be expected to have a Material Adverse Effect, which
judgment(s), in any such case, is/are not stayed on appeal or otherwise being
appropriately contested in good faith.
7.10 CHANGE IN CONTROL. Any Change in Control shall occur.
7.11 RATE MANAGEMENT OBLIGATION. Nonpayment by such Borrower or any of
its Subsidiaries of any Rate Management Obligation in respect of any Rate
Management Transaction entered into between such Borrower or any of its
Subsidiaries and any Lender or
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Affiliate thereof with respect to the Obligations under this Agreement when due
or the breach by such Borrower or any of its Subsidiaries of any material term,
provision or condition contained in any Rate Management Transaction entered into
with respect to the Obligations under this Agreement.
7.12 LICENSE. Any License of such Borrower (in the case of Nationwide
Mutual and Nationwide Life) or any Material Insurance Subsidiary of such
Borrower in a material jurisdiction of such Person (a) shall be revoked by the
Governmental Authority which issued such License, or any action (administrative
or judicial) which could reasonably be expected to result in the revocation of
such License shall have been commenced against such Borrower or any such
Material Insurance Subsidiary and shall not have been dismissed within thirty
(30) days after the commencement thereof, (b) shall be suspended by such
Governmental Authority for a period in excess of thirty (30) days or (c) shall
not be reissued or renewed by such Governmental Authority upon the expiration
thereof following application for such reissuance or renewal of such Borrower or
such Material Insurance Subsidiary. For the purposes of this SECTION 7.12,
"material jurisdiction" shall mean a jurisdiction in which such Borrower or
Material Insurance Subsidiary generates 10% or more of its total premiums.
7.13 VIOLATION OF INSURANCE LAWS. Such Borrower (in the case of
Nationwide Mutual and Nationwide Life) or any Material Insurance Subsidiary of
such Borrower shall be the subject of a final non-appealable order imposing a
fine in an amount in excess of $2,000,000 in any single instance or other such
orders imposing fines in excess of $5,000,000 in the aggregate after the Closing
Date by or at the request of any state insurance regulatory agency as a result
of the violation by such Borrower or such Material Insurance Subsidiary of such
state's applicable insurance laws or the regulations promulgated in connection
therewith.
7.14 DIRECTIVE OR MANDATE. Such Borrower (in the case of Nationwide
Mutual and Nationwide Life) or any Material Insurance Subsidiary shall become
subject to any conservation, rehabilitation or liquidation order (which, in the
case of any Material Insurance Subsidiary, is not stayed within ten (10) days),
directive or mandate issued by any Governmental Authority or such Borrower (in
the case of Nationwide Mutual and Nationwide Life) or any Material Insurance
Subsidiary shall become subject to any other directive or mandate issued by any
Governmental Authority which could reasonably be expected to have a Material
Adverse Effect.
7.15 CROSS-DEFAULT WITH RESPECT TO OTHER BORROWERS. The occurrence of a
Default under SECTION 7.2, 7.6 or 7.7 with respect to any other Borrower.
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
----------------------------------------------
8.1 ACCELERATION. If any Default described in SECTION 7.6 or 7.7 occurs
with respect to any Borrower, the obligations of the Lenders to make Loans
hereunder shall automatically terminate and the Obligations shall immediately
become due and payable without any election or
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action on the part of the Agent or any Lender. If any other Default occurs, the
Required Lenders (or the Agent with the consent of the Required Lenders) may
terminate or suspend the obligations of the Lenders to make Loans to such
Borrower hereunder, or declare the Obligations of such Borrower to be due and
payable, or both, whereupon the Obligations of such Borrower shall become
immediately due and payable, without presentment, demand, protest or notice of
any kind, all of which each Borrower hereby expressly waives.
If, within 30 days after acceleration of the maturity of any or all of
the Obligations or termination of the obligations of the Lenders to make Loans
to one or more of the Borrowers hereunder as a result of any Default (other than
any Default as described in SECTION 7.6 or 7.7 with respect to any Borrower) and
before any judgment or decree for the payment of the Obligations due shall have
been obtained or entered, the Required Lenders (in their sole discretion) shall
so direct, the Agent shall, by notice to the affected Borrower or Borrowers,
rescind and annul such acceleration and/or termination.
8.2 AMENDMENTS. Subject to the provisions of this ARTICLE VIII, the
Required Lenders (or the Agent with the consent in writing of the Required
Lenders) and the Borrowers may enter into agreements supplemental hereto for the
purpose of adding or modifying any provisions to the Loan Documents or changing
in any manner the rights of the Lenders or the Borrowers hereunder or waiving
any Default hereunder; PROVIDED, HOWEVER, that no such supplemental agreement
shall, without the consent of all of the Lenders:
(a) Extend the final maturity of any Loan or forgive all or any
portion of the principal amount thereof, or reduce the rate or extend
the time of payment of interest or fees thereon.
(b) Reduce the percentage specified in the definition of Required
Lenders.
(c) Extend the Facility Termination Date (other than pursuant to
SECTION 2.17), or reduce the amount or extend the payment date for, the
mandatory payments required under SECTION 2.1.4, or increase the amount
of the Commitment of any Lender hereunder (except as otherwise provided
in SECTION 2.5(d)), or permit the Borrowers to assign their rights
under this Agreement.
(d) Amend this SECTION 8.2.
No amendment of any provision of this Agreement relating to the Agent shall be
effective without the written consent of the Agent. The Agent may waive payment
of the fee required under SECTION 12.3.2 without obtaining the consent of any
other party to this Agreement. Notwithstanding the foregoing, upon the execution
and delivery of all documentation required by SECTION 2.5(d) to be delivered in
connection with an increase of the Aggregate Commitment, this Agreement shall be
deemed amended without further action by any party to reflect, as applicable,
the new Lenders and their new Commitments and any increase in the Commitment of
any existing Lender.
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8.3 PRESERVATION OF RIGHTS. No delay or omission of the Lenders or the
Agent to exercise any right under the Loan Documents shall impair such right or
be construed to be a waiver of any Default or an acquiescence therein, and the
making of a Loan to any Borrower notwithstanding the existence of a Default with
respect to such Borrower or the inability of such Borrower to satisfy the
conditions precedent to such Loan shall not constitute any waiver or
acquiescence. Any single or partial exercise of any such right shall not
preclude other or further exercise thereof or the exercise of any other right,
and no waiver, amendment or other variation of the terms, conditions or
provisions of the Loan Documents whatsoever shall be valid unless in writing
signed by the Lenders required pursuant to SECTION 8.2, and then only to the
extent in such writing specifically set forth. All remedies contained in the
Loan Documents or by law afforded shall be cumulative and all shall be available
to the Agent and the Lenders until the Obligations have been paid in full.
ARTICLE IX
GENERAL PROVISIONS
------------------
9.1 SURVIVAL OF REPRESENTATIONS. All representations and warranties of
the Borrowers contained in this Agreement shall survive the making of the Loans
herein contemplated.
