EXHIBIT 4.11
EXECUTION
COPY
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$1,500,000,000
FIVE-YEAR CREDIT AGREEMENT
DATED AS OF SEPTEMBER 25, 0000
XXXXX
XXXXXXX, XXX.,
XXXX XX XXXXXXX NATIONAL TRUST
AND SAVINGS ASSOCIATION,
AS AGENT,
FIRST UNION NATIONAL BANK
AND
THE CHASE MANHATTAN BANK
AS SYNDICATION AGENTS,
XXXXXX GUARANTY COMPANY OF NEW YORK,
AS DOCUMENTATION AGENT
AND
THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO
ARRANGED BY
BANCAMERICA SECURITIES, INC.
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TABLE OF CONTENTS
$1,500,000,000.................................................................1
FIVE-YEAR CREDIT AGREEMENT.....................................................1
Dated as of September 25, 1998.................................................1
among..........................................................................1
CONSECO, INC.,.................................................................1
as Agent,......................................................................1
as Syndication Agents,.........................................................1
as Documentation Agent.........................................................2
and............................................................................2
THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO..................................2
Arranged by....................................................................2
BANCAMERICA SECURITIES, INC....................................................2
FIVE-YEAR CREDIT AGREEMENT.....................................................5
ARTICLE I......................................................................5
DEFINITIONS....................................................................5
ARTICLE II....................................................................29
THE CREDITS...................................................................29
2.11 Repayment...........................................................38
ARTICLE III...................................................................42
TAXES, YIELD PROTECTION AND ILLEGALITY........................................42
ARTICLE IV....................................................................46
CONDITIONS PRECEDENT..........................................................46
ARTICLE V.....................................................................48
REPRESENTATIONS AND WARRANTIES................................................48
5.07 ERISA Compliance....................................................50
ARTICLE VI....................................................................54
AFFIRMATIVE COVENANTS.........................................................54
6.03 Notices. The Company shall promptly notify the Agent:..............55
ARTICLE VII...................................................................58
NEGATIVE COVENANTS............................................................58
ARTICLE VIII..................................................................62
EVENTS OF DEFAULT.............................................................62
ARTICLE IX....................................................................65
THE AGENT.....................................................................65
ARTICLE X.....................................................................69
MISCELLANEOUS.................................................................69
10.04 Costs and Expenses. The Company shall:.............................71
SCHEDULE 2.01.................................................................78
AND PRO RATA SHARES...........................................................78
SCHEDULE 10.02................................................................79
ADDRESSES FOR NOTICES.........................................................79
CONSECO, INC...............................................................79
Conversion/Continuation):..................................................80
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SCHEDULES
Schedule 1.01 Persons Not Subsidiaries
Schedule 2.01 Commitments
Schedule 5.05 Litigation
Schedule 5.07 ERISA
Schedule 5.13 Investment Companies
Schedule 5.14 Subsidiaries
Schedule 7.02(c) Liens
Schedule 7.02(g) Permitted Indentures
Schedule 7.07 Business Activities
Schedule 10.02 Lending Offices; Addresses for Notices
EXHIBITS
Exhibit A Form of Compliance Certificate
Exhibit B Form of Notice of Borrowing
Exhibit C Form of Notice of Conversion/Continuation
Exhibit D Form of Swing Line Note
Exhibit E Form of Committed Loan Note
Exhibit F Form of Assignment and Acceptance
Exhibit G Form of Invitation for Competitive Bids
Exhibit H Form of Competitive Bid Request
Exhibit I Form of Competitive Bid
Exhibit J Offshore Rate Funding Loss Determination Methodology
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FIVE-YEAR CREDIT AGREEMENT
This FIVE-YEAR CREDIT AGREEMENT is entered into as of September 25, 1998,
among CONSECO, INC., an Indiana corporation (the "Company"), the several
financial institutions from time to time party to this Agreement (collectively,
the "Banks"; individually, a "Bank"), Bank of America National Trust and Savings
Association, as agent for the Banks and as Swing Line Bank, First Union National
Bank and The Chase Manhattan Bank, as syndication agents for the Banks (the
"Syndication Agents") and Xxxxxx Guaranty Company of New York, as documentation
agent (the "Documentation Agent").
WHEREAS, the Agent, the Banks and the Swing Line Bank have agreed to make
available to the Company a revolving credit facility upon the terms and subject
to the conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual agreements, provisions and
covenants contained herein, the parties agree as follows:
ARTICLE I
DEFINITIONS
1.01 Certain Defined Terms. The following terms have the following
meanings:
"Absolute Rate" has the meaning specified in subsection 2.08(c).
"Absolute Rate Auction" means a solicitation of Competitive Bids
setting forth Absolute Rates pursuant to Section 2.08.
"Absolute Rate Bid Loan" means a Bid Loan that bears interest at a
rate determined by reference to the Absolute Rate.
"Affiliate" means, as to any Person, any other Person which, directly
or indirectly, is in control of, is controlled by, or is under common
control with, such Person. A Person shall be deemed to control another
Person if the controlling Person possesses, directly or indirectly, the
power (a) to vote 10% or more of the securities (on a fully diluted basis)
having ordinary voting power for the election of directors or managing
general partners, or (b) to direct or cause the direction of the management
and policies of the other Person, whether through the ownership of voting
securities, membership interests, by contract, or otherwise.
"Agent" means BofA in its capacity as agent for the Banks
hereunder, and any successor agent appointed under Section 9.09.
"Agent-Related Persons" means the initial Agent and any
successor agent appointed under Section 9.09, together with their
respective Affiliates (including, in the
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case of BofA, the Arranger), and the officers, directors, employees,
agents and attorneys-in-fact of such Persons and Affiliates.
"Agent's Payment Office" means the address for payments set forth
on Schedule 10.02 or such other address as the Agent may from time to
time specify.
"Agreement" means this Credit Agreement.
"Amounts Available for Dividends" means, without duplication, the
maximum amount of dividends the Insurance Subsidiaries are permitted
to pay under the insurance code of their respective state of domicile
without necessitating approval by the applicable Department plus the
amount of dividends actually paid by the Insurance Subsidiaries with
the prior approval of the applicable Department in excess of the
maximum amount permitted; provided, however, that with respect to
dividends paid from BLI, LALI, NGLIC, PLIC or WLI to the Company,
Amounts Available for Dividends shall also mean the maximum amount
BLI, LALI, NGLIC, PLIC or WLI is permitted to pay under the applicable
insurance code of its state of domicile with approval of the
applicable Department, not to exceed in the aggregate in any one
Fiscal Year of the Company the Statutory Net Income of BLI, LALI,
NGLIC, PLIC or WLI, as the case may be, for the immediately preceding
Fiscal Year.
"Annual Statement" means the annual statutory financial statement
of any Insurance Subsidiary 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 Subsidiary'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 or required by such
insurance commissioner (or such similar authority) to be disclosed
therein, together with all exhibits or schedules filed therewith.
"Applicable Facility Fee Rate" means the lowest applicable
percentage set forth below based upon the rating of the Company's
senior unsecured long-term Indebtedness then in existence:
Rating Applicable Facility Fee
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A or above by S&P or DCR 0.08%
A- by S&P or DCR 0.09%
BBB+ by S&P or DCR 0.10%
BBB by S&P or DCR 0.125%
Lower than BBB by S&P or DCR or 0.15%
unrated
The Applicable Facility Fee Rate shall be adjusted, as applicable,
upon each change in the rating by S&P or DCR of the Company's senior
unsecured long-term Indebtedness, effective as of the date of such
change. At any time at which S&P's rating of the Company's senior
unsecured long term Indebtedness differs from DCR's rating thereof
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by more than one level (including each modifier as a separate level),
then the Applicable Facility Fee Rate shall be determined by reference
to the rating which is one level below the higher of the two ratings.
"Applicable Offshore Rate Margin" means on any date the lowest
applicable percentage set forth below based upon the rating of the
Company's senior unsecured long-term Indebtedness then in existence:
Rating Applicable Offshore Rate Margin
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A or above by S&P or DCR 0.17%
A- by S&P or DCR 0.21%
BBB+ by S&P or DCR 0.25%
BBB by S&P or DCR 0.275%
Lower than BBB by S&P or DCR or 0.35%
unrated
The Applicable Offshore Rate Margin shall be adjusted, as applicable,
upon each change in the rating of the Company's senior unsecured
long-term Indebtedness, effective as of the date of such change. At
any time at which S&P's rating of the Company's senior unsecured
long-term Indebtedness differs from DCR's rating thereof by more than
one level (including each modifier as a separate level), then the
Applicable Offshore Rate Margin shall be determined by reference to
the rating which is one level below the higher of the two ratings.
"Arranger" means BancAmerica Securities, Inc.
"Asset Backed Security" means a security of a Green Tree Entity
or a Sub-Prime Auto Loan Company that is collateralized by loans,
leases, receivables, installment contracts or interests in or
components of Interest Only Securities.
"Assignee" has the meaning specified in subsection 10.08(a).
"Assignment and Acceptance" has the meaning specified in
subsection 10.08(a).
"Attorney Costs" means and includes all reasonable fees and
disbursements of any law firm or other external counsel, the
reasonable allocated cost of internal legal services and all
reasonable disbursements of internal counsel.
"Average Life" means, as of the date of determination, with
respect to any Indebtedness, the quotient obtained by dividing (a) the
sum of the products of the numbers of years from the date of
determination to the dates of each successive scheduled principal
payment of such Indebtedness multiplied by the amount of such
scheduled principal payment by (b) the sum of all such scheduled
principal payments.
"B-Share Financings" means the financing of fees or commissions
related to B-Shares.
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"B-Shares" means those shares of ownership representing a mutual
interest in a pool of assets on which 12b-1 fees or contingent
deferred sales commissions (CDSC), as defined under the Investment
Company Act of 1940, are applicable.
"Bank" has the meaning specified in the introductory clause
hereto.
"Bankruptcy Code" means the Federal Bankruptcy Reform Act of 1978
(11 U.S.C.ss.101, et seq.).
"Base Rate" means, for any day, the higher of: (a) 0.50% per
annum above the latest Federal Funds Rate; and (b) the rate of
interest in effect for such day as publicly announced from time to
time by BofA in San Francisco, California, as its "reference rate."
(The "reference rate" is a rate set by BofA based upon various factors
including BofA's costs and desired return, general economic conditions
and other factors, and is used as a reference point for pricing some
loans, which may be priced at, above, or below such announced rate.)
Any change in the reference rate announced by BofA shall take effect
at the opening of business on the day specified in the public
announcement of such change.
"Base Rate Committed Loan" means a Committed Loan that bears
interest based on the Base Rate.
"Bid Borrowing" means a Borrowing hereunder consisting of one or
more Bid Loans made to the Company on the same day by one or more
Banks.
"Bid Loan" means a Loan by a Bank to the Company pursuant to
Section 2.07, which may be an Offshore Rate Bid Loan or an Absolute
Rate Bid Loan.
"Bid Loan Lender" means, in respect of any Bid Loan, the Bank
making such Bid Loan to the Company.
"BLI" means Bankers Life Insurance Company of Illinois, an
Illinois insurance corporation.
"BofA" means Bank of America National Trust and Savings
Association, a national banking association.
"Borrowing" means a borrowing pursuant to Article II hereof
consisting of Loans of the same Type made to the Company on the same
day by one or more of the Banks and may be a Committed Borrowing or a
Bid Borrowing and, in the case of Offshore Rate Loans, having the same
Interest Period. A Swing Line Loan shall not constitute a Borrowing.
"Borrowing Date" means any date on which a Borrowing occurs under
Sections 2.03 or 2.08.
"Business Day" means any day other than a Saturday, Sunday or
other day on which commercial banks in Chicago, New York City or San
Francisco are authorized or
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required by law to close and, if the applicable Business Day relates
to any Offshore Rate Loan, means such a day on which dealings are
carried on in the applicable offshore dollar interbank market.
"Calculation Period" means, with respect to any ratio or
calculation, the period for which such ratio or calculation is being
calculated.
"Capital Adequacy Regulation" means any guideline, request or
directive of any central bank or other Governmental Authority, or any
other law, rule or regulation, whether or not having the force of law,
in each case, regarding capital adequacy of any bank or of any
corporation controlling a bank.
"Capital and Surplus" means, as to any Insurance Subsidiary, as
of any date, the total amount shown on line 38, page 3, column 1 of
the Annual Statement of such Insurance Subsidiary, or an amount
determined in a consistent manner for any date other than one as of
which an Annual Statement is prepared.
"Capitalized Lease Liabilities" means, with respect to any
Person, all monetary obligations of such Person under any leasing or
similar arrangement which, in accordance with GAAP, would be
classified as a capitalized lease, and, for purposes of this
Agreement, the amount of such obligations shall be the capitalized
amount thereof, determined in accordance with GAAP, and the stated
maturity thereof shall be the date of the last payment of rent or any
other amount due under such lease prior to the first date upon which
such lease may be terminated by the lessee without payment of a
penalty.
"Cash Equivalents" means (a) securities with maturities of one
(1) year or less from the date of determination issued or fully
guaranteed or insured by the United States Government, or any
instrumentality or agency thereof, (b) certificates of deposit,
eurodollar time deposits, overnight bank deposits, bankers'
acceptances and repurchase agreements of any Bank or any other
commercial bank whose unsecured long-term debt obligations are rated
at least "BBB-" by S&P, "Baa-3" by Moody's, "BBB-" by DCR, "BBB-" by
Fitch or "NAIC 2" by the NAIC having maturities of six (6) months or
less from the date of determination and (c) commercial paper having
maturities of six (6) months or less from the date of determination
rated at least "A-2" by Standard Poor's, "P-2" by Moody's, "D-2" by
DCR, "F-2" by Fitch or "NAIC 2" by the NAIC, or carrying an equivalent
rating by a nationally recognized rating agency, if all of the named
rating agencies cease publishing ratings of investments.
"CBOs" means notes or other instruments (other than CMOs) secured
by collateral consisting primarily of debt securities and/or other
types of debt obligations, including loans.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended.
"CERCLIS" means the Comprehensive Environmental Response,
Compensation and Liability Information System List.
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"Change of Control" means (a) any acquisition by any Person, or
two or more Persons acting in concert of beneficial ownership (within
the meaning of Rule 13d-3 of the Securities and Exchange Commission
under the Exchange Act) of 30% or more of the outstanding shares of
voting stock of the Company (other than an acquisition by any Person
or Persons who are officers or directors of the Company on the Closing
Date) or (b) during any period of 25 consecutive calendar months,
commencing on the date of this Agreement, the ceasing of those
individuals (the "Continuing Directors") who (i) were directors of the
Company on the first day of each such period or (ii) subsequently
became directors of the Company and whose actual election or initial
nomination for election subsequent to that date was approved by a
majority of the Continuing Directors then on the board of directors of
the Company, to constitute a majority of the board of directors of the
Company.
"Closing Date" means the date on which all conditions precedent
set forth in Section 4.01 are satisfied or waived by all Banks (or, in
the case of subsection 4.01(e), waived by the Person entitled to
receive such payment).
"CMOs" means notes or other instruments secured by collateral
consisting primarily of mortgages, mortgage-backed securities and/or
other types of mortgage-related obligations.
"Code" means the Internal Revenue Code of 1986, and regulations
promulgated thereunder.
"Committed Borrowing" means a Borrowing hereunder consisting of
Committed Loans made on the same day by the Banks ratably according to
their respective Pro Rata Shares and, in the case of Offshore Rate
Committed Loans, having the same Interest Period.
"Committed Loan" means a Loan by a Bank to the Company pursuant
to Section 2.01, and may be an Offshore Rate Committed Loan or a Base
Rate Committed Loan.
"Committed Loan Note" has the meaning specified in Section 2.02.
"Commitment", as to each Bank, has the meaning specified in
Section 2.01.
"Company" has the meaning specified in the introduction to this
Agreement.
"Competitive Bid" means an offer by a Bank to make a Bid Loan in
accordance with subsection 2.08(b).
"Competitive Bid Request" has the meaning specified in subsection
2.08(a).
"Compliance Certificate" means a certificate substantially in the
form of Exhibit A.
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"Conseco Series E Preferred Stock" means $900,000,000 stated
value of the Company's Series E Preferred Stock, without par value.
"Contingent Obligation" means, without duplication, any
agreement, undertaking or arrangement by which any Person guarantees,
endorses or otherwise becomes or is contingently liable upon (by
direct or indirect agreement, contingent or otherwise, to provide
funds for payment, to supply funds to, or otherwise to invest in, a
debtor, or otherwise to assure a creditor against loss) the debt,
obligation or other liability of any other Person (other than by
endorsements of instruments in the course of collection), or
guarantees the payment of dividends or other distributions upon the
shares of any other Person; provided, that (a) the obligations of any
Person under Reinsurance Agreements or in connection with Investments
of Insurance Subsidiaries permitted by the applicable Department, (b)
the obligations of the Company in connection with its guaranty of the
Trust Preferred Securities and the Unit Securities and (c) the
obligations of any Person in connection with its guaranty of Asset
Backed Securities shall not be deemed Contingent Obligations of any
such Person or the Company, as applicable. The amount of any Person's
liability with respect to any Contingent Obligation shall (subject to
any limitation set forth therein) be deemed to be the outstanding
principal amount (or maximum outstanding principal amount, if larger)
of the debt, obligation or other liability outstanding thereunder or,
if not stated or if indeterminable, the maximum reasonably anticipated
liability in respect thereof at the time of determination.
"Contractual Obligation" means, as to any Person, any provision
of any security issued by such Person or of any agreement,
undertaking, contract, indenture, mortgage, deed of trust or other
instrument, document or agreement to which such Person is a party or
by which it or any of its property is bound.
"Conversion/Continuation Date" means any date on which, under
Section 2.04, the Company (a) converts Committed Loans of one Type to
another Type, or (b) continues as Loans of the same Type, but with a
new Interest Period, Committed Loans having Interest Periods expiring
on such date.
"Costs and Expenses" has the meaning specified in Section 10.05.
"DCR" means Duff & Xxxxxx Credit Rating Co., Inc., together with
any Person succeeding thereto by merger, consolidation or acquisition
of all or substantially all of its assets, including substantially all
of its business of rating securities.
"Debt to Total Capitalization Ratio" means, as of any date of
determination, without duplication, the ratio of (a) the principal
amount of and accrued but unpaid interest on all recourse Indebtedness
for borrowed money (including, without limitation, any Indebtedness
evidenced by bonds, debentures, notes or other similar instruments) of
the Company or any Subsidiary for which the Company or any such
Subsidiary, respectively, is directly liable on such date and which is
neither a Contingent Obligation nor Indebtedness arising out of a
Permitted Transaction; to (b) Total Capitalization on such date;
provided, however, that solely for the purposes of calculating the
Debt to Total Capitalization Ratio the term "Indebtedness" shall
exclude (i) debt securities that are
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convertible into shares of the Company's common stock having a current
market value of at least 125% of the principal amount of such
convertible securities, (ii) preferred securities issued by business
trusts formed by the Company or any Wholly-Owned Subsidiary,
guaranteed by such entity and related to guarantees and intercompany
notes, and (iii) Indebtedness of Sub-Prime Auto Loan Companies.
"Default" means any event or circumstance which, with the giving of
notice, the lapse of time, or both, would (if not cured or otherwise
remedied during such time) constitute an Event of Default.
"Defaulted Bank" means a Bank that has either (a) refused (which
refusal has not been retracted) to make available any Committed Loan
when required hereunder or (b) a Bank that has notified the Agent
and/or the Company that it does not intend to comply with its
obligations under Section 2.01 of this Agreement.
"Department" means, with respect to any Insurance Subsidiary, the
Governmental Authority of such Insurance Subsidiary's state of
domicile with which such Insurance Subsidiary is required to file its
Annual Statement.
"Direct Competitor" means a Person substantially engaged in a
business which directly competes with the primary business of a Green
Tree Entity.
"Disposition" means the sale, assignment, leasing, transfer,
contribution, conveyance, issuance or other disposal of, or granting
of options, warrants or other rights with respect to, any of a
Person's assets.
"Documentation Agent" has the meaning specified in the
introduction to this Agreement.
"Dollars", "dollars" and "$" each mean lawful money of the United
States.
"Eligible Assignee" means any bank, pension fund, mutual fund,
investment fund or other financial institution or a Subsidiary thereof
(other than an insurance company or any Affiliate of an insurance
company except those to which the Company consents).
"Environmental Claims" means all claims, complaints, notices or
inquiries, however asserted or made, by any Governmental Authority or
other Person alleging potential liability or responsibility for
violation of any Environmental Law, or for release or injury to the
environment or threat to public health, personal injury (including
sickness, disease or death), property damage, natural resources
damage, or otherwise alleging liability or responsibility for damages
(punitive or otherwise), cleanup, removal, remedial or response costs,
restitution, civil or criminal penalties, injunctive relief, or other
type of relief, resulting from or based upon the presence, placement,
discharge, emission or release (including intentional or
unintentional, negligent or non-negligent, sudden or nonsudden,
accidental or non-accidental, placement, spills, leaks, discharges,
emissions or releases) of any Hazardous Material at, in, or from
property, whether or not owned by the Borrower.
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"Environmental Laws" means all federal, state or local laws,
statutes, common law duties, rules, regulations, ordinances and codes,
together with all administrative orders, directed duties, requests,
licenses, authorizations and permits of, and agreements with, any
Governmental Authorities, in each case relating to environmental,
health, safety and land use matters.
"ERISA" means the Employee Retirement Income Security Act of
1974, and regulations promulgated thereunder.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with the Company within the meaning
of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of
the Code for purposes of provisions relating to Section 412 of the
Code).
"ERISA Event" means (a) a Reportable Event with respect to a
Pension Plan; (b) a withdrawal by the Company or any ERISA Affiliate
from a Pension Plan subject to Section 4063 of ERISA during a plan
year in which it was a substantial employer (as defined in Section
4001(a)(2) of ERISA) or a cessation of operations which is treated as
such a withdrawal under Section 4062(e) of ERISA; (c) a complete or
partial withdrawal by the Company or any ERISA Affiliate from a
Multiemployer Plan or notification that a Multiemployer Plan is in
reorganization; (d) the filing of a notice of intent to terminate, the
treatment of a Plan amendment as a termination under Section 4041 or
4041A of ERISA, or the commencement of proceedings by the PBGC to
terminate a Pension Plan or Multiemployer Plan; (e) an event or
condition which could reasonably be expected to constitute grounds
under Section 4042 of ERISA for the termination of, or the appointment
of a trustee to administer, any Pension Plan or Multiemployer Plan; or
(f) the imposition of any liability under Title IV of ERISA, other
than PBGC premiums due but not delinquent under Section 4007 of ERISA,
upon the Company or any ERISA Affiliate.
"Eurodollar Reserve Percentage" has the meaning specified in the
definition of "Offshore Rate".
"Event of Default" means any of the events or circumstances
specified in Section 8.01.
"Exchange Act" means the Securities Exchange Act of 1934 and the
regulations promulgated thereunder.
"FDIC" means the Federal Deposit Insurance Corporation, and any
Governmental Authority succeeding to any of its principal functions.
