FIFTH AMENDED AND RESTATED CREDIT AGREEMENT dated as of March 10, 2006 among LINCOLN NATIONAL CORPORATION, as an Account Party and Guarantor The SUBSIDIARY ACCOUNT PARTIES, as additional Account Parties The BANKS Party Hereto and JPMORGAN CHASE BANK,...
EXECUTION
COPY
FIFTH
AMENDED AND RESTATED CREDIT AGREEMENT
dated
as
of
March
10,
2006
among
LINCOLN
NATIONAL CORPORATION,
as
an
Account Party and Guarantor
The
SUBSIDIARY ACCOUNT PARTIES,
as
additional Account Parties
The
BANKS
Party Hereto
and
JPMORGAN
CHASE BANK, N.A.
as
Administrative Agent
___________________
$1,500,000,000
___________________
X.X.
XXXXXX SECURITIES INC.
and
WACHOVIA
CAPITAL MARKETS LLC,
as
Joint
Lead Arrangers and Joint Bookrunners
WACHOVIA
BANK, NATIONAL ASSOCIATION,
as
Syndication Agent
and
CITIBANK,
N.A.,
HSBC
BANK
USA, N.A.
and
THE
BANK
OF NEW YORK,
as
Documentation Agents
______________________________________________________________________________
TABLE
OF
CONTENTS1
Page
|
ARTICLE
I DEFINITIONS
|
1
|
|
SECTION
1.01. Definitions
|
1
|
|
SECTION
1.02. Accounting Terms and Determinations
|
13
|
|
SECTION
1.03. Types of Borrowings
|
14
|
|
ARTICLE
II THE CREDITS
|
14
|
|
SECTION
2.01. Letters of Credit.
|
14
|
|
SECTION
2.02. Issuance and Administration of Syndicated Letters of
Credit.
|
18
|
|
SECTION
2.03. Reimbursement for LC Disbursements, Cover, Etc.
|
18
|
|
SECTION
2.04. Loans
|
22
|
|
SECTION
2.05. Notice of Borrowings
|
23
|
|
SECTION
2.06. Funding of Loans
|
23
|
|
SECTION
2.07. Evidence of Loans
|
24
|
|
SECTION
2.08. Maturity of Loans
|
25
|
|
SECTION
2.09. Interest Rates of Loans
|
25
|
|
SECTION
2.10. Fees.
|
26
|
|
SECTION
2.11. Termination, Reduction or Increase of Commitments
|
27
|
|
SECTION
2.12. Optional Prepayments
|
29
|
|
SECTION
2.13. Payments Generally; Pro Rata Treatment
|
29
|
|
SECTION
2.14. Funding Losses
|
30
|
|
SECTION
2.15. Computation of Interest and Fees
|
31
|
|
SECTION
2.16. Extension of Commitment Termination Date
|
31
|
|
SECTION
2.17. Replacement of Banks; Fronted Letters of Credit; Obligations
of
Non-NAIC Approved Banks
|
32
|
|
ARTICLE
III CONDITIONS
|
35
|
|
SECTION
3.01. Each Credit Extension
|
35
|
|
SECTION
3.02. Effectiveness
|
35
|
|
ARTICLE
IV REPRESENTATIONS AND WARRANTIES
|
37
|
|
SECTION
4.01. Corporate Existence and Power
|
37
|
|
SECTION
4.02. Corporate and Governmental Authorization;
Contravention
|
37
|
|
SECTION
4.03. Binding Effect
|
37
|
|
SECTION
4.04. Financial Information
|
38
|
|
SECTION
4.05. Litigation
|
39
|
|
SECTION
4.06. Compliance with ERISA
|
39
|
|
SECTION
4.07. Taxes
|
39
|
|
SECTION
4.08. Subsidiaries
|
39
|
1
The
Table of Contents is not a part of this Agreement.
-i-
|
SECTION
4.09. Not an Investment Company
|
39
|
|
SECTION
4.10. Obligations to be Pari Passu
|
40
|
|
SECTION
4.11. No Default
|
40
|
|
SECTION
4.12. Restricted Subsidiaries
|
40
|
|
SECTION
4.13. Environmental Matters
|
40
|
|
SECTION
4.14. Full Disclosure
|
40
|
|
SECTION
4.15. Separate Representations of Subsidiary Account
Parties
|
40
|
|
ARTICLE
V COVENANTS
|
42
|
|
SECTION
5.01. Information
|
42
|
|
SECTION
5.02. Payment of Obligations
|
44
|
|
SECTION
5.03. Conduct of Business and Maintenance of Existence
|
45
|
|
SECTION
5.04. Maintenance of Property; Insurance
|
45
|
|
SECTION
5.05. Compliance with Laws
|
45
|
|
SECTION
5.06. Inspection of Property, Books and Records
|
45
|
|
SECTION
5.07. Minimum Adjusted Consolidated Net Worth
|
46
|
|
SECTION
5.08. Negative Pledge
|
46
|
|
SECTION
5.09. Consolidations, Mergers and Sales of Assets
|
46
|
|
SECTION
5.10. Use of Credit
|
46
|
|
SECTION
5.11. Obligations to be Pari Passu
|
47
|
|
SECTION
5.12. Termination of Jefferson-Pilot Credit Facility
|
47
|
|
ARTICLE
VI DEFAULTS
|
47
|
|
SECTION
6.01. Events of Default
|
47
|
|
SECTION
6.02. Notice of Default
|
51
|
|
ARTICLE
VII THE ADMINISTRATIVE AGENT
|
51
|
|
SECTION
7.01. Appointment and Authorization
|
51
|
|
SECTION
7.02. Agent's Fee
|
51
|
|
SECTION
7.03. Agent and Affiliates
|
51
|
|
SECTION
7.04. Action by Agent
|
51
|
|
SECTION
7.05. Consultation with Experts
|
52
|
|
SECTION
7.06. Liability of Agent
|
52
|
|
SECTION
7.07. Indemnification
|
52
|
|
SECTION
7.08. Credit Decision
|
53
|
|
SECTION
7.09. Successor Agent
|
53
|
|
SECTION
7.10. Delegation to Affiliates
|
53
|
|
SECTION
7.11. Joint Lead Arrangers and Other Agents
|
53
|
|
ARTICLE
VIII CHANGE IN CIRCUMSTANCES
|
54
|
|
SECTION
8.01. Basis for Determining Interest Rate Inadequate or
Unfair
|
54
|
|
SECTION
8.02. Illegality
|
54
|
|
SECTION
8.03. Increased Cost and Reduced Return
|
55
|
|
SECTION
8.04. Base Rate Loans Substituted for Affected Euro-Dollar
Loans
|
56
|
|
SECTION
8.05. Taxes
|
57
|
|
SECTION
8.06. Regulation D Compensation
|
59
|
-ii-
|
ARTICLE
IX GUARANTY
|
60
|
|
SECTION
9.01. The Guaranty
|
60
|
|
SECTION
9.02. Guaranty Unconditional
|
60
|
|
SECTION
9.03. Discharge Only Upon Payment In Full; Reinstatement In Certain
Circumstances
|
61
|
|
SECTION
9.04. Waiver by the Company
|
61
|
|
SECTION
9.05. Subrogation
|
62
|
|
ARTICLE
X MISCELLANEOUS
|
62
|
|
SECTION
10.01. Notices
|
62
|
|
SECTION
10.02. No Waivers
|
63
|
|
SECTION
10.03. Expenses; Indemnification; Non-Liability of Banks
|
63
|
|
SECTION
10.04. Sharing of Set-Offs
|
63
|
|
SECTION
10.05. Amendments and Waivers
|
64
|
|
SECTION
10.06. Successors and Assigns
|
65
|
|
SECTION
10.07. Collateral
|
66
|
|
SECTION
10.08. New York Law
|
66
|
|
SECTION
10.09. Judicial Proceedings
|
67
|
|
SECTION
10.10. Counterparts; Integration
|
68
|
|
SECTION
10.11. Confidentiality
|
68
|
|
SECTION
10.12. WAIVER OF JURY TRIAL
|
68
|
|
SECTION
10.13. Joinder and Termination of Subsidiary Account Party
|
69
|
|
SECTION
10.14. USA PATRIOT Act
|
69
|
-iii-
|
Schedule
I
|
Commitments
|
|
Schedule
II
|
List
of Restricted Subsidiaries
|
|
EXHIBIT
A
|
Form
of Note
|
|
EXHIBIT
B
|
Opinion
of Xxxxxx X. Xxxxxx, Esq., General Counsel of the
Company
|
|
EXHIBIT
C
|
Opinion
of Milbank, Tweed, Xxxxxx & XxXxxx LLP, Special New York Counsel to
JPMCB
|
|
EXHIBIT
D
|
Form
of Assignment and Assumption
|
|
EXHIBIT
E
|
Form
of Confirming Bank Agreement
|
|
EXHIBIT
F
|
Form
of Subsidiary Joinder Agreement
|
|
EXHIBIT
G
|
Subsidiary
Termination Notice
|
-iv-
FIFTH
AMENDED AND RESTATED CREDIT AGREEMENT dated as of March 10, 2006 among: LINCOLN
NATIONAL CORPORATION, the SUBSIDIARY ACCOUNT PARTIES party hereto, the BANKS
party hereto and JPMORGAN CHASE BANK, N.A., as Administrative
Agent.
The
Company, certain Subsidiary Account Parties, the banks party thereto and JPMCB,
as Administrative Agent, are parties to the Fourth Amended and Restated Letter
of Credit and Reimbursement Agreement dated as of December 10, 2004 (as amended
and in effect immediately prior to the effectiveness of this Agreement, the
"Existing
Credit Agreement").
The
Company and the Subsidiary Account Parties desire to amend the Existing Credit
Agreement in certain respects and to restate in its entirety the Existing Credit
Agreement as so amended, and in that connection the Account Parties have
requested that the Banks issue letters of credit for their account and the
Company has requested that the Banks make loans to it in an aggregate face
or
principal amount not exceeding $1,500,000,000 at any one time outstanding,
and
the Banks are prepared to issue such letters of credit and make such loans
upon
the terms and conditions hereof. Accordingly, the parties hereto agree to amend
and restate the Existing Credit Agreement in its entirety, and otherwise agree,
as follows:
ARTICLE
I
DEFINITIONS
SECTION
1.01. Definitions.
The
following terms, as used herein, have the following meanings:
"Account
Party"
means
any of the Company and the Subsidiary Account Parties, as the context may
require, and "Account
Parties"
means
all of the foregoing.
"Additional
Commitment Bank"
means
(a) a Bank or (b) any other Person which is a NAIC Approved Bank, in each case
that agrees to provide a Commitment or (in the case of a Bank) agrees to
increase the amount of its Commitment pursuant to Section 2.11(c) or Section
2.16, with the consent of the Administrative Agent (such consent not to be
unreasonably withheld).
"Adjusted
Consolidated Net Worth"
means,
at any date, the sum of (a) the consolidated shareholders' equity of the Company
and its Consolidated Subsidiaries, plus
(without
duplication) (b) the aggregate amount of Instruments, to the extent given equity
credit by S&P and/or Xxxxx'x; provided
that (i)
in the case such Instruments are given equity credit by both S&P and
Xxxxx'x, the higher of the two amounts shall apply for purposes of clause (b)
above and (ii) the amount of accumulated other comprehensive income (or loss),
as shown on the relevant consolidated balance sheet of the Company and its
Consolidated Subsidiaries most recently filed with the Securities and Exchange
Commission, shall be excluded from "Adjusted Consolidated Net
Worth".
"Administrative
Agent"
means
JPMCB, in its capacity as agent for the Banks hereunder, and its successors
in
such capacity.
"Administrative
Questionnaire"
means,
with respect to each Bank, an administrative questionnaire in the form prepared
by the Administrative Agent and submitted to the Administrative Agent (with
a
copy to the Company) duly completed by such Bank.
"Affiliate"
of any
Person means any other Person directly or indirectly controlling, controlled
by
or under common control with such Person. A Person shall be deemed to control
another Person if the controlling Person owns 10% or more of any class of voting
securities (or other ownership interests) of the controlled Person or possesses,
directly or indirectly, the power to direct or cause the direction of the
management or policies of the controlled Person, whether through ownership
of
stock, by contract or otherwise.
"Agreement"
means
this Fifth Amended and Restated Credit Agreement, as it may be amended or
modified and in effect from time to time.
"Applicable
Additional Margin"
means
0.05% per annum.
"Applicable
Lending Office"
means,
as to each Bank, its office, branch or Affiliate located at its address set
forth in its Administrative Questionnaire or such other office, branch or
Affiliate of such Bank as it may hereafter designate as its Applicable Lending
Office for purposes hereof by notice to the Company and the Administrative
Agent.