9.2 GOVERNMENTAL REGULATION. Anything contained in this Agreement to
the contrary notwithstanding, no Lender shall be obligated to extend credit to
any Borrower in violation of any limitation or prohibition provided by any
applicable statute or regulation.
9.3 HEADINGS. Section headings in the Loan Documents are for
convenience of reference only, and shall not govern the interpretation of any of
the provisions of the Loan Documents.
9.4 ENTIRE AGREEMENT. The Loan Documents embody the entire agreement
and understanding among the Borrowers, the Agent and the Lenders and supersede
all prior agreements and understandings among the Borrowers, the Agent and the
Lenders relating to the subject matter thereof other than the fee letter
described in SECTION 10.13.
9.5 SEVERAL OBLIGATIONS; BENEFITS OF THIS AGREEMENT. The respective
obligations of the Lenders hereunder are several and not joint and no Lender
shall be the partner or agent of any other (except to the extent to which the
Agent is authorized to act as such). The failure of any Lender to perform any of
its obligations hereunder shall not relieve any other Lender from any of its
obligations hereunder. This Agreement shall not be construed so as to confer any
right or benefit upon any Person other than the parties to this Agreement and
their respective successors and assigns, PROVIDED, HOWEVER, that the parties
hereto expressly agree that the Arranger shall enjoy the benefits of the
provisions of SECTIONS 9.6, 9.10 and 10.11 to the extent specifically set forth
therein and shall have the right to enforce such provisions on its own behalf
and in its own name to the same extent as if it were a party to this Agreement.
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9.6 EXPENSES; INDEMNIFICATION. (a) Each Borrower jointly and severally
agrees to reimburse the Agent and the Arranger for any reasonable costs,
internal charges and out-of-pocket expenses (including reasonable attorneys'
fees and time charges of attorneys for the Agent, which attorneys may be
employees of the Agent) paid or incurred by the Agent or the Arranger in
connection with the preparation, negotiation, execution, delivery, syndication,
review, amendment, modification, and administration of the Loan Documents. Each
Borrower also jointly and severally agrees to reimburse the Agent, the Arranger
and the Lenders for any costs, internal charges and out-of-pocket expenses
(including attorneys' fees and time charges of attorneys for the Agent, the
Arranger and the Lenders, which attorneys may be employees of the Agent, the
Arranger or the Lenders) paid or incurred by the Agent, the Arranger or any
Lender in connection with the collection and enforcement of the Loan Documents.
Expenses being reimbursed by the Borrowers under this Section include, without
limitation, costs and expenses incurred in connection with the Reports described
in the following sentence. Each Borrower acknowledges that from time to time
Bank One may prepare and may distribute to the Lenders (but shall have no
obligation or duty to prepare or to distribute to the Lenders) certain audit
reports (the "REPORTS") pertaining to such Borrower's assets for internal use by
Bank One from information furnished to it by or on behalf of such Borrower,
after Bank One has exercised its rights of inspection pursuant to this
Agreement.
(b) Each Borrower hereby further jointly and severally agrees to
indemnify the Agent, the Arranger, each Lender, their respective
affiliates, and each of their directors, officers and employees against all
losses, claims, damages, penalties, judgments, liabilities and expenses
(including, without limitation, all expenses of litigation or preparation
therefor whether or not the Agent, the Arranger, any Lender or any
affiliate is a party thereto) which any of them may pay or incur arising
out of or relating to this Agreement, the other Loan Documents, the
transactions contemplated hereby or the direct or indirect application or
proposed application of the proceeds of any Loan hereunder except to the
extent that they are determined in a final non-appealable judgment by a
court of competent jurisdiction to have resulted from the gross negligence
or willful misconduct of the party seeking indemnification and except as
provided in SECTION 3.5. The obligations of the Borrowers under this
SECTION 9.6 shall survive the termination of this Agreement.
9.7 NUMBERS OF DOCUMENTS. All statements, notices, closing
documents, and requests hereunder shall be furnished to the Agent with
sufficient counterparts so that the Agent may furnish one to each of the
Lenders.
9.8 ACCOUNTING. Except as provided to the contrary herein, all
accounting terms used herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with Agreement Accounting
Principles.
9.9 SEVERABILITY OF PROVISIONS. Any provision in any Loan Document
that is held to be inoperative, unenforceable, or invalid in any jurisdiction
shall, as to that jurisdiction, be inoperative, unenforceable, or invalid
without affecting the remaining provisions in that
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jurisdiction or the operation, enforceability, or validity of that provision in
any other jurisdiction, and to this end the provisions of all Loan Documents are
declared to be severable.
9.10 NONLIABILITY OF LENDERS. The relationship between the Borrowers on
the one hand and the Lenders and the Agent on the other hand shall be solely
that of borrower and lender. Neither the Agent, the Arranger nor any Lender
shall have any fiduciary responsibilities to any Borrower. Neither the Agent,
the Arranger nor any Lender undertakes any responsibility to any Borrower to
review or inform such Borrower of any matter in connection with any phase of
such Borrower's business or operations. Each Borrower agrees that neither the
Agent, the Arranger nor any Lender shall have liability to such Borrower
(whether sounding in tort, contract or otherwise) for losses suffered by the
Borrower in connection with, arising out of, or in any way related to, the
transactions contemplated and the relationship established by the Loan
Documents, or any act, omission or event occurring in connection therewith,
unless it is determined in a final non-appealable judgment by a court of
competent jurisdiction that such losses resulted from the gross negligence or
willful misconduct of the party from which recovery is sought. Neither the
Agent, the Arranger nor any Lender shall have any liability with respect to, and
each Borrower hereby waives, releases and agrees not to xxx for, any special,
indirect or consequential damages suffered by such Borrower in connection with,
arising out of, or in any way related to the Loan Documents or the transactions
contemplated thereby.
9.11 CONFIDENTIALITY. Each Lender agrees to hold any confidential
information which it may receive from the Borrowers pursuant to this Agreement
in confidence, except for disclosure (a) to its Affiliates and to other Lenders
and their respective Affiliates, provided that such Persons agree to keep such
information confidential to the same extent required by the Lenders hereunder,
(b) to legal counsel, accountants, and other professional advisors to such
Lender or to a Transferee, (c) to regulatory officials, (d) to any Person as
requested pursuant to or as required by law, regulation, or legal process, (e)
to any Person in connection with any legal proceeding to which such Lender is a
party and is legally required to disclose such information, (f) of public
information such Lender receives from any Borrower to its direct or indirect
contractual counterparties in swap agreements or to legal counsel, accountants
and other professional advisors to such counterparties, and (g) permitted by
SECTION 12.4.
9.12 NONRELIANCE. Each Lender hereby represents that it is not relying
on or looking to any margin stock (as defined in Regulation U of the Board of
Governors of the Federal Reserve System) for the repayment of the Loans provided
for herein.