"Federal Funds Rate" means, for any day, the rate set forth in
the weekly statistical release designated as H.15(519), or any
successor publication, published by the Federal Reserve Bank of New
York (including any such successor, "H.15(519)") on the preceding
Business Day opposite the caption "Federal Funds (Effective)"; or, if
for any relevant day such rate is not so published on any such
preceding Business Day, the rate for such day will be the arithmetic
mean as determined by the Agent of the rates for the
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last transaction in overnight Federal funds arranged prior to 9:00
a.m. (New York City time) on that day by each of three leading brokers
of Federal funds transactions in New York City selected by the Agent.
"Fee Letter" has the meaning specified in subsection 2.13(a).
"Fiscal Quarter" means any fiscal quarter of a Fiscal Year.
"Fiscal Year" means any period of twelve consecutive calendar
months ending on December 31.
"Fitch" means Fitch Investors Services, Inc., together with any
Person succeeding thereto by merger, consolidation or acquisition of
all or substantially all of its assets, including substantially all of
its business of rating securities.
"Fixed Interest Charges" means, for any Calculation Period, (a)
interest paid or, without duplication, accrued but unpaid on the Loans
with respect to such Calculation Period, plus (b) interest paid or,
without duplication, accrued but unpaid on any Indebtedness set forth
in clause (a) or (b) of the definition thereof during such Calculation
Period, minus (c) interest paid or, without duplication, accrued but
unpaid on any Indebtedness which has been eliminated from the balance
sheet liabilities of the Company on a consolidated basis in accordance
with GAAP, minus (d) interest paid or, without duplication, accrued
but unpaid on any Indebtedness arising under financing transactions in
which a Green Tree Entity or a Sub-Prime Auto Loan Company sells or
transfers as collateral loans, leases, receivables or installment
contracts to a third party while simultaneously contracting to
repurchase or reacquire substantially the same assets.
"FRB" means the Board of Governors of the Federal Reserve System,
and any Governmental Authority succeeding to any of its principal
functions.
"Further Taxes" means any and all present or future taxes,
levies, assessments, imposts, duties, deductions, fees, withholdings
or similar charges (including, without limitation, net income taxes
and franchise taxes), and all liabilities with respect thereto,
imposed by any jurisdiction on account of amounts payable or paid
pursuant to Section 3.01.
"GAAP" means generally accepted accounting principles set forth
from time to time in the opinions and pronouncements of the Accounting
Principles Board and the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial
Accounting Standards Board (or agencies with similar functions of
comparable stature and authority within the U.S. accounting
profession), which are applicable to the circumstances as of the date
of determination.
"Governmental Authority" means any nation or government, any
state or other political subdivision thereof, any central bank (or
similar monetary or regulatory authority) thereof, any entity
exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government, and any
corporation or other entity owned or controlled, through stock or
capital ownership or otherwise, by any of the
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foregoing, including any board of insurance, insurance department or
insurance commissioner.
"Green Tree" means Green Tree Financial Corporation, a Delaware
corporation.
"Green Tree Entities" means, collectively, Green Tree and its
consolidated Subsidiaries and "Green Tree Entity" means any one of
them individually.
"Hazardous Material" means: (a) any "hazardous substance," as
defined by CERCLA; (b) any "hazardous waste," as defined by the
Resource Conservation and Recovery Act; (c) any petroleum product; or
(d) any pollutant or contaminant or hazardous, dangerous or toxic
chemical, material or substance within the meaning of any other
applicable federal, state or local law, regulation, ordinance or
requirement (including consent decrees and administrative orders)
relating or imposing liability or standards of conduct concerning any
hazardous, toxic or dangerous waste, substance or material, all as
amended or hereafter amended.
"Income Taxes" means any Taxes based upon net income.
"Indebtedness" shall mean, with respect to any Person, without
duplication: (a) all obligations of such Person for borrowed money or
in respect of loans or advances; (b) all obligations of such Person
evidenced by bonds, debentures, notes or other similar instruments;
(c) all obligations in respect of letters of credit, whether or not
drawn, and bankers' acceptances issued for the account or upon the
application or request of such Person; (d) all Capitalized Lease
Liabilities of such Person; (e) all obligations of such Person in
respect of Swap Contracts; (f) all obligations of such Person to pay
the deferred purchase price of property or services which are included
as liabilities in accordance with GAAP (other than trade payables
entered into in the ordinary course of business on ordinary terms),
and all obligations secured by a Lien on property owned or being
purchased by such Person (including obligations arising under
conditional sales or other title retention agreements); (g) any
obligations of a partnership in which such Person is a general
partner; and (h) all Contingent Obligations of such Person in
connection with indebtedness or obligations of others of the kinds
referred to in clauses (a) through (g) above; provided, however, that
the term "Indebtedness" shall exclude (i) replevin bonds, surety bonds
and other similar bonds (including, without limitation, bonds issued
in connection with litigation and repossession activities) issued by
an Insurance Subsidiary, a Green Tree Entity or a Sub-Prime Auto Loan
Company in the ordinary course of business and (ii) the obligations of
any Person under letters of credit (whether or not drawn), bankers'
acceptances and swap contracts issued or entered into in connection
with any Asset Backed Security.
"Indemnified Liabilities" has the meaning specified in Section
10.05.
"Indemnified Person" has the meaning specified in Section 10.05.
"Independent Auditor" has the meaning specified in subsection
6.01(a).
-14-
"Insolvency Proceeding" means, with respect to any Person, (a)
any case, action or proceeding with respect to such Person before any
court or other Governmental Authority relating to bankruptcy,
reorganization, insolvency, liquidation, conservation, rehabilitation,
receivership, dissolution, winding-up or relief of debtors, or (b) any
general assignment for the benefit of creditors, composition,
marshalling of assets for creditors, or other, similar arrangement in
respect of its creditors generally or any substantial portion of its
creditors, in any case, undertaken under U.S. Federal, state or
foreign law, including the Bankruptcy Code.
"Insurance Subsidiary" means any Subsidiary which is engaged in
the business of underwriting insurance products.
"Interest Coverage Ratio" means, for any Calculation Period, the
ratio of (a) the sum of (i) Amounts Available for Dividends directly
to the Company from its Insurance Subsidiaries as of the end of such
Calculation Period, plus (ii) interest paid to the Company with
respect to the Surplus Debentures, plus (iii) Net Cash Available from
the Non-Insurance Subsidiaries, plus (iv) the amount of Taxes paid or,
without duplication, accrued but unpaid to the Company under the Tax
Sharing Agreement, plus (v) management and other fees received by the
Company under servicing agreements or otherwise, plus (vi) the
Company's Investment Income received in cash, minus (vii) the amount
of Taxes paid or, without duplication, accrued but unpaid by the
Company, minus (viii) cash operating expenses of the Company, minus
(ix) capital expenditures of the Company, minus (x) interest payments
made or, without duplication, interest accrued but unpaid on
intercompany loans by the Company and its Subsidiaries, minus (xi)
dividends paid, in cash, to Bankers National Life Insurance Company, a
Texas stock insurance corporation, by the Company on the Conseco
Series E Preferred Stock to the extent permitted by this Agreement,
minus (xii) payments made by the Company or any Subsidiary under
guaranties in respect of Asset Backed Securities, all calculated
(except as otherwise indicated) for such Calculation Period, to (b)
Fixed Interest Charges for such Calculation Period.
"Interest Only Security" means any interest, including servicing
fees, retained by a Green Tree Entity or Sub-Prime Auto Loan Company
relating to the sale or securitization of loans, leases, receivables
or installment contracts, which constitutes either an interest only
security or a servicing right asset in accordance with GAAP.
"Interest Payment Date" means (a) as to any Loan other than a
Base Rate Committed Loan or a Swing Line Loan, the last day of each
Interest Period applicable to such Loan, (b) as to any Base Rate
Committed Loan, the last Business Day of each calendar quarter;
provided, however, that (i) if any Interest Period for an Offshore
Rate Committed Loan exceeds three months, the date that falls three
months after the beginning of such Interest Period and after each
Interest Payment Date thereafter is also an Interest Payment Date (but
in each case, subject to clauses (a) and (b) of the definition of
"Interest Period"), and (ii) as to any Bid Loan, such intervening
dates prior to the maturity thereof as may be specified by the Company
and agreed to by the applicable Bid Loan Lender in the applicable
Competitive Bid shall also be Interest Payment Dates and (c) as to any
Swing Line Loan, the maturity date thereof.
-15-
"Interest Period" means (a) as to any Offshore Rate Loan, the
period commencing on the Borrowing Date of such Loan or (in the case
of any Offshore Rate Committed Loan) on the Conversion/Continuation
Date on which the Loan is converted into or continued as an Offshore
Rate Committed Loan, and ending on the date one, two, three or six
months (or, if consented to by each Bank in the case of any Offshore
Rate Committed Loan, nine or twelve months) thereafter as selected by
the Company in its Notice of Borrowing or Notice of
Conversion/Continuation or Competitive Bid Request, as the case may
be, and (b) as to any Absolute Rate Bid Loan, a period of not less
than 7 days and not more than 180 days as selected by the Company in
the applicable Competitive Bid Request; provided, that:
(i) if any Interest Period would otherwise end on a day that
is not a Business Day, that Interest Period shall be extended to
the following Business Day unless the result of such extension
would be to carry such Interest Period into another calendar
month, in which event such Interest Period shall end on the
preceding Business Day;
(ii) any Interest Period that begins on the last Business
Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of
such Interest Period) shall end on the last Business Day of the
calendar month at the end of such Interest Period; and
(iii) no Interest Period for any Loan shall extend beyond
the Termination Date.
"Investment" means any investment in any Person, whether by means
of share purchase, capital contribution, loan, time deposit, or
otherwise.
"Investment Income" means, (a) as to any Person which is an
Insurance Subsidiary as of any date, the amount reported on line 4,
page 4, column 1 of the Annual Statement, or an amount determined in a
consistent manner for any date other than one as of which an Annual
Statement is prepared but exclusive of earnings of any Insurance
Subsidiaries of such Person and, (b) as to any Person which is not an
Insurance Subsidiary, the amount of earnings of such Person on
Investments, net of expenses actually incurred in connection with such
Investments and taking into account realized gains and losses on such
Investments.
"Invitation for Competitive Bids" means a solicitation for
Competitive Bids, substantially in the form of Exhibit G.
"IRS" means the Internal Revenue Service or any Governmental
Authority succeeding to any of its principal functions under the Code.
"LALI" means Lincoln American Life Insurance Company, a Tennessee
insurance corporation.
"Lending Office" means, as to any Bank, the office or offices of
such Bank specified as its "Lending Office" or "Domestic Lending
-16-
Office" or "Offshore Lending Office", as the case may be, on Schedule
10.02, or such other office or offices as such Bank may from time to
time notify the Company and the Agent.
"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 security interest, mortgage, deed of trust,
pledge, hypothecation, assignment, charge or deposit arrangement,
encumbrance, lien (statutory or other) or preferential arrangement of
any kind or nature whatsoever in respect of any property (including
those created by, arising under or evidenced by any conditional sale
or other title retention agreement, the interest of a lessor under a
capital lease or any financing lease having substantially the same
economic effect as any of the foregoing) and any contingent or other
agreement to provide any of the foregoing, but not including the
interest of a lessor under an operating lease.
"Litigation" means any litigation (including, without limitation,
any governmental proceeding or arbitration proceeding), tax audit or
investigative proceeding, claim, lawsuit, and/or investigation pending
or threatened against or involving the Company or any of its
Subsidiaries or any of its or their businesses or operations.
"Loan" means an extension of credit by a Bank to the Company
under Article II, and may be a Committed Loan, a Bid Loan or a Swing
Line Loan.
"Loan Documents" means this Agreement, all Notes, the Fee Letter
and all other documents executed and delivered by the Company to the
Agent or any Bank in connection herewith.
"Margin Stock" means "margin stock" as such term is defined in
Regulation T, U or X of the FRB.
"Material Adverse Effect" means (a) a material adverse change in,
or a material adverse effect upon, the business, properties, condition
(financial or otherwise) of the Company or the Company and its
Subsidiaries taken as a whole; (b) a material impairment of the
ability of the Company to perform under any Loan Document; or (c) a
material adverse effect upon the legality, validity, binding effect or
enforceability against the Company of any Loan Document.
"Material Insurance Subsidiary" means an Insurance Subsidiary
having Capital and Surplus of $50,000,000 or more.
"Moody's" means Xxxxx'x Investors Service, Inc., together with
any Person succeeding thereto by merger, consolidation or acquisition
of all or substantially all of its assets, including substantially all
of its business of rating securities.
"Multiemployer Plan" means a "multiemployer plan", within the
meaning of Section 4001(a)(3) of ERISA, to which the Company or any
ERISA Affiliate makes, is
-17-
making, or is obligated to make contributions or, during the preceding
three calendar years, has made, or been obligated to make,
contributions.
"NAIC" means the National Association of Insurance Commissioners
or any successor thereto, or in absence of the National Association of
Insurance Commissioners or such successor, 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.
"Net Cash Available" means, without duplication, for any direct
Non-Insurance Subsidiary of the Company for any Calculation Period (a)
Net Income of such Subsidiary during such Calculation Period plus (b)
any non-cash expenses of such Subsidiary deducted in determining Net
Income for such Calculation Period less (c) any noncash income of such
Subsidiary included in determining such Net Income for such
Calculation Period.
"Net Income" means, for any Person for any Calculation Period,
the net income (or loss) of such Person for such period as determined
in accordance with GAAP.
"Net Proceeds" means, with respect to any Disposition by any
Person, the aggregate amount of cash and readily marketable Cash
Equivalents received by such Person in respect of such Disposition
minus the sum of (a) reasonable costs and expenses (including costs of
discontinuance (including, without limitation, any reasonable
severance payments) and Taxes other than Income Taxes) incurred in
connection with such Disposition and required to be paid in cash, (b)
the estimated Income Tax to be paid by such Person in connection with
such Disposition and (c) for an Insurance Subsidiary, the Statutory
Carrying Value of the assets which were the subject of such
Disposition plus any amounts which the Department will not permit such
Insurance Subsidiary to pay out as a result of such Disposition. Upon
calculation of Net Proceeds, the Borrower shall deliver to the Agent
an accounting of the items deducted from the cash or Cash Equivalents
related to such Disposition pursuant to clauses (a), (b) and (c). For
purposes of this definition, the Net Proceeds received by any Person
in respect of any Disposition shall include such cash or Cash
Equivalents as may be received ("subsequent cash proceeds") by such
Person at any time or from time to time in connection with the sale,
transfer, lease or other disposition, or otherwise in respect of, any
consideration other than cash or readily marketable Cash Equivalents
received by such Person in respect of such Disposition, less the
estimated Income Tax to be paid in connection with the receipt of such
subsequent cash proceeds that were not theretofore deducted in
computing Net Proceeds.
"NGLIC" means National Group Life Insurance Company.
"Non-Finance Subsidiary" means any Subsidiary which is not a
Sub-Prime Auto Loan Company or a Green Tree Entity.
-18-
"Non-Insurance Subsidiary" means any Subsidiary which is not an
Insurance Subsidiary.
"Notes" means the Committed Loan Notes and the Swing Line Note.
"Notice of Borrowing" means a notice in substantially the form of
Exhibit B.
"Notice of Conversion/Continuation" means a notice in
substantially the form of Exhibit C.
"Obligations" means all advances, debts, liabilities,
obligations, covenants and duties for the payment of money arising
under any Loan Document owing by the Company to any Bank, the Agent,
or any Indemnified Person, whether direct or indirect (including those
acquired by assignment), absolute or contingent, due or to become due,
now existing or hereafter arising.
"Offshore Rate" means, for any Interest Period, with respect to
Offshore Rate Loans comprising part of the same Borrowing, the rate of
interest per annum (rounded upward to the next 1/100th of 1%, if not a
multiple of 1/16th of 1%) determined by the Agent as follows:
Offshore Rate = IBOR
---------------
1.00 - Eurodollar Reserve Percentage
Where,
"Eurodollar Reserve Percentage" means for any day for any
Interest Period the maximum reserve percentage (expressed as a
decimal, rounded upward to the next 1/100th of 1%, if not a
multiple of 1/16th of 1%) in effect on such day (whether or not
applicable to any Bank) under regulations issued from time to
time by the FRB for determining the maximum reserve requirement
(including any emergency, supplemental or other marginal reserve
requirement) with respect to Eurocurrency funding (currently
referred to as "Eurocurrency liabilities"); and
"IBOR" means the rate of interest per annum determined by
the Agent as the rate at which dollar deposits in the approximate
amount of, in the case of Offshore Rate Bid Loans, the Offshore
Rate Bid Loans to be borrowed in such Bid Loan Borrowing, and, in
the case of Offshore Rate Committed Loans, the Offshore Rate
Committed Loan to be made by the Agent, would be offered by
BofA's Grand Cayman Branch, Grand Cayman B.W.I. (or such other
office as may be designated for such purpose by BofA) to prime
international banks in the offshore dollar market at their
request at approximately 10:00 a.m. (Chicago time) two Business
Days prior to the commencement of such Interest Period.
The Offshore Rate shall be adjusted automatically as to all
Offshore Rate Loans then outstanding as of the effective date of
any change in the Eurodollar Reserve Percentage.
-19-
"Offshore Rate Auction" means a solicitation of Competitive Bids
setting forth an Offshore Rate Bid Margin pursuant to Section 2.08.
"Offshore Rate Bid Loan" means any Bid Loan that bears interest
at a rate based upon the Offshore Rate.
"Offshore Rate Bid Margin" has the meaning specified in
subsection 2.08(c)(ii)(C).
"Offshore Rate Committed Loan" means any Committed Loan that
bears interest based on the Offshore Rate.
"Offshore Rate Loan" means any Offshore Rate Bid Loan or any
Offshore Rate Committed Loan.
"Organization Documents" means, for any corporation, the
certificate or articles of incorporation, the bylaws, any certificate
of determination or instrument relating to the rights of preferred
shareholders of such corporation, any shareholder rights agreement,
and all applicable resolutions of the board of directors (or any
committee thereof) of such corporation.
"Originator" has the meaning specified in subsection 10.08(d).
"Other Taxes" means any present or future stamp, court or
documentary taxes or any other excise or property taxes, charges or
similar levies which arise from any payment made hereunder or from the
execution, delivery, performance, enforcement or registration of, or
otherwise with respect to, this Agreement or any other Loan Documents.
"Participant" has the meaning specified in subsection 10.08(d).
"PBGC" means the Pension Benefit Guaranty Corporation, or any
Governmental Authority succeeding to any of its principal functions
under ERISA.
"Pension Plan" means a pension plan (as defined in Section 3(2)
of ERISA) subject to Title IV of ERISA which the Company or any ERISA
Affiliate sponsors, maintains, or to which it makes, is making, or is
obligated to make contributions, or in the case of a multiple employer
plan (as described in Section 4064(a) of ERISA) has made contributions
at any time during the immediately preceding five (5) plan years.
"Permitted Liens" has the meaning specified in Section 7.02.
"Permitted Swap Obligations" means all obligations (contingent or
otherwise) of the Company or any Subsidiary existing or arising under
Swap Contracts, provided that each of the following criteria is
satisfied: (a) such obligations are (or were) entered into by such
Person in the ordinary course of business for the purpose of directly
mitigating risks associated with liabilities, commitments or assets
held by such Person, or changes in the value of securities issued by
such Person in conjunction with a securities repurchase
-20-
program not otherwise prohibited hereunder, and not for purposes of
speculation or taking a "market view;" and (b) such Swap Contracts do
not contain any provision ("walk-away" provision) exonerating the
non-defaulting party from its obligation to make payments on
outstanding transactions to the defaulting party.
"Permitted Transactions" means (a) mortgage-backed security
transactions in which an investor sells mortgage collateral, such as
securities issued by the Government National Mortgage Association and
the Federal Home Loan Mortgage Corporation for delivery in the current
month while simultaneously contracting to repurchase "substantially
the same" (as determined by the Public Securities Association and
GAAP) collateral for a later settlement, (b) transactions in which an
investor lends cash to a primary dealer and the primary dealer
collateralizes the borrowing of the cash with certain securities, (c)
transactions in which an investor lends securities to a primary dealer
and the primary dealer collateralizes the borrowing of the securities
with cash collateral, (d) transactions in which an investor makes
loans of securities to a broker-dealer under an agreement requiring
such loans to be continuously secured by cash collateral or United
States government securities, (e) transactions in which a federal home
loan mortgage bank (a "FHLMB") makes loans to the Company, which are
sufficiently secured by appropriate assets of the Company consisting
of government agency mortgage-backed securities, in accordance with
the rules, regulations and guidelines of such FHLMB for its loan
programs, (f) financing transactions in which a Green Tree Entity or a
Sub-Prime Auto Loan Company sells or transfers as collateral loans,
leases, receivables or installment contracts to a third party while
simultaneously contracting to repurchase or reacquire substantially
the same assets and (g) the issuance of any Asset Backed Securities by
any Green Tree Entity or any Sub-Prime Auto Loan Company.
"Person" means an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust,
unincorporated association, joint venture or Governmental Authority.
"Plan" means an employee benefit plan (as defined in Section 3(3)
of ERISA) which the Company sponsors or maintains or to which the
Company makes, is making, or is obligated to make contributions and
includes any Pension Plan.
"PLIC" means Pioneer Life Insurance Company.
"Pro Rata Share" means, as to any Bank (a) at any time at which
the Commitments remain outstanding, the percentage equivalent
(expressed as a decimal, rounded to the ninth decimal place) at such
time of such Bank's Commitment divided by the combined Commitments of
all Banks, and (b) after the termination of the Commitments, the
percentage equivalent (expressed as a decimal, rounded to the ninth
decimal place) at such time of the principal amount of such Bank's
outstanding Loans (other than Swing Line Loans and Bid Loans) divided
by the aggregate principal amount of the outstanding Loans (other than
Swing Line Loans and Bid Loans) of all the Banks.
"Purchase Money Debt" means Indebtedness incurred by a Person in
connection with the purchase of fixed or capital assets by such
Person, in which such assets the seller
-21-
or financier thereof has taken or retained a Lien therein, provided
that any such Lien attaches to such assets concurrently with or within
one hundred twenty (120) days after the purchase thereof by such
Person.
"Quarterly Statement" means the quarterly statutory financial
statement of any Insurance Subsidiary 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.
"Reinsurance Agreements" means any agreement, contract, treaty,
certificate or other arrangement by which any Insurance Subsidiary
agrees to transfer or cede to another insurer all or part of the
liability assumed or assets held by it under a policy or policies of
insurance or under a reinsurance agreement assumed by it. Reinsurance
Agreements shall include, but not be limited to, any agreement,
contract, treaty, certificate or other arrangement which is treated as
such by the applicable Department.
"Replacement Bank" has the meaning specified in Section 3.07.
"Reportable Event" means any of the events set forth in Section
4043(c) of ERISA or the regulations thereunder, other than any such
event for which the 30-day notice requirement under ERISA has been
waived in regulations issued by the PBGC.
"Required Banks" means (a) Banks (other than Defaulted Banks)
then holding at least 50.1% of the aggregate amount of the Commitments
(calculated excluding the Commitments of Defaulted Banks), or (b) if
the Commitments have terminated or expired, Banks then holding at
least 50.1% of the aggregate unpaid principal amount of the Loans and
participation interests in Swing Line Loans under Section 2.06(d)
(calculated excluding the Loans of Defaulted Banks).