"Applicable
Facility Fee Rate",
"Applicable
Letter of Credit Commission"
and
"Applicable
Margin"
means,
for any day, with respect to the facility fees payable hereunder or with respect
to the letter of credit fees payable under Section 2.10(b) or with respect
to
the interest margin on any Euro-Dollar Loan, as the case may be, the applicable
rate per annum set forth below under the caption "Applicable Facility Fee Rate",
"Applicable Letter of Credit Commission" or "Applicable Margin", respectively,
based upon the ratings by Xxxxx'x and S&P, respectively, applicable on such
date to the Index Debt:
|
Index
Debt Ratings
(S&P/
Xxxxx'x)
|
Applicable
Facility Fee Rate
|
Applicable
Letter of Credit Commission
|
Applicable
Margin
|
|
|
Category
1
|
>
A+
/ A1
|
0.04%
|
0.11%
|
0.11%
|
|
Category
2
|
A
/
A2
|
0.045%
|
0.125%
|
0.125%
|
|
Category
3
|
A-
/ A3
|
0.05%
|
0.15%
|
0.15%
|
|
Category
4
|
BBB+
/ Baa1
|
0.06%
|
0.19%
|
0.19%
|
|
Category
5
|
<
BBB / Baa2
|
0.07%
|
0.28%
|
0.28%
|
For
purposes of the foregoing, (a) if the ratings established or deemed to have
been established by Xxxxx'x and S&P for the Index Debt shall fall within
different Categories that are one Category apart, the Applicable Facility Fee
Rate, the Applicable Letter of Credit Commission and the Applicable Margin
shall
be determined by reference to the Category of the higher of the two ratings;
(b) if the ratings established or deemed to have been established by
Xxxxx'x and S&P for the Index Debt shall fall within different Categories
that are more than one Category apart, the Applicable Facility Fee Rate, the
Applicable Letter of Credit Commission and the Applicable Margin shall be
determined by reference to the Category next below that of the higher of the
two
ratings; (c) if only one of Xxxxx'x and S&P shall have in effect a
rating for the Index Debt, the Applicable Facility Fee Rate, the Applicable
Letter of Credit Commission and the Applicable Margin shall be determined by
reference to the Category of such rating; (d) if neither Xxxxx'x nor
S&P shall have in effect a rating for the Index Debt (other than by reason
of the circumstances referred to in the last sentence of this definition),
then
the applicable rating shall be determined by reference to Category 5; and
(e) if the ratings established or deemed to have been established by
Xxxxx'x and S&P for the Index Debt shall be changed (other than as a result
of a change in the rating system of Xxxxx'x or S&P), such change shall be
effective as of the date on which it is first announced by the applicable rating
agency, irrespective of when notice of such change shall have been furnished
by
the Company to the Administrative Agent and the Banks pursuant to Section 5.01
or otherwise. Each change in the Applicable Facility Fee Rate, the Applicable
Letter of Credit Commission and the Applicable Margin shall apply during the
period commencing on the effective date of such change and ending on the date
immediately preceding the effective date of the next such change. If the rating
system of Xxxxx'x or S&P shall change, or if either such rating agency shall
cease to be in the business of rating corporate debt obligations, the Company
and the Banks shall negotiate in good faith to amend this definition to reflect
such changed rating system or the unavailability of ratings from such rating
agency and, pending the effectiveness of any such amendment, the Applicable
Facility Fee Rate, the Applicable Letter of Credit Commission and the Applicable
Margin shall be determined by reference to the rating of Xxxxx'x and/or S&P,
as the case may be, most recently in effect prior to such change or
cessation.
"Applicable
Percentage"
means,
with respect to any Bank, the percentage of the total Commitments represented
by
such Bank's Commitment. If the Commitments have terminated or expired, the
Applicable Percentages shall be determined based upon the Commitments most
recently in effect, giving effect to any assignments.
"Assignee"
has the
meaning set forth in Section 10.06(c).
"Assignment
and Assumption"
means
an assignment and assumption entered into by a Bank and an assignee (with the
consent of any party whose consent is required by Section 10.06), and
accepted by the Administrative Agent, in the form of Exhibit D or any other
form
approved by the Administrative Agent.
"Bank"
means
each Person listed under the caption "BANKS" on the signature pages hereof,
and
each other Person that shall become a party hereto as a Bank pursuant to this
Agreement (other than any such Person that ceases to be a Bank by means of
assignment pursuant to this Agreement), together with its successors. For
purposes of clarification, the term "Bank" shall include each Fronting Issuing
Bank.
"Base
Rate"
means,
for any day, a rate per annum equal to the higher of (i) the Prime Rate for
such
day and (ii) the sum of 1/2 of 1% plus
the
Federal Funds Rate for such day.
"Base
Rate Loan"
means a
Loan to be made by a Bank pursuant to Section 2.04 as a Base Rate Loan in
accordance with the applicable Notice of Borrowing or Article VIII.
"Benefit
Arrangement"
means
at any time an employee benefit plan within the meaning of Section 3(3) of
ERISA which is not a Plan or a Multiemployer Plan and which is maintained or
otherwise contributed to by any member of the ERISA Group.
"Borrowing"
has the
meaning set forth in Section 1.03.
Credit
Agreement
-5-
"Code"
means
the Internal Revenue Code of 1986, as amended, or any successor
statute.
"Collateral
Account"
has the
meaning set forth in Section 2.03(e).
"Commitment"
means,
with respect to any Bank, the commitment of such Bank (a) to issue Letters
of
Credit under Section 2.01(a) and to acquire participations in Fronted Letters
of
Credit (if any) and/or (b) to make Loans hereunder, in each case expressed
as an
amount representing the maximum aggregate amount of such Bank's Credit Exposure
hereunder, as such commitment may be (i) reduced or increased from time to
time pursuant to this Agreement (including pursuant to assignments by or to
such
Bank pursuant to Section 10.06). The initial amount of each Bank's
Commitment is set forth on Schedule I or in the Assignment and Assumption
or other instrument executed and delivered hereunder pursuant to which such
Bank
shall have assumed its Commitment, as applicable. The initial aggregate amount
of the Banks' Commitments is $1,500,000,000.
"Commitment
Availability Period"
means
the period from and including the Effective Date to but excluding earlier of
the
Commitment Termination Date and the date of termination of the
Commitments.
"Commitment
Termination Date"
means
(a) March 10, 2011 or, if such day is not a Euro-Dollar Business Day, the next
preceding Euro-Dollar Business Day or (b) with respect to any Bank the
Commitment of which has been extended pursuant to Section 2.16, the date to
which such Commitment has been so extended.
"Commitment
Utilization Day"
means
(a) any day on which the aggregate principal amount of outstanding Loans equals
or exceeds 50% of the aggregate amount of the Commitments and (b) any day
following the termination of the Commitments on which any Loans are outstanding
hereunder.
"Company"
means
Lincoln National Corporation, an Indiana corporation, and its
successors.
"Company's
2004 Form 10-K"
means
the Company's annual report on Form 10-K for 2004, as filed with the Securities
and Exchange Commission pursuant to the Securities Exchange Act of 1934, as
amended.
"Confirming
Bank"
means,
with respect to any Bank, any other bank that has agreed, by delivery of a
confirming bank agreement in substantially the form of Exhibit E (a
"Confirming
Bank Agreement"),
that
such other bank will itself honor the obligations of such Bank in respect of
a
draft complying with the terms of a Letter of Credit as if, and to the extent,
such other bank were the "Issuing Bank" named in such Letter of
Credit.
Credit
Agreement
-6-
"Confirming
Bank Agreement"
has the
meaning set forth in the definition of "Confirming Bank".
"Consolidated
Subsidiary"
means
at any date any Subsidiary or other entity the accounts of which would be
consolidated with those of the Company in its consolidated financial statements
if such statements were prepared as of such date.
"Credit
Documents"
means
(a) this Agreement, (b) the Notes, (c) with respect to any Subsidiary Account
Party, the Subsidiary Joinder Agreement to which it is a party and (d) with
respect to any Letter of Credit, collectively, any application therefor and
any
other agreements, instruments, guarantees or other documents (whether general
in
application or applicable only to such Letter of Credit) governing or providing
for (i) the rights and obligations of the parties concerned or at risk with
respect to such Letter of Credit or (ii) any collateral security for any of
such obligations, each as the same may be modified and supplemented and in
effect from time to time.
"Credit
Exposure"
means,
with respect to any Bank at any time, the sum of (a) the aggregate principal
amount of such Bank's Loans and (b) the aggregate amount of such Bank's LC
Exposure, in each case, outstanding at such time.
"Debt"
of any
Person means at any date, without duplication, (a) all obligations of such
Person for borrowed money, (b) all obligations of such Person evidenced by
bonds, debentures, notes or other similar instruments, (c) all obligations
of
such Person to pay the deferred purchase price of property or services, except
trade accounts payable arising in the ordinary course of business, (d) all
obligations of such Person as lessee under capital leases, (e) all
non-contingent obligations of such Person to reimburse any bank or other Person
in respect of amounts paid under a letter of credit or similar instrument,
(f)
all Debt of others secured by a Lien on any asset of such Person, whether or
not
such Debt is assumed by such Person, and (g) all Debt of others Guaranteed
by
such Person (it being understood that the definition of "Debt" does not include
any obligations of such Person (i) to purchase securities (or other property)
which arise out of or in connection with the sale of the same or substantially
similar securities (or other property) or (ii) to return collateral consisting
of securities arising out of or in connection with the loan of the same or
substantially similar securities).
"Default"
means
any condition or event which constitutes an Event of Default or which with
the
giving of notice or lapse of time or both would, unless cured or waived, become
an Event of Default.
"Derivative
Financial Products"
of any
Person means all obligations (including whether pursuant to any master agreement
or any particular agreement or transaction) of such Person in respect of any
rate swap transaction, basis swap, forward rate transaction, interest rate
future, commodity swap, commodity option, equity or equity index swap, equity
or
equity index option, bond option, interest rate option, foreign exchange
transaction, cap transaction, floor transaction, collar transaction, currency
swap transaction, cross-currency rate swap transaction, currency future,
currency option or any other similar transaction (including any option with
respect to any of the foregoing) or any combination thereof.
Credit
Agreement
-7-
"Dollars"
and the
sign "$"
means
lawful money in the United States of America.
"Domestic
Business Day"
means
any day except a Saturday, Sunday or other day on which commercial banks in
New
York City are authorized by law to close.
"Effective
Date"
means
the date this Agreement becomes effective in accordance with
Section 3.02.
"Environmental
Laws"
means
any and all federal, state, local and foreign statutes, laws, regulations,
ordinances, rules, judgments, orders, decrees, permits, concessions, grants,
franchises, licenses, agreements or other governmental restrictions relating
to
the environment or to emissions, discharges or releases of pollutants,
contaminants, petroleum or petroleum products, chemicals or industrial, toxic
or
hazardous substances or wastes into the environment including, without
limitation, ambient air, surface water, ground water or land, or otherwise
relating to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of pollutants, contaminants, petroleum or
petroleum products, chemicals or industrial, toxic or hazardous substances
or
wastes or the clean-up or other remediation thereof.
"ERISA"
means
the Employee Retirement Income Security Act of 1974, as amended, or any
successor statute.
"ERISA
Group"
means
the Company and all members of a controlled group of corporations and all trades
or businesses (whether or not incorporated) under common control which, together
with the Company, are treated as a single employer under Section 414(b) or
414(c) of the Code.
"Euro-Dollar
Business Day"
means
any Domestic Business Day on which commercial banks are open for international
business (including dealings in Dollar deposits) in London.
"Euro-Dollar
Loan"
means a
Loan to be made by a Bank pursuant to Section 2.04 as a Euro-Dollar Loan in
accordance with the applicable Notice of Borrowing.
Credit
Agreement
-8-
"Euro-Dollar
Reserve Percentage"
means,
for any day, that percentage (expressed as a decimal) which is in effect on
such
day, as prescribed by the Board of Governors of the Federal Reserve System
(or
any successor) for determining the maximum reserve requirement for a member
bank
of the Federal Reserve System in New York City with deposits exceeding five
billion dollars in respect of "Eurocurrency liabilities" (or in respect of
any
other category of liabilities which includes deposits by reference to which
the
interest rate on Euro-Dollar Loans is determined or any category of extensions
of credit or other assets which includes loans by a non-United States office
of
any Bank to United States residents).
"Event
of Default"
has the
meaning set forth in Section 6.01.
"Existing
Credit Agreement"
has the
meaning set forth in the second paragraph of this Agreement.
"FASB"
means
the Financial Accounting Standards Board or any entity or body succeeding to
any
or all of its functions.
"Federal
Funds Rate"
means,
for any day, the rate per annum (rounded upward, if necessary, to the nearest
1/100th of 1%) equal to the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System arranged by
Federal funds brokers on such day, as published by the Federal Reserve Bank
of
New York on the Domestic Business Day next succeeding such day, provided
that
(i) if such day is not a Domestic Business Day, the Federal Funds Rate for
such day shall be such rate on such transactions on the next preceding Domestic
Business Day as so published on the next succeeding Domestic Business Day,
and
(ii) if no such rate is so published on such next succeeding Domestic
Business Day (as provided in clause (i)), the Federal Funds Rate for such
day shall be the average rate quoted to the Person serving as Administrative
Agent on such day on such transactions as determined by the Administrative
Agent.
"Fronted
Letter of Credit"
has the
meaning set forth in Section 2.17(c).
"Fronting
Issuing Bank"
has the
meaning set forth in Section 2.17(c).
"Guarantee"
by any
Person means any obligation, contingent or otherwise, of such Person directly
or
indirectly guaranteeing any Debt of any other Person and, without limiting
the
generality of the foregoing, any obligation, direct or indirect, contingent
or
otherwise, of such Person (i) to purchase or pay (or advance or supply funds
for
the purchase or payment of) such Debt (whether arising by virtue of partnership
arrangements, by agreement to keep-well, to purchase assets, goods, securities
or services, to take-or-pay, or to maintain financial statement conditions
or
otherwise) or (ii) entered into for the purpose of assuring in any other manner
the obligee of such Debt of the payment thereof or to protect such obligee
against loss in respect thereof (in whole or in part), provided
that the
term "Guarantee" shall not include endorsements for collection or deposit in
the
ordinary course of business. The term "Guarantee" used as a verb has a
corresponding meaning.
Credit
Agreement
-9-
"Guarantor"
means
the Company in its capacity as guarantor of the obligations of each other
Account Party pursuant to the provisions of Article IX.
"Index
Debt"
means
senior, unsecured, long-term indebtedness for borrowed money of the Company
that
is not guaranteed by any other Person or subject to any other credit
enhancement.
"Instruments"
means
Securities that are given equity credit by S&P or Xxxxx'x (and as to which
the Company shall have provided evidence of such credit to the Administrative
Agent), provided
that the
term "Instruments" shall exclude any Securities that are recorded in the
shareholder's equity section of the consolidated balance sheet of the Company
and its Consolidated Subsidiaries most recently filed with the Securities and
Exchange Commission.
"Insurance
Subsidiary"
means
any Restricted Subsidiary which is subject to the regulation of, and is required
to file statements with, any governmental body, agency or official in any State
or territory of the United States or the District of Columbia which regulates
insurance companies or the doing of an insurance business therein.
"Interest
Period"
means,
with respect to each Euro-Dollar Borrowing, the period commencing on the date
of
such Borrowing and ending one week or one, two, three or six months thereafter,
as the Company may elect in the applicable Notice of Borrowing; provided
that:
(a) any
Interest Period which would otherwise end on a day which is not a Euro-Dollar
Business Day shall be extended to the next succeeding Euro-Dollar Business
Day
unless such Euro-Dollar Business Day falls in another calendar month, in which
case such Interest Period shall end on the next preceding Euro-Dollar Business
Day;
(b) any
Interest Period which begins on the last Euro-Dollar 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
Euro-Dollar Business Day of a calendar month; and
(c) any
Interest Period which begins before the Commitment Termination Date and would
otherwise end after the Commitment Termination Date shall end on the Commitment
Termination Date (provided
that, if
at any time there shall exist different Commitment Termination Dates for the
Banks hereunder, such Interest Period shall not end after the latest applicable
Commitment Termination Date).