9.13 DISCLOSURE. Each Borrower and each Lender hereby acknowledge and
agree that Bank One and/or its Affiliates from time to time may hold investments
in, make other loans to or have other relationships with any Borrower and its
Affiliates.
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ARTICLE X
THE AGENT
---------
10.1 APPOINTMENT; NATURE OF RELATIONSHIP. Bank One, NA is hereby
appointed by each of the Lenders as its contractual representative (herein
referred to as the "AGENT") hereunder and under each other Loan Document, and
each of the Lenders irrevocably authorizes the Agent to act as the contractual
representative of such Lender with the rights and duties expressly set forth
herein and in the other Loan Documents. The Agent agrees to act as such
contractual representative upon the express conditions contained in this ARTICLE
X. Notwithstanding the use of the defined term "Agent," it is expressly
understood and agreed that the Agent shall not have any fiduciary
responsibilities to any Lender by reason of this Agreement or any other Loan
Document and that the Agent is merely acting as the contractual representative
of the Lenders with only those duties as are expressly set forth in this
Agreement and the other Loan Documents. In its capacity as the Lenders'
contractual representative, the Agent (a) does not hereby assume any fiduciary
duties to any of the Lenders, (b) is a "representative" of the Lenders within
the meaning of Section 9-105 of the Uniform Commercial Code and (c) is acting as
an independent contractor, the rights and duties of which are limited to those
expressly set forth in this Agreement and the other Loan Documents. Each of the
Lenders hereby agrees to assert no claim against the Agent on any agency theory
or any other theory of liability for breach of fiduciary duty, all of which
claims each Lender hereby waives.
10.2 POWERS. The Agent shall have and may exercise such powers under
the Loan Documents as are specifically delegated to the Agent by the terms of
each thereof, together with such powers as are reasonably incidental thereto.
The Agent shall have no implied duties to the Lenders, or any obligation to the
Lenders to take any action thereunder except any action specifically provided by
the Loan Documents to be taken by the Agent.
10.3 GENERAL IMMUNITY. Neither the Agent nor any of its directors,
officers, agents or employees shall be liable to the Borrowers, any Borrower,
the Lenders or any Lender for any action taken or omitted to be taken by it or
them hereunder or under any other Loan Document or in connection herewith or
therewith except to the extent such action or inaction is determined in a final
non-appealable judgment by a court of competent jurisdiction to have arisen from
the gross negligence or willful misconduct of such Person.
10.4 NO RESPONSIBILITY FOR LOANS, RECITALS, ETC. Neither the Agent nor
any of its directors, officers, agents or employees shall be responsible for or
have any duty to ascertain, inquire into, or verify (a) any statement, warranty
or representation made in connection with any Loan Document or any borrowing
hereunder; (b) the performance or observance of any of the covenants or
agreements of any obligor under any Loan Document, including, without
limitation, any agreement by an obligor to furnish information directly to each
Lender; (c) the satisfaction of any condition specified in ARTICLE IV, except
receipt of items required to be delivered solely to the Agent; (d) the existence
or possible existence of any Default or Unmatured Default; (e) the validity,
enforceability, effectiveness, sufficiency or genuineness of any Loan Document
or any
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other instrument or writing furnished in connection therewith; (f) the value,
sufficiency, creation, perfection or priority of any Lien in any collateral
security; or (g) the financial condition of any Borrower or any guarantor of any
of the Obligations or of any Borrower's or any such guarantor's respective
Subsidiaries. The Agent shall have no duty to disclose to the Lenders
information that is not required to be furnished by any Borrower to the Agent at
such time, but is voluntarily furnished by any Borrower to the Agent (either in
its capacity as Agent or in its individual capacity).
10.5 ACTION ON INSTRUCTIONS OF LENDERS. The Agent shall in all cases be
fully protected in acting, or in refraining from acting, hereunder and under any
other Loan Document in accordance with written instructions signed by the
Required Lenders, and such instructions and any action taken or failure to act
pursuant thereto shall be binding on all of the Lenders. The Lenders hereby
acknowledge that the Agent shall be under no duty to take any discretionary
action permitted to be taken by it pursuant to the provisions of this Agreement
or any other Loan Document unless it shall be requested in writing to do so by
the Required Lenders. The Agent shall be fully justified in failing or refusing
to take any action hereunder and under any other Loan Document unless it shall
first be indemnified to its satisfaction by the Lenders pro rata against any and
all liability, cost and expense that it may incur by reason of taking or
continuing to take any such action.
10.6 EMPLOYMENT OF AGENTS AND COUNSEL. The Agent may execute any of its
duties as Agent hereunder and under any other Loan Document by or through
employees, agents, and attorneys-in-fact and shall not be answerable to the
Lenders, except as to money or securities received by it or its authorized
agents, for the default or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care. The Agent shall be entitled to advice of
counsel concerning the contractual arrangement between the Agent and the Lenders
and all matters pertaining to the Agent's duties hereunder and under any other
Loan Document.
10.7 RELIANCE ON DOCUMENTS; COUNSEL. The Agent shall be entitled to
rely upon any Note, notice, consent, certificate, affidavit, letter, telegram,
statement, paper or document believed by it to be genuine and correct and to
have been signed or sent by the proper person or persons, and, in respect to
legal matters, upon the opinion of counsel selected by the Agent, which counsel
may be employees of the Agent.
10.8 AGENT'S REIMBURSEMENT AND INDEMNIFICATION. The Lenders agree to
reimburse and indemnify the Agent ratably in proportion to their respective
Commitments (or, if the Commitments have been terminated, in proportion to their
Commitments immediately prior to such termination) (a) for any amounts not
reimbursed by the Borrowers for which the Agent is entitled to reimbursement by
the Borrowers under the Loan Documents, (b) for any other expenses incurred by
the Agent on behalf of the Lenders, in connection with the preparation,
execution, delivery, administration and enforcement of the Loan Documents
(including, without limitation, for any expenses incurred by the Agent in
connection with any dispute between the Agent and any Lender or between two or
more of the Lenders) and (c) for any liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or
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disbursements of any kind and nature whatsoever which may be imposed on,
incurred by or asserted against the Agent in any way relating to or arising out
of the Loan Documents or any other document delivered in connection therewith or
the transactions contemplated thereby (including, without limitation, for any
such amounts incurred by or asserted against the Agent in connection with any
dispute between the Agent and any Lender or between two or more of the Lenders),
or the enforcement of any of the terms of the Loan Documents or of any such
other documents, PROVIDED that (i) no Lender shall be liable for any of the
foregoing to the extent any of the foregoing is found in a final non-appealable
judgment by a court of competent jurisdiction to have resulted from the gross
negligence or willful misconduct of the Agent and (ii) any indemnification
required pursuant to SECTION 3.5(g) shall, notwithstanding the provisions of
this SECTION 10.8, be paid by the relevant Lender in accordance with the
provisions thereof. The obligations of the Lenders under this SECTION 10.8 shall
survive payment of the Obligations and termination of this Agreement.