"Requirement of Law" means, as to any Person, any law (statutory
or common), treaty, rule or regulation or determination of an
arbitrator or of a Governmental Authority, in each case applicable to
or binding upon the Person or any of its property or to which the
Person or any of its property is subject.
"Responsible Officer" means the chief executive officer, chief
operating officer, chief financial officer or treasurer of the
Company, or any other officer having substantially the same authority
and responsibility including, with respect to Section 6.01, any
vice-president with responsibility for or knowledge of financial
matters of the Company.
"S&P" means Standard & Poor's Ratings Group, a division of
XxXxxx-Xxxx, Inc., together with any Person succeeding thereto by
merger, consolidation or acquisition of all or substantially all of
its assets, including substantially all of its business of rating
securities.
-22-
"SAP" means, with respect to any Insurance Subsidiary, 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, which are applicable to the circumstances as of the date
of determination.
"SEC" means the Securities and Exchange Commission, or any
Governmental Authority succeeding to any of its principal functions.
"Significant Subsidiary" means any Subsidiary of the Company
with, after the elimination of intercompany accounts, (a) assets which
constituted at least 10% of the Company's consolidated total assets,
or (b) revenues which constituted at least 10% of the Company's
consolidated total revenues, or (c) net earnings which constituted at
least 10% of the Company's consolidated total net earnings, all as
determined as of the date of the Company's most recently prepared
quarterly financial statements for the 12-month period then ended.
"Single Employer Pension Plan" means a pension plan as such term
is defined in section 3(2) of ERISA, other than a multiemployer plan
as defined in section 4001(a)(3) of ERISA, to which the Company or any
other ERISA Affiliate may have liability, including any liability by
reason of having been a substantial employer within the meaning of
section 4063 of ERISA at any time during the preceding five years, or
by reason of being deemed to be a contributing sponsor under section
4069 of ERISA.
"Statutory Carrying Value" means, as to an asset of any Insurance
Subsidiary, the value of such asset to be reflected in line 25, page
2, column 1 of the Annual Statement, or an amount determined in a
consistent manner for any date other than one as of which an Annual
Statement is prepared.
"Statutory Net Income" means, for any period, the net income of
an Insurance Subsidiary determined in accordance with SAP.
"Sub-Prime Auto Loan Company" means any Person (a) engaged
primarily in the business of making, purchasing and/or selling
sub-prime automobile loans or (b) which is a holding company engaged
primarily in owning Persons described in clause (a) of this
definition.
"Subsidiary" of a Person means any corporation, partnership,
limited liability company, limited liability partnership, joint
venture, trust, association or other unincorporated organization of
which or in which such Person and such Person's Subsidiaries own
directly or indirectly more than 50% of (a) the combined voting power
of all classes of stock having general voting power under ordinary
circumstances to elect a majority of the board of directors, if it is
a corporation, (b) the capital interest or partnership interest, if it
is a partnership, joint venture or similar entity, (c) the beneficial
interest, if it is a trust, association or other unincorporated
organization or (d) the membership interest, if it is a limited
liability company; provided, that, with respect to any Investment made
by the Company in any Person in the ordinary course of business
-23-
solely for investment purposes, such Person shall not be considered a
Subsidiary of the Company for the purposes of this Agreement if such
Person is not integral to the business or operations of the Company or
any Significant Subsidiary and, by way of illustration only, Schedule
1.01 sets forth a non-exclusive list of such Persons who are not
Subsidiaries of the Company because of the operation of this clause.
"Surety Instruments" means all letters of credit (including
standby and commercial), banker's acceptances, bank guaranties,
shipside bonds, surety bonds and similar instruments.
"Surplus Debentures" means, as to any Insurance Subsidiary, debt
securities of such Insurance Subsidiary the proceeds of which are
permitted to be included, in whole or in part, as Capital and Surplus
of such Insurance Subsidiary as approved and permitted by the
applicable Department.
"Swap Contract" means any agreement, whether or not in writing,
relating to any transaction that is a rate swap, basis swap, forward
rate transaction, commodity swap, commodity option, equity or equity
index swap or option, bond, note or xxxx option, interest rate option,
forward foreign exchange transaction, cap, collar or floor
transaction, currency swap, cross-currency rate swap, swaption,
currency option or any other, similar transaction (including any
option to enter into any of the foregoing) or any combination of the
foregoing, and, unless the context otherwise clearly requires, any
master agreement relating to or governing any or all of the foregoing.
"Swap Termination Value" means, in respect of any one or more
Swap Contracts, after taking into account the effect of any legally
enforceable netting agreement relating to such Swap Contracts, (a) for
any date on or after the date such Swap Contracts have been closed out
and termination value(s) determined in accordance therewith, such
termination value(s), and (b) for any date prior to the date
referenced in clause (a) the amount(s) determined as the
xxxx-to-market value(s) for such Swap Contracts, as determined by the
Company based upon one or more mid-market or other readily available
quotations provided by any recognized dealer in such Swap Contracts
(which may include any Bank).
"Swing Line Commitment" means at any time, the obligation of the
Swing Line Bank to make Swing Line Loans pursuant to Section 2.05.
"Swing Line Bank" means BofA, in its capacity as provider of the
Swing Line Loans.
"Swing Line Loan" means a Loan made by the Swing Line Bank
pursuant to Section 2.05.
"Swing Line Note" has the meaning specified in subsection
2.02(b).
"Swing Line Rate" means, for any day, a rate per annum equal to
the Federal Funds Rate for such day plus the Applicable Offshore Rate
Margin.
-24-
"Syndication Agents" has the meaning specified in the
introduction to this Agreement.
"Taxes" means any and all present or future taxes, levies,
assessments, imposts, duties, deductions, fees, withholdings or
similar charges, and all liabilities with respect thereto, excluding,
in the case of each Bank and the Agent, respectively, taxes imposed on
or measured by its net income or receipts with respect to payments
received hereunder by the jurisdiction (or any political subdivision
thereof) under the laws of which such Bank or the Agent, as the case
may be, is organized or maintains a lending office.
"Tax Sharing Agreement" means the tax sharing agreement dated
February 29, 1989, as amended, among the Company and certain of its
Subsidiaries.
"Termination Date" means September 30, 2003 or such earlier date
on which the Commitments are terminated pursuant to Section 8.02.
"364-Day Credit Agreement" has the meaning specified in Section
10.08.
"Total Capitalization" means, without duplication, (a) principal
and accrued and unpaid interest on all Indebtedness for borrowed money
of the Company or any Subsidiary for which the Company or any such
Subsidiary, respectively, is directly liable and which is neither a
Contingent Obligation nor Indebtedness arising out of a Permitted
Transaction plus (b) the Total Shareholders' Equity of the Company
plus (c) the minority interests in Subsidiaries recorded on the
balance sheet of the Company, determined in accordance with GAAP (but
only to the extent such interests are not included in the calculation
of amounts specified in clause (a) or (b) immediately above), plus (d)
the current market value of debt securities that are convertible into
shares of the Company's common stock and have a current market value
equal to at least 125% of the principal amount of such convertible
securities; provided that (i) the Company or a Wholly-Owned Subsidiary
of the Company owns 100% of the Voting Shares of any such Subsidiary
or (ii) in the event that less than 100% of the Voting Shares of any
such Subsidiary are owned by the Company or one of its Wholly-Owned
Subsidiaries, the Company or such Wholly-Owned Subsidiary has
guaranteed the Indebtedness of such Subsidiary; provided, further,
that "Total Capitalization" shall not include principal and accrued
and unpaid interest on (i) Indebtedness of Sub-Prime Auto Loan
Companies or (ii) the obligations of any Person in connection with its
guaranty of Asset Backed Securities.
"Total Shareholders' Equity" means the sum of (a) total
shareholders' equity of the Company as determined in accordance with
GAAP (calculated excluding unrealized gains (losses) of securities as
determined in accordance with FAS 115) and (b) the redemption value or
liquidation preference (or if less, the purchase price), as
applicable, of the Trust Preferred Securities and the Unit Securities.
"Trust Preferred Securities" means mandatorily redeemable
preferred securities (a) issued by one or more Delaware business
trusts formed by the Company and (b) guaranteed by the Company,
including specifically, "MIPS," "QuIPS," "TOPrS" and
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"TruPS", provided that the aggregate face amount of all Trust
Preferred Securities does not exceed the greater of $1,903,745,000 or
15% of Total Capitalization at any time.
"Type" means a denomination of a Loan as a Base Rate Committed
Loan, an Offshore Rate Committed Loan, an Offshore Rate Bid Loan, an
Absolute Rate Bid Loan or a Swing Line Loan.
"Unfunded Pension Liability" means the excess of a Plan's benefit
liabilities under Section 4001(a)(16) of ERISA, over the current value
of that Plan's assets, determined in accordance with the assumptions
used for funding the Pension Plan pursuant to Section 412 of the Code
for the applicable plan year.
"United States" and "U.S." each means the United States of
America.
"Unit Securities" means investment units comprised of (a)
mandatorily redeemable preferred securities (i) issued by one or more
Delaware business trusts formed by the Company and (ii) guaranteed by
the Company, including specifically, "MIPS," "QuIPS," "TOPrS" and
"TruPS," and (b) equity forward contracts for the purchase of common
stock of the Company (which forward contracts shall have a settlement
date that is earlier than the stated maturity of such preferred
securities) collateralized by such preferred securities or government
securities in lieu thereof (including, without limitation, principal
and interest strips thereof).
"Voting Shares" means, with respect to any Person, capital stock
issued by such Person, the holders of which are ordinarily, in the
absence of contingencies, entitled to vote for the election of
directors (or persons performing similar functions) of such Person,
even though the right so to vote has been suspended by the happening
of any such contingency.
"Wholly-Owned Subsidiary" means any corporation in which (other
than directors' qualifying shares required by law) 100% of the capital
stock of each class having ordinary voting power, and 100% of the
capital stock of every other class, in each case (or, in the case of
Persons other than corporations, membership interests or other equity
interests), at the time as of which any determination is being made,
is owned, beneficially and of record, by the Company, or by one or
more of the other Wholly-Owned Subsidiaries, or both.
"WLI" means Wabash Life Insurance Company, a Kentucky insurance
corporation.
1.02 Other Interpretive Provisions. (a) The meanings of defined terms are
equally applicable to the singular and plural forms of the defined terms.
(b) The words "hereof", "herein", "hereunder" and similar words refer
to this Agreement as a whole and not to any particular provision of this
Agreement; and subsection, Section, Schedule and Exhibit references are to
this Agreement unless otherwise specified.
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(c) (i) The term "documents" includes any and all instruments,
documents, agreements, certificates, indentures, notices and other
writings, however evidenced.
(ii) The term "including" is not limiting and means "including
without limitation."
(iii) In the computation of periods of time from a specified date
to a later specified date, the word "from" means "from and including";
the words "to" and "until" each mean "to but excluding", and the word
"through" means "to and including."
(d) Unless otherwise expressly provided herein, (i) references to
agreements (including this Agreement) and other contractual instruments
shall be deemed to include all subsequent amendments and other
modifications thereto, but only to the extent such amendments and other
modifications are not prohibited by the terms of any Loan Document, and
(ii) references to any statute or regulation are to be construed as
including all statutory and regulatory provisions consolidating, amending,
replacing, supplementing or interpreting the statute or regulation.
(e) The captions and headings of this Agreement are for convenience of
reference only and shall not affect the interpretation of this Agreement.
(f) This Agreement and other Loan Documents may use several different
limitations, tests or measurements to regulate the same or similar matters.
All such limitations, tests and measurements are cumulative and shall each
be performed in accordance with their terms. Unless otherwise expressly
provided, any reference to any action of the Agent or the Banks by way of
consent, approval or waiver shall be deemed modified by the phrase "in
its/their sole and reasonable discretion."
(g) This Agreement and the other Loan Documents are the result of
negotiations among and have been reviewed by counsel to the Agent, the
Company and the other parties, and are the products of all parties.
Accordingly, they shall not be construed against the Banks or the Agent
merely because of the Agent's or Banks' involvement in their preparation.
1.03 Accounting Principles. (a) Unless the context otherwise clearly
requires, all accounting terms not expressly defined herein shall be construed,
and all financial computations required under this Agreement shall be made, in
accordance with GAAP, consistently applied.
(b) References herein to "fiscal year" and "fiscal quarter" refer to
such fiscal periods of the Company.
(c) References hereto in 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 the columns, lines or sections of the
Annual Statement referenced herein are changed or renumbered from the
columns, lines and sections applicable to the 1997 Annual Statement, all
such references shall be deemed references to such column, line or section
as so renumbered or changed.
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ARTICLE II
THE CREDITS
2.01 Amounts and Terms of Commitments. Each Bank severally agrees, on the
terms and conditions set forth herein, to make loans to the Company from time to
time on any Business Day during the period from the Closing Date to the
Termination Date, in an aggregate amount not to exceed at any time outstanding
the amount set forth on Schedule 2.01 (such amount, as the same may be reduced
under Section 2.09 or as a result of one or more assignments under Section
10.08, the Bank's "Commitment"); provided, however, that, after giving effect to
any Committed Borrowing, the aggregate principal amount of all outstanding
Loans, including Swing Line Loans and Bid Loans, shall not at any time exceed
the combined Commitments. Within the limits of each Bank's Commitment, and
subject to the other terms and conditions hereof, the Company may borrow under
this Section 2.01, prepay under Section 2.10 and reborrow under this Section
2.01.
2.02 Notes; Loan Accounts. (a) The Loans made by each Bank shall be
evidenced by one or more loan accounts or records maintained by such Bank in the
ordinary course of business. The loan accounts or records maintained by the
Agent and each Bank shall be presumptive evidence of the amount of the Loans
made by the Banks to the Company and the interest and payments thereon. Any
failure so to record or any error in doing so shall not, however, limit or
otherwise affect the obligation of the Company hereunder to pay any amount owing
with respect to the Loans.
(b) Upon the request of any Bank made through the Agent, instead of or
in addition to loan accounts, the Committed Loans made by each Bank may be
evidenced by one or more notes in substantially the form of Exhibit E hereto
("Committed Loan Notes") and the Swing Line Loans made by the Swing Line Bank
may be evidenced by a note in substantially the form of Exhibit D hereto (the
"Swing Line Note"). Each Bank shall endorse on the schedules annexed to its
Note(s) the date, amount and maturity of each Loan made by it and the amount of
each payment of principal made by the Company with respect thereto. Each such
Bank is irrevocably authorized by the Company to endorse its Committed Loan
Note(s) or Swing Line Note, as applicable, and each Bank's record shall be
conclusive absent demonstrable error; provided, however, that the failure of a
Bank to make, or an error in making, a notation thereon with respect to any Loan
shall not limit or otherwise affect the obligations of the Company hereunder or
under any such Committed Loan Note or Swing Line Note to such Bank.
2.03 Procedure for Committed Borrowing. (a) Each Committed Borrowing shall
be made upon the Company's irrevocable written notice (or telephonic notice
followed promptly by facsimile transmission) delivered to the Agent in the form
of a Notice of Borrowing (which notice must be received by the Agent prior to
(i) 10:00 a.m. (Chicago time) three Business Days prior to the requested
Borrowing Date, in the case of Offshore Rate Committed Loans, and (ii) 9:00 a.m.
(Chicago time) on the requested Borrowing Date, in the case of Base Rate
Committed Loans), signed by a Responsible Officer and specifying:
(A) the amount of the Committed Borrowing, which shall be
(i) in an aggregate minimum amount of $5,000,000 or any multiple
of $1,000,000 in
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excess thereof for Base Rate Committed Loans and (ii) in an aggregate
amount of $10,000,000 or in multiples of $1,000,000 in excess thereof
for Offshore Rate Committed Loans;
(B) the requested Borrowing Date, which shall be a Business
Day;
(C) the Type of Loans comprising the Committed Borrowing;
and
(D) the duration of the Interest Period applicable to such
Committed Loans included in such notice. If the Notice of
Committed Borrowing fails to specify the duration of the Interest
Period for any Committed Borrowing comprised of Offshore Rate
Committed Loans, such Interest Period shall be three months.
(b) The Agent will promptly notify each Bank of its receipt of any
Notice of Borrowing and of the amount of such Bank's Pro Rata Share of that
Committed Borrowing.
(c) Each Bank will make the amount of its Pro Rata Share of each
Committed Borrowing available to the Agent for the account of the Company at the
Agent's Payment Office by 1:00 p.m. (Chicago time) on the Borrowing Date
requested by the Company in funds immediately available to the Agent. The
proceeds of all such Committed Loans will then be made available to the Company
by the Agent at such office by wire transfer of such proceeds to such account as
the Company may designate in writing in like funds as received by the Agent.
(d) After giving effect to any Committed Borrowing, unless the Agent
shall otherwise consent, there may not be more than twenty (20) different
Interest Periods in effect in respect of all Committed Loans and Bid Loans and
all "Committed Loans" and "Bid Loans" (as such terms are defined in the 364-Day
Credit Agreement) together then outstanding.
2.04 Conversion and Continuation Elections for Committed Borrowings. (a)
The Company may, upon irrevocable written notice to the Agent in accordance with
subsection 2.04(b):
(i) elect, as of any Business Day, in the case of Base Rate
Committed Loans, or as of the last day of the applicable Interest
Period, in the case of Offshore Rate Committed Loans, to convert any
such Committed Loans (or any part thereof in an amount not less than
$5,000,000, or that is in an integral multiple of $1,000,000 in excess
thereof) into Committed Loans of any other Type; or
(ii) elect, as of the last day of the applicable Interest Period,
to continue any Committed Loans having Interest Periods expiring on
such day (or any part thereof in an amount not less than $5,000,000,
or that is in an integral multiple of $1,000,000 in excess thereof);
provided, that if at any time the aggregate amount of Offshore Rate Committed
Loans in respect of any Committed Borrowing is reduced, by payment, prepayment,
or conversion of part thereof
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to be less than $5,000,000, such Offshore Rate Committed Loans may, upon written
notice by the Company delivered to the Agent and the Swing Line Bank concurrent
with its notice of prepayment and compliance with Section 2.06, be converted
into Swing Line Loans, or, in the absence of such a conversion, shall
automatically convert into Base Rate Committed Loans, and on and after such date
the right of the Company to continue such Committed Loans as, and convert such
Committed Loans into, Offshore Rate Committed Loans shall terminate.
(b) The Company shall deliver a written Notice of
Conversion/Continuation (which notice must be received by the Agent not later
than (i) 12:00 noon (Chicago time) three Business Days in advance of the
Conversion/Continuation Date, if the Committed Loans are to be converted into or
continued as Offshore Rate Committed Loans and (ii) one Business Day in advance
of the Conversion/Continuation Date, if the Loans are to be converted into Base
Rate Committed Loans) signed by a Responsible Officer and specifying:
(A) the proposed Conversion/Continuation Date;
(B) the aggregate amount of Committed Loans to be converted
or continued;
(C) the Type of Committed Loans resulting from the proposed
conversion or continuation; and
(D) in the case of conversions into Offshore Rate Committed
Loans, the duration of the requested Interest Period.
(c) Subject to the following sentence, if by 12:00 noon (Chicago time)
on the third Business Day prior to the expiration of any Interest Period
applicable to Offshore Rate Committed Loans, the Company has failed to select a
new Interest Period to be applicable to such Offshore Rate Committed Loans, or
if any Default or Event of Default then exists, the Company shall be deemed to
have elected to convert such Offshore Rate Committed Loans into Base Rate
Committed Loans effective as of the expiration date of such Interest Period.
(d) The Agent will promptly notify each Bank of its receipt of a
Notice of Conversion/Continuation, or, if no timely notice is provided by the
Company, the Agent will promptly notify each Bank of the details of any
automatic conversion. All conversions and continuations shall be made ratably
according to the respective outstanding principal amounts of the Committed Loans
with respect to which the notice was given by each Bank.
(e) Unless the Required Banks otherwise consent, during the existence
of a Default or Event of Default, the Company may not elect to have a Committed
Loan converted into or continued as an Offshore Rate Committed Loan.
(f) After giving effect to any conversion or continuation of Committed
Loans, unless the Agent shall otherwise consent, there may not be more than
twenty (20) different Interest Periods in effect in respect of all Committed
Loans and Bid Loans and all "Committed Loans" and "Bid Loans" (as such terms are
defined in the 364-Day Credit Agreement) together then outstanding.
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2.05 The Swing Line Loans. Subject to the terms and conditions hereof, the
Swing Line Bank agrees to make Swing Line Loans to the Company from time to time
prior to the Termination Date in an aggregate principal amount at any one time
outstanding not to exceed $100,000,000; provided that, after giving effect to
any such Swing Line Loan, the aggregate principal amount of all outstanding
Loans at such time would not exceed the combined Commitments at such time. Prior
to the Termination Date, the Company may use the Swing Line Commitment by
borrowing, prepaying the Swing Line Loans in whole or in part, and reborrowing,
all in accordance with the terms and conditions hereof. Each Swing Line Loan
shall be due and payable with accrued interest upon the earlier of the
Termination Date and the date seven Business Days from the date of advance
thereof. All Swing Line Loans shall bear interest at the Swing Line Rate and
shall not be entitled to be converted into Loans that bear interest at any other
rate.
2.06 Procedure for Swing Line Loans. (a) The Company may borrow under the
Swing Line Commitment on any Business Day until the Termination Date; provided
that the Company shall give the Swing Line Bank irrevocable written notice (or
telephonic notice followed promptly by facsimile transmission) signed by a
Responsible Officer (which notice must be received by the Swing Line Bank prior
to 11:00 a.m. (Chicago time)) with a copy to the Agent specifying the amount of
the requested Swing Line Loan, which shall be in a minimum amount of $1,000,000
or a whole multiple of $500,000 in excess thereof. The proceeds of the Swing
Line Loan will be made available by the Swing Line Bank to the Company in
immediately available funds at the office of the Swing Line Bank by 2:00 p.m.
(Chicago time) on the date of such notice. The Company may at any time and from
time to time, prepay any Swing Line Loan (together with accrued interest
thereon) in whole or in part, without premium or penalty, by notifying the Swing
Line Bank prior to 11:00 a.m. (Chicago time) on any Business Day of the date and
amount of prepayment with a copy to the Agent. If any such notice is given, the
amount specified in such notice shall be due and payable on the date specified
therein. Partial prepayments shall be in an aggregate principal amount of
$1,000,000 or a whole multiple of $500,000 in excess thereof.
(b) If any Swing Line Loan shall remain outstanding at 9:00 a.m.