Credit
Agreement
-10-
"Investment"
means
any investment in any Person, whether by means of share purchase, capital
contribution, loan, time deposit or otherwise.
"Jefferson-Pilot
Acquisition"
means
the acquisition by the Company or any of its Subsidiaries of Jefferson-Pilot
Corporation by way of merger of Jefferson-Pilot Corporation with and into a
wholly-owned Subsidiary of the Company.
"JPMCB"
means
JPMorgan Chase Bank, N.A.
"LC
Disbursement"
means a
payment made by a Bank pursuant to a Letter of Credit.
"LC Exposure"
means,
at any time, the sum of (a) the aggregate undrawn amount of all outstanding
Letters of Credit at such time plus
(b) the aggregate amount of all LC Disbursements under Letters of Credit
that have not yet been reimbursed by or on behalf of the Account Parties at
such
time. The LC Exposure of any Bank shall at any time be its Applicable
Percentage of the total LC Exposure at such time.
"Letters
of Credit"
means
letters of credit issued under Section 2.01 or Section 2.17.
"LIBO
Rate"
has the
meaning set forth in Section 2.09(b).
"Lien"
means,
with respect to any asset, any mortgage, lien, pledge, charge, security interest
or encumbrance of any kind in respect of such asset. For the purposes of this
Agreement, the Company or any Subsidiary shall be deemed to own subject to
a
Lien any asset which it has acquired or beneficially holds subject to the
interest of a vendor or lessor under any conditional sale agreement, capital
lease or other title retention agreement relating to such asset.
"Loan"
means a
Base Rate Loan or a Euro-Dollar Loan and "Loans" means Base Rate Loans or
Euro-Dollar Loans or any combination of the foregoing.
"Material
Adverse Effect"
means a
material adverse effect on (a) business, financial condition, results of
operations or prospects of the Company and its Consolidated Subsidiaries, taken
as a whole, (b) the ability of any Account Party to perform any material
obligations under the Credit Documents or (c) the material rights and remedies
of the Banks under the Credit Documents.
"Material
Subsidiary"
means
any Subsidiary of the Company with assets of $150,000,000 or more.
Credit
Agreement
-11-
"Xxxxx'x"
means
Xxxxx'x Investors Service, Inc.
"Multiemployer
Plan"
means
at any time an employee pension benefit plan within the meaning of
Section 4001(a)(3) of ERISA to which any member of the ERISA Group is then
making or accruing an obligation to make contributions or has within the
preceding five plan years made contributions, including for these purposes
any
Person which ceased to be a member of the ERISA Group during such five-year
period.
"NAIC"
means
the National Association of Insurance Commissioners and any successor
thereto.
"NAIC
Approved Bank"
means
(a) any Bank that is a bank listed on the most current "Bank List" of banks
approved by the NAIC (the "NAIC
Approved Bank List")
or
(b) any Bank as to which its Confirming Bank is a bank listed on the NAIC
Approved Bank List.
"NAIC
Approved Bank List"
has the
meaning set forth in the definition of "NAIC Approved Bank".
"Newly
Acquired Subsidiary"
means
any Subsidiary that is not a Subsidiary on the date hereof but that becomes
a
Subsidiary after the date hereof, but only during the 180 days after the first
date on which such Subsidiary became a Subsidiary.
"Non-NAIC
Approved Bank"
means
at any time any Bank that is not a NAIC Approved Bank.
"Notes"
means a
promissory note or notes of the Company, substantially in the form of Exhibit
A
hereto, evidencing the obligation of the Company to repay the Loans made to
it
hereunder, and "Note" means any one of such promissory notes issued
hereunder.
"Notice
of Borrowing"
has the
meaning set forth in Section 2.05.
"Parent"
means,
with respect to any Bank, any Person controlling such Bank.
"Participant"
has the
meaning set forth in Section 10.06(b).
"Payment
Account"
means
an account designated by the Administrative Agent in a notice to the Account
Parties and the Banks to which payments hereunder are to be made.
"PBGC"
means
the Pension Benefit Guaranty Corporation or any entity succeeding to any or
all
of its functions under ERISA.
Credit
Agreement
-12-
"Person"
means
an individual, a corporation, a partnership, an association, a trust or any
other entity or organization, including a government or political subdivision
or
an agency or instrumentality thereof.
"Plan"
means
at any time an employee pension benefit plan (other than a Multiemployer Plan)
which is covered by Title IV of ERISA or subject to the minimum funding
standards under Section 412 of the Code and either (i) is maintained, or
contributed to, by any member of the ERISA Group for employees of any member
of
the ERISA Group or (ii) has at any time within the preceding five years been
maintained, or contributed to, by any Person which was at such time a member
of
the ERISA Group for employees of any Person which was at such time a member
of
the ERISA Group.
"Prime
Rate"
means
the rate of interest publicly announced from time to time by JPMCB as its prime
rate as in effect at its principal office in New York City; each change in
the
Prime Rate shall be effective from and including the date such change is
publicly announced as being effective.
"Quarterly
Dates"
means
the last day of March, June, September and December in each year, the first
of which shall be the first such day after the date hereof.
"Regulations
T, U and X"
means
Regulations T, U and X, respectively, of the Board of Governors of the Federal
Reserve System, in each case as in effect from time to time.
"Related
Parties"
means,
with respect to any specified Person, such Person's Affiliates and the
respective directors, officers, employees, agents and advisors of such Person
and such Person's Affiliates.
"Required
Banks"
means
at any time Banks having Commitments representing more than 50% of the aggregate
amount of the Commitments at such time; provided
that, if
the Commitments have expired or been terminated or if at any time following
an
extension of the Commitment Termination Date pursuant to Section 2.16 the
Commitment of any non-extending Bank or Banks thereunder shall have terminated,
"Required Banks" means Banks having more than 50% of the aggregate amount of
the
Credit Exposures of the Banks at such time.
"Restricted
Subsidiary"
means,
as of any date, a Subsidiary which meets the definitional requirements of a
"significant subsidiary", as such term is defined in the rules set forth in
Regulation S-X under the Securities Exchange Act of 1934, as amended (applying
the tests set forth in such rules with reference to the consolidated balance
sheets and related consolidated statements of income of the Company and its
Consolidated Subsidiaries as of the last day of its most recently completed
fiscal quarter and for the twelve-month period then ended).
"S&P"
means
Standard and Poor's Ratings Services.
Credit
Agreement
-13-
"Secured
Obligations"
has the
meaning set forth in Section 2.03(e).
"Securities"
means
any stock, share, partnership interest, membership interest in a limited
liability company, voting trust certificate, certificate of interest or
participation in any profit-sharing agreement or arrangement, option, warrant,
bond, debenture, note, or other evidence of indebtedness, secured or unsecured,
convertible, subordinated or otherwise, or in general any instruments commonly
known as "securities" or any certificates of interest, shares or participations
in temporary or interim certificates for the purchase or acquisition of, or
any
right to subscribe to, purchase or acquire, any of the foregoing.
"Subsidiary"
means
any corporation or other entity of which securities or other ownership interests
having ordinary voting power to elect a majority of the board of directors
or
other persons performing similar functions are at the time directly or
indirectly owned by the Company.
"Subsidiary
Account Parties"
means
each Subsidiary of the Company that is listed on the signature pages hereof
under the caption "SUBSIDIARY ACCOUNT PARTIES" and each other Subsidiary of
the
Company that shall become a Subsidiary Account Party pursuant to Section 10.13,
so long as such Subsidiary shall remain a Subsidiary Account Party
hereunder.
"Type",
when
used in reference to any Loan or Borrowing, refers to whether the Loan is a
Base
Rate Loan or a Euro-Dollar Loan.
"Unfunded
Liabilities"
means,
with respect to any Plan at any time, the amount (if any) by which (i) the
present value of all benefits under such Plan exceeds (ii) the fair market
value
of all Plan assets allocable to such benefits (excluding any accrued but unpaid
contributions), all determined as of the then most recent valuation date for
such Plan, but only to the extent that such excess represents a potential
liability of a member of the ERISA Group to the PBGC or any other Person under
Title IV of ERISA.
"Wachovia"
means
Wachovia Bank, National Association.
SECTION
1.02. Accounting
Terms and Determinations.
Unless
otherwise specified herein, all accounting terms used herein shall be
interpreted, all accounting determinations hereunder shall be made and all
financial statements required to be delivered hereunder shall be prepared in
accordance with generally accepted accounting principles as in effect from
time
to time, applied on a basis consistent (except for changes concurred in by
the
Company's independent public accountants) with the most recent audited
consolidated financial statements of the Company and its Consolidated
Subsidiaries delivered to the Banks; provided
that if
the Company notifies the Administrative Agent that the Company wishes to amend
any covenant in Article V to eliminate the effect of any change in generally
accepted accounting principles on the operation of such covenant (or if the
Administrative Agent notifies the Company that the Required Banks wish to amend
Article V for such purpose), then the Company's compliance with such covenant
shall be determined on the basis of generally accepted accounting principles
in
effect immediately before the relevant change in generally accepted accounting
principles became effective, until either such notice is withdrawn or such
covenant is amended in a manner satisfactory to the Company and the Required
Banks.
Credit
Agreement
-14-
SECTION
1.03. Types
of Borrowings.
The
term "Borrowing" denotes the aggregation of Loans to be made to the Company
pursuant to Section 2.04 on a single date and for a single Interest Period.
Borrowings are classified for purposes of this Agreement by reference to the
pricing of Loans comprising such Borrowing (e.g.,
a
"Euro-Dollar Borrowing" is a Borrowing comprised of Euro-Dollar
Loans).
ARTICLE
II
THE
CREDITS
SECTION
2.01. Letters
of Credit.
(a) General.
Subject
to the terms and conditions set forth herein, at the request of any Account
Party the Banks agree at any time and from time to time during the Commitment
Availability Period to issue Letters of Credit denominated in Dollars for the
account of such Account Party that will not result in the aggregate outstanding
amount of the Credit Exposures of the Banks exceeding the aggregate amount
of
the Commitments of the Banks.
Each
Letter of Credit shall be a standby letter of credit in such form as the
relevant Account Party shall request and which (i) the Administrative Agent
shall determine in good faith does not contain any obligations, or diminish
any
rights, of any Bank with respect thereto that are inconsistent with the terms
hereof or (ii) the Required Banks shall approve. Except as set forth in
Section 2.17, without the prior consent of each Bank, no Letter of Credit may
be
issued that would vary the several and not joint nature of the obligations
of
the Banks thereunder, and each Letter of Credit shall be issued by all of the
Banks having Commitments at the time of issuance as a single multi-bank letter
of credit, but the obligation of each Bank thereunder shall be several and
not
joint, based upon its Applicable Percentage of the aggregate undrawn amount
of
such Letter of Credit.
(b) Notice
of Issuance, Amendment, Renewal or Extension.
To
request the issuance of a Letter of Credit (or the amendment, renewal or
extension of an outstanding Letter of Credit), an Account Party shall hand
deliver or telecopy (or transmit by electronic communication, if arrangements
for doing so have been approved by the Administrative Agent) to the
Administrative Agent (if by hand delivery or telecopy, not later than noon
(New
York City time) on the Domestic Business Day prior to, and if by approved
electronic communication, not later than 10:00 a.m. (New York City time) on
the
date of, the requested date of issuance, amendment, renewal or extension) a
notice requesting the issuance of a Letter of Credit, or identifying the Letter
of Credit to be amended, renewed or extended, and specifying the date of
issuance, amendment, renewal or extension, as the case may be (which shall
be a
Domestic Business Day), the date on which such Letter of Credit is to expire
(which shall comply with Section 2.01(d)), the amount of such Letter of
Credit, the name and address of the beneficiary thereof and the terms and
conditions of (and such other information as shall be necessary to prepare,
amend, renew or extend, as the case may be) such Letter of Credit. If requested
by the Administrative Agent or (in the case of any Fronted Letter of Credit)
the
applicable Fronting Issuing Bank through the Administrative Agent, such Account
Party also shall submit a letter of credit application on standard form of
the
Person that is serving as Administrative Agent or such Fronting Issuing Bank,
as
applicable, in connection with any request for a Letter of Credit. In the event
of any inconsistency between the terms and conditions of this Agreement and
the
terms and conditions of any form of letter of credit application or other
agreement submitted by any Account Party to, or entered into by any Account
Party with, the Person that is serving as Administrative Agent or such Fronting
Issuing Bank, as applicable, relating to any Letter of Credit, the terms and
conditions of this Agreement shall control.
Credit
Agreement
-15-
If
any
Letter of Credit shall provide for the automatic extension of the expiry date
thereof unless the Administrative Agent or (in the case of any Fronted Letter
of
Credit) the applicable Fronting Issuing Bank shall give notice to the
beneficiary thereof that such expiry date shall not be extended (each such
Letter of Credit, an "Evergreen
Letter of Credit"
and
such notice, a "Non-Extension
Notice"),
then
the Administrative Agent or such Fronting Issuing Bank, as applicable, will
give
a Non-Extension Notice under such Evergreen Letter of Credit if requested to
do
so by notice given to the Administrative Agent or such Fronting Issuing Bank
(through the Administrative Agent), not more than 60 days, and not less than
45
days, prior to the current expiry date thereof, by (i) the Required Banks,
(ii) the applicable Account Party or the Company or (iii) (subject to
the immediately succeeding sentence) any Bank.