10.9 NOTICE OF DEFAULT. The Agent shall not be deemed to have knowledge
or notice of the occurrence of any Default or Unmatured Default hereunder unless
the Agent has received written notice from a Lender or a Borrower referring to
this Agreement describing such Default or Unmatured Default and stating that
such notice is a "notice of default". In the event that the Agent receives such
a notice, the Agent shall give prompt notice thereof to the Lenders.
10.10 RIGHTS AS A LENDER. In the event the Agent is a Lender, the Agent
shall have the same rights and powers hereunder and under any other Loan
Document with respect to its Commitment and its Loans as any Lender and may
exercise the same as though it were not the Agent, and the term "Lender" or
"Lenders" shall, at any time when the Agent is a Lender, unless the context
otherwise indicates, include the Agent in its individual capacity. The Agent and
its Affiliates may accept deposits from, lend money to, and generally engage in
any kind of trust, debt, equity or other transaction, in addition to those
contemplated by this Agreement or any other Loan Document, with any Borrower or
any of its Subsidiaries in which such Borrower or such Subsidiary is not
restricted hereby from engaging with any other Person. The Agent, in its
individual capacity, is not obligated to remain a Lender.
10.11 LENDER CREDIT DECISION. Each Lender acknowledges that it has,
independently and without reliance upon the Agent, the Arranger or any other
Lender and based on the financial statements prepared by the Borrowers and such
other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement and the other Loan
Documents. Each Lender also acknowledges that it will, independently and without
reliance upon the Agent, the Arranger or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this
Agreement and the other Loan Documents.
10.12 SUCCESSOR AGENT. The Agent may resign at any time by giving
written notice thereof to the Lenders and the Borrowers, such resignation to be
effective upon the appointment of a successor Agent or, if no successor Agent
has been appointed, forty-five days after the retiring Agent gives notice of its
intention to resign. The Agent may be removed at any time
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with or without cause by written notice received by the Agent from the Required
Lenders, such removal to be effective on the date specified by the Required
Lenders. Upon any such resignation or removal, the Required Lenders shall have
the right to appoint, on behalf of the Borrowers and the Lenders, a successor
Agent. If no successor Agent shall have been so appointed by the Required
Lenders within thirty days after the resigning Agent's giving notice of its
intention to resign, then the resigning Agent may appoint, on behalf of the
Borrowers and the Lenders, a successor Agent. Notwithstanding the previous
sentence, the Agent may at any time without the consent of any Borrower or any
Lender, appoint any of its Affiliates which is a commercial bank as a successor
Agent hereunder. If the Agent has resigned or been removed and no successor
Agent has been appointed, the Lenders may perform all the duties of the Agent
hereunder and the Borrowers shall make all payments in respect of the
Obligations to the applicable Lender and for all other purposes shall deal
directly with the Lenders. No successor Agent shall be deemed to be appointed
hereunder until such successor Agent has accepted the appointment. Any such
successor Agent shall be a commercial bank having capital and retained earnings
of at least $100,000,000. Upon the acceptance of any appointment as Agent
hereunder by a successor Agent, such successor Agent shall thereupon succeed to
and become vested with all the rights, powers, privileges and duties of the
resigning or removed Agent. Upon the effectiveness of the resignation or removal
of the Agent, the resigning or removed Agent shall be discharged from its duties
and obligations hereunder and under the Loan Documents. After the effectiveness
of the resignation or removal of an Agent, the provisions of this ARTICLE X
shall continue in effect for the benefit of such Agent in respect of any actions
taken or omitted to be taken by it while it was acting as the Agent hereunder
and under the other Loan Documents. In the event that there is a successor to
the Agent by merger, or the Agent assigns its duties and obligations to an
Affiliate pursuant to this SECTION 10.12, then the term "Prime Rate" as used in
this Agreement shall mean the prime rate, base rate or other analogous rate of
the new Agent.
10.13 AGENT AND ARRANGER FEES. The Borrowers agree to pay to the Agent
and the Arranger, for their respective accounts, the fees agreed to by the
Borrowers, the Agent and the Arranger pursuant to that certain letter agreement
dated April 27, 2000, or as otherwise agreed from time to time.
10.14 DELEGATION TO AFFILIATES. The Borrowers and the Lenders agree
that the Agent may delegate any of its duties under this Agreement to any of its
Affiliates. Any such Affiliate (and such Affiliate's directors, officers, agents
and employees) which performs duties in connection with this Agreement shall be
entitled to the same benefits of the indemnification, waiver and other
protective provisions to which the Agent is entitled under ARTICLES IX and X.
10.15 CO-AGENTS, DOCUMENTATION AGENT, SYNDICATION AGENT, ETC. Neither
any of the Lenders identified in this Agreement as a "co-agent" nor the
Documentation Agent or the Syndication Agent shall have any right, power,
obligation, liability, responsibility or duty under this Agreement other than
those applicable to all Lenders as such. Without limiting the foregoing, none of
such Lenders shall have or be deemed to have a fiduciary relationship with any
Lender. Each Lender hereby makes the same acknowledgments with respect to such
Lenders as it makes with respect to the Agent in SECTION 10.11.
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ARTICLE XI
SETOFF; RATABLE PAYMENTS
' ------------------------
11.1 SETOFF. In addition to, and without limitation of, any rights of
the Lenders under applicable law, if any Borrower becomes insolvent, however
evidenced, or any Default occurs, any and all deposits (including all account
balances, whether provisional or final and whether or not collected or
available) and any other Indebtedness at any time held or owing by any Lender or
any Affiliate of any Lender to or for the credit or account of such Borrower may
be offset and applied toward the payment of the Obligations owing to such
Lender, whether or not the Obligations, or any part thereof, shall then be due.
11.2 RATABLE PAYMENTS. If any Lender, whether by setoff or otherwise,
has payment made to it upon its Loans (other than payments received pursuant to
SECTION 3.1, 3.2, 3.4 or 3.5 or payments of principal or interest on Competitive
Bid Loans by any Borrower at a time when no Default is continuing with respect
to such Borrower) in a greater proportion than that received by any other
Lender, such Lender agrees, promptly upon demand, to purchase a portion of the
Loans held by the other Lenders so that after such purchase each Lender will
hold its ratable proportion of Loans. If any Lender, whether in connection with
setoff or amounts which might be subject to setoff or otherwise, receives
collateral or other protection for its Obligations or such amounts which may be
subject to setoff, such Lender agrees, promptly upon demand, to take such action
necessary such that all Lenders share in the benefits of such collateral ratably
in proportion to their Loans. In case any such payment is disturbed by legal
process, or otherwise, appropriate further adjustments shall be made. If an
amount to be setoff is to be applied to Indebtedness of the Borrower to a Lender
other than Indebtedness comprised of Loans made by such Lender, such amount
shall be applied ratably to such other Indebtedness and to the Indebtedness
comprised of the Loans.