(Chicago time) on the seventh Business Day following the date of such Swing Line
Loan and if by such time on such seventh Business Day the Agent shall have
received neither (i) a Notice of Borrowing delivered by the Company pursuant to
Section 2.03 requesting that Loans be made pursuant to Section 2.01 on the
immediately succeeding Business Day in an amount at least equal to the principal
amount of such Swing Line Loan nor (ii) any other notice satisfactory to the
Agent indicating the Company's intent to repay such Swing Line Loan on or before
the immediately succeeding Business Day with funds obtained from other sources,
then on such seventh Business Day, the Swing Line Bank shall (and on any
Business Day the Swing Line Bank in its sole discretion may), on behalf of the
Company (which hereby irrevocably directs the Swing Line Bank to act on its
behalf) request the Agent to notify each Bank to make a Base Rate Committed Loan
in an amount equal to such Bank's Pro Rata Share of (A) in the case of such a
request which is required to be made, the amount of the relevant Swing Line Loan
and (B) in the case of such a discretionary request, the aggregate principal
amount of the Swing Line Loans outstanding on the date such notice is given.
Unless any of the events described in subsection 8.01(f) or (g) shall have
occurred with respect to the Company (in which event the procedures of paragraph
(d) of this Section 2.06 shall apply) each Bank shall make the proceeds
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of its Loan available to the Agent for the account of the Swing Line Bank at the
Agent's Payment Office in funds immediately available prior to 11:00 a.m.
(Chicago time) on the Business Day next succeeding the date such notice is
given. The proceeds of such Loans shall be immediately applied to repay the
outstanding Swing Line Loans. Effective on the day such Loans are made, the
portion of the Swing Line Loans so paid shall no longer be outstanding as Swing
Line Loans and shall no longer be due under the Swing Line Note. The Company
shall pay to the Swing Line Bank, promptly following the Swing Line Bank's
demand, the amount of its outstanding Swing Line Loans to the extent amounts
received from the Banks are not sufficient to repay in full such outstanding
Swing Line Loans.
(c) Notwithstanding anything herein to the contrary, the Swing Line
Bank (i) shall not be obligated to make any Swing Line Loan if the conditions
set forth in Article IV (treating Swing Line Loans as Borrowings) have not been
satisfied and (ii) shall not make any requested Swing Line Loan if, prior to
1:00 p.m. (Chicago time) on the date of such requested Swing Line Loan, it has
received a written notice from the Agent or any Bank directing it not to make
further Swing Line Loans because one or more of the conditions specified in
Article IV (treating Swing Line Loans as Borrowings) are not then satisfied.
(d) If prior to the making of a Loan required to be made by subsection
2.06(b) an Event of Default described in subsection 8.01(f) or 8.01(g) shall
have occurred and be continuing with respect to the Company, each Bank will, on
the date such Loan was to have been made pursuant to the notice described in
subsection 2.06(b), purchase an undivided participating interest in the
outstanding Swing Line Loans in an amount equal to its Pro Rata Share of the
aggregate principal amount of Swing Line Loans then outstanding. Each Bank will
immediately transfer to the Agent for the benefit of the Swing Line Bank, in
immediately available funds, the amount of its participation.
(e) Whenever, at any time after a Bank has purchased a participating
interest in a Swing Line Loan, the Swing Line Bank receives any payment on
account thereof, the Swing Line Bank will distribute to the Agent for delivery
to each Bank its participating interest in such amount (appropriately adjusted,
in the case of interest payments, to reflect the period of time during which
such Bank's participating interest was outstanding and funded); provided,
however, that in the event that such payment received by the Swing Line Bank is
required to be returned, such Bank will return to the Agent for delivery to the
Swing Line Bank any portion thereof previously distributed by the Swing Line
Bank to it.
(f) Each Bank's obligation to make the Loans referred to in subsection
2.06(b) and to purchase participating interests pursuant to subsection 2.06(d)
shall be absolute and unconditional and shall not be affected by any
circumstance including, without limitation, (i) any set-off, counterclaim,
recoupment, defense or other right which such Bank or the Company may have
against the Swing Line Bank, the Company or any other Person for any reason
whatsoever, (ii) the occurrence or continuance of a Default or an Event of
Default, (iii) any adverse change in the condition (financial or otherwise) of
the Company, (iv) any breach of this Agreement or any other Loan Document by the
Company, any Subsidiary or any other Bank except for a breach by the Swing Line
Bank of Section 2.06(c), or (v) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing.
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2.07 Bid Borrowings. In addition to Committed Borrowings pursuant to
Section 2.01, each Bank severally agrees that the Company may, as set forth in
Section 2.08, from time to time prior to the Termination Date request the Banks
to submit offers to make Bid Loans to the Company; provided, however, that the
Banks may, but shall have no obligation to, submit such offers and the Company
may, but shall have no obligation to, accept any such offers; and provided,
further, that at no time shall (a) the outstanding aggregate principal amount of
all Bid Loans made by all Banks, plus the outstanding aggregate principal amount
of all Committed Loans made by all Banks, plus the outstanding aggregate
principal amount of all Swing Line Loans made by the Swing Line Bank exceed the
combined Commitments; or (b) the number of Interest Periods for Bid Loans,
Committed Loans, "Bid Loans" (as defined in the 364-Day Credit Agreement) and
"Committed Loans" (as defined in the 364-Day Credit Agreement) then outstanding
exceeds twenty (20).
2.08 Procedure for Bid Borrowings. (a) When the Company wishes to request
the Banks to submit offers to make Bid Loans hereunder, it shall transmit to the
Agent by telephone call followed promptly by facsimile transmission a notice in
substantially the form of Exhibit H (a "Competitive Bid Request") so as to be
received no later than 11:00 a.m. (Chicago time) (x) four Business Days prior to
the date of a proposed Bid Borrowing in the case of an Offshore Rate Auction, or
(y) two Business Days prior to the date of a proposed Bid Borrowing in the case
of an Absolute Rate Auction, specifying:
(i) the date of such Bid Borrowing, which shall be a Business Day;
(ii) the aggregate amount of such Bid Borrowing, which shall be a
minimum amount of $10,000,000 or in multiples of $1,000,000 in excess
thereof;
(iii) whether the Competitive Bids requested are to be for Offshore
Rate Bid Loans or Absolute Rate Bid Loans or both; and
(iv) the duration of the Interest Period applicable thereto, subject
to the provisions of the definition of "Interest Period" herein.
Subject to subsection 2.08(c), the Company may not request Competitive Bids for
more than four Interest Periods in a single Competitive Bid Request and may not
request Competitive Bids more than once in any period of five Business Days.
(b) Upon receipt of a Competitive Bid Request, the Agent will promptly
send to the Banks by facsimile transmission an Invitation for Competitive Bids,
which shall constitute an invitation by the Company to each Bank to submit
Competitive Bids offering to make the Bid Loans to which such Competitive Bid
Request relates in accordance with this Section 2.08.
(c) (i) Each Bank may at its discretion submit a Competitive Bid
containing an offer or offers to make Bid Loans in response to any Invitation
for Competitive Bids. Each Competitive Bid must comply with the requirements of
this subsection 2.08(c) and must be submitted to the Agent by facsimile
transmission at the Agent's office for notices set forth on the signature pages
hereto not later than (1) 8:30 a.m. (Chicago time) three Business Days prior to
the proposed date of Borrowing, in the case of an Offshore Rate Auction or (2)
8:30 a.m. (Chicago time) on the proposed date of Borrowing, in the case of an
Absolute Rate
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Auction; provided that Competitive Bids submitted by the Agent (or any Affiliate
of the Agent) in the capacity of a Bank may be submitted, and may only be
submitted, if the Agent or such Affiliate notifies the Company of the terms of
the offer or offers contained therein not later than (A) 8:15 a.m. (Chicago
time) three Business Days prior to the proposed date of Borrowing, in the case
of an Offshore Rate Auction or (B) 8:15 a.m. (Chicago time) on the proposed date
of Borrowing, in the case of an Absolute Rate Auction.
(ii) Each Competitive Bid shall be in substantially the form of
Exhibit I, specifying therein:
(A) the proposed date of Borrowing;
(B) the principal amount of each Bid Loan for which such
Competitive Bid is being made, which principal amount (x) may be
equal to, greater than or less than the Commitment of the quoting
Bank, (y) must be $10,000,000 or in multiples of $1,000,000 in
excess thereof, and (z) may not exceed the principal amount of
Bid Loans for which Competitive Bids were requested;
(C) in case the Company elects an Offshore Rate Auction, the
margin above or below Offshore Rate (the "Offshore Rate Bid
Margin") offered for each such Bid Loan, expressed in multiples
of 1/1000th of one basis point to be added to or subtracted from
the applicable Offshore Rate and the Interest Period applicable
thereto;
(D) in case the Company elects an Absolute Rate Auction, the
rate of interest per annum expressed in multiples of 1/1000th of
one basis point (the "Absolute Rate") offered for each such Bid
Loan; and
(E) the identity of the quoting Bank.
A Competitive Bid may contain up to three separate offers by the quoting Bank
with respect to each Interest Period specified in the related Invitation for
Competitive Bids.
(iii) Any Competitive Bid shall be disregarded if it:
(A) is not substantially in conformity with Exhibit I or
does not specify all of the information required by subsection
(c)(ii) of this Section;
(B) contains qualifying, conditional or similar language;
(C) proposes terms other than or in addition to those set
forth in the applicable Invitation for Competitive Bids; or
(D) arrives after the time set forth in subsection (c)(i) of
this Section.
(d) Promptly on receipt and not later than 9:00 a.m. (Chicago time)
three Business Days prior to the proposed date of Borrowing in the case of an
Offshore Rate Auction, or 9:00 a.m. (Chicago time) on the proposed date of
Borrowing, in the case of an Absolute Rate
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Auction, the Agent will notify the Company of the terms (i) of any Competitive
Bid submitted by a Bank that is in accordance with subsection 2.08(c), and (ii)
of any Competitive Bid that amends, modifies or is otherwise inconsistent with a
previous Competitive Bid submitted by such Bank with respect to the same
Competitive Bid Request. Any such subsequent Competitive Bid shall be
disregarded by the Agent unless such subsequent Competitive Bid is submitted
solely to correct a manifest error in such former Competitive Bid and only if
received within the times set forth in subsection 2.08(c). The Agent's notice to
the Company shall specify (1) the aggregate principal amount of Bid Loans for
which offers have been received for each Interest Period specified in the
related Competitive Bid Request; and (2) the respective principal amounts and
Offshore Rate Bid Margins or Absolute Rates, as the case may be, so offered.
Subject only to the provisions of Sections 3.02, 3.05 and 4.02 hereof and the
provisions of this subsection 2.08(d), any Competitive Bid shall be irrevocable
except with the written consent of the Agent given on the written instructions
of the Company.
(e) Not later than 9:30 a.m. (Chicago time) three Business Days prior
to the proposed date of Borrowing, in the case of an Offshore Rate Auction, or
9:30 a.m. (Chicago time) on the proposed date of Borrowing, in the case of an
Absolute Rate Auction, the Company shall notify the Agent of its acceptance or
non-acceptance of the offers so notified to it pursuant to subsection 2.08(d).
The Company shall be under no obligation to accept any offer and may choose to
reject all offers. In the case of acceptance, such notice shall specify the
aggregate principal amount of offers for each Interest Period that is accepted.
The Company may accept any Competitive Bid in whole or in part; provided that:
(i) the aggregate principal amount of each Bid Borrowing may not
exceed the applicable amount set forth in the related Competitive Bid
Request;
(ii) the principal amount of each Bid Borrowing must be $10,000,000 or
in any multiple of $1,000,000 in excess thereof;
(iii) acceptance of offers may only be made on the basis of ascending
Offshore Rate Bid Margins or Absolute Rates within each Interest Period, as
the case may be; and
(iv) the Company may not accept any offer that is described in
subsection 2.08(c)(iii) or that otherwise fails to comply with the
requirements of this Agreement.
(f) If offers are made by two or more Banks with the same Offshore
Rate Bid Margins or Absolute Rates, as the case may be, for a greater aggregate
principal amount than the amount in respect of which such offers are accepted
for the related Interest Period, the principal amount of Bid Loans in respect of
which such offers are accepted shall be allocated by the Agent among such Banks
as nearly as possible (in such multiples, not less than $1,000,000, as the Agent
may deem appropriate) in proportion to the aggregate principal amounts of such
offers. Determination by the Agent of the amounts of Bid Loans to be allocated
among such Banks shall be conclusive in the absence of demonstrable error.
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(g) (i) The Agent will promptly notify each Bank having submitted a
Competitive Bid if its offer has been accepted and, if its offer has been
accepted, of the amount of the Bid Loan or Bid Loans to be made by it on the
date of the Bid Borrowing.
(ii) If, on or prior to the proposed date of Borrowing, the
Commitments have not been terminated and if, on such proposed date of
Borrowing all applicable conditions to funding referenced in Sections 3.02,
3.05 and 4.02 hereof are satisfied, each Bank which has received notice
pursuant to subsection 2.08(g)(i) that its Competitive Bid has been
accepted shall make the amounts of such Bid Loans available to the Agent
for the account of the Company at the Agent's Payment Office, by 2:00 p.m.
(Chicago time) on such date of Bid Borrowing, in funds immediately
available to the Agent for the account of the Company at the Agent's
Payment Office.
(iii) Promptly following each Bid Borrowing, the Agent shall notify
each Bank of the ranges of bids submitted and the highest and lowest Bids
accepted for each Interest Period requested by the Company and the
aggregate amount borrowed pursuant to such Bid Borrowing.
(iv) From time to time, the Company and the Banks shall furnish such
information to the Agent as the Agent may request relating to the making of
Bid Loans, including the amounts, interest rates, dates of borrowings and
maturities thereof, for purposes of the allocation of amounts received from
the Company for payment of all amounts owing hereunder.
(h) Nothing in this Section 2.08 shall be construed as a right of
first offer in favor of the Banks or to otherwise limit the ability of the
Company to request and accept credit facilities from any Person (including any
of the Banks), provided that no Default or Event of Default would otherwise
arise or exist as a result of the Company executing, delivering or performing
under such credit facilities.
2.09 Voluntary Termination or Reduction of Commitments. (a) The Company
may, upon not less than three (3) Business Days' prior notice to the Agent,
terminate the Commitments, or permanently reduce the Commitments by an aggregate
minimum amount of $10,000,000 or any multiple of $1,000,000 in excess thereof
unless, after giving effect thereto and to any prepayments of Loans made on the
effective date thereof, the then-outstanding principal amount of all Loans would
exceed the amount of the combined Commitments then in effect. Once reduced in
accordance with this Section 2.09, the Commitments may not be increased. Any
reduction of the Commitments shall be applied to each Bank according to its Pro
Rata Share. All facility fees relating to the reduced Commitments which accrued
to, but not including the effective date of any reduction or termination of
Commitments, shall be paid on the effective date of such reduction or
termination.
(b) At no time shall the Swing Line Commitment exceed the combined
Commitments, and any reduction of the combined Commitments which reduces the
combined Commitments below the then-current amount of the Swing Line Commitment
shall result in an automatic corresponding reduction of the Swing Line
Commitment to the amount of the combined Commitments, as so reduced, without any
action on the part of the Swing Line Bank.
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At no time shall the Swing Line Commitment exceed the Commitment of the Swing
Line Bank, and any reduction of the combined Commitments which reduces the
Commitment of the Swing Line Bank below the then-current amount of the Swing
Line Commitment shall result in an automatic corresponding reduction of the
Swing Line Commitment to the amount of the Commitment of the Swing Line Bank, as
so reduced, without any action on the part of the Swing Line Bank.
2.10 Optional Prepayments. (a) Subject to Section 3.04, the Company may, at
any time or from time to time, upon not less than three (3) Business Days'
irrevocable notice to the Agent, in respect of Offshore Rate Committed Loans,
and in respect of Base Rate Committed Loans, by not later than 11:00 a.m.
(Chicago time) on the prepayment date, ratably prepay Committed Loans in whole
or in part, in minimum amounts of $3,000,000 or any multiple of $1,000,000 in
excess thereof. Such notice of prepayment shall specify the date and amount of
such prepayment and the Type(s) of Committed Loans to be prepaid. The Agent will
promptly notify each Bank of its receipt of any such notice, and of such Bank's
Pro Rata Share of such prepayment. If such notice is given by the Company, the
Company shall make such prepayment and the payment amount specified in such
notice shall be due and payable on the date specified therein, together, in the
case of Offshore Rate Loans, with accrued interest to each such date on the
amount prepaid and any amounts required pursuant to Section 3.04.
(b) Bid Loans may not be voluntarily prepaid other than with the
consent of the applicable Bid Loan Lender.
2.11 Repayment.
(a) Committed Loans. The Company shall repay to the Banks on the
Termination Date the aggregate principal amount of Committed Loans outstanding
on such date.
(b) Bid Loans. The Company shall repay each Bid Loan on the last day
of the relevant Interest Period for such Bid Loan.
(c) Swing Line Loans. Swing Line Loans shall be repaid in accordance
with Section 2.05.
2.12 Interest. (a) Each Committed Loan shall bear interest on the
outstanding principal amount thereof from the applicable Borrowing Date at a
rate per annum equal to the Offshore Rate plus the Applicable Offshore Rate
Margin or the Base Rate, as the case may be (and subject to the Company's right
to convert to other Types of Loans under Section 2.04). Each Bid Loan shall bear
interest on the outstanding principal amount thereof from the relevant Borrowing
Date at a rate per annum equal to the Offshore Rate plus the Offshore Rate Bid
Margin, or at the Absolute Rate, as the case may be.
(b) Interest on each Loan shall be paid in arrears on each Interest
Payment Date. Interest shall also be paid on the date of any prepayment of
Offshore Rate Committed Loans pursuant to Section 2.10 for the portion of the
Committed Loans so prepaid and upon payment (including prepayment) in full
thereof and, during the existence of any Event of Default, interest shall be
paid on demand of the Agent at the request or with the consent of the Required
Banks.
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(c) Notwithstanding Section 2.04 or subsection (a) of this Section
2.12, upon the occurrence and during the continuance of an Event of Default
under Section 8.01(a) hereof, the Company agrees to pay interest on such unpaid
principal or other amount, from the date such amount becomes due until the date
such amount is paid in full, and after as well as before any entry of judgment
thereon to the extent permitted by law, payable on demand, at a fluctuating rate
per annum equal to the Base Rate plus 2.0% (the "Default Rate"); provided,
however, that the Company agrees to pay interest on the principal amount of all
outstanding Obligations at the Default Rate on any date on which an Event of
Default continues under Section 8.01(c) with respect to the Company's failure to
perform or observe any term, covenant or agreement contained in Section 7.08 or
7.09 hereof as well as under Section 8.01(a).
(d) Anything herein to the contrary notwithstanding, the obligations
of the Company to any Bank hereunder shall be subject to the limitation that
payments of interest shall not be required for any period for which interest is
computed hereunder to the extent (but only to the extent) that contracting for
or receiving such payment by such Bank would be contrary to the provisions of
any law applicable to such Bank limiting the highest rate of interest that may
be lawfully contracted for, charged or received by such Bank, and in such event
the Company shall pay such Bank interest at the highest rate permitted by
applicable law.
2.13 Fees. (a) Agency Fees. The Company shall pay such fees to BofA, the
Agent, and the Arranger, as are required by the letter agreement ("Fee Letter")
among the Company, the Arranger and the Agent dated July 21, 1998.
(b) Facility Fees. The Company shall pay to the Agent for the account
of each Bank a facility fee on the amount of such Bank's Commitment (regardless
of usage) in an amount equal to the Applicable Facility Fee Rate times such
Commitment amount, as calculated by the Agent. Such facility fee shall accrue
from the Closing Date to the Termination Date and shall be due and payable
quarterly in arrears on the last Business Day of each calendar quarter
commencing on September 30, 1998 through the Termination Date, with the final
payment to be made on the Termination Date. The facility fees provided in this
subsection shall accrue at all times after the above-mentioned commencement
date, including at any time during which one or more conditions in Article IV
are not met.
(c) Utilization Fees. The Company shall pay to the Agent for the
account of each Bank a utilization fee for each day Utilization is greater than
50%, payable in arrears on the last Business Day of each calendar quarter based
on the Utilization for each day during such quarter as calculated by the Agent.
The utilization fee for any day shall be an amount equal to 0.05% per annum
times the actual outstanding principal balance of such Bank's Committed Loans on
such day. For the purposes hereof, "Utilization" means, for any day, a
percentage equal to the actual aggregate principal amount of Loans under this
Agreement and under the 364-Day Credit Agreement (including Bid Loans and Swing
Line Loans for the purposes of determining if Utilization is greater than 50%
for a particular day, but excluding Bid Loans and Swing Line Loans for the
purposes of determining the amount of any utilization fee to be paid)
outstanding during each day, divided by the combined Commitments under this
Agreement and under the 364-Day Credit Agreement as of the end of such day.
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(d) Bid Auction Fee. The Company shall pay to the Agent for its own
account a bid auction fee of $2,000 upon each submission to the Agent of a
Competitive Bid Request.
2.14 Computation of Fees and Interest. (a) All computations of interest for
Base Rate Committed Loans when the Base Rate is determined by BofA's "reference
rate" shall be made on the basis of a year of 365 or 366 days, as the case may
be, and actual days elapsed. All other computations of fees and interest shall
be made on the basis of a 360-day year and actual days elapsed (which results in
more interest being paid than if computed on the basis of a 365-day year).
Interest and fees shall accrue during each period during which interest or such
fees are computed from the first day thereof to the last day thereof.
(b) Each determination of an interest rate by the Agent shall be
conclusive and binding on the Company and the Banks in the absence of
demonstrable error. The Agent will, at the request of the Company or any Bank,
deliver to the Company or the Bank, as the case may be, a statement showing the
quotations used by the Agent in determining any interest rate and the resulting
interest rate.
2.15 Payments by the Company. (a) All payments to be made by the Company
shall be made without set-off, recoupment or counterclaim. Except as otherwise
expressly provided herein, all payments by the Company shall be made to the
Agent for the account of the Banks at the Agent's Payment Office, and shall be
made in dollars and in immediately available funds, no later than 2:00 p.m.
(Chicago time) on the date specified herein. The Agent will promptly distribute
to each Bank its Pro Rata Share (or other applicable share as expressly provided
herein) of such payment in like funds as received. Any payment received by the
Agent later than 2:00 p.m. (Chicago time) shall be deemed to have been received
on the following Business Day and any applicable interest or fee shall continue
to accrue.
(b) Subject to the provisions set forth in the definition of "Interest
Period" herein, whenever any payment is due on a day other than a Business Day,
such payment shall be made on the following Business Day, and such extension of
time shall in such case be included in the computation of interest or fees, as
the case may be.
(c) Unless the Agent receives notice from the Company prior to the
date on which any payment is due to the Banks that the Company will not make
such payment in full as and when required, the Agent may assume that the Company
has made such payment in full to the Agent on such date in immediately available
funds and the Agent may (but shall not be so required), in reliance upon such
assumption, distribute to each Bank on such due date an amount equal to the
amount then due such Bank. If and to the extent the Company has not made such
payment in full to the Agent, each Bank shall repay to the Agent on demand such
amount distributed to such Bank, together with interest thereon at the Federal
Funds Rate for each day from the date such amount is distributed to such Bank
until the date repaid.