If
upon
or at any time following the Commitment Termination Date with respect to any
Bank any Evergreen Letter of Credit shall be outstanding, such Bank may give
notice to the Administrative Agent (with a copy to the Company) requesting
that
the Administrative Agent or (in the case of any Fronted Letter of Credit) the
applicable Fronting Issuing Bank give a Non-Extension Notice under such
Evergreen Letter of Credit at the next earliest permitted time in accordance
with the terms thereof, whereupon (subject to the first proviso below) the
Administrative Agent or (in the case of any Fronted Letter of Credit) the
applicable Fronting Issuing Bank agrees to give such Non-Extension Notice;
provided
that
prior to the Administrative Agent (or Fronting Issuing Bank, as applicable)
giving such Non-Extension Notice, the Company may elect by notice to the
Administrative Agent (or Fronting Issuing Bank, as applicable) that, in lieu
of
giving such Non-Extension Notice, (i) in respect of Fronted Letters of Credit,
no such notice be issued (and the immediately succeeding sentence shall be
applicable thereto) and (ii) in respect of all other Letters of Credit, the
Administrative Agent shall, at the same time it would have been required to
give
such notice, notify the beneficiary of such Letter of Credit in accordance
with
the terms thereof of those Banks whose Commitments have not been terminated
as
of such time and such Banks' then respective Applicable Percentages under such
Letter of Credit, provided
that
such election shall not be permitted and no such notification shall be given
unless, after giving effect thereto, the aggregate outstanding amount of the
Credit Exposures of such Banks shall not exceed the aggregate amount of the
Commitments of such Banks. If the Company shall have provided notice under
clause (i) of the first proviso of the immediately preceding sentence with
respect to Fronted Letters of Credit, with respect to any outstanding Fronted
Letter of Credit upon the Commitment Termination Date of any Bank, the
participation interest of such Bank in each such Fronted Letter of Credit shall
automatically terminate on the first anniversary of such Commitment Termination
Date, and the participation interests of those Banks whose Commitments have
not
been terminated shall automatically be adjusted to reflect, and each such Bank
shall have a participation in each such Fronted Letter of Credit equal to,
such
Bank’s Applicable Percentage of the aggregate amount available to be drawn under
such Fronted Letter of Credit on such first anniversary.
Credit
Agreement
-16-
(c) Limitations
on Amounts and Daily Transactions.
Each
Letter of Credit shall be issued, amended, renewed or extended if and only
if
(and upon such issuance, amendment, renewal or extension of each Letter of
Credit the Account Parties shall be deemed to represent and warrant that),
after
giving effect to such issuance, amendment, renewal or extension, the aggregate
outstanding amount of the Credit Exposures of the Banks shall not exceed the
aggregate amount of the Commitments of the Banks.
In
no
event may more than 25 issuances, amendments, renewals and/or extensions of
Letters of Credit occur on any day, unless the Administrative Agent shall
otherwise agree.
(d) Expiry
Date.
Each
Letter of Credit shall expire at or prior to the close of business on the
earlier of (i) the date one year after the date of the issuance of such Letter
of Credit (provided
that
such Letter of Credit may contain "evergreen" provisions for the renewal or
extension thereof to a date one year after the then current expiry date thereof)
or (ii) the first anniversary of the Commitment Termination Date (or, if at
any
time there shall exist different Commitment Termination Dates for the Banks
hereunder, the first anniversary of the latest applicable Commitment Termination
Date).
Credit
Agreement
-17-
(e) Obligation
of Banks.
With
respect to any Letter of Credit (other than Fronted Letters of Credit), the
obligation of any Bank under such Letter of Credit shall be several and not
joint and shall at any time be in an amount equal to such Bank's Applicable
Percentage of the aggregate undrawn amount of such Letter of Credit, and each
such Letter of Credit shall expressly so provide.
By
the
issuance of a Fronted Letter of Credit (or an amendment to a Fronted Letter
of
Credit increasing the amount thereof) by any Fronting Issuing Bank, and without
any further action on the part of any Fronting Issuing Bank or the Banks, the
applicable Fronting Issuing Bank hereby grants to each Bank, and each Bank
hereby acquires from such Fronting Issuing Bank, a participation in such Fronted
Letter of Credit equal to such Bank's Applicable Percentage of the aggregate
amount available to be drawn under such Fronted Letter of Credit. Each Bank
acknowledges and agrees that its obligation to acquire participations in respect
of Fronted Letters of Credit is absolute and unconditional and shall not be
affected by any circumstance whatsoever, including any amendment, renewal or
extension of any Fronted Letter of Credit or the occurrence and continuance
of a
Default or reduction or termination of the Commitments. In consideration and
in
furtherance of the foregoing, each Bank hereby absolutely and unconditionally
agrees to pay to the Administrative Agent, for account of the applicable
Fronting Issuing Bank, such Bank's Applicable Percentage of each LC Disbursement
made by such Fronting Issuing Bank in respect of any Fronted Letter of Credit
promptly upon the request of such Fronting Issuing Bank at any time from the
time such LC Disbursement is made until such LC Disbursement is reimbursed
by
the applicable Account Party or at any time after any reimbursement payment
is
required to be refunded to such Account Party for any reason. Such payment
shall
be made without any offset, abatement, withholding or reduction whatsoever.
Promptly following receipt by the Administrative Agent of any payment from
the
applicable Account Party pursuant to Section 2.03(a) in respect of any Fronted
Letter of Credit, the Administrative Agent shall distribute such payment to
the
applicable Fronting Issuing Bank or, to the extent that the Banks have made
payments pursuant to this paragraph to reimburse such Fronting Issuing Bank,
then to the Banks and such Fronting Issuing Bank as their interests may appear.
Any payment made by a Bank pursuant to this paragraph to reimburse the
applicable Fronting Issuing Bank for any LC Disbursement shall not relieve
any Account Party of its obligation to reimburse such
LC Disbursement.
(f) Adjustment
of Applicable Percentages.
Upon
(i) each addition of a new Bank hereunder and (ii) each increase in or any
assignment of the Commitment of a Bank pursuant to this Agreement, then (A)
the
Administrative Agent shall promptly notify each beneficiary under each
outstanding Letter of Credit (other than a Fronted Letter of Credit) of the
Banks that are parties to such Letter of Credit, after giving effect to such
event, and such Banks' respective Applicable Percentages as of the relevant
effective date thereof and (B) (in the case of each outstanding Fronted Letter
of Credit) the participation interest of each Bank therein shall automatically
be adjusted to reflect, and each Bank shall have a participation in such Fronted
Letter of Credit equal to, such Bank's Applicable Percentage of the aggregate
amount available to be drawn under such Fronted Letter of Credit after giving
effect to such event.
Credit
Agreement
-18-
(g) Continuation
of Existing Letters of Credit.
As of
the Effective Date, each of the letters of credit then outstanding under the
Existing Credit Agreement shall be automatically continued hereunder as a Letter
of Credit issued under Section 2.01(a), and the Administrative Agent shall
promptly notify the beneficiary of each such Letter of Credit as to (i) the
Banks that as of the Effective Date are parties thereto and (ii) such
Banks' respective Applicable Percentages thereunder.
SECTION
2.02. Issuance
and Administration of Syndicated Letters of Credit.
With
respect to any Letter of Credit (other than Fronted Letters of Credit), each
such Letter of Credit shall be executed and delivered by the Administrative
Agent in the name and on behalf of, and as attorney-in-fact for, the Banks
party
to such Letter of Credit, and the Administrative Agent shall act under each
such
Letter of Credit, and each such Letter of Credit shall expressly provide that
the Administrative Agent shall act as the agent of each such Bank to
(a) receive drafts, other demands for payment and other documents presented
by the beneficiary under such Letter of Credit, (b) determine whether such
drafts, demands and documents are in compliance with the terms and conditions
of
such Letter of Credit and (c) to notify such Bank, the Company and the
applicable Account Party that a valid drawing has been made and the date that
the related LC Disbursement is to be made; provided
that the
Administrative Agent shall have no obligation or liability for any LC
Disbursement under such Letter of Credit, and each such Letter of Credit shall
expressly so provide. Each Bank hereby irrevocably appoints and designates
the
Administrative Agent as its attorney-in-fact, acting through any duly authorized
officer of the Person that is serving as the Administrative Agent, to execute
and deliver in the name and on behalf of such Bank each such Letter of Credit
to
be issued by the Banks hereunder. Promptly upon the request of the
Administrative Agent, each Bank will furnish to the Administrative Agent such
powers of attorney or other evidence as any beneficiary of any such Letter
of
Credit may reasonably request in order to demonstrate that the Administrative
Agent has the power to act as attorney-in-fact for such Bank to execute and
deliver such Letter of Credit.
SECTION
2.03. Reimbursement
for LC Disbursements, Cover, Etc.
(a) Reimbursement.
If any
Bank shall make any LC Disbursement in respect of any Letter of Credit, the
Account Party with respect to such Letter of Credit shall reimburse such Bank
in
respect of any such LC Disbursement by paying to the Administrative Agent an
amount equal to such LC Disbursement not later than noon, New York City time,
on
(A) the Domestic Business Day that the Company and such Account Party
receive notice of such LC Disbursement, if such notice is received prior to
10:00 a.m., New York City time, or (B) the Domestic Business Day
immediately following the day that the Company and such Account Party receive
such notice, if such notice is received on a day which is not a Domestic
Business Day or is not received prior to 10:00 a.m., New York City time, on
a
Domestic Business Day.
Credit
Agreement
-19-
(b) Reimbursement
Obligations Absolute.
The
Account Parties' obligations to reimburse LC Disbursements as provided in
Section 2.03(a) shall be absolute, unconditional and irrevocable, and shall
be performed strictly in accordance with the terms of this Agreement under
any
and all circumstances whatsoever and irrespective of (i) any lack of
validity or enforceability of any Letter of Credit, or any term or provision
therein, (ii) any draft or other document presented under a Letter of
Credit proving to be forged, fraudulent or invalid in any respect or any
statement therein being untrue or inaccurate in any respect, (iii) payment
under a Letter of Credit against presentation of a draft or other document
that
does not comply strictly with the terms of such Letter of Credit, (iv) at any
time or from time to time, without notice to any Account Party, the time for
any
performance of or compliance with any of such reimbursement obligations of
any
other Account Party shall be waived, extended or renewed, (v) any of such
reimbursement obligations of any other Account Party shall be amended or
otherwise modified in any respect, or the Guarantee of any of such reimbursement
obligations or any security therefor shall be released, substituted or exchanged
in whole or in part or otherwise dealt with, (vi) any lien or security interest
granted to, or in favor of, the Administrative Agent or any of the Banks as
security for any of such reimbursement obligations shall fail to be perfected,
(vii) the occurrence of any Default, (viii) the existence of any
proceedings of the type described in Section 6.01(g) or (h) with respect to
any other Account Party or the Guarantor of any of such reimbursement
obligations, (ix) any lack of validity or enforceability of any of such
reimbursement obligations against any other Account Party or the Guarantor
of
any of such reimbursement obligations, or (x) any other event or
circumstance whatsoever, whether or not similar to any of the foregoing, that
might, but for the provisions of this Section 2.03, constitute a legal or
equitable discharge of the obligations of any Account Party
hereunder.
Neither
the Administrative Agent nor any Bank nor any of their Related Parties shall
have any liability or responsibility by reason of or in connection with the
issuance or transfer of any Letter of Credit or any payment or failure to make
any payment thereunder (irrespective of any of the circumstances referred to
in
the preceding sentence), or any error, omission, interruption, loss or delay
in
transmission or delivery of any draft, notice or other communication under
or
relating to any Letter of Credit (including any document required to make a
drawing thereunder), any error in interpretation of technical terms or any
consequence arising from causes beyond their control; provided
that the
foregoing shall not be construed to excuse the Administrative Agent or a Bank
from liability to any Account Party to the extent of any direct damages (as
opposed to consequential damages, claims in respect of which are hereby waived
by the Account Parties to the extent permitted by applicable law) suffered
by
any Account Party that are caused by (x) the gross negligence or willful
misconduct of the Administrative Agent or such Bank, as the case may be, or
(y)
in the case of any Bank, its failure to make an LC Disbursement in respect
of
any drawing properly made under a Letter of Credit as provided in Section
2.03(c). The parties hereto expressly agree that:
Credit
Agreement
-20-
(i)
the
Administrative Agent or (in the case of any Fronted Letter of Credit) the
applicable Fronting Issuing Bank may accept documents that appear on their
face
to be in substantial compliance with the terms of a Letter of Credit without
responsibility for further investigation, regardless of any notice or
information to the contrary, and may make payment upon presentation of documents
that appear on their face to be in substantial compliance with the terms of
such
Letter of Credit;
(ii)
the
Administrative Agent or (in the case of any Fronted Letter of Credit) the
applicable Fronting Issuing Bank shall have the right, in its sole discretion,
to decline to accept such documents and to make such payment if such documents
are not in strict compliance with the terms of such Letter of Credit;
and
(iii)
this sentence shall establish the standard of care to be exercised by the
Administrative Agent or (in the case of any Fronted Letter of Credit) the
applicable Fronting Issuing Bank when determining whether drafts and other
documents presented under a Letter of Credit comply with the terms thereof
(and
the parties hereto hereby waive, to the extent permitted by applicable law,
any
standard of care inconsistent with the foregoing).
(c) Disbursement
Procedures.
(i) The
following provisions shall apply to any Letter of Credit (other than any Fronted
Letter of Credit). The Administrative Agent shall, within a reasonable time
following its receipt thereof, examine all documents purporting to represent
a
demand for payment under any such Letter of Credit. The Administrative Agent
shall promptly after such examination (A) notify each of the Banks, the
Company and the Account Party by telephone (confirmed by telecopy) of such
demand for payment and (B) deliver to each Bank a copy of each document
purporting to represent a demand for payment under such Letter of Credit. With
respect to any drawing properly made under any such Letter of Credit, each
Bank
will make an LC Disbursement in respect of such Letter of Credit in accordance
with its liability under such Letter of Credit and this Agreement, such LC
Disbursement to be made to the account of the Administrative Agent most recently
designated by it for such purpose by notice to the Banks. The Administrative
Agent will make any such LC Disbursement available to the beneficiary of such
Letter of Credit by promptly crediting the amounts so received, in like funds,
to the account identified by such beneficiary in connection with such demand
for
payment. Promptly following any LC Disbursement by any Bank in respect of any
such Letter of Credit, the Administrative Agent will notify the Company and
the
applicable Account Party of such LC Disbursement; provided
that any
failure to give or delay in giving such notice shall not relieve such Account
Party of its obligation to reimburse the Banks with respect to any such LC
Disbursement or the Guarantor of its guarantee of such obligation.
Credit
Agreement
-21-
(ii)
The
following provisions shall apply to any Fronted Letter of Credit. The applicable
Fronting Issuing Bank shall, within a reasonable time following its receipt
thereof, examine all documents purporting to represent a demand for payment
under a Fronted Letter of Credit. The applicable Fronting Issuing Bank shall
promptly after such examination notify the Administrative Agent and the Company
by telephone (confirmed by telecopy) of such demand for payment and whether
such
Fronting Issuing Bank has made or will make a LC Disbursement thereunder;
provided
that any
failure to give or delay in giving such notice shall not relieve the applicable
Account Party of its obligation to reimburse such Fronting Issuing Bank and
the
Banks with respect to any such LC Disbursement.