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
-------------------------------------------------
12.1 SUCCESSORS AND ASSIGNS. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Borrowers and
the Lenders and their respective successors and assigns, except that (a) no
Borrower shall have the right to assign its rights or obligations under the Loan
Documents and (b) any assignment by any Lender must be made in compliance with
SECTION 12.3. The parties to this Agreement acknowledge that clause (b) of this
SECTION 12.1 relates only to absolute assignments and does not prohibit
assignments creating security interests, including, without limitation, any
pledge or assignment by any Lender of all or any portion of its rights under
this Agreement and any Note to a Federal Reserve Bank; PROVIDED, HOWEVER, that
no such pledge or assignment creating a security interest shall release the
transferor Lender from its obligations hereunder unless and until the parties
thereto have complied with the provisions of SECTION 12.3. The Agent may treat
the Person which made any Loan or which holds any Note as the owner thereof for
all purposes hereof unless and until such
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Person complies with SECTION 12.3; PROVIDED, HOWEVER, that the Agent may in its
discretion (but shall not be required to) follow instructions from the Person
which made any Loan or which holds any Note to direct payments relating to such
Loan or Note to another Person. Any assignee of the rights to any Loan or any
Note agrees by acceptance of such assignment to be bound by all the terms and
provisions of the Loan Documents. Any request, authority or consent of any
Person, who at the time of making such request or giving such authority or
consent is the owner of the rights to any Loan (whether or not a Note has been
issued in evidence thereof), shall be conclusive and binding on any subsequent
holder or assignee of the rights to such Loan.
12.2 PARTICIPATIONS.
12.2.1. PERMITTED PARTICIPANTS; EFFECT. Any Lender may, in the
ordinary course of its business and in accordance with applicable law,
at any time sell to one or more banks or other entities
("PARTICIPANTS") participating interests in any Loan owing to such
Lender, any Note held by such Lender, any Commitment of such Lender or
any other interest of such Lender under the Loan Documents. In the
event of any such sale by a Lender of participating interests to a
Participant, such Lender's obligations under the Loan Documents shall
remain unchanged, such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations, such
Lender shall remain the owner of its Loans and the holder of any Note
issued to it in evidence thereof for all purposes under the Loan
Documents, all amounts payable by the Borrowers under this Agreement
shall be determined as if such Lender had not sold such participating
interests, and the Borrowers and the Agent shall continue to deal
solely and directly with such Lender in connection with such Lender's
rights and obligations under the Loan Documents.
12.2.2. VOTING RIGHTS. Each Lender shall retain the sole right to
approve, without the consent of any Participant, any amendment,
modification or waiver of any provision of the Loan Documents other
than any amendment, modification or waiver with respect to any Loan or
Commitment in which such Participant has an interest which would
require consent of all of the Lenders pursuant to the terms of SECTION
8.2 or of any other Loan Document.
12.2.3. BENEFIT OF SETOFF. Each Borrower agrees that each
Participant shall be deemed to have the right of setoff provided in
SECTION 11.1 in respect of its participating interest in amounts owing
under the Loan Documents to the same extent as if the amount of its
participating interest were owing directly to it as a Lender under the
Loan Documents, PROVIDED that each Lender shall retain the right of
setoff provided in SECTION 11.1 with respect to the amount of
participating interests sold to each Participant. The Lenders agree to
share with each Participant, and each Participant, by exercising the
right of setoff provided in SECTION 11.1, agrees to share with each
Lender, any amount received pursuant to the exercise of its right of
setoff, such amounts to be shared in accordance with SECTION 11.2 as if
each Participant were a Lender.
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12.3 ASSIGNMENTS.
12.3.1. PERMITTED ASSIGNMENTS. Any Lender may, in the ordinary
course of its business and in accordance with applicable law, at any
time assign to one or more banks or other entities ("PURCHASERS") all
or any part of its rights and obligations under the Loan Documents.
Such assignment shall be substantially in the form of EXHIBIT C or in
such other form as may be agreed to by the parties thereto. The consent
of the Borrowers and the Agent shall be required prior to an assignment
becoming effective with respect to a Purchaser which is not a Lender or
an Affiliate thereof; PROVIDED, HOWEVER, that if a Default has occurred
and is continuing, the consent of the Borrowers shall not be required.
Such consent shall not be unreasonably withheld or delayed. Each such
assignment with respect to a Purchaser which is not a Lender or an
Affiliate thereof shall (unless each of the Borrowers and the Agent
otherwise consents) be in an amount not less than the lesser of (a)
$10,000,000 or (b) the remaining amount of the assigning Lender's
Commitment (calculated as at the date of such assignment) or
outstanding Loans (if the applicable Commitment has been terminated).
12.3.2. EFFECT; EFFECTIVE DATE. Upon (a) delivery to the Agent
of an assignment, together with any consents required by SECTION
12.3.1, and (b) payment to the Agent by the Purchaser or the Lender of
a $3,500 fee in respect of any assignment under this SECTION 12.3 for
processing such assignment (unless such fee is waived by the Agent),
such assignment shall become effective on the effective date specified
in such assignment. The assignment shall contain a representation by
the Purchaser to the effect that none of the consideration used to make
the purchase of the Commitment and Loans under the applicable
assignment agreement constitutes "plan assets" as defined under ERISA
and that the rights and interests of the Purchaser in and under the
Loan Documents will not be "plan assets" under ERISA. On and after the
effective date of such assignment, such Purchaser shall for all
purposes be a Lender party to this Agreement and any other Loan
Document executed by or on behalf of the Lenders and shall have all the
rights and obligations of a Lender under the Loan Documents, to the
same extent as if it were an original party hereto, and no further
consent or action by the Borrowers, the Lenders or the Agent shall be
required to release the transferor Lender with respect to the
percentage of the Aggregate Commitment and Loans assigned to such
Purchaser. Upon the consummation of any assignment to a Purchaser
pursuant to this SECTION 12.3.2, the transferor Lender, the Agent and
the Borrowers shall, if the transferor Lender or the Purchaser desires
that its Loans be evidenced by Notes, make appropriate arrangements so
that new Notes or, as appropriate, replacement Notes are issued to such
transferor Lender and new Notes or, as appropriate, replacement Notes,
are issued to such Purchaser, in each case in principal amounts
reflecting their respective Commitments, as adjusted pursuant to such
assignment.