2.16 Payments by the Banks to the Agent. (a) Unless the Agent receives
notice from a Bank on or prior to the Closing Date or, with respect to any
Committed Borrowing after the Closing Date, at least one Business Day prior to
the date of such Committed Borrowing, that such Bank will not make available as
and when required hereunder to the Agent for the account
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of the Company the amount of that Bank's Pro Rata Share of the Committed
Borrowing, the Agent may assume that each Bank has made such amount available to
the Agent in immediately available funds on the Borrowing Date and the Agent may
(but shall not be so required), in reliance upon such assumption, make available
to the Company on such date a corresponding amount. If and to the extent any
Bank shall not have made its full amount available to the Agent in immediately
available funds and the Agent in such circumstances has made available to the
Company such amount, that Bank shall on the Business Day following such
Borrowing Date make such amount available to the Agent, together with interest
at the Federal Funds Rate for each day during such period. A notice of the Agent
submitted to any Bank with respect to amounts owing under this subsection (a)
shall be conclusive, absent demonstrable error. If such amount is so made
available, such payment to the Agent shall constitute such Bank's Loan on the
date of Borrowing for all purposes of this Agreement. If such amount is not made
available to the Agent on the Business Day following the Borrowing Date, the
Agent will notify the Company of such failure to fund and, upon demand by the
Agent, the Company shall pay such amount to the Agent for the Agent's account,
together with interest thereon for each day elapsed since the date of such
Committed Borrowing, at a rate per annum equal to the interest rate applicable
at the time to the Committed Loans comprising such Committed Borrowing.
(b) The failure of any Bank to make any Committed Loan on any
Borrowing Date shall not relieve any other Bank of any obligation hereunder to
make a Committed Loan on such Borrowing Date, but no Bank shall be responsible
for the failure of any other Bank to make the Committed Loan to be made by such
other Bank on any Borrowing Date.
2.17 Sharing of Payments, Etc. If, other than as expressly provided
elsewhere herein, any Bank shall obtain on account of the Committed Loans made
by it any payment (whether voluntary, involuntary, through the exercise of any
right of set-off, or otherwise) in excess of its ratable share (or other share
contemplated hereunder), such Bank shall immediately (a) notify the Agent of
such fact, and (b) purchase from the other Banks such participations in the
Committed Loans made by them as shall be necessary to cause such purchasing Bank
to share the excess payment pro rata with each of them; provided, however, that
if all or any portion of such excess payment is thereafter recovered from the
purchasing Bank, such purchase shall to that extent be rescinded and each other
Bank shall repay to the purchasing Bank the purchase price paid therefor,
together with an amount equal to such paying Bank's ratable share (according to
the proportion of (i) the amount of such paying Bank's required repayment to
(ii) the total amount so recovered from the purchasing Bank) of any interest or
other amount paid or payable by the purchasing Bank in respect of the total
amount so recovered. The Company agrees that any Bank so purchasing a
participation from another Bank may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-off, but subject
to Section 10.10) with respect to such participation as fully as if such Bank
were the direct creditor of the Company in the amount of such participation. The
Agent will keep records (which shall be conclusive and binding in the absence of
demonstrable error) of participations purchased under this Section 2.17 and will
in each case notify the Banks following any such purchases or repayments.
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ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes. (a) Any and all payments by the Company to any Bank or the
Agent under this Agreement and any other Loan Document shall be made free and
clear of, and without deduction or withholding for, any Taxes. In addition, the
Company shall pay all Other Taxes.
(b) If the Company shall be required by law to deduct or withhold any
Taxes, Other Taxes or Further Taxes from or in respect of any sum payable
hereunder to any Bank or the Agent, then:
(i) the sum payable shall be increased as necessary so that,
after making all required deductions and withholdings (including
deductions and withholdings applicable to additional sums payable
under this Section 3.01), such Bank or the Agent, as the case may be,
receives and retains an amount equal to the sum it would have received
and retained had no such deductions or withholdings been made;
(ii) the Company shall make such deductions and withholdings;
(iii) the Company shall pay the full amount deducted or withheld
to the relevant taxing authority or other authority in accordance with
applicable law; and
(iv) the Company shall also pay to each Bank or the Agent, at the
time interest is paid, Further Taxes in the amount that the respective
Bank or the Agent specifies as necessary to preserve the after-tax
yield the Bank or the Agent would have received if such Taxes, Other
Taxes or Further Taxes had not been imposed.
(c) The Company agrees to indemnify and hold harmless each Bank and
the Agent for the full amount of Taxes, Other Taxes, and Further Taxes in the
amount that the respective Bank or the Agent specifies as necessary to preserve
the after-tax yield the Bank or the Agent would have received if such Taxes,
Other Taxes or Further Taxes had not been imposed, and any liability (including
penalties, interest, additions to tax and expenses) arising therefrom or with
respect thereto, whether or not such Taxes, Other Taxes or Further Taxes were
correctly or legally asserted. Payment under this indemnification shall be made
within 30 days after the date the Bank or the Agent makes written demand
therefor. If any Bank receives a refund in respect of any Taxes, Other Taxes or
Further Taxes as to which it has been indemnified by the Company or with respect
to which the Company (or any Person on behalf of the Company) has paid
additional amounts pursuant to this Section 3.01, it shall promptly repay such
refund to the Company (but only to the extent of indemnity payments made, or
additional amounts paid, by the Company (or such Person acting on behalf of the
Company) under this Section 3.01 with respect to the Taxes, Other Taxes or
Further Taxes giving rise to such refund), net of all out-of-pocket expenses of
such Bank or the Agent, as the case may be; provided, that the Company, upon the
request of such Bank 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 Bank or
the Agent in the event such Bank or the Agent is required to pay or to return
such refund to the relevant taxing authority or other
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Governmental Authority. Nothing contained herein shall require any Bank to
disclose its tax records to the Company except for such tax records as relate to
Taxes, Other Taxes and Further Taxes as to which it has been indemnified by the
Company or with respect to which the Company (or any Person on behalf of the
Company) has paid additional amounts pursuant to this Section 3.01.
(d) Within 30 days after the date of any payment by the Company of any
Taxes, Other Taxes or Further Taxes that relate to the Agent or any Bank, the
Company shall furnish to each affected Bank or the Agent, as applicable, the
original or a certified copy of a receipt evidencing payment thereof, or other
evidence of payment satisfactory to such Bank or the Agent.
(e) If the Company is required to pay any amount to any Bank pursuant
to subsection (b) or (c) of this Section 3.01, then such Bank shall use
reasonable efforts (consistent with legal and regulatory restrictions) to change
the jurisdiction of its Lending Office so as to eliminate any such additional
payment by the Company which may thereafter accrue, if such change, in the sole
judgment of such Bank, is not otherwise disadvantageous to such Bank.
3.02 Illegality. (a) If any Bank determines that the introduction of any
Requirement of Law, or any change in any Requirement of Law, or in the
interpretation or administration of any Requirement of Law, has made it
unlawful, or that any central bank or other Governmental Authority has asserted
that it is unlawful, for any Bank or its applicable Lending Office to make
Offshore Rate Loans, then, on notice thereof by the Bank to the Company through
the Agent, any obligation of that Bank to make Offshore Rate Loans (including in
respect of any Offshore Rate Bid Loan as to which the Company has accepted such
Bank's Competitive Bid, but as to which the Borrowing Date has not arrived)
shall be suspended until the Bank notifies the Agent and the Company that the
circumstances giving rise to such determination no longer exist.
(b) If a Bank determines that it is unlawful for such Bank to maintain
any Offshore Rate Loan, the Company shall, upon its receipt of notice of such
fact and demand from such Bank (with a copy to the Agent), prepay in full such
Offshore Rate Loans of that Bank then outstanding, together with interest
accrued thereon and amounts required under Section 3.04, either on the last day
of the Interest Period thereof, if the Bank may lawfully continue to maintain
such Offshore Rate Loans to such day, or immediately, if the Bank may not
lawfully continue to maintain such Offshore Rate Loan. If the Company is
required to so prepay any Offshore Rate Loan, then concurrently with such
prepayment, the Company shall borrow from the affected Bank, in the amount of
such prepayment, a Base Rate Committed Loan.
(c) If the obligation of any Bank to make or maintain Offshore Rate
Committed Loans has been so terminated or suspended, the Company may elect, by
giving notice to the Bank through the Agent, that all Loans which would
otherwise be made by the Bank as Offshore Rate Committed Loans shall be instead
Base Rate Committed Loans.
(d) Before giving any notice to the Agent under this Section 3.02, the
affected Bank shall designate a different Lending Office with respect to its
Offshore Rate Loans if such designation will avoid the need for giving such
notice or making such demand and will not, in the judgment of the Bank, be
illegal or otherwise disadvantageous to the Bank.
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3.03 Increased Costs and Reduction of Return. (a) If any Bank determines
that, due to either (i) the introduction of or any change in or in the
interpretation of any law or regulation or (ii) the compliance by that Bank with
any guideline or request from any central bank or other Governmental Authority
(whether or not having the force of law), there shall be any increase in the
cost to such Bank of agreeing to make or making, funding or maintaining any
Offshore Rate Committed Loans, then the Company shall be liable for, and shall
from time to time, upon demand (with a copy of such demand to be sent to the
Agent), pay to the Agent for the account of such Bank, additional amounts as are
sufficient to compensate such Bank for such increased costs.
(b) If any Bank shall have determined that (i) the introduction of any
Capital Adequacy Regulation, (ii) any change in any Capital Adequacy Regulation,
(iii) any change in the interpretation or administration of any Capital Adequacy
Regulation by any central bank or other Governmental Authority charged with the
interpretation or administration thereof, or (iv) compliance by the Bank (or its
Lending Office) or any corporation controlling the Bank with any Capital
Adequacy Regulation, affects or would affect the amount of capital required or
expected to be maintained by the Bank or any corporation controlling the Bank
and (taking into consideration such Bank's or such corporation's policies with
respect to capital adequacy and such Bank's desired return on capital)
determines that the amount of such capital is increased as a consequence of its
Commitment, loans, credits or obligations under this Agreement, then, thirty
(30) days after demand by such Bank to the Company through the Agent, the
Company shall pay to the Bank, from time to time as specified by the Bank,
additional amounts sufficient to compensate the Bank for such increase;
provided, however, that if any such Bank fails to deliver such demand within 120
days after the date on which an officer of such Bank has actual knowledge of its
right to compensation under this Section 3.03(b), then such Bank shall only be
entitled to additional compensation for any such increases in capital required
from and after the date that is 120 days prior to the date such Bank delivers
such demand.
3.04 Funding Losses. The Company shall reimburse each Bank and hold each
Bank harmless from any loss or expense which the Bank may sustain or incur as a
consequence of:
(a) the failure of the Company to make on a timely basis any payment
of principal of any Offshore Rate Loan;
(b) the failure of the Company to borrow, continue or convert a
Committed Loan after the Company has given (or is deemed to have given) a Notice
of Borrowing or a Notice of Conversion/Continuation;
(c) the failure of the Company to make any prepayment of any Committed
Loan in accordance with any notice delivered under Section 2.10;
(d) the failure of the Company to borrow any Bid Loan as to which a
notice of acceptance has been given pursuant to Section 2.08(g)(i);
(e) the prepayment (including pursuant to Section 2.10) or other
payment (including after acceleration thereof) of an Offshore Rate Loan or
Absolute Rate Bid Loan on a day that is not the last day of the relevant
Interest Period; or
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(f) the automatic conversion under Section 2.04 of any Offshore Rate
Committed Loan to a Base Rate Committed Loan on a day that is not the last day
of the relevant Interest Period;
including any such loss or expense arising from the liquidation or reemployment
of funds obtained by it to maintain its Offshore Rate Loans or from fees payable
to terminate the deposits from which such funds were obtained, but excluding any
administrative fee or other amount chargeable by such Bank for the calculation
of such loss. For purposes of calculating amounts payable by the Company to the
Banks under this Section 3.04 and under subsection 3.03(a), each Offshore Rate
Loan made by a Bank (and each related reserve, special deposit or similar
requirement) shall be conclusively deemed to have been funded at the IBOR used
in determining the Offshore Rate for such Offshore Rate Loan by a matching
deposit or other borrowing in the interbank eurodollar market for a comparable
amount and for a comparable period, whether or not such Offshore Rate Loan is in
fact so funded.
3.05 Inability to Determine Rates. If the Agent determines that for any
reason adequate and reasonable means do not exist for determining the Offshore
Rate for any requested Interest Period with respect to a proposed Offshore Rate
Loan, or that the Offshore Rate applicable pursuant to subsection 2.12 for any
requested Interest Period with respect to a proposed Offshore Rate Loan does not
adequately and fairly reflect the cost to the Banks of funding such Loan, the
Agent will promptly so notify the Company and each Bank. Thereafter, the
obligation of the Banks to make or maintain Offshore Rate Loans, as the case may
be, hereunder shall be suspended until the Agent revokes such notice in writing.
Upon receipt of such notice, the Company may revoke any Notice of Borrowing or
Notice of Conversion/Continuation then submitted by it. If the Company does not
revoke such Notice, the Banks shall make, convert or continue the Committed
Loans, as proposed by the Company, in the amount specified in the applicable
notice submitted by the Company, but such Committed Loans shall be made,
converted or continued as Base Rate Committed Loans instead of Offshore Rate
Loans. Notwithstanding the foregoing, the Agent and each Bank shall take any
reasonable actions available to them (including designation of different Lending
Offices), consistent with legal and regulatory restrictions, that will avoid the
need to take the steps described in this Section 3.05, which will not, in the
reasonable judgment of Agent or such Bank, be materially disadvantageous to the
Agent, such Bank or the Company, as compared to the steps described in this
Section 3.05.
3.06 Certificates of Banks. Any Bank claiming reimbursement or compensation
under this Article III shall deliver to the Company (with a copy to the Agent) a
certificate setting forth in reasonable detail the amount payable to the Bank
hereunder and such certificate shall be conclusive and binding on the Company in
the absence of demonstrable error. Such certificate shall set forth in
reasonable detail (in the form of Exhibit J hereto with respect to Offshore Rate
Loans and in a form reasonably determined by the applicable Bank with respect to
Base Rate Committed Loans) the methodology used in determining the amount
payable to the Bank.
3.07 Substitution of Banks. If a Bank becomes a Defaulted Bank or the
Company receives notice from any Bank of a claim for compensation under Section
3.01, 3.02 or 3.03 (each such Bank being referred to as an "Affected Bank"), the
Company may: (i) request the Affected Bank to use its best efforts to obtain a
replacement bank or financial institution
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satisfactory to the Company to acquire and assume all or a ratable part of all
of such Affected Bank's Loans and Commitment (a "Replacement Bank"); (ii)
request one or more of the other Banks to acquire and assume all or part of such
Affected Bank's Loans and Commitment; or (iii) designate a Replacement Bank. Any
such designation of a Replacement Bank under clause (i) or (iii) shall be
subject to the prior written consent of the Agent (which consent shall not be
unreasonably withheld).
3.08 Survival. The agreements and obligations of the Company in this
Article III shall survive the termination of this Agreement and the payment of
all other Obligations for a period of one year.
ARTICLE IV
CONDITIONS PRECEDENT
4.01 Conditions of Loan Availability. The obligation of each Bank to make
its initial Committed Loan, Bid Loan or Swing Line Loan hereunder (including in
respect of any Offshore Rate Bid Loan as to which the Company has accepted such
Bank's Competitive Bid, but as to which the Borrowing Date has not arrived) is
subject to the condition that the Agent shall have received on or before the
Closing Date all of the following, in form and substance satisfactory to the
Agent and each Bank, and in sufficient copies for each Bank:
(a) Credit Agreement and Notes. This Agreement executed by each party
thereto and any Note requested by any Bank pursuant to Section 2.02(b) executed
by the Company;
(b) Resolutions; Incumbency.
(i) Copies of the resolutions of the board of directors of the
Company authorizing the transactions contemplated hereby, certified as of
the Closing Date by the Secretary or an Assistant Secretary of the Company;
and
(ii) A certificate of the Secretary or Assistant Secretary of the
Company certifying the names and true signatures of the officers of the
Company authorized to execute, deliver and perform, as applicable, this
Agreement, and all other Loan Documents to be delivered by it hereunder;
(c) Organization Documents; Good Standing. Each of the following
documents:
(i) the articles or certificate of incorporation of the Company
as in effect on the Closing Date, certified by the Secretary of State of
its state of incorporation;
(ii) the bylaws of the Company as in effect on the Closing Date,
certified by the Secretary or Assistant Secretary of the Company as of the
Closing Date;
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(iii) a certificate of existence for the Company from the
Secretary of State (or similar, applicable Governmental Authority) of its
state of incorporation as of a recent date; and
(iv) a compliance certificate for each Insurance Subsidiary which
is a Significant Subsidiary from the Department of its jurisdiction of
domicile as of a recent date.
(d) Legal Opinions. An opinion of counsel to the Company and addressed
to the Agent and the Banks, in form and substance acceptable to the Agent.
(e) Payment of Fees. Evidence of payment by the Company of all accrued
and unpaid fees, costs and expenses related to this Agreement to the extent then
due and payable on the Closing Date, together with Attorney Costs of BofA to the
extent invoiced prior to or on the Closing Date, plus such additional amounts of
reasonable Attorney Costs as shall constitute BofA's reasonable estimate of
Attorney Costs incurred or to be incurred by it through the closing proceedings
(provided that such estimate shall not thereafter preclude final settling of
accounts between the Company and BofA); including any such costs, fees and
expenses arising under or referenced in Sections 2.13 and 10.04;
(f) Certificate. A certificate signed by a Responsible Officer on
behalf of the Company, dated as of the Closing Date, stating that:
(i) the representations and warranties contained in Article V are
true and correct on and as of such date, as though made on and as of such
date;
(ii) no Default or Event of Default exists or would result from
the making of any Loan hereunder; and
(iii) no event or circumstance has occurred since December 31,
1997 that has resulted or could reasonably be expected to result in a
Material Adverse Effect.
(g) Approvals. Evidence of the receipt by the Company of any required
approvals of the transactions contemplated hereby and by the other Loan
Documents from each applicable Governmental Authority;
(h) Year 2000. The Company shall have delivered to the Agent such
information with respect to the Company's efforts to address the year 2000
problem as the Agent may have reasonably requested;
(i) Existing Indebtedness. The Agent shall have received evidence of
repayment of all Indebtedness evidenced by, and termination of all commitments
to lend under:
(i) that certain Credit Agreement, dated as of November 22, 1996,
as amended, among the Company, the financial institutions party thereto
(the "Existing Lenders"), BofA, as Syndication Agent for the Existing
Lenders, First Union National Bank of North Carolina, as Documentation
Agent for the Existing Lenders, and NationsBank, N.A. (South), as
Administrative Agent for the Existing Lenders;
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(ii) that certain Credit Agreement, dated as of March 25, 1998,
between the Company and BofA;
(iii) that certain Term Loan Promissory Note, dated July 13,
1998, executed by the Company in favor of NationsBank, N.A.; and
(iv) that certain Credit Agreement, dated as of April 28, 1998,
as amended, among Green Tree, the financial institutions party thereto and
Xxxxxx Guaranty Trust Company of New York, as Administrative Agent; and
(j) Other Documents. Such other approvals, opinions, documents or
materials as the Agent or any Bank may reasonably request.
4.02 Conditions to All Loans. The obligation of each Bank to make any Loan
to be made by it, and the obligation of any Bank to make any Bid Loan as to
which the Company has accepted the relevant Competitive Bid (including its
initial Loan) is subject to the satisfaction of the following conditions
precedent on the relevant Borrowing Date:
(a) Notice of Borrowing. As to any Committed Loan, the Agent shall
have received a Notice of Borrowing;
(b) Continuation of Representations and Warranties. The
representations and warranties in Article V shall be true and correct on and as
of such Borrowing Date with the same effect as if made on and as of such
Borrowing Date (except to the extent such representations and warranties
expressly refer to an earlier date, in which case they shall be true and correct
as of such earlier date); and
(c) No Existing Default. No Default or Event of Default shall exist or
shall result from such Loan or the related Borrowing.
Each Notice of Borrowing, Competitive Bid Request and request for a Swing Line
Loan submitted by the Company hereunder shall constitute a representation and
warranty by the Company hereunder, as of the date of each such notice and as of
each Borrowing Date, that the conditions in this Section 4.02 are satisfied.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Agent and each Bank that:
5.01 Corporate Existence and Power. The Company and each of its
Subsidiaries:
(a) is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation;
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(b) has the power and authority and all governmental licenses,
authorizations, consents and approvals (i) to own its assets and carry on its
business and (ii) to execute, deliver, and perform its obligations under the
Loan Documents;
(c) is duly qualified as a foreign corporation and is licensed and in
good standing under the laws of each jurisdiction where its ownership, lease or
operation of property or the conduct of its business requires such qualification
or license; and
(d) is in compliance with all Requirements of Law;
except, in each case referred to in clauses (a) and (b)(i) (with respect to
Subsidiaries other than Significant Subsidiaries) clause (c) or clause (d), to
the extent that the failure to do so could not reasonably be expected to have a
Material Adverse Effect.
5.02 Corporate Authorization; No Contravention. The execution, delivery and
performance by the Company of this Agreement and each other Loan Document have
been duly authorized by all necessary corporate action, and do not and will not:
(a) contravene the terms of any of the Company's Organization
Documents;
(b) conflict with or result in any breach or contravention of, or the
creation of any Lien under, any document evidencing any Contractual Obligation
to which the Company is a party or any order, injunction, writ or decree of any
Governmental Authority to which the Company or its property is subject; or
(c) violate any Requirement of Law.
except, in each case referred to in clause (b) or clause (c), to the extent that
the failure to do so could not reasonably be expected to have a Material Adverse
Effect.
5.03 Governmental Authorization. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any
Governmental Authority is necessary or required in connection with the
execution, delivery or performance by, or enforcement against, the Company of
this Agreement or any other Loan Document.
5.04 Binding Effect. This Agreement and the other Loan Documents to which
the Company is a party constitute the legal, valid and binding obligations of
the Company, enforceable against the Company in accordance with their respective
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, or similar laws affecting the enforcement of creditors' rights
generally or by equitable principles relating to enforceability.
5.05 Litigation. Except as set forth on Schedule 5.05 or disclosed in the
Company's public filings with the SEC made prior to September 1, 1998, there are
no actions, suits, proceedings, claims or disputes pending, or to the knowledge
of the Company, threatened or contemplated, at law, in equity, in arbitration or
before any Governmental Authority, against the Company or its Subsidiaries or
any of their respective properties which: (a) purport to affect or pertain to
this Agreement or any other Loan Document, or any of the transactions
contemplated hereby or thereby; or (b) could reasonably be expected to have a
Material Adverse Effect. No
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injunction, writ, temporary restraining order or any order of any nature has
been issued by any court or other Governmental Authority purporting to enjoin or
restrain the execution, delivery or performance of this Agreement or any other
Loan Document, or directing that the transactions provided for herein or therein
not be consummated as herein or therein provided.
5.06 No Default. No Default or Event of Default exists or would result from
the incurring of any Obligations by the Company. As of the Closing Date, neither
the Company nor any Subsidiary is in default under or with respect to any
Contractual Obligation in any respect which, individually or together with all
such defaults, could reasonably be expected to have a Material Adverse Effect,
or that would, if such default had occurred after the Closing Date, create an
Event of Default under subsection 8.01(e).