(d) Interim
Interest.
If any
LC Disbursement is made, then, unless the Account Parties shall reimburse such
LC Disbursement in full on the date such LC Disbursement is made (without regard
for when notice thereof is given), the unpaid amount thereof shall bear
interest, for each day from and including the date such LC Disbursement is
made
to but excluding the date that the applicable Account Party reimburses such
LC
Disbursement, at the rate per annum equal to (i) 1% plus
the Base
Rate to but excluding the date three Domestic Business Days after such LC
Disbursement and (ii) from and including the date three Domestic Business Days
after such LC Disbursement, 3% plus
the Base
Rate.
(e) Provision
of Cover.
In the
event the Company and the Account Parties shall have provided cover for
outstanding Letters of Credit pursuant to Section 6.01, the Administrative
Agent
will establish a separate cash collateral account (the "Collateral
Account"),
which
may be a "securities account" (as defined in Section 8-501 of the Uniform
Commercial Code as in effect in New York (the "NY
UCC")),
in
the name and under the sole dominion and control of the Administrative Agent
(and, in the case of a securities account, in respect of which the
Administrative Agent is the "entitlement holder" (as defined in
Section 8-102(a)(7) of the NY UCC)) into which there shall be deposited
from time to time such amounts paid to the Administrative Agent as cover for
the
applicable LC Exposure. As collateral security for the prompt payment in full
when due of all reimbursement obligations in respect of LC Disbursements, all
interest thereon, and all other obligations of the Account Parties under the
Credit Documents whether or not then outstanding or due and payable (such
obligations being herein collectively called the "Secured
Obligations"),
each
of the Company and the other Account Parties hereby pledges and grants to the
Administrative Agent, for the benefit of the Banks and the Administrative Agent
as provided herein, a security interest in all of its right, title and interest
in and to the Collateral Account and the balances from time to time in the
Collateral Account (including the investments and reinvestments therein provided
for below). The balances from time to time in the Collateral Account shall
not
constitute payment of any Secured Obligations until applied by the
Administrative Agent as provided herein. Anything in this Agreement to the
contrary notwithstanding, funds held in the Collateral Account shall be subject
to withdrawal only as provided in this Section 2.03(e). Amounts on deposit
in the Collateral Account shall be invested and reinvested by the Administrative
Agent in such short-term Investments as the Administrative Agent shall determine
in its sole discretion. All such investments and reinvestments shall be held
in
the name and be under the sole dominion control of the Administrative Agent
and
shall be credited to the Collateral Account. At any time, and from time to
time,
while an Event of Default has occurred and is continuing, the Administrative
Agent shall, if instructed by the Required Banks in their sole discretion,
liquidate any such investments and reinvestments and credit the proceeds thereof
to the Collateral Account and apply or cause to be applied such proceeds and
any
other balances in the Collateral Account to the payment of any of the Secured
Obligations due and payable. If at any time (i) no Default has occurred and
is
continuing and (ii) all of the Secured Obligations then due have been paid
in
full but Letters of Credit remain outstanding, the Administrative Agent shall,
from time to time, at the request of the Company, deliver to the Company,
against receipt but without any recourse, warranty or representation whatsoever,
such of the balances in the Collateral Account as exceed the aggregate undrawn
face amount of all outstanding Letters of Credit. When all of the Secured
Obligations shall have been paid in full, all Letters of Credit have expired
or
been terminated and the Commitments have terminated, the Administrative Agent
shall promptly deliver to the Company, for account of the Company and the other
Account Parties, as applicable, against receipt but without any recourse,
warranty or representation whatsoever, the balances remaining in the Collateral
Account.
Credit
Agreement
-22-
SECTION
2.04. Loans.
At any
time and from time to time during the Commitment Availability Period each Bank
severally agrees, on the terms and conditions set forth in this Agreement,
to
make loans in Dollars to the Company pursuant to this Section in amounts such
that the aggregate outstanding amount of the Credit Exposures of the Banks
shall
not exceed the aggregate amount of the Commitments of the Banks. Each Borrowing
shall be in an aggregate principal amount of $25,000,000 or any larger multiple
of $1,000,000 and shall be made from the several Banks ratably in proportion
to
their respective Commitments. Within the foregoing limits, the Company may
borrow under this Section, repay, or to the extent permitted by Section 2.12,
prepay Loans and reborrow at any time during the Commitment Availability Period
under this Section.
Credit
Agreement
-23-
SECTION
2.05. Notice
of Borrowings.
The
Company shall give the Administrative Agent notice (a "Notice
of Borrowing")
not
later than 11:00 a.m. (New York City time) on (x) the date of each Base Rate
Borrowing and (y) the third Euro-Dollar Business Day before each Euro-Dollar
Borrowing, specifying:
(a) the
date
of such Borrowing, which shall be a Domestic Business Day in the case of a
Base
Rate Borrowing or a Euro-Dollar Business Day in the case of a Euro-Dollar
Borrowing,
(b) the
aggregate amount (in Dollars) of such Borrowing,
(c) whether
the Loans comprising such Borrowing are to be Base Rate Loans or Euro-Dollar
Loans, and
(d) in
the
case of a Euro-Dollar Borrowing, the duration of the Interest Period applicable
thereto, subject to the provisions of the definition of Interest
Period.
SECTION
2.06. Funding
of Loans.
(a)
Upon receipt of a Notice of Borrowing, the Administrative Agent shall promptly
notify each Bank of the contents thereof and of such Bank's share of such
Borrowing and such Notice of Borrowing shall not thereafter be revocable by
the
Company.
(b) Not
later
than 12:00 noon (New York City time) (or 1:00 p.m. (New York City time) in
the
case of any Base Rate Borrowing) on the date of each Borrowing, each Bank
participating therein shall (except as provided in subsection (c) of this
Section) make available its share of such Borrowing, in Federal or other funds
immediately available in New York City, to the Administrative Agent at its
address specified in or pursuant to Section 10.01. Unless the Administrative
Agent determines that any applicable condition specified in Article III has
not
been satisfied, the Administrative Agent will make the funds so received from
the Banks available to the Company at the Administrative Agent's aforesaid
address.
(c) If
any
Bank makes a new Loan hereunder on a day on which the Company is to repay all
or
any part of an outstanding Loan from such Bank, such Bank shall apply the
proceeds of its new Loan to make such repayment and only an amount equal to
the
difference (if any) between the amount being borrowed and the amount being
repaid shall be made available by such Bank to the Administrative Agent as
provided in subsection (b) of this Section, or remitted by the Company to the
Administrative Agent as provided in Section 2.13, as the case may
be.
(d) Unless
the Administrative Agent shall have received notice from a Bank prior to the
date of any Borrowing that such Bank will not make available to the
Administrative Agent such Bank's share of such Borrowing, the Administrative
Agent may assume that such Bank has made such share available to the
Administrative Agent on the date of such Borrowing in accordance with
subsections (b) and (c) of this Section and the Administrative Agent may, in
reliance upon such assumption, make available to the Company on such date a
corresponding amount. If and to the extent that such Bank shall not have so
made
such share available to the Administrative Agent, such Bank and the Company
severally agree to repay to the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the
date
such amount is made available to the Company until the date such amount is
repaid to the Administrative Agent, at (i) in the case of the Company, a rate
per annum equal to the higher of the Federal Funds Rate and the interest rate
applicable thereto pursuant to Section 2.09 and (ii) in the case of such Bank,
the Federal Funds Rate. If such Bank shall repay to the Administrative Agent
such corresponding amount, such amount so repaid shall constitute such Bank's
Loan included in such Borrowing for purposes of this Agreement.
Credit
Agreement
-24-
SECTION
2.07. Evidence
of Loans.
(a)
Each Bank shall maintain in accordance with its usual practice records
evidencing the indebtedness of the Company to such Bank resulting from each
Loan
made by such Bank, including the amounts of principal and interest payable
and
paid to such Bank from time to time hereunder, and setting forth the Commitments
of the Banks.
(b)
The
Administrative Agent shall maintain records in which it shall record
(i) the amount of each Loan made hereunder and each Interest Period
therefor, (ii) the amount of any principal or interest due and payable or
to become due and payable from the Company to each Bank hereunder and
(iii) the amount of any sum received by the Administrative Agent hereunder
for account of the Banks and each Bank's share thereof.
(c)
The
entries made in the records maintained pursuant to subsection (a)
or (b) of this Section shall be prima facie
evidence
of the existence and amounts of the obligations recorded therein; provided
that the
failure of any Bank or the Administrative Agent to maintain such records or
any
error therein shall not in any manner affect the obligation of the Company
to
repay the Loans in accordance with the terms of this Agreement.
(d)
Any
Bank may request that the Loans of such Bank to the Company be evidenced by
a
single Note, in substantially the form of Exhibit A hereto with appropriate
modifications to reflect the fact that it evidences solely Loans of the relevant
Type, payable by the Company to the order of such Bank for the account of its
Applicable Lending Office. In such event, the Company shall prepare, execute
and
deliver to such Bank a Note payable to such Bank (or, if requested by such
Bank,
to such Bank and its registered assigns). Thereafter, the Loans evidenced by
such Note and interest thereon shall at all times (including after assignment
pursuant to Section 10.06) be represented by one or more Notes in such form
payable to the payee named therein (or, if such Note is a registered note,
to
such payee and its registered assigns).
Credit
Agreement
-25-
SECTION
2.08. Maturity
of Loans.
Each
Loan shall mature, and the Company hereby unconditionally promises to pay the
unpaid principal of each Loan (together with accrued interest thereon), on
the
Commitment Termination Date.
SECTION
2.09. Interest
Rates of Loans.
(a)
Each Base Rate Loan shall bear interest on the outstanding principal amount
thereof, for each day from the date such Loan is made until it becomes due,
at a
rate per annum equal to the sum of the Base Rate for such day plus,
for any
Commitment Utilization Day, the Applicable Additional Margin. Such interest
shall accrue and be payable quarterly in arrears on each Quarterly Date and
on
the date of termination of the Commitments in their entirety (and, if later,
the
date the Loans shall be paid in full). Any overdue principal of or interest
on
any Base Rate Loan shall bear interest, payable on demand, for each day until
paid at a rate per annum equal to the sum of 2% plus
the Base
Rate for such day plus,
for any
Commitment Utilization Day, the Applicable Additional Margin.
(b) Each
Euro-Dollar Loan shall bear interest on the outstanding principal amount
thereof, for the Interest Period applicable thereto, at a rate per annum equal
to the sum of the Applicable Margin plus
the
applicable LIBO Rate plus,
for any
Commitment Utilization Day, the Applicable Additional Margin. Such interest
shall be payable for each Interest Period on the last day thereof and, if such
Interest Period is longer than three months, at intervals of three months after
the first day thereof.
The
"LIBO
Rate"
applicable to any Interest Period means the rate appearing on Page 3750 of
the
Telerate Service (or any successor or substitute page of such Service, or any
successor to or substitute for such Service, providing rate quotations
comparable to those currently provided on such page of such Service, as
determined by the Administrative Agent for purposes of providing quotations
of
interest rates applicable to U.S. Dollar deposits in the London interbank
market) at approximately 11:00 A.M. (London time) two Euro-Dollar Business
Days
before the first day of such Interest Period, as the rate for the offering
of
Dollar deposits with a maturity comparable to such Interest Period. In the
event
that such rate is not available at such time for any reason, then the LIBO
Rate
for such Interest Period shall be the rate at which U.S. Dollar deposits of
$10,000,000 and for a maturity comparable to such Interest Period are offered
by
the principal London office of the Person serving as Administrative Agent in
immediately available funds in the London interbank market at approximately
11:00 A.M. (London time), two Euro-Dollar Business Days before the first day
of
such Interest Period.
Credit
Agreement
-26-
(c) Any
overdue principal of any Euro-Dollar Loan shall bear interest, payable on
demand, for each day from and including the date payment thereof was due to
but
excluding the date of actual payment, at a rate per annum equal to the sum
of 2%
plus
the
Applicable Margin plus,
for any
Commitment Utilization Day, the Applicable Additional Margin plus
the
average (rounded upward, if necessary, to the next higher 1/16 of 1%) of the
respective rates per annum (as of the date of determination) at which one-day
(or, if such amount due remains unpaid more than three Euro-Dollar Business
Days, then for such other period of time not longer than six months as the
Administrative Agent may select) deposits in Dollars in an amount approximately
equal to such overdue payment due to the Person serving as the Administrative
Agent are offered to such Person in the London interbank market for the
applicable period determined as provided above (or, if the circumstances
described in clause (a) or (b) of Section 8.01 shall exist, at a rate per annum
equal to the sum of 2% plus
the Base
Rate for such day plus,
for any
Commitment Utilization Day, the Applicable Additional Margin). Any overdue
interest on any Euro-Dollar Loan shall bear interest, payable on demand, for
each day from and including the date payment thereof is due to but excluding
the
date of actual payment, at a rate per annum equal to the sum of 2% plus
the Base
Rate for such day plus,
for any
Commitment Utilization Day, the Applicable Additional Margin.
(d) The
Administrative Agent shall determine each interest rate applicable to the Loans
hereunder. The Administrative Agent shall give prompt notice to the Company
and
the Banks of each rate of interest so determined, and its determination thereof
shall be conclusive in the absence of manifest error.
SECTION
2.10. Fees.
(a) The
Company agrees to pay to the Administrative Agent for account of each Bank
a
facility fee, which shall accrue at the Applicable Facility Fee Rate, (i) prior
to the termination of such Bank's Commitment, on the daily amount of the
Commitment of such Bank (whether used or unused) during the period from and
including the Effective Date to but excluding the date that the Commitments
terminate and (ii) if such Bank continues to have any Credit Exposure after
its
Commitment terminates, on the daily amount of such Bank's Credit Exposure from
and including the date its Commitment terminates to but excluding the date
such
Bank ceases to have any Credit Exposure. Accrued facility fees shall be payable
on each Quarterly Date and on the earlier of the date the Commitments terminate
and the Commitment Termination Date, commencing on the first such date after
the
Effective Date; provided
that any
facility fee accruing after such earlier date shall be payable on demand.
Facility fees shall be computed on the basis of a year of 360 days and shall
be
payable for the actual number of days elapsed (including the first day but
excluding the last day).