12.4 DISSEMINATION OF INFORMATION. Each Borrower authorizes each Lender
to disclose to any Participant or Purchaser or any other Person acquiring an
interest in the Loan Documents by operation of law (each a "TRANSFEREE") and any
prospective Transferee any and all
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68
information in such Lender's possession concerning the creditworthiness of such
Borrower and its Subsidiaries, including without limitation any information
contained in any Reports; PROVIDED that each Transferee and prospective
Transferee agrees to be bound by SECTION 9.11 of this Agreement.
12.5 TAX TREATMENT. If any interest in any Loan Document is transferred
to any Transferee which is organized under the laws of any jurisdiction other
than the United States or any State thereof, the transferor Lender shall cause
such Transferee, concurrently with the effectiveness of such transfer, to comply
with the provisions of SECTION 3.5(d).
12.6 DESIGNATION. (a) Notwithstanding anything to the contrary
contained herein, any Lender (a "DESIGNATING LENDER") may grant to one or more
special purpose funding vehicles (each, an "SPV"), identified as such in writing
from time to time by the Designating Lender to the Administrative Agent and the
Borrowers, the option to provide to the Borrowers all or any part of any Loan
that such Designating Lender would otherwise be obligated to make to the
Borrowers pursuant to this Agreement; provided that (i) nothing herein shall
constitute a commitment by any SPV to make any Loan, (ii) if an SPV elects not
to exercise such option or otherwise fails to provide all or any part of such
Loan, the Designating Lender shall be obligated to make such Loan pursuant to
the terms hereof and (iii) the Designating Lender shall remain liable for any
indemnity or other payment obligation with respect to its Commitment hereunder.
The making of a Loan by an SPV hereunder shall utilize the Commitment of the
Designating Lender to the same extent, and as if, such Loan were made by such
Designating Lender.
(b) As to any Loans or portion thereof made by it, each SPV shall
have all the rights that a Lender making such Loans or portion thereof
would have had under this Agreement; PROVIDED, HOWEVER, that each SPV
shall have granted to its Designating Lender an irrevocable power of
attorney, to deliver and receive all communications and notices under
this Agreement (and any Loan Documents) and to exercise on such SPV's
behalf, all of such SPV's voting rights under this Agreement. In the
event that any Notes have been issued to the Designated Lender
hereunder, no additional Notes shall be required to evidence the Loans
or portion thereof made by an SPV; and the related Designating Lender
shall be deemed to hold its Notes as agent for such SPV to the extent
of the Loans or portion thereof funded by such SPV. In addition, any
payments for the account of any SPV shall be paid to its Designating
Lender as agent for such SPV.
(c) Each party hereto hereby agrees that no SPV shall be liable
for any indemnity or payment under this Agreement for which a Lender
would otherwise be liable. In furtherance of the foregoing, each party
hereto hereby agrees (which agreements shall survive the termination of
this Agreement) that, prior to the date that is one year and one day
after the payment in full of all outstanding commercial paper or other
senior indebtedness of any SPV, it will not institute against, or join
any other person in instituting against, such SPV any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings
under the laws of the United States or any State thereof.
-62-
69
(d) In addition, notwithstanding anything to the contrary
contained in this SECTION 12.6 or otherwise in this Agreement, any SPV
may (i) at any time and without paying any processing fee therefor,
assign or participate all or a portion of its interest in any Loans to
the Designating Lender or, with the prior consent of the Borrowers and
the Agent (provided, that if a Default has occurred and is continuing,
the consent of the Borrowers shall not be required) to any financial
institutions providing liquidity and/or credit support to or for the
account of such SPV to support the funding or maintenance of Loans and
(ii) disclose on a confidential basis any non-public information
relating to its Loan to any rating agency, commercial paper dealer or
provider of any surety, guarantee or credit or liquidity enhancements
to such SPV, provided that such Persons agree to keep such information
confidential to the same extent required by the Lenders hereunder. This
SECTION 12.6 may not be amended without the written consent of any
Designating Lender affected thereby.
ARTICLE XIII
NOTICES
-------
13.1 NOTICES. Except as otherwise permitted by SECTION 2.12 with
respect to borrowing notices, all notices, requests and other communications to
any party hereunder shall be in writing (including electronic transmission,
facsimile transmission or similar writing) and shall be given to such party: (a)
in the case of any Borrower or the Agent, at its address or facsimile number set
forth on the signature pages hereof, (b) in the case of any Lender, at its
address or facsimile number set forth below its signature hereto or (c) in the
case of any party, at such other address or facsimile number as such party may
hereafter specify for the purpose by notice to the Agent and the Borrowers in
accordance with the provisions of this SECTION 13.1. Each such notice, request
or other communication shall be effective (i) if given by facsimile
transmission, when transmitted to the facsimile number specified in this Section
and confirmation of receipt is received, (ii) if given by mail, 72 hours after
such communication is deposited in the mails with first class postage prepaid,
addressed as aforesaid, or (iii) if given by any other means, when delivered
(or, in the case of electronic transmission, received) at the address specified
in this Section; PROVIDED that notices to the Agent under ARTICLE II shall not
be effective until received.
13.2 CHANGE OF ADDRESS. Any Borrower, the Agent and any Lender may each
change the address for service of notice upon it by a notice in writing to the
other parties hereto.
ARTICLE XIV
COUNTERPARTS
------------
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one agreement, and any of the parties
hereto may execute this Agreement by signing any such counterpart. This
Agreement shall be effective when it has been
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70
executed by the Borrowers, the Agent and the Lenders and each party has notified
the Agent by facsimile transmission or telephone that it has taken such action.
ARTICLE XV
CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL
15.1 CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING A
CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS (INCLUDING, WITHOUT LIMITATION, 735 ILCS SECTION 105/5-1 ET
SEQ, BUT OTHERWISE WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS) OF THE
STATE OF ILLINOIS, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL
BANKS.
15.2 CONSENT TO JURISDICTION. EACH BORROWER HEREBY IRREVOCABLY SUBMITS
TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR ILLINOIS STATE
COURT SITTING IN CHICAGO, ILLINOIS IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO ANY LOAN DOCUMENTS AND EACH BORROWER HEREBY IRREVOCABLY AGREES THAT
ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED
IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER
HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A
COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT
THE RIGHT OF THE AGENT OR ANY LENDER TO BRING PROCEEDINGS AGAINST ANY BORROWER
IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY ANY BORROWER
AGAINST THE AGENT OR ANY LENDER OR ANY AFFILIATE OF THE AGENT OR ANY LENDER
INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED
TO, OR CONNECTED WITH ANY LOAN DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN
CHICAGO, ILLINOIS.
15.3 WAIVER OF JURY TRIAL. EACH BORROWER, THE AGENT AND EACH LENDER
HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR
INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY
WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT OR THE
RELATIONSHIP ESTABLISHED THEREUNDER.
[signature pages follow]
-64-
71
IN WITNESS WHEREOF, the Borrowers, the Lenders and the Agent have
executed this Agreement as of the date first above written.