5.07 ERISA Compliance.
(a) Each Plan is in compliance with the applicable provisions of
ERISA, the Code and other federal or state law except to the extent that such
non-compliance could not reasonably be expected to have a Material Adverse
Effect. Each Plan which is intended to qualify under Section 401(a) of the Code
has either (i) received a favorable determination letter from the IRS and to the
knowledge of the Company, nothing has occurred which would cause the loss of
such qualification or (ii) with respect to the Plans identified on Schedule
5.07, is in the process of requesting a favorable determination letter from the
IRS as to its qualified status, and the Company is not aware of any fact or
issue which would cause the IRS to fail to issue a favorable determination
letter, except where such non-qualification could not reasonably be expected to
have a Material Adverse Effect. The Company and each ERISA Affiliate has made
all required contributions to any Plan subject to Section 412 of the Code, and
no application for a funding waiver or an extension of any amortization period
pursuant to Section 412 of the Code has been made with respect to any Plan,
except where such lack of contribution or application for funding waiver could
not reasonably be expected to have a Material Adverse Effect.
(b) There are no pending or, to the knowledge of the Company,
threatened claims, actions or lawsuits, or action by any Governmental Authority,
with respect to any Plan that could reasonably be expected to have a Material
Adverse Effect. To the knowledge of the Company, there has been no prohibited
transaction or violation of the fiduciary responsibility rules with respect to
any Plan that could reasonably be expected to have a Material Adverse Effect.
(c) Except for occurrences or circumstances which could reasonably be
expected to have a Material Adverse Effect, (i) no ERISA Event has occurred or
is reasonably expected to occur; (ii) no Pension Plan has any Unfunded Pension
Liability; (iii) neither the Company nor any ERISA Affiliate has incurred, or
reasonably expects to incur, any liability under Title IV of ERISA with respect
to any Pension Plan (other than premiums due and not delinquent under Section
4007 of ERISA); (iv) neither the Company nor any ERISA Affiliate has incurred,
or reasonably expects to incur, any liability (and no event has occurred which,
with the giving of notice under Section 4219 of ERISA, would result in such
liability) under Section 4201 or 4243 of ERISA with respect to a Multiemployer
Plan; and (v) neither the Company nor any ERISA Affiliate has engaged in a
transaction that could be subject to Section 4069 or 4212(c) of ERISA.
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5.08 Use of Proceeds; Margin Regulations. The proceeds of the Loans are to
be used solely for the purposes set forth in and permitted by Section 6.10 and
Section 7.06. Neither the Company nor any Subsidiary is engaged principally, or
as one of its important activities, in the business of extending credit for the
purpose of purchasing or carrying Margin Stock. Margin Stock does not constitute
more than 25% of the value of the consolidated assets of the Company and its
Subsidiaries. None of the transactions contemplated by this Agreement
(including, without limitation, the direct or indirect use of the proceeds of
the Loans) will violate or result in a violation of the Securities Act of 1933,
as amended, or the Securities Exchange Act of 1934, as amended, or regulations
issued pursuant thereto, or Regulation T, U or X.
5.09 Title to Properties. The Company and each Subsidiary have good record
and marketable title in fee simple to, or valid leasehold interests in, all real
property necessary or used in the ordinary conduct of their respective
businesses, except for such defects in title or interests as could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. As of the Closing Date, the property of the Company and its
Subsidiaries is subject to no Liens, other than Permitted Liens.
5.10 Taxes. The Company and its Subsidiaries have filed all federal tax,
Income Tax and other material tax returns and reports required to be filed, and
have paid all federal tax, Income Tax and other material taxes, assessments,
fees and other governmental charges levied or imposed upon them or their
properties, income or assets otherwise due and payable, except those which are
being contested in good faith by appropriate proceedings and for which adequate
reserves have been provided in accordance with SAP or GAAP, as applicable. There
is no proposed tax assessment against the Company or any Subsidiary for which a
notice of deficiency or similar notice has been issued and which would, if made,
have a Material Adverse Effect and for which adequate reserves in accordance
with GAAP are not being maintained by the Company or such Subsidiary.
5.11 Financial Condition. Each of (a) the audited consolidated financial
statements of the Company and its Subsidiaries dated December 31, 1997, and the
related consolidated statements of income, shareholders' equity and cash flows
for the Fiscal Year ended on that date, (b) the unaudited consolidated financial
statements of the Company and its Subsidiaries dated June 30, 1998, and the
related consolidated statements of income, shareholders' equity and cash flows
for the period ended on that date, (c) the December 31, 1997 Annual Statement of
each Insurance Subsidiary and (d) the June 30, 1998 Quarterly Statement of each
Insurance Subsidiary:
(i) were prepared in accordance with GAAP or SAP, as applicable,
consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein, subject, in the case of such unaudited
financial statements, to ordinary, good faith year end audit adjustments;
(ii) fairly present the financial condition of the Company and
its Subsidiaries as of the date thereof and results of operations for the
period covered thereby; and
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(iii) show all material indebtedness and other liabilities,
direct or contingent, of the Company and its consolidated Subsidiaries as
of the date thereof, including liabilities for taxes, material commitments
and Contingent Obligations.
5.12 Environmental Matters. (a) All facilities and property (including
underlying groundwater) owned or leased by the Company or any of its
Subsidiaries have been, and continue to be, owned or leased by the Company and
its Subsidiaries in material compliance with all Environmental Laws, except
where failure to so comply could not be reasonably expected to have a Material
Adverse Effect;
(b) there have been no past, and there are no pending or threatened,
Environmental Claims, except where such Environmental Claims could not
reasonably be expected to have a Material Adverse Effect;
(c) there have been no releases of Hazardous Materials at, on or under
any property now or previously owned or leased by the Company or any of its
Subsidiaries that, individually or in the aggregate, have had, or could
reasonably be expected to have, a Material Adverse Effect;
(d) the Company and each of its Subsidiaries have been issued and are
in material compliance with all permits, certificates, approvals, licenses and
other authorizations relating to environmental matters and necessary or
desirable for their businesses except where failure to comply could not be
reasonably expected to have a Material Adverse Effect;
(e) no property now or previously owned or leased by the Company or
any of its Subsidiaries is listed or, to the Company's knowledge, proposed for
listing (with respect to owned property only) on the National Priorities List
pursuant to CERCLA, on the CERCLIS or on any similar state list of sites
requiring investigation or clean-up, except where such listing could not be
reasonably expected to have a Material Adverse Effect;
(f) there are no underground storage tanks, active or abandoned,
including petroleum storage tanks, on or under any property now or previously
owned or leased by the Company or any of its Subsidiaries that, individually or
in the aggregate, could reasonably be expected to have a Material Adverse
Effect;
(g) neither the Company nor any of its Subsidiaries has directly
transported or directly arranged for the transportation of any Hazardous
Material to any location which is listed or, to Company's knowledge, proposed
for listing on the National Priorities List pursuant to CERCLA, on the CERCLIS
or on any similar state list or which is the subject of federal, Governmental
Authority or local enforcement actions or other investigations which could
reasonably be expected to lead to material claims against the Company or any of
its Subsidiaries for any remedial work, damage to natural resources or personal
injury, including claims under CERCLA, except where such claims could not be
reasonably expected to have a Material Adverse Effect;
(h) there are no polychlorinated biphenyls or friable asbestos present
at any property now or previously owned or leased by the Company or any of its
Subsidiaries that,
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individually or in the aggregate, could be reasonably expected to have a
Material Adverse Effect; and
(i) no conditions exist at, on or under any property now or previously
owned or leased by the Company or any of its Subsidiaries which, with the
passage of time, or the giving of notice or both, would give rise to liability
under any Environmental Law, except where such liability could not be reasonably
expected to have a Material Adverse Effect.
5.13 Regulated Entities. Except as disclosed on Schedule 5.13, none of the
Company, any Person controlling the Company, or any Subsidiary, is an
"Investment Company" within the meaning of the Investment Company Act of 1940.
The Company is not subject to regulation under the Public Utility Holding
Company Act of 1935, the Federal Power Act, the Interstate Commerce Act, any
state public utilities code, or any other Federal or state statute or regulation
limiting its ability to incur Indebtedness.
5.14 Subsidiaries. As of the Closing Date, the Company has no Subsidiaries
other than those disclosed in Schedule 5.14 hereto and such Subsidiaries of the
Company with, after the elimination of intercompany accounts, assets which
constitute less than 1% of the Company's consolidated total assets.
5.15 Insurance Licenses. No License of the Company or any Insurance
Subsidiary, 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
the Company'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.
5.16 Material Adverse Effect. Since December 31, 1997, there has been no
Material Adverse Effect.
5.17 Year 2000 Compliance. The Company has conducted a comprehensive review
and assessment of its computer applications with respect to the year 2000
problem (that is, the risk that computer applications may not be able to
properly perform date sensitive functions after December 31, 1999). Based on the
foregoing review, assessment and inquiry, the Company believes the year 2000
problem will not result in a Material Adverse Effect.
5.18 Full Disclosure. None of the representations or warranties made by the
Company in the Loan Documents as of the date such representations and warranties
are made or deemed made, and none of the statements contained in any exhibit,
report, statement or certificate furnished by or on behalf of the Company or any
Subsidiary pursuant to the Loan Documents (including the offering and disclosure
materials delivered by or on behalf of the Company to the Banks prior to the
Closing Date) in either case, taken as a whole, contains any untrue statement of
a material fact or omits any material fact required to be stated therein or
necessary to make the statements made therein, in light of the circumstances
under which they are made, not misleading as of the time when made or delivered.
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ARTICLE VI
AFFIRMATIVE COVENANTS
So long as any Bank shall have any Commitment hereunder, or any Loan or
other Obligation shall remain unpaid or unsatisfied, unless the Required Banks
waive compliance in writing:
6.01 Financial Statements. The Company shall deliver to the Agent and
each Bank:
(a) as soon as available, but not later than 120 days after the
end of each Fiscal Year, copies of the audited consolidated balance sheet of the
Company and its Subsidiaries and the unaudited consolidating balance sheet of
the Company and its Subsidiaries as at the end of such year and the related
consolidated statements of earnings, shareholders' equity and cash flows for
such year, setting forth in the case of the audited consolidated statements in
comparative form the figures for the previous Fiscal Year, and accompanied by
the opinion of PricewaterhouseCoopers or another nationally-recognized
independent public accounting firm ("Independent Auditor"), which report shall
state that such audited consolidated financial statements present fairly the
financial position and result of operations of the Company and its Subsidiaries
for the periods indicated in conformity with GAAP applied on a basis consistent
with prior years, except as stated therein. Such opinion shall not be qualified
or limited because of a restricted or limited examination by the Independent
Auditor of any material portion of the Company's or any Subsidiary's records;
(b) as soon as available, but not later than 60 days after the
end of each of the first three Fiscal Quarters of each Fiscal Year, copies of
the condensed unaudited consolidated and consolidating balance sheet of the
Company and its Subsidiaries as of the end of such quarter and the related
condensed unaudited statements of earnings, shareholders' equity and cash flows
for the period commencing on the first day and ending on the last day of such
quarter, and certified by a Responsible Officer as fairly presenting, in
accordance with GAAP (subject to ordinary, good faith year-end and audit
adjustments), the financial position and the results of operations of the
Company and the Subsidiaries;
(c) As soon as available but not later than 75 days after the
close of each Fiscal Year of each Insurance Subsidiary, copies of the unaudited
Annual Statement of such Insurance Subsidiary, certified by a Responsible
Officer of such Insurance Subsidiary, all such statements to be prepared in
accordance with SAP consistently applied throughout the periods reflected
therein and, if required by the applicable Governmental Authority, audited and
certified by independent certified public accountants of recognized national
standing;
(d) As soon as available but not later than 60 days after the
close of each of the first three (3) Fiscal Quarters of each Fiscal Year of each
Insurance Subsidiary which is a significant Subsidiary (as determined by Agent
in its sole discretion), copies of the Quarterly Statement of each of the
Insurance Subsidiaries, certified by a Responsible Officer of such Insurance
Subsidiary, all such statements to be prepared in accordance with SAP
consistently applied through the period reflected herein;
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(e) Within fifteen days after being delivered to any Insurance
Subsidiary constituting a Significant Subsidiary, any draft or final Triennial
Examination Report issued by the applicable Department or the NAIC that results
in material adjustments to the financial statements referred to in subsection
(a), (b) or (c); and
(f) Within 90 days after the close of each Fiscal Year of each
Insurance Subsidiary, a copy of the "Statement of Actuarial Opinion" and
"Management Discussion and Analysis" for each such Insurance Subsidiary which is
provided to the applicable Department (or equivalent information should such
Department no longer require such a statement) as to the adequacy of loss
reserves of such Insurance Subsidiary, such opinion to be in the format
prescribed by the insurance code of the state of domicile of such Insurance
Subsidiary.
6.02 Certificates; Other Information. The Company shall furnish to the
Agent, with sufficient copies for each Bank:
(a) concurrently with the delivery of the financial statements
referred to in subsections 6.01(a) and (b), a Compliance Certificate executed by
a Responsible Officer;
(b) promptly, copies of all Forms 10-K and 10-Q that the Company
or any Subsidiary may file with the SEC, and promptly upon the Agent's request,
financial statements and reports that the Company sends to its shareholders and
copies of all other financial statements and regular, periodic or special
reports (including Form 8-K) that the Company or any Subsidiary may make to, or
file with, the SEC;
(c) promptly and in any event within three Business Days after
learning thereof, notification of any changes after the date hereof in the
rating given by S&P or DCR in respect of the Company's senior unsecured
Indebtedness; and
(d) promptly, such additional information regarding the business,
financial or corporate affairs of the Company or any Subsidiary as the Agent, at
the request of any Bank, may from time to time reasonably request.
6.03 Notices. The Company shall promptly notify the Agent:
(a) of the occurrence of any Default or Event of Default;
(b) of any matter that has resulted in a Material Adverse Effect,
including (i) any breach or non-performance of, or any default under, a
Contractual Obligation of the Company or any Subsidiary; (ii) any dispute,
litigation, investigation, proceeding or suspension between the Company or any
Subsidiary and any Governmental Authority; or (iii) the commencement of, or any
material development in, any Litigation affecting the Company or any Subsidiary,
including pursuant to any applicable Environmental Laws;
(c) the commencement of, or the occurrence of any development in,
any litigation or proceeding (i) which seeks to enjoin, prohibit, discontinue or
otherwise impacts the validity or enforceability of this Agreement or any of the
other Loan Documents or other transactions contemplated hereby or thereby, or
(ii) which could be reasonably expected to have a Material Adverse Effect.
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(d) of the occurrence of any of the following events affecting
the Company or any ERISA Affiliate (but in no event more than 10 days after such
event) and deliver to the Agent and each Bank a copy of any notice with respect
to such event that is filed with a Governmental Authority and any notice
delivered by a Governmental Authority to the Company or any ERISA Affiliate with
respect to such event:
(i) an ERISA Event; or
(ii) a material increase in the Unfunded Pension Liabilities
of any Pension Plan;
(iii) the adoption of, or the commencement of contributions
to, any Plan subject to Section 412 of the Code by the Company or any
ERISA Affiliate; or
(iv) the adoption of any amendment to a Plan subject to
Section 412 of the Code, if such amendment results in a material
increase in contributions or Unfunded Pension Liability; provided,
however that no such notice will be required under this Section
6.03(d) with respect to the occurrence of any such event if such
occurrence does not result in, and is not reasonably expected to
result in, any liability to the Company of more than $65,000,000 or
any liability to any ERISA Affiliate of more than $20,000,000.
(e) of any material change in accounting policies or financial
reporting practices by the Company or any of its Subsidiaries;
(f) the receipt of any notice from any Governmental Authority of
the expiration without renewal, revocation, suspension or restriction of, or the
institution of any proceedings to revoke, suspend or restrict, any License now
or hereafter held by any Insurance Subsidiary 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;
(g) the receipt of any notice from any Governmental Authority of
the institution of any disciplinary proceedings against or in respect of any
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;
(h) any judicial or administrative order limiting or controlling
the insurance business of any Insurance Subsidiary (and not the insurance
industry generally) which has been issued or adopted and which has had, or which
could reasonably be expected to have, a Material Adverse Effect; or
(i) of any actual or proposed changes in any applicable insurance
code which could reasonably be expected to have a Material Adverse Effect.
Each notice under this Section shall be accompanied by a written
statement by a Responsible Officer setting forth details of the occurrence
referred to therein, and stating what action the Company or any affected
Subsidiary proposes to take with respect thereto and at what
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time. Each notice under subsection 6.03(a) shall describe with particularity any
and all clauses or provisions of this Agreement or other Loan Document that have
been (or reasonably foreseeably will be) breached or violated.
6.04 Preservation of Corporate Existence, Etc. The Company shall, and
shall cause each Significant Subsidiary to (except as permitted by Section
7.03):
(a) preserve and maintain in full force and effect its corporate
existence and good standing under the laws of its state or jurisdiction of
incorporation;
(b) preserve and maintain in full force and effect all
governmental rights, privileges, qualifications, permits, licenses and
franchises necessary in the normal conduct of its business, except where such
failure to preserve and maintain could not reasonably be expected to have a
Material Adverse Effect; and
(c) use reasonable efforts, in the ordinary course of business,
to preserve its business organization and goodwill.
6.05 Insurance. The Company shall maintain, and shall cause each
Significant Subsidiary to maintain, with financially sound and reputable
independent insurers, insurance with respect to its properties and business
against loss or damage of the kinds customarily insured against by Persons
engaged in the same or similar business, of such types and in such amounts as
are customarily carried under similar circumstances by such other Persons.
6.06 Payment of Obligations. The Company shall, and shall cause each
Significant Subsidiary to, pay and discharge as the same shall become due and
payable, all of the following:
(a) all material tax liabilities, assessments and governmental
charges or levies upon it or its material properties or assets, unless the same
are being contested in good faith by appropriate proceedings and adequate
reserves in accordance with GAAP are being maintained by the Company or such
Subsidiary; and
(b) all material indebtedness, as and when due and payable, but
subject to any subordination provisions contained in any instrument or agreement
evidencing such Indebtedness.
6.07 Compliance with Laws. The Company shall comply, and shall cause
each Subsidiary to comply, in all material respects with all Requirements of Law
of any Governmental Authority having jurisdiction over it or its business
(including the Federal Fair Labor Standards Act and all applicable Environmental
Laws), the noncompliance with which could reasonably be expected to have a
Material Adverse Effect, except such as may be contested in good faith or as to
which a bona fide dispute may exist.
6.08 Compliance with ERISA. The Company shall, and shall cause each of
its ERISA Affiliates to: (a) maintain each Plan in compliance in all material
respects with the applicable provisions of ERISA, the Code and other federal or
state law; (b) cause each Plan which is qualified under Section 401(a) of the
Code to maintain such qualification; and (c) make all required contributions to
any Plan subject to Section 412 of the Code, except where such failure
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to maintain as set forth in (a) or (b) or to make contributions as set forth in
(c) could not be reasonably expected to have a Material Adverse Effect.
6.09 Inspection of Property and Books and Records. The Company shall
maintain and shall cause each Significant Subsidiary and Wholly-Owned Subsidiary
to maintain proper books of record and account, in which full, true and correct
entries in all material respects in conformity with GAAP or SAP, as applicable,
consistently applied (except as stated therein) shall be made of all financial
transactions and matters involving the assets and business of the Company and
such Subsidiary. The Company shall permit, and shall cause each Significant
Subsidiary and Wholly-Owned Subsidiary to permit, representatives and
independent contractors of the Agent or any Bank to visit and inspect any of
their respective properties, to examine their respective corporate, financial
and operating records, and make copies thereof or abstracts therefrom, and to
discuss their respective affairs, finances and accounts with their respective
directors, officers, and independent public accountants, all at such reasonable
times during normal business hours and as often as may be reasonably desired,
upon reasonable advance notice to the Company; provided, however, when an Event
of Default exists the Agent or any Bank may do any of the foregoing at the
expense of the Company at any time during normal business hours and without
advance notice.
6.10 Use of Proceeds. The Company shall use the proceeds of the Loans
solely: (a) to refinance existing Indebtedness of the Company; (b) for general
corporate purposes not in contravention of any Requirement of Law or of any Loan
Document (including the lending of such proceeds to Subsidiaries for working
capital purposes); and (c) to support the issuance of the Company's commercial
paper.
ARTICLE VII
NEGATIVE COVENANTS
So long as any Bank shall have any Commitment hereunder, or any Loan or
other Obligation shall remain unpaid or unsatisfied, unless the Required Banks
waive compliance in writing:
7.01 Limitation on Indebtedness. The Company shall not, and shall not
permit any of its Subsidiaries to, incur or at any time be liable with respect
to, any Indebtedness which is or constitutes:
(a) a Swap Contract in respect of obligations other than
Permitted Swap Obligations;
(b) Indebtedness incurred in connection with the issuance of
commercial paper by the Company to the extent that Indebtedness of this type in
the aggregate exceeds at any time the aggregate amount of the unutilized portion
of the Commitments and the "Commitments" (as defined in the 364-Day Credit
Agreement) at such time;
(c) Indebtedness with respect to Contingent Obligations to the
extent the amount of Indebtedness of this type in the aggregate exceeds at any
time ten percent (10%) of
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Total Shareholders' Equity of the Company at such time; provided that Contingent
Obligations of (i) Sub-Prime Auto Loan Companies relating to sub-prime
automobile loans and (ii) any Green Tree Entity relating to loans, leases,
receivables, installment contracts and other financial products originated,
acquired or sold by such Green Tree Entity or any other Green Tree Entity shall
be excluded from the determination of Contingent Obligations for purposes of
this subsection 7.01(c);
(d) (i) recourse Indebtedness of Subsidiaries other than recourse
Indebtedness of a Subsidiary that is also a Sub-Prime Auto Loan Company or a
Green Tree Entity to the extent that (A) neither the Company nor any Non-Finance
Subsidiary is directly liable thereon, and (B) neither the Company nor any
Non-Finance Subsidiary has any Contingent Obligation in respect of such
Indebtedness; or (ii) nonrecourse Indebtedness of Subsidiaries resulting from
the sale or securitization of assets (other than (1) non-admitted assets, policy
loans, B-Share Financings, CBOs, CMOs and sub-prime automobile loans and (2)
loans, leases, receivables, installment contracts and other financial products
originated, acquired, sold or securitized by a Green Tree Entity) other than
non-recourse Indebtedness of a Sub-Prime Auto Loan Company or Green Tree Entity
with respect to Interest Only Securities; or
(e) any secured Indebtedness (excluding secured Indebtedness not
prohibited by clause (d)(ii) immediately above), including, without limitation,
Capitalized Lease Liabilities and Purchase Money Debt, to the extent
Indebtedness of this type in the aggregate exceeds at any time ten percent (10%)
of Total Shareholders' Equity at such time.