(b) The
Company agrees to pay to the Administrative Agent for account of each Bank
a
letter of credit fee with respect to Letters of Credit, which shall accrue
at
the Applicable Letter of Credit Commission on the average daily aggregate
undrawn amount of all outstanding Letters of Credit during the period from
and
including the Effective Date to but excluding the later of the date on which
such Bank's Commitment terminates and the date on which such Bank ceases to
have
any LC Exposure. Letter of credit fees accrued through and including each
Quarterly Date shall be payable on the third Business Day following such
Quarterly Date, commencing on the first such Business Day to occur; provided
that all
such fees shall be payable on the date on which the Commitments terminate and
any such fees accruing after the date on which the Commitments terminate shall
be payable on demand. Letter of credit fees shall be computed on the basis
of a
year of 360 days and shall be payable for the actual number of days elapsed
(including the first day but excluding the last day).
Credit
Agreement
-27-
(c) Except
as
set forth in Section 2.17, the Account Parties agree to pay, on demand, to
the
Administrative Agent for its own account all commissions, charges, costs and
expenses with respect to the issuance, amendment, renewal and extension of
each
Letter of Credit and drawings and other transactions relating thereto in amounts
customarily charged from time to time in like circumstances by the Person that
is serving as the Administrative Agent or, as may be separately agreed from
time
to time by the Company on behalf of the Account Parties and the Administrative
Agent for its own account.
(d) All
fees
payable hereunder shall be paid on the dates due, in immediately available
funds, to the Administrative Agent for distribution, in the case of facility
fees and letter of credit fees, to the Banks entitled thereto. Fees paid
hereunder shall not be refundable under any circumstances.
SECTION
2.11. Termination,
Reduction or Increase of Commitments.
(a) Unless
previously terminated, the Commitments shall automatically terminate on the
Commitment Termination Date.
(b) The
Company may, upon at least three Domestic Business Days' notice to the
Administrative Agent, terminate at any time, or proportionately and permanently
reduce from time to time by an aggregate amount of $10,000,000 or any larger
multiple of $5,000,000, the aggregate amount of the Commitments, provided
that,
after giving effect to such termination or any such reduction, the aggregate
outstanding amount of the Credit Exposures of the Banks shall not exceed the
aggregate amount of the Commitments of the Banks. Upon receipt of such a notice,
the Administrative Agent shall promptly notify each Bank of the contents thereof
and of such Bank's ratable share of such reduction (if such notice is a notice
of reduction) and such notice shall not thereafter be revocable by the Company.
Any termination or reduction of the Commitments shall be permanent.
Credit
Agreement
-28-
(c) The
Company shall have the right, at any time or from time to time prior to the
date
that is 30 days prior to the Commitment Termination Date, to increase the
aggregate Commitments hereunder up to an aggregate amount not exceeding
$1,750,000,000, by causing one or more Additional Commitment Banks (which may
include any existing Bank) to provide a (or, in the case of an existing Bank,
to
increase its) Commitment (each such increase, an "Commitment
Increase"),
provided
that
(i) no Bank shall have any obligation hereunder to become an Additional
Commitment Bank and any election to do so shall be in the sole discretion of
each Bank, (ii) each Additional Commitment Bank shall have entered into an
agreement in form and substance satisfactory to the Company and the
Administrative Agent pursuant to which such Additional Commitment Bank shall
provide a Commitment (or, if such Additional Commitment Bank is an existing
Bank, pursuant to which its Commitment shall be increased), (iii) such
Commitment of any Additional Commitment Bank which is not an existing Bank
shall
be in an amount of at least $25,000,000 and (iv) each Commitment Increase
shall be in an amount of at least $25,000,000. Each such Additional Commitment
Bank shall enter into an agreement in form and substance satisfactory to the
Company and the Administrative Agent pursuant to which such Additional
Commitment Bank shall, as of effective date of such Commitment Increase (which
shall be a Domestic Business Day and, unless the Administrative Agent otherwise
agrees, on which no issuance, amendment, renewal or extension of any Letter
of
Credit is scheduled to occur, provide a Commitment (or, if any such Additional
Commitment Bank is an existing Bank, increase its Commitment in the amount
specified therein and (if not an existing Bank) become a Bank hereunder.
Notwithstanding the foregoing, no Commitment Increase pursuant to this Section
shall be effective unless:
(i)
the
Company shall have given the Administrative Agent notice of any such increase
at
least three Domestic Business Days prior to the relevant effective date of
such
Commitment Increase;
(ii)
no
Default shall have occurred and be continuing on such effective date;
and
(iii)
each of the representations and warranties of each Account Party contained
in
this Agreement (other than the representations and warranties set forth in
Sections 4.04(e) and 4.05 as to any matter which has theretofore been disclosed
in writing by the Account Parties to the Banks) shall be true on and as of
such
effective date with the same force and effect as if made on and as of such
date
(or, if any such representation or warranty is expressly stated to have been
made as of a specific date, as of such specific date).
Each
notice under clause (i) above shall be deemed to constitute a representation
and
warranty by the Company and the Subsidiary Account Parties as to the matters
specified in clauses (ii) and (iii) above.
Credit
Agreement
-29-
SECTION
2.12. Optional
Prepayments.
(a) The
Company may, upon at least one Domestic Business Day's notice to the
Administrative Agent, prepay any Base Rate Borrowing in whole at any time,
or
from time to time in part in amounts aggregating $5,000,000 or any larger
multiple of $1,000,000, by paying the principal amount to be prepaid together
with accrued interest thereon to the date of prepayment.
(b) The
Company may, upon notice to the Administrative Agent by 10:00 a.m., New York
City time, at least three Domestic Business Days prior to the date of
prepayment, prepay any Euro-Dollar Borrowing in whole at any time, or from
time
to time in part in amounts aggregating $5,000,000 or any larger multiple of
$1,000,000, by paying the principal amount to be prepaid together with
(x) accrued interest thereon to the date of prepayment and (y) all losses
and expenses (if any) relating thereto which are (i) determined pursuant to
Section 2.14 and (ii) notified to the Company by the relevant Bank at least
one
Domestic Business Day prior to the date of such prepayment, provided
that the
failure of any Bank to so notify the Company of the amount of any such loss
or
expense shall not relieve the Company of its obligation to pay the
same.
(c) Each
prepayment pursuant to this Section shall be applied to prepay ratably the
Loans
of the several Banks included in the relevant Borrowing being prepaid. Upon
receipt of a notice of prepayment pursuant to this Section, the Administrative
Agent shall promptly notify each Bank of the contents thereof and of such Bank's
ratable share (if any) of such prepayment and such notice shall not thereafter
be revocable by the Company.
SECTION
2.13. Payments
Generally; Pro Rata Treatment.
(a) Each
Account Party shall make each payment required to be made by it hereunder
(whether reimbursement of LC Disbursements, principal of or interest on the
Loans, fees, amounts under Article VIII or otherwise) or under any other Credit
Document (except to the extent otherwise provided therein) prior to not later
than 2:00 p.m., New York City time, on the date when due, in immediately
available funds, without set-off or counterclaim. Any amounts received after
such time on any date may, in the discretion of the Administrative Agent, be
deemed to have been received on the next succeeding Domestic Business Day for
purposes of calculating interest thereon. All such payments shall be made to
the
Administrative Agent at its Payment Account, except as otherwise expressly
provided in the relevant Credit Document, and except that payments pursuant
to
Section 10.03 and Article VIII shall be made directly to the Persons entitled
thereto. The Administrative Agent shall distribute any such payments received
by
it for account of any other Person to the appropriate recipient promptly
following receipt thereof. If any payment hereunder shall be due on a day that
is not a Domestic Business Day or Euro-Dollar Business Day (as applicable),
the
date for payment shall be extended to the next succeeding Domestic or
Euro-Dollar Business Day (as applicable) and, in the case of any payment
accruing interest, interest thereon shall be payable for the period of such
extension. All payments hereunder or under any other Credit Document shall
be
made in Dollars.
Credit
Agreement
-30-
(b) If
at any
time insufficient funds are received by and available to the Administrative
Agent to pay fully all amounts of unreimbursed LC Disbursements in respect
of
Letters of Credit (other than Fronted Letters of Credit) or interest thereon,
principal of or interest on the Loans and fees then due hereunder, such funds
shall be applied (i) first, to pay interest and fees then due hereunder in
respect of such Letters of Credit or Loans (as applicable), pro rata among
the
Banks in accordance with the amounts of interest and fees then due to the Banks,
and (ii) second, to pay such unreimbursed LC Disbursements or principal in
respect of Loans (as applicable) then due hereunder, pro rata among the Banks
in
accordance with the amounts of unreimbursed LC Disbursements or principal of
Loans then due to the Banks.
(c) Except
to
the extent otherwise provided herein: (i) each reimbursement of LC
Disbursements in respect of Letters of Credit (other than Fronted Letters of
Credit) and each payment of facility fee under Section 2.10(a) shall be for
account of the Banks, and each termination or reduction of the amount of the
Commitments under Section 2.04 shall be applied to the respective
Commitments of the Banks, pro rata in accordance with their respective
Applicable Percentages; (ii) each payment of principal of Loans and each of
interest hereunder shall be for account of the Banks, pro rata in accordance
with the amounts of principal or interest (as the case may be) then due and
payable to the Banks; and (iii) each payment of letter of credit fee under
Section 2.10(b) shall be for account of the Banks, pro rata in accordance
with their respective Applicable Percentages under the Letters of
Credit.
(d) Unless
the Administrative Agent shall have received notice from the Company or the
applicable Account Party prior to the date on which any payment is due to the
Administrative Agent for account of the Banks hereunder that neither the Company
nor such Account Party will make such payment, the Administrative Agent may
assume that the Company or such Account Party made such payment on such date
in
accordance herewith and may, in reliance upon such assumption, distribute to
the
Banks the amount due. In such event, if the Company or such Account Party has
not in fact made such payment, then each of the Banks severally agrees to repay
to the Administrative Agent forthwith on demand the amount so distributed to
such Bank with interest thereon, for each day from and including the date such
amount is distributed to it to but excluding the date of payment to the
Administrative Agent, at the Federal Funds Rate.
SECTION
2.14. Funding
Losses.
If the
Company makes any payment of principal with respect to any Euro-Dollar Loan
(pursuant to Article VI or VIII or otherwise) on any day other than the last
day
of the Interest Period applicable thereto, or the end of an applicable period
fixed pursuant to Section 2.09(c), or if the Company fails to borrow any
Euro-Dollar Loans after notice has been given to any Bank in accordance with
Section 2.04(a), the Company shall reimburse each Bank within 15 days after
demand for any resulting loss or expense incurred by it (or by an existing
or
prospective participant in the related Loan), including (without limitation)
any
loss incurred in obtaining, liquidating or employing deposits from third
parties, but excluding loss of margin for the period after any such payment
or
failure to borrow, provided
that
such Bank shall have delivered to the Company a certificate as to the amount
of
such loss or expense, which certificate shall be conclusive in the absence
of
manifest error.
Credit
Agreement
-31-
SECTION
2.15. Computation
of Interest and Fees.
Interest based on the Prime Rate shall be computed on the basis of a year of
365
days (or 366 days in a leap year) and paid for the actual number of days elapsed
(including the first day but excluding the last day). All other interest and
fees shall be computed on the basis of a year of 360 days and paid for the
actual number of days elapsed (including the first day but excluding the last
day).
SECTION
2.16. Extension
of Commitment Termination Date.
(a)
Request
for Extension.
The
Company may, by notice to the Administrative Agent (which shall promptly notify
the Banks) not more than 60 days and not less than 30 days prior to each
anniversary of the Effective Date (such anniversary date, the "Extension
Effective Date"),
request (each, an "Extension
Request")
that
the Banks extend the Commitment Termination Date then in effect (the
"Existing
Commitment Termination Date")
for an
additional one year, provided
that no
more than two Extension Requests may be made hereunder. Each Bank, acting in
its
sole discretion, shall, by notice to the Company and the Administrative Agent
given not later than the 20th
day (or
such later day as shall be acceptable to the Company) following the date of
such
Company's notice, advise the Company and the Administrative Agent whether or
not
such Bank agrees to such extension; provided
that any
Bank that does not so advise the Company shall be deemed to have rejected such
Extension Request. The election of any Bank to agree to such extension shall
not
obligate any other Bank to so agree.
(b) Replacement
of Non-extending Banks.
The
Company shall have the right at any time on or prior to the relevant Extension
Effective Date, unless an Event of Default shall have occurred and be
continuing, to replace any non-extending Bank with, and otherwise add to this
Agreement, one or more Additional Commitment Banks. Each Additional Commitment
Bank shall enter into an agreement in form and substance reasonably satisfactory
to the Company and the Administrative Agent pursuant to which such Additional
Commitment Bank shall, effective as of the Extension Effective Date, provide
a
Commitment or (if such Additional Commitment Bank is an existing Bank) increase
its Commitment in the amount specified therein and (if not an existing Bank)
become a Bank hereunder, so long as any amounts payable to the relevant
non-extending Bank being replaced are paid in full.
Credit
Agreement
-32-
(c) Effectiveness
of Extension.
If (and
only if) the total of the Commitments of the Banks that have agreed in
connection with any Extension Request to extend the Existing Commitment
Termination Date and the additional Commitments of the Additional Commitment
Bank(s) shall be at least 50% of the aggregate amount of the Commitments in
effect immediately prior to the Extension Effective Date, then, effective as
of
the Extension Effective Date, the Commitment Termination Date, with respect
to
the Commitment of each Bank that has agreed to so extend its Commitment and
of
each Additional Commitment Bank shall be extended to the date falling one year
after the then Existing Commitment Termination Date (or, if such date is not
a
Euro-Dollar Business Day, such Commitment Termination Date as so extended shall
be the next preceding Euro-Dollar Business Day) and each Additional Commitment
Bank shall thereupon become a "Bank" for all purposes of this
Agreement.
Notwithstanding
the foregoing, the extension of the Existing Termination Date shall not be
effective with respect to any Bank unless as of the relevant Extension Date
(i)
no Default shall have occurred and be continuing and (ii) the representations
and warranties of each Account Party contained in this Agreement and the other
Credit Documents shall be true on and as of such date with the same force and
effect as if made on and as of such date (or, if any such representation and
warranty is expressly stated to have been made as of a specific date, as of
such
specific date) (and the Administrative Agent shall have received a certification
to such effect from a senior financial Officer of the Company, together with
such evidence and other related documents as the Administrative Agent may
reasonably request with respect to the authorization of the Company and other
Account Parties of the extension and their respective obligations
hereunder).