NATIONWIDE MUTUAL INSURANCE COMPANY
By:
----------------------------------
Xxxxx X. Xxxxxxxx
Title: Vice President and Treasurer
------------------------------
Xxx Xxxxxxxxxx Xxxxx 0-00-00
Xxxxxxxx, Xxxx 00000-0000
Attention: Xxxxx Xxxx
Telephone: (000) 000-0000
FAX: (000) 000-0000
NATIONWIDE LIFE INSURANCE COMPANY
By:
----------------------------------
Xxxxx X. Xxxxxxxx
Title: Vice President and Treasurer
----------------------------
----------------------------
----------------------------
Attention: Xxxxx Xxxx
-----------------
Telephone: (000) 000-0000
FAX: (000) 000-0000
NATIONWIDE FINANCIAL SERVICES, INC.
By:
----------------------------------
Xxxxx X. Xxxxxxxx
Title: Assistant Treasurer
----------------------------
----------------------------
----------------------------
Attention: Xxxxx Xxxx
-----------------
Telephone: (000) 000-0000
FAX: (000) 000-0000
S-1
[TO 364-DAY CREDIT AGREEMENT]
72
BANK ONE, NA, Individually and as Agent
By:
----------------------------------
Title:
-------------------------------
1 Bank Xxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Telephone: (000) 000-0000
FAX: (000) 000-0000
S-2
[TO 364-DAY CREDIT AGREEMENT]
73
THE CHASE MANHATTAN BANK, Individually and as
Syndication Agent
By:
----------------------------------
Title:
-------------------------------
000 Xxxx Xxxxxx
00xx Xxxxx
XxxXxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxx
Telephone: (000) 000-0000
FAX: (000) 000-0000
S-3
[TO 364-DAY CREDIT AGREEMENT]
74
THE BANK OF NEW YORK, Individually and as
Co-Documentation Agent
By:
----------------------------------
Title:
-------------------------------
Insurance Division
Xxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: J. Xxxxx Xxxxxx, Jr.
Telephone: (000) 000-0000
FAX: (000) 000-0000
S-4
[TO 364-DAY CREDIT AGREEMENT]
75
CITICORP USA, INC. , Individually and as
Co-Documentation Agent
By:
----------------------------------
Title:
-------------------------------
000 Xxxx Xxxxxx
00xx Xxxxx, Xxxx 12
New York, New York 10043
Attention: Xxxxxx Xxxx
Telephone: (000) 000-0000
FAX: (000) 000-0000
S-5
[TO 364-DAY CREDIT AGREEMENT]
76
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK,
Individually and as Managing Agent
By:
----------------------------------
Title:
-------------------------------
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx Dell'aquila
Telephone: (000) 000-0000
FAX: (000) 000-0000
S-6
[TO 364-DAY CREDIT AGREEMENT]
77
BANK OF AMERICA, N.A., Individually and as
Managing Agent
By:
----------------------------------
Title:
-------------------------------
000 Xxxx Xxxxxx
00xx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxx Xxxxxx
Telephone: (000) 000-0000
FAX: (000) 000-0000
S-7
[TO 364-DAY CREDIT AGREEMENT]
78
FIRST UNION NATIONAL BANK, Individually and as
Managing Agent
By:
----------------------------------
Title:
0000 Xxxxxxxx Xxxxxx
XX 0000
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxxx XxXxxxx
Telephone: (000) 000-0000
FAX: (000) 000-0000
S-8
[TO 364-DAY CREDIT AGREEMENT]
79
MELLON BANK, N.A., Individually and as Managing
Agent
By:
----------------------------------
Title:
-------------------------------
Global Insurance Group
Xxx Xxxxxx Xxxxxx
Xxxx 0000
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxx
Telephone: (000) 000-0000
FAX: (000) 000-0000
S-9
[TO 364-DAY CREDIT AGREEMENT]
80
FLEET NATIONAL BANK, Individually and as
Managing Agent
By:
----------------------------------
Title:
-------------------------------
----------------------------
----------------------------
Attention:
------------------
Telephone: (___) ___-____
FAX: (___) ___-____
S-10
[TO 364-DAY CREDIT AGREEMENT]
81
KEYBANK NATIONAL ASSOCIATION, Individually and as
Managing Agent
By:
----------------------------------
Title:
-------------------------------
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxxxx Xxxxxx
Telephone: (000) 000-0000
FAX: (000) 000-0000
S-11
[TO 364-DAY CREDIT AGREEMENT]
82
XXXXX FARGO BANK, N.A., Individually and as
Managing Agent
By:
----------------------------------
Title:
-------------------------------
000 Xxxx Xxxxxx, Xxxxx 0000
MAC E2616-290
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
Telephone: (000) 000-0000
FAX: (000) 000-0000
S-12
[TO 364-DAY CREDIT AGREEMENT]
83
FIRSTAR BANK, NA, Individually and as Co-Agent
By:
----------------------------------
Title:
-------------------------------
000 Xxxxx Xxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxx, Xxxx 00000
Attention: Xxx Xxxx
Telephone: (000) 000-0000
FAX: (000) 000-0000
S-13
[TO 364-DAY CREDIT AGREEMENT]
84
THE HUNTINGTON NATIONAL BANK, Individually and
as Co-Agent
By:
----------------------------------
Title:
-------------------------------
----------------------------
----------------------------
Attention:
------------------
Telephone: (___) ___-____
FAX: (___) ___-____
S-14
[TO 364-DAY CREDIT AGREEMENT]
85
NATIONAL CITY BANK, Individually
By:
----------------------------------
Title:
-------------------------------
000 Xxxx Xxxxx Xxxxxx
Xxxxx Xxxxx
Xxxxxxxx, Xxxx 00000
Attention: Xxxx Xxxxxxxx
Telephone: (000) 000-0000
FAX: (000) 000-0000
S-15
[TO 364-DAY CREDIT AGREEMENT]
00
XXXXX XXXXXX BANK AND TRUST COMPANY, Individually
By:
----------------------------------
Title:
-------------------------------
Lafayette Corporate Center
0 Xxxxxx xx Xxxxxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
FAX: (000) 000-0000
S-16
[TO 364-DAY CREDIT AGREEMENT]
00
XXXXXXXX XXXX, XX, Xxxxxxxxxxxx
By:
----------------------------------
Title:
-------------------------------
000 Xxxxxxxxx Xxxxxx XX
00xx Xxxxx
Xxxxxxx, Xxxxxxx
Attention: Xxxxxx Xxxxx
Telephone: (000) 000-0000
FAX: (000) 000-0000
S-17
[TO 364-DAY CREDIT AGREEMENT]
88
FIFTH THIRD BANK, CENTRAL OHIO, Individually
By:
----------------------------------
Title:
-------------------------------
00 Xxxx Xxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxx, Xxxx 00000
Attention: Xxxxxxxx Xxxxxxx
Telephone: (000) 000-0000
FAX: (000) 000-0000
S-18
[TO 364-DAY CREDIT AGREEMENT]
89
FIRST HAWAIIAN BANK, Individually
By:
----------------------------------
Title:
-------------------------------
000 Xxxxxx Xxxxxx
Xxxxxxxxx National Banking Division
00xx Xxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
FAX: (000) 000-0000
S-19
[TO 364-DAY CREDIT AGREEMENT]
90
PRICING SCHEDULE
====================================================================================================================
LEVEL I LEVEL II LEVEL III LEVEL IV LEVEL V LEVEL VI
STATUS STATUS STATUS STATUS STATUS STATUS
--------------------------------------------------------------------------------------------------------------------
Eurodollar Rate 0.1475% 0.140% 0.180% 0.300% 0.375% 0.550%
--------------------------------------------------------------------------------------------------------------------
Facility Fee Rate 0.040% 0.060% 0.070% 0.100% 0.125% 0.200%
--------------------------------------------------------------------------------------------------------------------
Utilization Fee 0.050% 0.050% 0.100% 0.100% 0.125% 0.150%
====================================================================================================================
For the purposes of this Schedule, the following terms have the
following meanings, subject to the final paragraph of this Schedule:
"LEVEL I STATUS" exists (a) with respect to Nationwide Mutual or
Nationwide Life, at any date if, on such date, such Person's Xxxxx'x Rating is
Aaa or better and such Person's S&P Rating is AAA or better and (b) with respect
to NFS, at any date if, on such date, NFS's Xxxxx'x Rating is Aa1 or better and
NFS's S&P Rating is AAA- or better.