7.02 Liens. The Company shall not, and shall not permit any of its
Subsidiaries to, create, assume or suffer to exist any Lien on any asset now
owned or hereafter acquired by it, except for the following (collectively called
"Permitted Liens"):
(a) Liens in connection with Permitted Transactions;
(b) Liens for current Taxes not delinquent or for Taxes being
contested in good faith and by appropriate proceedings and with respect to which
adequate reserves are being maintained in accordance with GAAP;
(c) Liens shown on Schedule 7.02(c);
(d) Liens incurred in the ordinary course of business in
connection with worker's compensation, unemployment insurance or other forms of
governmental insurance or benefits or to secure performance of tenders,
statutory obligations, leases and contracts (other than for borrowed money)
entered into in the ordinary course of business or to secure obligations on
surety or appeal bonds;
(e) Liens of mechanics, carriers, and materialmen and other like
Liens arising in the ordinary course of business in respect of obligations which
are not delinquent or which are being contested in good faith and by appropriate
proceedings and with respect to which adequate reserves are being maintained in
accordance with GAAP;
(f) Liens arising in the ordinary course of business for sums
being contested in good faith and by appropriate proceedings and with respect to
which adequate reserves are
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being maintained in accordance with GAAP, or for sums not due, and in either
case not involving any deposits or advances for borrowed money or the deferred
purchase price of property or services;
(g) Liens in favor of the trustee on sums required to be
deposited with the trustee under the indentures described on Schedule 7.02(g);
(h) Liens incurred on assets of Subsidiaries that are Sub-Prime
Auto Loan Companies or Green Tree Entities securing Indebtedness which is
expressly excluded from the prohibitions on Indebtedness set forth in subsection
7.01(d)(i) and (ii); or
(i) Liens securing Indebtedness permitted by subsection 7.01(e).
7.03 Disposition of Assets. The Company shall not, and shall not
permit any of its Wholly-Owned Subsidiaries and/or Significant Subsidiaries to,
sell, assign, lease, transfer or otherwise dispose of (whether in one or a
series of transactions) any property (including accounts and notes receivable
with or without recourse) or enter into any agreement to do any of the
foregoing, except:
(a) Dispositions of inventory or equipment (including, without
limitation, repossessed and/or off lease property of Green Tree), all in the
ordinary course of business;
(b) the sale of equipment to the extent that such equipment is
exchanged for credit against the purchase price of similar replacement
equipment, or the proceeds of such sale are reasonably promptly applied to the
purchase price of such replacement equipment;
(c) Dispositions of Investments (other than Investments in
Persons engaged in insurance lines of business) in the ordinary course of
business;
(d) Dispositions of (i) sub-prime automobile loans held by such
Person in connection with the securitization of such sub-prime automobile loans,
(ii) in the case of any Green Tree Entity, loans, leases, receivables,
installment contracts and other financial products originated, acquired, sold or
securitized by such Green Tree Entity or (iii) interests in or components of
Interest Only Securities;
(e) Dispositions not otherwise permitted hereunder, provided that
(i) the Net Proceeds of such Disposition are reinvested within 270 days after
disposition (A) with respect to insurance lines of business, in insurance lines
of business similar to the insurance lines of business of the Company and the
Subsidiaries at such time or (B) with respect to non-insurance lines of
business, in business lines similar to the business lines of the Company and its
Subsidiaries at such time, (ii) the aggregate cumulative GAAP gain since the
Closing Date arising out of such Dispositions, the proceeds of which are not
reinvested in business lines similar to the business lines of the assets
disposed of do not at any time exceed 25% of Total Shareholders' Equity at such
time or (iii) the Company applies the Net Proceeds of such Disposition to the
Obligations and permanently reduces the Commitments by the amount of the Net
Proceeds of such Disposition in accordance with Section 2.09(a).
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7.04 Other Agreements. The Company shall not, and shall not permit any
of its Subsidiaries to, enter into any agreement (other than agreements with
insurance regulators) containing any provision which (a) would be violated or
breached by the performance of its obligations hereunder or under any instrument
or document delivered or to be delivered by it hereunder or in connection
herewith or (b) prohibits or restricts the ability of the Company to amend or
otherwise modify this Agreement or any other document executed in connection
herewith.
7.05 Transactions with Affiliates. The Company shall not, and shall
not suffer or permit any Significant Subsidiary to, enter into any material
transaction with any Affiliate of the Company (other than the Company or a
Wholly-Owned Subsidiary), except upon fair and reasonable terms no less
favorable to the Company or such Subsidiary than would obtain in a comparable
arm's-length transaction with a Person not an Affiliate of the Company or such
Subsidiary and except for insurance transactions, intercompany pooling and other
reinsurance transactions entered into in the ordinary course of business and
consistent with past practice.
7.06 Use of Proceeds. The Company shall not, and shall not suffer or
permit any Subsidiary to, use any portion of the Loan proceeds, directly or
indirectly, (i) to purchase or carry Margin Stock unless at all times less than
25% of the value of the assets of the Company and its Subsidiaries which are
subject to any limitation on sale, pledge, or other restriction hereunder, taken
as a whole, will be represented by Margin Stock, (ii) to repay or otherwise
refinance indebtedness of the Company or others incurred to purchase or carry
Margin Stock, (iii) to extend credit for the purpose of purchasing or carrying
any Margin Stock, or (iv) to acquire any security in any transaction that is
subject to Section 13 or 14 of the Exchange Act, in each case in violation of
Regulation T, U or X of the FRB.
7.07 Change in Business. The Company shall not, and shall not suffer
or permit any Significant Subsidiary to, fundamentally change the type of
business in which it is presently engaged as listed on Schedule 7.07.
7.08 Debt to Capitalization Ratio. The Company shall not permit the
Debt to Total Capitalization Ratio to exceed 0.45:1.00 as of the end of any
Fiscal Quarter.
7.09 Interest Coverage Ratio. The Company shall not permit the
Interest Coverage Ratio as of the end of each Fiscal Quarter set forth below for
the four Fiscal Quarters then ended (or, in the case of the Fiscal Quarters
ending before September 30, 1999, for the period from and including October 1,
1998, to and including the last day of such Fiscal Quarter), to be less than the
ratio set forth below for such date:
Fiscal Quarter Ending Ratio
--------------------- -----
December 31, 1998 2.00:1.0
March 31, 1999 2.00:1.0
June 30, 1999 2.00:1.0
September 30, 1999 2.00:1.0
December 31, 1999 2.25:1.0
March 31, 2000 2.25:1.0
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June 30, 2000 2.25:1.0
September 30, 2000 2.25:1.0
December 31, 2000 2.25:1.0
March 31, 2001 2.25:1.0
June 30, 2001 2.25:1.0
September 30, 2001 2.25:1.0
December 31, 2001 2.50:1.0
March 31, 2002 2.50:1.0
June 30, 2002 2.50:1.0
September 30, 2002 2.50:1.0
December 31, 2002 2.50:1.0
March 31, 2003 2.50:1.0
June 30, 2003 2.50:1.0
September 30, 2003 2.50:1.0
ARTICLE VIII
EVENTS OF DEFAULT
8.01 Event of Default. Each of the following shall constitute an
"Event of Default":
(a) Non-Payment. The Company fails to pay, (i) when and as
required to be paid herein, any amount of principal of any Loan, or (ii) within
five days after the same becomes due, any interest, fee or any other amount
payable hereunder or under any other Loan Document; or
(b) Representation or Warranty. Any representation or warranty by
the Company made or, pursuant to Section 4.02, deemed made herein or in any
other Loan Document, or contained in any certificate, document or financial or
other statement by the Company, any Subsidiary or any Responsible Officer,
furnished at any time in connection with this Agreement or in connection with
any other Loan Document, is incorrect in any material respect on or as of the
date made or deemed made; or
(c) Specific Defaults. The Company fails to perform or observe
any term, covenant or agreement contained in any of Section 6.03(a), or in
Section 7.01, 7.02, 7.03, 7.04, 7.06, 7.07, 7.08 or 7.09; or
(d) Other Defaults. The Company fails to perform or observe any
other term or covenant contained in this Agreement or any other Loan Document,
and such default shall continue unremedied for a period of 30 days after the
date upon which written notice thereof is given to the Company by the Agent or
any Bank; or
(e) Cross-Default. (i) The Company or any Significant Subsidiary
(A) fails to make any payment in respect of any Indebtedness or Contingent
Obligation (other than in respect of Swap Contracts), having an aggregate
principal amount (including undrawn committed or available amounts and including
amounts owing to all creditors under any combined or
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syndicated credit arrangement) of more than $75,000,000, when due (whether by
scheduled maturity, required prepayment, acceleration, demand, or otherwise) and
such failure continues after the applicable grace or notice period, if any,
specified in the relevant document on the date of such failure; or (B) fails to
perform or observe any other condition or covenant, or any other event shall
occur or condition exist (other than an alleged breach which the Company or such
Significant Subsidiary is contesting in good faith and which does not relate to
a payment default or a breach of a financial covenant), under any agreement or
instrument relating to any such Indebtedness or Contingent Obligation, and such
failure continues after the applicable grace or notice period, if any, specified
in the relevant document on the date of such failure if the effect of such
failure, event or condition is to cause, or to permit the holder or holders of
such Indebtedness or beneficiary or beneficiaries of such Indebtedness (or a
trustee or agent on behalf of such holder or holders or beneficiary or
beneficiaries) to cause such Indebtedness to be declared to be due and payable
prior to its stated maturity, or such Contingent Obligation to become payable or
cash collateral in respect thereof to be demanded; or (ii) there occurs under
any Swap Contract an Early Termination Date (as defined in such Swap Contract)
resulting from (1) any event of default under such Swap Contract as to which the
Company or any Subsidiary is the Defaulting Party (as defined in such Swap
Contract) or (2) any Termination Event (as so defined) as to which the Company
or any Subsidiary is an Affected Party (as so defined), and, in either event,
the Swap Termination Value owed by the Company or such Subsidiary as a result
thereof is greater than $75,000,000; or
(f) Insolvency; Voluntary Proceedings. The Company or any
Significant Subsidiary (i) ceases or fails to be solvent, or generally fails to
pay, or admits in writing its inability to pay, its debts as they become due,
subject to applicable grace periods, if any, whether at stated maturity or
otherwise; (ii) voluntarily ceases to conduct its business in the ordinary
course; (iii) commences any Insolvency Proceeding with respect to itself; or
(iv) takes any action to effectuate or authorize any of the foregoing; or
(g) Involuntary Proceedings. (i) Any involuntary Insolvency
Proceeding is commenced or filed against the Company or any Significant
Subsidiary, or any writ, judgment, warrant of attachment, execution or similar
process, is issued or levied against a substantial part of the Company's or any
Significant Subsidiary's properties, and any such proceeding or petition shall
not be dismissed, or such writ, judgment, warrant of attachment, execution or
similar process shall not be released, vacated or fully bonded within 60 days
after commencement, filing or levy; (ii) the Company, any Significant Subsidiary
or any Material Insurance Subsidiary admits the material allegations of a
petition against it in any Insolvency Proceeding, or an order for relief (or
similar order under non-U.S. law) is ordered in any Insolvency Proceeding; (iii)
the Company, any Significant Subsidiary or any Material Insurance Subsidiary
acquiesces in the appointment of a receiver, trustee, custodian, conservator,
liquidator, mortgagee in possession (or agent therefor), or other similar Person
for itself or a substantial portion of its property or business; or (iv) any
Material Insurance Subsidiary shall become subject to any conservation,
rehabilitation or liquidation order, directive or mandate issued by any
Governmental Authority;
(h) Pension Plans and Welfare Plans. With respect to any Single
Employer Pension Plan as to which the Company or any other ERISA Affiliate may
have any liability, there shall exist a deficiency of more than $20,000,000 as
to any ERISA Affiliate (other than the Company) or $65,000,000 as to the Company
in the Pension Plan assets available to satisfy the
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benefits guaranteeable under ERISA with respect to such Pension Plan, and steps
are undertaken to terminate such plan or such Pension Plan is terminated or the
Company or any other ERISA Affiliate withdraws from or institutes steps to
withdraw from such Pension Plan, or the Company has knowledge that steps have
been taken to terminate any Multiemployer Plan and such termination may result
in liability to any ERISA Affiliate (other than the Company) in excess of
$20,000,000 or $65,000,000 as to the Company or any Reportable Event with
respect to such Pension Plan has occurred which could result in the incurrence
of liability by any ERISA Affiliate (other than the Company) in excess of
$20,000,000 or $65,000,000 as to the Company or steps are taken to terminate any
Multiemployer Plan and such termination may result in any liability of any ERISA
Affiliate (other than the Company) in excess of $20,000,000 or $65,000,000 as to
the Company shall occur; or
(i) Monetary Judgments. One or more final non-interlocutory
judgments, final non-interlocutory orders, final decrees or final arbitration
awards is entered against the Company or any Significant Subsidiary involving in
the aggregate a liability other than a liability of an Insurance Subsidiary in
the ordinary course of business (to the extent not covered by independent
third-party insurance as to which the insurer does not dispute coverage) as to
any single or related series of transactions, incidents or conditions, of
$60,000,000 or more, and the same shall remain unsatisfied, unvacated, unstayed
and not bonded, if required by law, pending appeal for a period of 30 days after
the entry thereof; or
(j) Change of Control. There occurs any Change of Control.
8.02 Remedies. If any Event of Default occurs, the Agent shall, at the
request of, or may, with the consent of, the Required Banks,
(a) declare the Commitment of each Bank to make Committed Loans
to be terminated, whereupon such Commitments shall be terminated;
(b) declare the unpaid principal amount of all outstanding Loans,
all interest accrued and unpaid thereon, and all other amounts owing or payable
hereunder or under any other Loan Document to be immediately due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived by the Company; and
(c) exercise on behalf of itself and the Banks all rights and
remedies available to it and the Banks under the Loan Documents or applicable
law;
provided, however, that upon the occurrence of any event specified in subsection
(f) or (g) of Section 8.01 (in the case of clause (i) of subsection (g) upon the
expiration of the 60-day period mentioned therein), the obligation of each Bank
to make Loans shall automatically terminate and the unpaid principal amount of
all outstanding Loans and all interest and other amounts as aforesaid shall
automatically become due and payable without further act of the Agent or any
Bank.
8.03 Rights Not Exclusive. The rights provided for in this Agreement
and the other Loan Documents are cumulative and are not exclusive of any other
rights, powers, privileges or remedies provided by law or in equity, or under
any other instrument, document or agreement now existing or hereafter arising.
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ARTICLE IX
THE AGENT
9.01 Appointment and Authorization; "Agent". Each Bank hereby
irrevocably (subject to Section 9.09) appoints, designates and authorizes the
Agent to take such action on its behalf under the provisions of this Agreement
and each other Loan Document and to exercise such powers and perform such duties
as are expressly delegated to it by the terms of this Agreement or any other
Loan Document, together with such powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary contained elsewhere in this
Agreement or in any other Loan Document, the Agent shall not have any duties or
responsibilities, except those expressly set forth herein, nor shall the Agent
have or be deemed to have any fiduciary relationship with any Bank, and no
implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against the Agent. Without limiting the generality of the
foregoing sentence, the use of the term "agent" in this Agreement with reference
to the Agent is not intended to connote any fiduciary or other implied (or
express) obligations arising under agency doctrine of any applicable law.
Instead, such term is used merely as a matter of market custom, and is intended
to create or reflect only an administrative relationship between independent
contracting parties.
9.02 Delegation of Duties. The Agent may execute any of its duties
under this Agreement or any other Loan Document by or through agents, employees
or attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Agent shall not be responsible for the
negligence or misconduct of any agent or attorney-in-fact that it selects with
reasonable care.
9.03 Liability of Agent. None of the Agent-Related Persons shall (a)
be liable for any action taken or omitted to be taken by any of them under or in
connection with this Agreement or any other Loan Document or the transactions
contemplated hereby (except for its own gross negligence or willful misconduct),
or (b) be responsible in any manner to any of the Banks for any recital,
statement, representation or warranty made by the Company or any Subsidiary or
Affiliate of the Company, or any officer thereof, contained in this Agreement or
in any other Loan Document, or in any certificate, report, statement or other
document referred to or provided for in, or received by the Agent under or in
connection with, this Agreement or any other Loan Document, or the validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Loan Document, or for any failure of the Company or any other party to
any Loan Document to perform its obligations hereunder or thereunder. No
Agent-Related Person shall be under any obligation to any Bank to ascertain or
to inquire as to the observance or performance of any of the agreements
contained in, or conditions of, this Agreement or any other Loan Document, or to
inspect the properties, books or records of the Company or any of the Company's
Subsidiaries or Affiliates.
9.04 Reliance by Agent. (a) The Agent shall be entitled to rely, and
shall be fully protected in relying, upon any writing, resolution, notice,
consent, certificate, affidavit, letter, telegram, facsimile, telex or telephone
message, statement or other document or conversation believed by it to be
genuine and correct and to have been signed, sent or made by the proper Person
or Persons, and upon advice and statements of legal counsel (including counsel
to the
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Company), independent accountants and other experts selected by the
Agent. The Agent shall be fully justified in failing or refusing to take any
action under this Agreement or any other Loan Document unless it shall first
receive such advice or concurrence of the Required Banks as it deems appropriate
and, if it so requests, it shall first be indemnified to its satisfaction by the
Banks against any and all liability and expense which may be incurred by it by
reason of taking or continuing to take any such action. The Agent shall in all
cases be fully protected in acting, or in refraining from acting, under this
Agreement or any other Loan Document in accordance with a request or consent of
the Required Banks and such request and any action taken or failure to act
pursuant thereto shall be binding upon all of the Banks.
(b) For purposes of determining compliance with the conditions
specified in Section 4.01, each Bank that has executed this Agreement shall be
deemed to have consented to, approved or accepted or to be satisfied with, each
document or other matter either sent by the Agent to such Bank for consent,
approval, acceptance or satisfaction, or required thereunder to be consented to
or approved by or acceptable or satisfactory to the Bank.
9.05 Notice of Default. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default, except
with respect to defaults in the payment of principal, interest and fees required
to be paid to the Agent for the account of the Banks, unless the Agent shall
have received written notice from a Bank or the Company referring to this
Agreement, describing such Default or Event of Default and stating that such
notice is a "notice of default". The Agent will notify the Banks of its receipt
of any such notice. The Agent shall take such action with respect to such
Default or Event of Default as may be requested by the Required Banks in
accordance with Article VIII; provided, however, that unless and until the Agent
has received any such request, the Agent may (but shall not be obligated to)
take such action, or refrain from taking such action, with respect to such
Default or Event of Default as it shall deem advisable or in the best interest
of the Banks.
9.06 Credit Decision. Each Bank acknowledges that none of the
Agent-Related Persons has made any representation or warranty to it, and that no
act by the Agent hereinafter taken, including any review of the affairs of the
Company and its Subsidiaries, shall be deemed to constitute any representation
or warranty by any Agent-Related Person to any Bank. Each Bank represents to the
Agent that it has, independently and without reliance upon any Agent-Related
Person and based on such documents and information as it has deemed appropriate,
made its own appraisal of and investigation into the business, prospects,
operations, property, financial and other condition and creditworthiness of the
Company and its Subsidiaries, and all applicable bank regulatory laws relating
to the transactions contemplated hereby, and made its own decision to enter into
this Agreement and to extend credit to the Company hereunder. Each Bank also
represents that it will, independently and without reliance upon any
Agent-Related Person and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement and
the other Loan Documents, and to make such investigations as it deems necessary
to inform itself as to the business, prospects, operations, property, financial
and other condition and creditworthiness of the Company. Except for notices,
reports and other documents expressly herein required to be furnished to the
Banks by the Agent, the Agent shall not have any duty or responsibility to
provide any Bank with any credit or other information concerning the business,
prospects, operations, property, financial and other condition or credit
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worthiness of the Company which may come into the possession of any of the
Agent-Related Persons.
9.07 Indemnification of Agent. Whether or not the transactions
contemplated hereby are consummated, the Banks shall indemnify upon demand the
Agent-Related Persons (to the extent not reimbursed by or on behalf of the
Company and without limiting the obligation of the Company to do so), pro rata
based upon its Pro Rata Share, from and against any and all Indemnified
Liabilities; provided, however, that no Bank shall be liable for the payment to
the Agent-Related Persons of any portion of such Indemnified Liabilities
resulting from such Person's gross negligence or willful misconduct. Without
limitation of the foregoing, each Bank shall reimburse the Agent upon demand for
its Pro Rata Share of any costs or out-of-pocket expenses (including Attorney
Costs) incurred by the Agent in connection with the preparation, execution,
delivery, administration, modification, amendment or enforcement (whether
through negotiations, legal proceedings or otherwise) of, or legal advice in
respect of rights or responsibilities under, this Agreement, any other Loan
Document, or any document contemplated by or referred to herein, to the extent
that the Agent is not reimbursed for such expenses by or on behalf of the
Company. The undertaking in this Section shall survive the payment of all
Obligations hereunder and the resignation or replacement of the Agent.
9.08 Agent in Individual Capacity. BofA and its Affiliates may make
loans to, issue letters of credit for the account of, accept deposits from,
acquire equity interests in and generally engage in any kind of banking, trust,
financial advisory, underwriting or other business with the Company and its
Subsidiaries and Affiliates as though BofA were not the Agent hereunder and
without notice to or consent of the Banks. The Banks acknowledge that, pursuant
to such activities, BofA or its Affiliates may receive information regarding the
Company or its Affiliates (including information that may be subject to
confidentiality obligations in favor of the Company or such Subsidiary) and
acknowledge that the Agent shall be under no obligation to provide such
information to them. With respect to its Loans, BofA shall have the same rights
and powers under this Agreement as any other Bank and may exercise the same as
though it were not the Agent, and the terms "Bank" and "Banks" include BofA in
its individual capacity.
9.09 Successor Agent. The Agent may, and at the request of the
Required Banks shall, resign as Agent upon 30 days' notice to the Banks. If the
Agent resigns under this Agreement, the Required Banks shall appoint from among
the Banks a successor agent for the Banks which successor agent shall be
approved by the Company (which consent shall not be unreasonably withheld). If
no successor agent is appointed prior to the effective date of the resignation
of the Agent, the Agent may appoint, after consulting with the Banks and the
Company, a successor agent from among the Banks. Upon the acceptance of its
appointment as successor agent hereunder, such successor agent shall succeed to
all the rights, powers and duties of the retiring Agent and the term "Agent"
shall mean such successor agent and the retiring Agent's appointment, powers and
duties as Agent shall be terminated. After any retiring Agent's resignation
hereunder as Agent, the provisions of this Article IX and Sections 10.04 and
10.05 shall inure to its benefit as to any actions taken or omitted to be taken
by it while it was Agent under this Agreement. If no successor agent has
accepted appointment as Agent by the date which is 30 days following a retiring
Agent's notice of resignation, the retiring Agent's resignation shall
nevertheless thereupon become effective and the Banks shall perform all of the
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duties of the Agent hereunder until such time, if any, as the Required Banks
appoint a successor agent as provided for above.