Notwithstanding
anything herein to the contrary, with respect to any Bank that has not approved
any Extension Request, the Commitment Termination Date for such Bank shall
remain unchanged (and the Commitment of such Bank shall terminate, and the
Loans
made by such Bank shall be repayable, on such date and the obligations of such
Bank in respect of Letters of Credit shall not extend beyond the first
anniversary of such date).
SECTION
2.17. Replacement
of Banks; Fronted Letters of Credit; Obligations of Non-NAIC Approved
Banks.
(a)
Replacement
of Defaulting Bank .
If any
Bank defaults in its obligation to fund any LC Disbursement hereunder, the
Company may, upon notice to such Bank and the Administrative Agent, require
such
Bank, at the expense of such Bank, to assign, without recourse (in accordance
with and subject to the restrictions contained in Section 10.06), all its
interests, rights and obligations under this Agreement and the Letters of Credit
issued, or participated in, by such Bank to any Person that shall assume such
obligations (which assignee may be another Bank, if it accepts such assignment)
with (and subject to) the consent of the Administrative Agent (which consent
shall not unreasonably be withheld); provided
that
such Bank shall have received payment of an amount equal to the outstanding
amount of its LC Disbursements, accrued interest thereon, accrued fees and
all
other amounts payable to it hereunder, from the assignee (to the extent of
such
outstanding LC Disbursements and accrued interest and fees) or the applicable
Account Parties (in the case of all other amounts). No Bank shall be required
to
make any assignment pursuant to this Section 2.17(a) if, prior thereto, the
circumstances entitling the Company to require such assignment cease to
apply.
Credit
Agreement
-33-
(b)
Replacement
of Non-NAIC Approved Bank.
If at
any time any Bank shall be a Non-NAIC Approved Bank, such Bank shall promptly
notify the Company and the Administrative Agent and shall use commercially
reasonable efforts (i) to be listed on the NAIC Approved Bank List or (ii)
to
agree with a Person which is listed on the NAIC Approved Bank List (with (and
subject to) the consent of the Company and the Administrative Agent (which
consent, in each case, shall not unreasonably withheld)) to act as a Confirming
Bank for such Bank in respect of its obligations under the Letters of Credit
and, in such case, such Bank shall enter into a Confirming Bank Agreement with
such Person (and furnish a copy thereof to the Company and the Administrative
Agent).
Notwithstanding
anything herein to the contrary, at any time any Bank shall be a Non-NAIC
Approved Bank, the Company may, upon notice to such Bank and the Administrative
Agent, require such Bank, at the expense of such Bank, to assign, without
recourse (in accordance with and subject to the restrictions contained in
Section 10.06), all its interests, rights and obligations under this
Agreement and the Letters of Credit issued, or participated in, by such Bank
to
any Person that shall assume such obligations (which assignee may be another
Bank, if it accepts such assignment) with (and subject to) the consent of the
Administrative Agent (which consent shall not unreasonably be withheld),
provided
that
such Bank shall have received payment of an amount equal to the outstanding
amount of its LC Disbursements, accrued interest thereon, accrued fees and
all
other amounts payable to it hereunder, from the assignee (to the extent of
such
outstanding LC Disbursements and accrued interest and fees) or the applicable
Account Parties (in the case of all other amounts). No Bank shall be required
to
make any assignment pursuant to this Section 2.17(b) if, prior thereto, the
circumstances entitling the Company to require such assignment cease to
apply.
(c)
Issuance
of Fronted Letters of Credit; Obligations of Non-NAIC Approved
Bank.
At any
time any Bank shall be a Non-NAIC Approved Bank, notwithstanding anything herein
to the contrary, the Company may request by notice to the Administrative Agent
that JPMCB and/or (if at the time of such request JPMCB is not a NAIC Approved
Bank or if the aggregate amount of the requested letters of credit would exceed
the limitation set forth in clause (i) of the proviso below) Wachovia and/or
(if
at the time of such request neither JPMCB nor Wachovia is a NAIC Approved Bank
or if the aggregate amount of the requested letters of credit would exceed
the
limitation set forth in clause (i) of the proviso below) any other Bank that
has
agreed to act as an issuing bank under this Section (such issuer being
hereinafter referred to as "Fronting
Issuing Bank")
issue
one or more letters of credit of the type described herein under Section 2.01(a)
(each a "Fronted
Letter of Credit"),
and
each Fronting Issuing Bank agrees to issue such letters of credit promptly
upon
such request, subject to the terms and conditions set forth herein; provided
that (i)
neither JPMCB nor Wachovia shall be required to issue Fronted Letters of Credit
hereunder in an aggregate face amount exceeding, in each case, $750,000,000
and
(ii) no other Bank shall have any obligation hereunder to become a Fronting
Issuing Bank and any election to do so shall be in the sole discretion of such
other Bank. Each Fronted Letter of Credit shall be issued by, and be the sole
obligation as issuing bank of, the applicable Fronting Issuing
Bank.
Credit
Agreement
-34-
If
at any
time as a result of any Bank being a Non-NAIC Bank the Company shall exercise
its rights under this Section 2.17(c) to require the issuance of one or more
Fronted Letters of Credit by any Fronting Issuing Bank, such Bank agrees (A)
to
pay to the applicable Fronting Issuing Bank for its own account a fronting
fee
in respect of each Fronted Letter of Credit issued by such Fronting Issuing
Bank
which shall accrue at a rate per annum of 0.125% on the average daily amount
of
the aggregate undrawn amount of each such Fronted Letter of Credit during the
period from and including the date of issuance thereof to but excluding the
later of the expiry date thereof and the date on which there ceases to be any
LC Exposure thereunder. Fronting fees in respect of each such Fronted
Letter of Credit accrued through and including each Quarterly Date shall be
payable on the third Business Day following such Quarterly Date, commencing
on
the first such date to occur after the issuance of such Fronted Letter of
Credit; provided
that all
such fees shall be payable on the date on which the Commitments terminate and
any such fees accruing after the date on which the Commitments terminate shall
be payable on demand, (B) to pay to the applicable Fronting Issuing Bank for
its
own account, within 10 Business Days after demand, such Fronting Issuing Bank's
standard administrative fees with respect to the issuance, amendment, renewal
or
extension of any such Fronted Letter of Credit or processing of drawings
thereunder and (C) to reimburse to the Company, within 10 Business Days after
demand, any amounts paid by the Company to any Fronting Issuing Bank in respect
of any Fronted Letter of Credit pursuant to Section 8.03.
Credit
Agreement
-35-
ARTICLE
III
CONDITIONS
SECTION
3.01. Each
Credit Extension.
The
obligation of each Bank to issue, amend, renew or extend any Letter of Credit
or
to make any Loan is subject to the satisfaction of the following
conditions:
(a) in
the
case of a Letter of Credit, receipt by the Administrative Agent of a notice
of
issuance, amendment, renewal or extension, as the case may be, with respect
to
such Letter Credit, as required by Section 2.01(b) or, in the case of a
Borrowing, receipt by the Administrative Agent of a Notice of Borrowing as
required by Section 2.05;
(b) the
fact
that, immediately before and after issuance, amendment, renewal or extension
of
such Letter Credit or such Loan no Default shall have occurred and be
continuing; and
(c) the
fact
that the representations and warranties of each Account Party contained in
this
Agreement (other than the representations and warranties set forth in Sections
4.04(e) and 4.05 as to any matter which has theretofore been disclosed in
writing by the Account Parties to the Banks) shall be true on and as of the
date
of such issuance, amendment, renewal or extension of such Letter Credit or
such
Loan (or, if any such representation or warranty is expressly stated to have
been made as of a specific date, as of such specific date), provided
that the
exception in the first parenthetical phrase in this clause shall not apply
in
the case of any issuance, amendment, renewal or extension of a Letter of Credit
or the making of a Loan on the Effective Date or with respect to the certificate
under clause (d) of Section 3.02.
Each
issuance, amendment, renewal or extension of a Letter Credit and the making
of
any Loan hereunder shall be deemed to be a representation and warranty by the
applicable Account Party on the date of such issuance, amendment, renewal or
extension or Loan, as the case may be, as to the facts specified in clauses
(b)
and (c) of this Section.
SECTION
3.02. Effectiveness.
This
Agreement shall become effective on the first date that all of the following
conditions shall have been satisfied (or waived in accordance with
Section 10.05):
(a) receipt
by the Administrative Agent of counterparts hereof signed by each of the Persons
listed on the signature pages hereto (or, in the case of any Bank as to which
an
executed counterpart shall not have been received, receipt by the Administrative
Agent in form satisfactory to it of telegraphic, telex or other written
confirmation from such Bank of execution and delivery of a counterpart hereof
by
such Bank) (and, in the case of each bank party to the Existing Credit Agreement
immediately prior to the Effective Date that is not a Bank hereunder, receipt
by
the Administrative Agent of a written confirmation of such bank as to the
termination of its commitment thereunder as of the Effective Date, and the
parties hereto agree that each such bank shall not be a Bank hereunder and
shall
cease to have a commitment in respect of the Existing Credit Agreement as of
the
Effective Date);
Credit
Agreement
-36-
(b) receipt
by the Administrative Agent of an opinion of Xxxxxx X. Xxxxxx, Esq., General
Counsel of the Company, substantially in the form of Exhibit B
hereto;
(c) receipt
by the Administrative Agent of an opinion of Milbank, Tweed, Xxxxxx & XxXxxx
LLP, special New York counsel to JPMCB, substantially in the form of Exhibit
C
hereto;
(d) receipt
by the Administrative Agent of a certificate, dated the Effective Date and
signed by a senior financial officer of the Company, certifying as to clauses
(b) and (c) of Section 3.01;
(e) receipt
by the Administrative Agent of a copy of the resolutions of the Board of
Directors of the Company, in form and substance satisfactory to the
Administrative Agent, authorizing the execution, delivery and performance of
this Agreement and other Credit Documents;
(f) receipt
by the Administrative Agent of all documents, opinions and instruments as it
may
reasonably request relating to the existence of each Account Party, the
corporate authority for and the validity and enforceability of this Agreement
and the other Credit Documents, and any other matters related hereto, all in
form and substance satisfactory to the Administrative Agent; and
(g) receipt
by the Administrative Agent of evidence as to (i) payment of all fees required
to be paid, and all expenses required to be paid or reimbursed for which
invoices have been presented (including, without limitation, fees and
disbursements of counsel to JPMCB) in connection with this Agreement, on or
before the Effective Date; (ii) payment by the Borrower and Subsidiary Account
Parties of all fees, expenses and other amounts accrued or owing as of the
Effective Date under the Existing Credit Agreement and (iii) payment by the
Borrower of all unpaid principal of and interest on any outstanding loan under
the First Amended and Restated Credit Agreement dated as of December 10, 2004
among the Borrower, the banks party thereto and JPMCB as administrative agent
thereunder, and all fees, expenses and other amounts accrued or owing thereunder
and the termination of the commitments of such banks thereunder as of the
Effective Date.
Credit
Agreement
-37-
provided
that
this Agreement shall not become effective or be binding on any party hereto
unless all of the foregoing conditions are satisfied not later than 3:00 p.m.
(New York City time) March 15, 2006 or such later date as may be agreed in
writing by the Company and all of the Banks. The Administrative Agent shall
promptly notify the Company and the Banks of the Effective Date, and such notice
shall be conclusive and binding on all parties hereto.
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES
Each
of
the Company (other than with respect to Section 4.15) and the Subsidiary
Account Parties (with respect to Section 4.15 only) represents and warrants
that:
SECTION
4.01. Corporate
Existence and Power.
The
Company is a corporation duly incorporated and validly existing under the laws
of the State of Indiana, and has all corporate power and all material
governmental licenses, authorizations, consents and approvals required to carry
on its business as now conducted.
SECTION
4.02. Corporate
and Governmental Authorization; Contravention.
The
execution, delivery and performance by the Company of this Agreement and the
other Credit Documents to which it is a party are within the Company's corporate
powers, have been duly authorized by all necessary corporate action, require
no
action by or in respect of, or filing with, any governmental body, agency or
official and do not contravene, or constitute a default under, any provision
of
applicable law or regulation or of the articles of incorporation or by-laws
of
the Company or of any material agreement, judgment, injunction, order, decree
or
other instrument binding upon the Company or any of its Restricted Subsidiaries
or result in the creation or imposition of any Lien on any asset of the Company
or any of its Restricted Subsidiaries.
SECTION
4.03. Binding
Effect.
This
Agreement and the other Credit Documents to which it is a party constitute
the
legal, valid and binding obligations of the Company, in each case enforceable
in
accordance with their respective terms, except as the same may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights generally
and
by general principles of equity.
Credit
Agreement
-38-
SECTION
4.04. Financial
Information.
(a) The
consolidated balance sheets of the Company and its Consolidated Subsidiaries
as
of December 31, 2004 and the related consolidated statements of income, cash
flows and shareholders' equity for the fiscal year then ended, reported on
by
Ernst & Young LLP and set forth in the Company's 2004 Form 10-K, a copy of
which has been delivered to the Administrative Agent on behalf of each of the
Banks, fairly present, in conformity with generally accepted accounting
principles, the consolidated financial position of the Company and its
Consolidated Subsidiaries as of such date and their consolidated results of
operations and changes in financial position for such fiscal year.
(b) The
unaudited consolidated balance sheets of the Company and its Consolidated
Subsidiaries as of September 30, 2005 and the related unaudited consolidated
statements of income, cash flows and shareholders' equity for the nine months
then ended, set forth in the Company's quarterly report for the fiscal quarter
ended September 30, 2005 as filed with the Securities and Exchange Commission
on
Form l0-Q, a copy of which has been delivered to the Administrative Agent on
behalf of each of the Banks, fairly present, in conformity with generally
accepted accounting principles applied on a basis consistent with the financial
statements referred to in subsection (a) of this Section, the consolidated
financial position of the Company and its Consolidated Subsidiaries as of such
date and their consolidated results of operations and changes in financial
position for such nine month period (subject to normal year-end
adjustments).
(c) A
copy of
a duly completed and signed Annual Statement or other similar report of or
for
each Insurance Subsidiary in the form filed with the governmental body, agency
or official which regulates insurance companies in the jurisdiction in which
such Insurance Subsidiary is domiciled for the year ended December 31, 2004
has
been delivered to the Administrative Agent on behalf of each of the Banks and
fairly presents, in accordance with statutory accounting principles, the
information contained therein.