"LEVEL II STATUS" exists with respect to any Borrower at any date if,
on such date, (a) such Borrower has not qualified for Level I Status and (b) (i)
with respect to Nationwide Mutual or Nationwide Life, such Person's Xxxxx'x
Rating is Aa3 or better and such Person's S&P Rating is AA- or better and (ii)
with respect to NFS, NFS's Xxxxx'x Rating is A1 or better and NFS's S&P Rating
is A+ or better.
"LEVEL III STATUS" exists with respect to any Borrower at any date if,
on such date, (a) such Borrower has not qualified for Level I Status or Level II
Status and (b) (i) with respect to Nationwide Mutual or Nationwide Life, such
Person's Xxxxx'x Rating is A2 or better and such Person's S&P Rating is A or
better and (ii) with respect to NFS, NFS's Xxxxx'x Rating is A3 or better and
NFS's S&P Rating is A- or better.
"LEVEL IV STATUS" exists with respect to any Borrower at any date if,
on such date, (a) such Borrower has not qualified for Level I Status, Level II
Status or Level III Status and (b) (i) with respect to Nationwide Mutual or
Nationwide Life, such Person's Xxxxx'x Rating is A3 or better and such Person's
S&P Rating is A- or better and (ii) with respect to NFS, NFS's Xxxxx'x Rating is
Baa1 or better and NFS's S&P Rating is BBB+ or better.
"LEVEL V STATUS" exists with respect to any Borrower at any date if, on
such date, (a) such Borrower has not qualified for Level I Status, Level II
Status, Level III Status or Level IV Status and (b) (i) with respect to
Nationwide Mutual or Nationwide Life, such Person's Xxxxx'x Rating is Baa1 or
better and such Person's S&P Rating is BBB+ or better and (ii) with respect to
NFS, NFS's Xxxxx'x Rating is Baa2 or better and NFS's S&P Rating is BBB or
better.
91
"LEVEL VI STATUS" exists with respect to any Borrower at any date if,
on such date, such Borrower has not qualified for Level I Status, Level II
Status, Level III Status, Level IV Status, or Level V Status.
"XXXXX'X RATING" means, at any time, (a) with respect to Nationwide
Mutual and Nationwide Life, the financial strength rating issued by Xxxxx'x and
then in effect with respect to such Person, and (b) with respect to NFS, the
rating issued by Xxxxx'x and then in effect with respect to NFS's senior
unsecured long-term debt securities without third-party credit enhancement.
"S&P RATING" means, at any time, (a) with respect to Nationwide Mutual
and Nationwide Life, the financial strength rating issued by S&P and then in
effect with respect to such Person, and (b) with respect to NFS, the rating
issued by S&P and then in effect with respect to NFS's senior unsecured
long-term debt securities without third-party credit enhancement.
"STATUS" means either Level I Status, Level II Status, Level III
Status, Level IV Status, Level V Status or Level VI Status.
The Applicable Margin and the Applicable Facility Fee Rate with respect
to each Borrower shall be determined in accordance with the foregoing table
based on such Borrower's Status as determined from its then-current Xxxxx'x and
S&P Ratings. The Applicable Utilization Fee shall be determined in accordance
with the foregoing table based on the Status of the Borrower which has the
lowest Status (with Level I Status being the highest Status and Level VI Status
being the lowest Status) of all Borrowers to which Advances are then
outstanding.
The credit rating in effect on any date for the purposes of this
Schedule is that in effect at the close of business on such date. If at any time
a Borrower has no Xxxxx'x Rating or no S&P Rating, Level VI Status shall exist.
92
SCHEDULE I
COMMITMENTS
-----------
-------------------------------------------------------------------------------
Lender Commitment
------ ----------
-------------------------------------------------------------------------------
Bank One, NA $27,000,000
-------------------------------------------------------------------------------
The Chase Manhattan Bank $24,000,000
-------------------------------------------------------------------------------
The Bank of New York $24,000,000
-------------------------------------------------------------------------------
Citicorp USA, Inc. $24,000,000
-------------------------------------------------------------------------------
Xxxxxx Guaranty Trust Company of New York $19,500,000
-------------------------------------------------------------------------------
Bank of America, N.A. $19,500,000
-------------------------------------------------------------------------------
First Union National Bank $19,500,000
-------------------------------------------------------------------------------
Mellon Bank, N.A. $19,500,000
-------------------------------------------------------------------------------
Fleet National Bank $18,000,000
-------------------------------------------------------------------------------
KeyBank National Association $18,000,000
-------------------------------------------------------------------------------
Xxxxx Fargo Bank, N.A. $18,000,000
-------------------------------------------------------------------------------
Firstar Bank, NA $15,000,000
-------------------------------------------------------------------------------
The Huntington National Bank $15,000,000
-------------------------------------------------------------------------------
National City Bank $9,000,000
-------------------------------------------------------------------------------
State Street Bank and Trust Company $9,000,000
-------------------------------------------------------------------------------
Wachovia Bank, N.A. $9,000,000
-------------------------------------------------------------------------------
Fifth Third Bank, Central Ohio $6,000,000
-------------------------------------------------------------------------------
First Hawaiian Bank $6,000,000
-------------------------------------------------------------------------------
Aggregate Commitment: $300,000,000
-------------------- ===========
-------------------------------------------------------------------------------