9.10 Withholding Tax. (a) If any Bank (including, without limitation,
a Bank that becomes a party to this Agreement by assignment in accordance with
Section 10.08) is a "foreign corporation, partnership or trust" within the
meaning of the Code and such Bank claims exemption from, or a reduction of, U.S.
withholding tax under Sections 1441 or 1442 of the Code, such Bank agrees with
and in favor of the Agent and the Company, to deliver to the Agent and the
Company:
(i) if such Bank claims an exemption from, or a
reduction of, withholding tax under a United States tax treaty, two
properly completed and executed copies of IRS Form 1001 before the
payment of any interest in the first calendar year and before the
payment of any interest in each third succeeding calendar year during
which interest may be paid under this Agreement;
(ii) if such Bank claims that interest paid under this
Agreement is exempt from United States withholding tax because it is
effectively connected with a United States trade or business of such
Bank, two properly completed and executed copies of IRS Form 4224 before
the payment of any interest is due in the first taxable year of such
Bank and in each succeeding taxable year of such Bank during which
interest may be paid under this Agreement; and
(iii) such other form or forms as may be required
under the Code or other laws of the United States as a condition to
exemption from, or reduction of, United States withholding tax.
Such Bank agrees to promptly notify the Agent and the Company of any change in
circumstances which would modify or render invalid any claimed exemption or
reduction.
(b) If any Bank claims exemption from, or reduction of,
withholding tax under a United States tax treaty by providing IRS Form 1001 and
such Bank sells, assigns, grants a participation in, or otherwise transfers all
or part of the Obligations of the Company to such Bank, such Bank agrees to
notify the Agent and the Company of the percentage amount in which it is no
longer the beneficial owner of Obligations of the Company to such Bank. To the
extent of such percentage amount, the Agent and the Company will treat such
Bank's IRS Form 1001 as no longer valid.
(c) If any Bank claiming exemption from United States withholding
tax by filing IRS Form 4224 with the Agent sells, assigns, grants a
participation in, or otherwise transfers all or part of the Obligations of the
Company to such Bank, such Bank agrees to undertake sole responsibility for
complying with the withholding tax requirements imposed by Sections 1441 and
1442 of the Code.
(d) If any Bank is entitled to a reduction in the applicable
withholding tax, the Company may withhold from any interest payment to such Bank
(or the Agent) an amount equivalent to the applicable withholding tax after
taking into account such reduction. However, if the forms or other documentation
required by subsection (a) of this Section are not delivered to
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the Company and the Agent, or if any bank is not entitled to submit such forms
or other documentation, then the Company may withhold from any interest payment
to such Bank (or the Agent) an amount equivalent to the applicable withholding
tax imposed by Sections 1441 and 1442 of the Code, without reduction. If the
Company withholds tax from any interest payment, it shall deliver to the Agent
on the Interest Payment Date a written notice setting forth in reasonable detail
the amount of withholding made and the reason for said calculation of such
amount.
(e) If the IRS or any other Governmental Authority of the United
States or other jurisdiction asserts a claim that the Company or the Agent did
not properly withhold tax from amounts paid to or for the account of any Bank
(because the appropriate form was not delivered or was not properly executed, or
because such Bank failed to notify the Company or the Agent of a change in
circumstances which rendered the exemption from, or reduction of, withholding
tax ineffective, or for any other reason) such Bank shall indemnify the Company
or the Agent, as the case may be, fully for all amounts paid, directly or
indirectly, by the Company or the Agent as tax or otherwise, including penalties
and interest, and including any taxes imposed by any jurisdiction on the amounts
payable to the Company or the Agent under this Section, together with all costs
and expenses (including Attorney Costs). The obligation of the Banks under this
subsection shall survive the payment of all Obligations and the resignation or
replacement of the Agent.
(f) Any amounts withheld from a Bank as a result of the failure
of such Bank to claim an exemption from withholding available to it, or
otherwise to comply with this Section 9.10, shall not be subject to
indemnification under Section 3.01, Section 10.05 or otherwise.
9.10 Syndication Agent; Documentation Agents. None of the Syndication
Agents or Documentation Agent shall have any right, power, obligation,
liability, responsibility or duty under this Agreement other than those
applicable to all Banks as such. Without limiting the foregoing, none of the
Syndication Agents or the Documentation Agent shall have or be deemed to have
any fiduciary relationship with any Bank. Each Bank acknowledges that it has not
relied, and will not rely, on the Syndication Agents or the Documentation Agent
in deciding to enter into this Agreement or in taking or not taking action
hereunder.
ARTICLE X
MISCELLANEOUS
10.01 Amendments and Waivers. No amendment or waiver of any provision
of this Agreement or any other Loan Document, and no consent with respect to any
departure by the Company therefrom, shall be effective unless the same shall be
in writing and signed by the Required Banks (or by the Agent at the written
request of the Required Banks) and the Company and acknowledged by the Agent,
and then any such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given; provided, however, that
no such waiver, amendment, or consent shall, unless in writing and signed by all
the Banks and the Company and acknowledged by the Agent, do any of the
following:
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(a) increase or extend the Commitment of any Bank (or reinstate
any Commitment terminated pursuant to Section 8.02);
(b) postpone or delay any date fixed by this Agreement or any
other Loan Document for any payment of principal, interest, fees or other
amounts due to the Banks (or any of them) hereunder or under any other Loan
Document;
(c) reduce or forgive the principal of, or the rate of interest
specified herein on any Loan, or (subject to clause (iii) below) any fees or
other amounts payable hereunder or under any other Loan Document;
(d) change the percentage of the Commitments or of the aggregate
unpaid principal amount of the Loans which is required for the Banks or any of
them to take any action hereunder; or
(e) amend this Section 10.01, or Section 2.17, or any provision
herein providing for consent or other action by all Banks;
and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the Agent in addition to the Required Banks or all the
Banks, as the case may be, affect the rights or duties of the Agent under this
Agreement or any other Loan Document (except with respect to the removal of the
Agent), (ii) no amendment, waiver or consent shall, unless in writing and signed
by the Swing Line Bank in addition to the Required Banks or all the Banks, as
the case may be, affect the rights or duties of the Swing Line Bank under this
Agreement or any other Loan Document, and (iii) the Fee Letter may be amended,
or rights or privileges thereunder waived, in a writing executed by the parties
thereto.
10.02 Notices. (a) All notices, requests, consents, approvals, waivers
and other communications shall be in writing (including, unless the context
expressly otherwise provides, by facsimile transmission, provided that any
matter transmitted by the Company by facsimile (i) shall be immediately
confirmed by a telephone call to the recipient at the number specified on
Schedule 10.02, and (ii) shall be followed promptly by delivery of a hard copy
original thereof) and mailed, faxed or delivered, to the address or facsimile
number specified for notices on Schedule 10.02; or, as directed to the Company
or the Agent, to such other address as shall be designated by such party in a
written notice to the other parties, and as directed to any other party, at such
other address as shall be designated by such party in a written notice to the
Company and the Agent.
(b) All such notices, requests and communications shall, when
transmitted by overnight delivery, or faxed, be effective when delivered for
overnight (next-day) delivery, or transmitted in legible form by facsimile
machine, respectively, or if mailed, upon the third Business Day after the date
deposited into the U.S. mail, or if delivered, upon delivery, except that
notices pursuant to Article II or IX to the Agent shall not be effective until
actually received by the Agent.
(c) Any agreement of the Agent and the Banks herein to receive
certain notices by telephone or facsimile is solely for the convenience and at
the request of the Company. The Agent and the Banks shall be entitled to rely on
the authority of any Person
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purporting to be a Person authorized by the Company to give such notice and the
Agent and the Banks shall not have any liability to the Company or other Person
on account of any action taken or not taken by the Agent or the Banks in
reliance upon such telephonic or facsimile notice. The obligation of the Company
to repay the Loans shall not be affected in any way or to any extent by any
failure by the Agent and the Banks to receive written confirmation of any
telephonic or facsimile notice or the receipt by the Agent and the Banks of a
confirmation which is at variance with the terms understood by the Agent and the
Banks to be contained in the telephonic or facsimile notice.
10.03 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of the Agent or any Bank, any right, remedy,
power or privilege hereunder, shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other
right, remedy, power or privilege.
10.04 Costs and Expenses. The Company shall:
(a) whether or not the transactions contemplated hereby are
consummated, pay or reimburse BofA (including in its capacity as Agent) and the
Arranger within five Business Days after demand (subject to subsection 4.01(e))
for all reasonable out-of-pocket costs and expenses incurred by BofA (including
in its capacity as Agent) and the Arranger in connection with the development,
preparation, delivery, administration, syndication and execution of, and any
amendment, supplement, waiver or modification to (in each case, whether or not
consummated), this Agreement, any Loan Document and any other documents prepared
in connection herewith or therewith, and the consummation of the transactions
contemplated hereby and thereby, including reasonable Attorney Costs incurred by
BofA (including in its capacity as Agent) and the Arranger with respect thereto;
and
(b) pay or reimburse the Agent, the Arranger and each Bank within
five Business Days after demand (subject to subsection 4.01(e)) for all
reasonable out-of-pocket costs and expenses (including Attorney Costs) incurred
by them in connection with the enforcement, attempted enforcement, or
preservation of any rights or remedies under this Agreement or any other Loan
Document during the existence of an Event of Default or after acceleration of
the Loans (including in connection with any "workout" or restructuring regarding
the Loans, and including in any Insolvency Proceeding or appellate proceeding).
10.05 Company Indemnification. Whether or not the transactions
contemplated hereby are consummated, the Company shall indemnify, defend and
hold the Agent-Related Persons, and each Bank and each of its respective
officers, directors, employees, counsel, agents and attorneys-in-fact (each, an
"Indemnified Person") harmless from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, charges and
reasonable out-of pocket costs, expenses and disbursements (including Attorney
Costs) of any kind or nature whatsoever (collectively, "Costs and Expenses")
which may at any time (including at any time following repayment of the Loans
and the termination, resignation or replacement of the Agent or replacement of
any Bank) be imposed on, incurred by or asserted against any such Person in any
way relating to or arising out of this Agreement or any document contemplated by
or referred to herein, or the transactions contemplated hereby, or any action
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taken or omitted by any such Person under or in connection with any of the
foregoing, including with respect to any investigation, litigation or proceeding
(including any Insolvency Proceeding or appellate proceeding) related to or
arising out of this Agreement or the Loans or the use of the proceeds thereof,
whether or not any Indemnified Person is a party thereto (all the foregoing,
collectively, the "Indemnified Liabilities"); provided, that the Company shall
have no obligation hereunder to any Indemnified Person with respect to (i)
Indemnified Liabilities resulting from the gross negligence or willful
misconduct of such Indemnified Person and (ii) a claim by any Bank against the
Company, or by the Company against any Bank, that is found in a final
nonappealable judgment by a court of competent jurisdiction in favor of the
Company (it being understood and agreed that this clause (ii) shall not affect
or limit any amount the Company may owe to any Bank as a result of any such
claim pursuant to Section 10.04). The agreements in this Section shall survive
payment of all other Obligations.
10.06 Payments Set Aside. To the extent that the Company makes a
payment to the Agent or the Banks, or the Agent or the Banks exercise their
right of set-off, and such payment or the proceeds of such set-off or any part
thereof are subsequently invalidated, declared to be fraudulent or preferential,
set aside or required (including pursuant to any settlement entered into by the
Agent or such Bank in its discretion) to be repaid to a trustee, receiver or any
other party, in connection with any Insolvency Proceeding or otherwise, then (a)
to the extent of such recovery the obligation or part thereof originally
intended to be satisfied shall be revived and continued in full force and effect
as if such payment had not been made or such set-off had not occurred, and (b)
each Bank severally agrees to pay to the Agent upon demand its pro rata share of
any amount so recovered from or repaid by the Agent.
10.07 Successors and Assigns. The provisions of this Agreement
(including, without limitation, any provisions relating solely to BofA) shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns, except that the Company may not assign or transfer any
of its rights or obligations under this Agreement without the prior written
consent of the Agent and each Bank.
10.08 Assignments, Participations, etc. (a) Any Bank may, with the
written consent of the Company (at all times other than during the existence of
an Event of Default), the Agent and the Swing Line Bank, which consents shall
not be unreasonably withheld (it being understood that it is not unreasonable
for the Company to withhold consent with respect to an assignment to a Direct
Competitor), at any time assign and delegate to one or more Eligible Assignees
(provided that no written consent of the Company, the Agent or the Swing Line
Bank shall be required in connection with any assignment and delegation by a
Bank to an Eligible Assignee that is an Affiliate of such Bank) (each an
"Assignee") all, or any ratable part of all, of the Loans, the Commitments and
the other rights and obligations of such Bank hereunder, in a minimum amount
which, when added to the amount of any concurrent assignment being made by such
Bank to the same assignee pursuant to Section 10.08 of the Company's September
25, 1998 $1,000,000,000 364-Day Credit Agreement, as from time to time amended
(the "364-Day Credit Agreement"), is at least equal to $10,000,000 (or, if less,
the entire amount of its Commitments and Loans); provided, however, that the
Company and the Agent may continue to deal solely and directly with such Bank in
connection with the interest so assigned to an Assignee until (i) written notice
of such assignment, together with payment instructions, addresses and related
information with respect to the Assignee, shall have been given to the Company
and the Agent
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by such Bank and the Assignee; (ii) such Bank and its Assignee shall have
delivered to the Company and the Agent an Assignment and Acceptance in the form
of Exhibit F ("Assignment and Acceptance") together with any Note or Notes
subject to such assignment and (iii) the assignor Bank or Assignee has paid to
the Agent a processing fee (in respect of any assignment under this Section
10.08 and any concurrent assignment by such assignor Bank to such Assignee under
Section 10.08 of the 364-Day Credit Agreement) in the amount of $3,500.
(b) From and after the date that the Agent notifies the assignor
Bank that it has received (and provided its consent with respect to) an executed
Assignment and Acceptance and payment of the above-referenced processing fee,
(i) the Assignee thereunder shall be a party hereto and, to the extent that
rights and obligations hereunder have been assigned to it pursuant to such
Assignment and Acceptance, shall have the rights and obligations of a Bank under
the Loan Documents, and (ii) the assignor Bank shall, to the extent that rights
and obligations hereunder and under the other Loan Documents have been assigned
by it pursuant to such Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Loan Documents.
(c) Within five Business Days after its receipt of notice by the
Agent that it has received an executed Assignment and Acceptance and payment of
the processing fee (and provided that it consents to such assignment in
accordance with subsection 10.08(a) to the extent required thereby), the Company
shall, to the extent required by the Agent or requested by the Agent or the
applicable Banks, execute and deliver to the Agent new Notes evidencing such
Assignee's assigned Loans and Commitment and, if the assignor Bank has retained
a portion of its Loans and its Commitment, replacement Notes in the principal
amount of the Loans retained by the assignor Bank (such Notes to be in exchange
for, but not in payment of, the Notes held by such Bank). Immediately upon each
Assignee's making its processing fee payment under the Assignment and
Acceptance, this Agreement shall be deemed to be amended to the extent, but only
to the extent, necessary to reflect the addition of the Assignee and the
resulting adjustment of the Commitments arising therefrom. The Commitment
allocated to each Assignee shall reduce such Commitments of the assigning Bank
pro tanto.
(d) Any Bank may at any time sell to one or more commercial banks
or other Persons not Affiliates of the Company (a "Participant") participating
interests in any Loans, the Commitment of that Bank and the other interests of
that Bank (the "Originator") hereunder and under the other Loan Documents;
provided, however, that (i) the Originator's obligations under this Agreement
shall remain unchanged, (ii) the Originator shall remain solely responsible for
the performance of such obligations, (iii) the Company and the Agent shall
continue to deal solely and directly with the Originator in connection with the
Originator's rights and obligations under this Agreement and the other Loan
Documents, and (iv) no Bank shall transfer or grant any participating interest
under which the Participant has rights to approve any amendment to, or any
consent or waiver with respect to, this Agreement or any other Loan, except to
the extent such amendment, consent or waiver would require unanimous consent of
the Banks as described in the first proviso to Section 10.01. In the case of any
such participation, the Participant shall be entitled to the benefit of Sections
3.01, 3.03 and 10.05 as though it were also a Bank hereunder; provided, that the
Participant shall not receive any amount thereunder in excess of what would have
been payable to the participating Bank. If amounts outstanding under this
Agreement are due and unpaid, or shall have been declared or shall have become
due and payable upon the
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occurrence of an Event of Default, each Participant shall be deemed to have the
right of set-off in respect of its participating interest in amounts owing under
this Agreement to the same extent as if the amount of its participating interest
were owing directly to it as a Bank under this Agreement.
(e) Notwithstanding any other provision in this Agreement, any
Bank may at any time create a security interest in, or pledge, all or any
portion of its rights under and interest in this Agreement and the Note held by
it in favor of any Federal Reserve Bank in accordance with Regulation A of the
FRB or U.S. Treasury Regulation 31 CFR ss.203.14, and such Federal Reserve Bank
may enforce such pledge or security interest in any manner permitted under
applicable law.
10.09 Confidentiality. Each Bank agrees to take and to cause its
Affiliates to take normal and reasonable precautions and exercise due care to
maintain the confidentiality of all information provided to it by the Company or
any Subsidiary, or by the Agent on the Company's or such Subsidiary's behalf,
under this Agreement or any other Loan Document, and neither it nor any of its
Affiliates shall use any such information other than in connection with or in
enforcement of this Agreement and the other Loan Documents or in connection with
other business now or hereafter existing or contemplated with the Company or any
Subsidiary except, in either case, to the extent such information (i) was or
becomes generally available to the public other than as a result of disclosure
by the Bank, or (ii) was or becomes available on a non-confidential basis from a
source other than the Company, provided that such source is not bound by a
confidentiality agreement with the Company known to the Bank; provided, however,
that any Bank may disclose such information (A) at the request or pursuant to
any requirement of any Governmental Authority to which the Bank is subject or in
connection with an examination of such Bank by any such authority; (B) pursuant
to subpoena or other court process; (C) when required to do so in accordance
with the provisions of any applicable Requirement of Law; (D) to the extent
reasonably required in connection with any litigation or proceeding to which the
Agent or any Bank or their respective Affiliates may be party; (E) to the extent
reasonably required in connection with the exercise of any remedy hereunder or
under any other Loan Document; (F) to such Bank's independent auditors and other
professional advisors; (G) to any Participant or Assignee, actual or potential,
provided that such Person agrees in writing to keep such information
confidential to the same extent required of the Banks hereunder; (H) as to any
Bank or its Affiliate, as expressly permitted under the terms of any other
document or agreement regarding confidentiality to which the Company or any
Subsidiary is party with such Bank or such Affiliate; and (I) to its Affiliates,
provided that such Affiliates are neither Direct Competitors nor insurance
companies.
10.10 Set-off. In addition to any rights and remedies of the Banks
provided by law, if an Event of Default under Section 8.01(a) exists or the
Loans have been accelerated, each Bank is authorized at any time and from time
to time, without prior notice to the Company, any such notice being waived by
the Company to the fullest extent permitted by law, to set off and apply any and
all deposits (general or special, time or demand, provisional or final) at any
time held by, and other indebtedness at any time owing by, such Bank to or for
the credit or the account of the Company against any and all Obligations owing
to such Bank, now or hereafter existing, irrespective of whether or not the
Agent or such Bank shall have made demand under this Agreement or any Loan
Document and although such Obligations may be contingent or
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unmatured. Each Bank agrees promptly to notify the Company and the Agent after
any such set-off and application made by such Bank; provided, however, that the
failure to give such notice shall not affect the validity of such set-off and
application.
10.11 Notification of Addresses, Lending Offices, Etc. Each Bank shall
notify the Agent in writing of any changes in the address to which notices to
the Bank should be directed, of addresses of any Lending Office, of payment
instructions in respect of all payments to be made to it hereunder and of such
other administrative information as the Agent shall reasonably request.
10.12 Counterparts. This Agreement may be executed in any number of
separate counterparts, each of which, when so executed, shall be deemed an
original, and all of said counterparts taken together shall be deemed to
constitute but one and the same instrument.
10.13 Severability. The illegality or unenforceability of any
provision of this Agreement or any instrument or agreement required hereunder
shall not in any way affect or impair the legality or enforceability of the
remaining provisions of this Agreement or any instrument or agreement required
hereunder.
10.14 No Third Parties Benefited. This Agreement is made and entered
into for the sole protection and legal benefit of the Company, the Banks, the
Agent and the Agent-Related Persons, and their permitted successors and assigns,
and no other Person shall be a direct or indirect legal beneficiary of, or have
any direct or indirect cause of action or claim in connection with, this
Agreement or any of the other Loan Documents.
10.15 Governing Law and Jurisdiction. (a) THIS AGREEMENT AND THE NOTES
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE
STATE OF ILLINOIS (WITHOUT GIVING EFFECT TO CONFLICTS OF LAWS PROVISIONS
THEREOF); PROVIDED, THAT THE AGENT AND THE BANKS SHALL RETAIN ALL RIGHTS ARISING
UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE
OF ILLINOIS OR OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS AND BY
EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE COMPANY, THE AGENT AND THE
BANKS CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE
JURISDICTION OF THOSE COURTS. EACH OF THE COMPANY, THE AGENT AND THE BANKS
IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE
OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT
OF THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO.
10.16 Waiver of Jury Trial. THE COMPANY, THE BANKS AND THE AGENT EACH
WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF OR RELATED TO THIS
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AGREEMENT, THE OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY
ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR ANY AGENT-RELATED PERSON,
PARTICIPANT OR ASSIGNEE, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS,
OR OTHERWISE. THE COMPANY, THE BANKS AND THE AGENT EACH AGREE THAT ANY SUCH
CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT
LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO
A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION,
COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE
THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR
ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT
AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT AND THE
OTHER LOAN DOCUMENTS.
10.17 Entire Agreement. This Agreement, together with the other Loan
Documents, embodies the entire agreement and understanding among the Company,
the Banks and the Agent, and supersedes all prior or contemporaneous agreements
and understandings of such Persons, verbal or written, relating to the subject
matter hereof and thereof.
[signature pages to follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered in Chicago, Illinois by their proper and duly
authorized officers as of the day and year first above written.
CONSECO, INC.
By:
---------------------------
Title:
---------------------------
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent
By:
---------------------------
Title:
---------------------------
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as a Bank
and Swing Line Bank
By:
---------------------------
Title:
---------------------------
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SCHEDULE 2.01
-------------
COMMITMENTS
-----------
AND PRO RATA SHARES
-------------------
Pro Rata
Bank Commitment Share
---- ---------- -----
Bank of America National
Trust and Savings
Association $__________ ____%
TOTAL $1,500,000,000 100%
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SCHEDULE 10.02
--------------
OFFSHORE AND DOMESTIC LENDING OFFICES,
--------------------------------------
ADDRESSES FOR NOTICES
---------------------
CONSECO, INC.
-------------
Conseco, Inc.
00000 Xxxxx Xxxxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to:
Conseco, Inc.
00000 Xxxxx Xxxxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
BANK OF AMERICA NATIONAL TRUST
------------------------------
AND SAVINGS ASSOCIATION,
------------------------
as Agent
Bank of America National Trust
and Savings Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
AGENT'S PAYMENT OFFICE:
----------------------
Bank of America National Trust
and Savings Association
Agency Administrative Services #5596
0000 Xxxxxxx Xxxxxxxxx, Xxxxx Xxxxx
-00-
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxx
Agency Administrative Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
BANK OF AMERICA NATIONAL TRUST
------------------------------
AND SAVINGS ASSOCIATION,
-----------------------
as a Bank
Domestic and Offshore Lending Office:
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Notices (other than Borrowing notices and Notices of
Conversion/Continuation):
Bank of America National Trust
and Savings Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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