(d) A
copy of
a duly completed and signed Quarterly Statement or other similar report of
or
for each Insurance Subsidiary in the form filed with the governmental body,
agency or official which regulates insurance companies in the jurisdiction
in
which such Insurance Subsidiary is domiciled for the quarter ended September
30,
2005 has been delivered to the Administrative Agent on behalf of each of the
Banks and fairly presents, in accordance with statutory accounting principles,
the information contained therein.
(e) Since
December 31, 2004 and as of the Effective Date, there has been no material
adverse change in the business, financial condition, results of operations
or
prospects of the Company and its Consolidated Subsidiaries, considered as a
whole.
Credit
Agreement
-39-
SECTION
4.05. Litigation.
As of
the Effective Date, there is no action, suit or proceeding pending against,
or
to the knowledge of the Company threatened against, the Company or any of its
Subsidiaries before any court or arbitrator or any governmental body, agency
or
official (a) which has or would be reasonably expected to have a Material
Adverse Effect, or (b) which in any manner draws into question the validity
or enforceability of this Agreement or any other Credit Document.
SECTION
4.06. Compliance
with ERISA.
Except
as would not result in a Material Adverse Effect, each member of the ERISA
Group
has fulfilled its obligations under the minimum funding standards of ERISA
and
the Code with respect to each Plan and is in compliance in all material respects
with the presently applicable provisions of ERISA and the Code with respect
to
each Plan. Except as would not result in a Material Adverse Effect, no member
of
the ERISA Group has (i) sought a waiver of the minimum funding standard under
Section 412 of the Code in respect of any Plan, (ii) failed to make any
contribution or payment to any Plan or Multiemployer Plan or in respect of
any
Benefit Arrangement, or made any amendment to any Plan or Benefit Arrangement,
which has resulted or could result in the imposition of a Lien or the posting
of
a bond or other security under ERISA or the Code or (iii) incurred any liability
under Title IV of ERISA other than a liability to the PBGC for premiums under
Section 4007 of ERISA.
SECTION
4.07. Taxes.
United
States Federal income tax returns of the Company and its Subsidiaries have
been
examined and closed through the fiscal year ended December 31, 1995. The Company
and its Subsidiaries have filed all income tax returns and all other material
tax returns which are required to be filed by them and have paid all taxes
due
pursuant to such returns or, except for any such taxes that are being contested
in good faith by appropriate proceedings and for which adequate reserves have
been made, pursuant to any assessment received by the Company or any Subsidiary.
The charges, accruals and reserves on the books of the Company and its
Subsidiaries in respect of taxes are, in the opinion of the Company,
adequate.
SECTION
4.08. Subsidiaries.
Each of
the Company's Restricted Subsidiaries is a corporation duly incorporated,
validly existing and (except where such concept is not applicable) in good
standing under the laws of its jurisdiction of incorporation, and has all
corporate powers and all material governmental licenses, authorizations,
consents and approvals required to carry on its business as now
conducted.
SECTION
4.09. Not
an
Investment Company.
The
Company is not an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
Credit
Agreement
-40-
SECTION
4.10. Obligations
to be Pari Passu.
The
Company's obligations under this Agreement and each other Credit Document to
which it is a party rank pari passu as to priority of payment and in all other
respects with all other unsecured and unsubordinated Debt of the
Company.
SECTION
4.11. No
Default.
No
event has occurred and is continuing which constitutes, or which, with the
passage of time or the giving of notice or both, would constitute, a default
under or in respect of any material agreement, instrument or undertaking to
which the Company or any Restricted Subsidiary is a party or by which either
the
Company or any Restricted Subsidiary or any of their respective assets is bound,
unless such default would not have or be reasonably expected to have a Material
Adverse Effect.
SECTION
4.12. Restricted
Subsidiaries.
Set
forth as Schedule II hereto is a true, correct and complete list of each
Restricted Subsidiary as of the date hereof.
SECTION
4.13. Environmental
Matters.
The
Company has reasonably concluded that Environmental Laws are unlikely to have
a
Material Adverse Effect.
SECTION
4.14. Full
Disclosure.
All
written information heretofore furnished by the Company to the Administrative
Agent or any Bank for purposes of or in connection with this Agreement or any
transaction contemplated hereby is, and all such information hereafter furnished
by the Company to the Administrative Agent or any Bank will be, true and
accurate in all material respects on the date as of which such information
is
stated or certified. To the best of its knowledge, the Company has disclosed
to
the Banks in writing any and all facts which materially and adversely affect
or
may materially and adversely affect (to the extent the Company can now
reasonably foresee) the business, consolidated financial condition or
consolidated results of operations of the Company and its Consolidated
Subsidiaries, taken as a whole, or the ability of each Account Party to perform
its obligations under the Credit Documents to which it is a party.
SECTION
4.15. Separate
Representations of Subsidiary Account Parties.
Each of
the Subsidiary Account Parties represents and warrants that:
(a) Such
Subsidiary Account Party is a company duly organized and validly existing under
the laws of the jurisdiction of its organization, and has all corporate power
and all material governmental licenses, authorizations, consents and approvals
required to carry on its business as now conducted.
(b) The
execution, delivery and performance by such Subsidiary Account Party of this
Agreement and each other Credit Document to which it is a party are within
such
Subsidiary Account Party's corporate powers, have been duly authorized by all
necessary corporate action, require no action by or in respect of, or filing
with, any governmental body, agency or official and do not contravene, or
constitute a default under, any provision of applicable law or regulation or
of
any organizational document of such Subsidiary Account Party or of any material
agreement, judgment, injunction, order, decree or other instrument binding
upon
such Subsidiary Account Party or result in the creation or imposition of any
Lien on any asset of such Subsidiary Account Party.
Credit
Agreement
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(c) The
Credit Documents (including this Agreement) to which such Subsidiary Account
Party is a party constitute the legal, valid and binding obligations of such
Subsidiary Account Party, in each case enforceable in accordance with their
respective terms, except as the same may be limited by bankruptcy, insolvency
or
similar laws affecting creditors' rights generally and by general principles
of
equity.
(d) Such
Subsidiary Account Party is not an "investment company" within the meaning
of
the Investment Company Act of 1940, as amended.
(e) Such
Subsidiary Account Party's obligations under this Agreement to which it is
a
party rank pari passu as to priority of payment and in all other respects with
all other unsecured and unsubordinated Debt of such Subsidiary Account Party
with the exception of those obligations that are mandatorily preferred by law
and not by contract.
(f) No
event
has occurred and is continuing which constitutes or which, with the passage
of
time or the giving of notice or both, would constitute, a default under or
in
respect of any material agreement, instrument or undertaking to which such
Subsidiary Account Party is a party or by which either such Subsidiary Account
Party or any of its assets is bound.
(g) Such
Subsidiary Account Party is not the subject of (i) any winding up (whether
compulsory or otherwise) or any other corporate, judicial or administrative
proceeding or action which could result in the winding up of such Subsidiary
Account Party or (ii) any other proceeding or action relating to the insolvency,
bankruptcy, liquidation, moratorium on the payment of obligations or any other
similar condition of or relating to such Subsidiary Account Party, and such
Subsidiary Account Party has taken no action in furtherance of any of the
foregoing.
Credit
Agreement
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ARTICLE
V
COVENANTS
Until
all
Commitments have expired or been terminated, the principal of and interest
on
each Loan and all fees payable hereunder shall have been paid in full and all
Letters of Credit shall have expired or terminated and all LC Disbursements
shall have been reimbursed, the Company and (in the case of
Sections 5.01(l), 5.02, 5.03, 5.04, 5.05, 5.06, 5.08, 5.10 and 5.11) the
Subsidiary Account Parties agree that:
SECTION
5.01. Information.
The
Company (and, in the case of Section 5.01(l), each Subsidiary Account
Party, but only as to information concerning such Subsidiary Account Party
and
its Subsidiaries) will deliver to each of the Banks:
(a) within
90
days after the end of each fiscal year of the Company, if and only to the extent
not duplicative of information otherwise provided pursuant to clause (i)
below, the consolidated balance sheet of the Company and its Consolidated
Subsidiaries as of the end of such fiscal year and the related consolidated
statements of income, cash flows and shareholders' equity for such fiscal year,
setting forth in each case in comparative form the figures for the previous
fiscal year, all reported on in a manner acceptable to the Securities and
Exchange Commission by Ernst & Young LLP or other independent public
accountants of nationally recognized standing;
(b) within
60
days after the end of each of the first three quarters of each fiscal year
of
the Company, if and only to the extent not duplicative of information otherwise
provided pursuant to clause (i) below, the consolidated balance sheet of
the Company and its Consolidated Subsidiaries as of the end of such quarter
and
the related consolidated statements of income, cash flows and shareholders'
equity for such quarter and for the portion of the Company's fiscal year ended
at the end of such quarter, setting forth in each case in comparative form
the
figures for the corresponding quarter and the corresponding portion of the
Company's previous fiscal year, all certified (subject to normal year-end
adjustments) as to fairness of presentation, generally accepted accounting
principles and consistency with the most recent audited consolidated financial
statements of the Company and its Consolidated Subsidiaries delivered to the
Banks (except for changes concurred in by the Company's independent public
accountants) by the chief financial officer or the chief accounting officer
of
the Company;
(c) simultaneously
with the delivery of each set of financial statements referred to in
clauses (a) and (b) above (whether delivered as provided therein or
pursuant to clause (i) below), a certificate of the chief financial officer
or the chief accounting officer of the Company (i) setting forth in
reasonable detail the calculations required to establish whether the Company
was
in compliance with the requirements of Section 5.07 on the date of such
financial statements and (ii) stating that such chief financial officer or
chief accounting officer, as the case may be, has no knowledge of any Default
existing on the date of such certificate or, if such chief financial officer
or
chief accounting officer has knowledge of the existence on such date of any
Default, setting forth the details thereof and the action which the Company
or
the applicable Subsidiary Account Party, as the case may be is taking or
proposes to take with respect thereto;
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Agreement
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(d) simultaneously
with the delivery of each set of financial statements referred to in clause
(a)
above (whether delivered as provided therein or pursuant to clause (i) below),
a
statement of the firm of independent public accountants which reported on such
statements (i) as to whether anything has come to their attention to cause
them
to believe that any Default existed on the date of such statements and
(ii) confirming the calculations set forth in the officer's certificate
delivered simultaneously therewith pursuant to clause (c)
above;
(e) within
120 days after the end of each fiscal year of each Insurance Subsidiary, a
copy
of a duly completed and signed Annual Statement (or any successor form thereto)
required to be filed by such Insurance Subsidiary with the governmental body,
agency or official which regulates insurance companies in the jurisdiction
in
which such Insurance Subsidiary is domiciled, in the form submitted to such
governmental body, agency or official;
(f) within
60
days after the end of each of the first three fiscal quarters of each Insurance
Subsidiary, a copy of a duly completed and signed Quarterly Statement (or any
successor form thereto) required to be filed by such Insurance Subsidiary with
the governmental body, agency or official which regulates insurance companies
in
the jurisdiction in which such Insurance Subsidiary is domiciled, in the form
submitted to such governmental body, agency or official;
(g) forthwith
upon learning of the occurrence of any Default, a certificate of the chief
financial officer or the chief accounting officer of the Company setting forth
the details thereof and the action which the Company is taking or proposes
to
take with respect thereto;
(h) promptly
upon the mailing thereof to the shareholders of the Company generally, if and
only to the extent not duplicative of information otherwise provided pursuant
to
clause (i) below, copies of all financial statements, reports and proxy
statements so mailed;
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Agreement
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(i) promptly
upon the filing thereof, copies of all registration statements (other than
the
exhibits thereto and any registration statements on Form S-8 or its
equivalent) and reports on Forms 10-K, 10-Q and 8-K (or their equivalents)
which any Account Party shall have filed with the Securities and Exchange
Commission;
(j) if
and
when any member of the ERISA Group (i) gives or is required to give notice
to the PBGC of any "reportable event" (as defined in Section 4043 of ERISA)
with respect to any Plan which might constitute grounds for a termination of
such Plan under Title IV of ERISA, or knows that the plan administrator of
any Plan has given or is required to give notice of any such reportable event,
a
copy of the notice of such reportable event given or required to be given to
the
PBGC; (ii) receives notice of complete or partial withdrawal liability
under Title IV of ERISA or notice that any Multiemployer Plan is in
reorganization, is insolvent or has been terminated, a copy of such notice;
(iii) receives notice from the PBGC under Title IV of ERISA of an
intent to terminate, impose liability (other than for premiums under
Section 4007 of ERISA) in respect of, or appoint a trustee to administer,
any Plan, a copy of such notice; (iv) applies for a waiver of the minimum
funding standard under Section 412 of the Code, a copy of such application;
(v) gives notice of intent to terminate any Plan under Section 4041(c)
of ERISA, a copy of such notice and other information filed with the PBGC;
(vi) gives notice of withdrawal from any Plan pursuant to Section 4063
of ERISA, a copy of such notice; or (vii) fails to make any payment or
contribution to any Plan or Multiemployer Plan or in respect of any Benefit
Arrangement or makes any amendment to any Plan or Benefit Arrangement which
has
resulted or could result in the imposition of a Lien or the posting of a bond
or
other security, a certificate of the chief financial officer or the chief
accounting officer of the Company setting forth details as to such occurrence
and action, if any, which the Company or applicable member of the ERISA Group
is
required or proposes to take;
(k) promptly
after Xxxxx'x or S&P shall have announced a change in the rating established
or deemed to have been established for the Index Debt, written notice of such
rating change; and
(l) from
time
to time such additional information regarding the financial position or business
of any Account Party as the Administrative Agent, at the request of any Bank,
may reasonably request.
SECTION
5.02. Payment
of Obligations.
The
Company will pay and discharge, and will cause each Restricted Subsidiary and
Subsidiary Account Party to pay and discharge, at or before maturity, all their
respective material obligations and liabilities, including, without limitation,
tax liabilities, except where the same may be contested in good faith by
appropriate proceedings, and will maintain, and will cause each Restricted
Subsidiary to maintain, in accordance with generally accepted accounting
principles, appropriate reserves for the accrual of any of the
same.
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Agreement
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SECTION
5.03. Conduct
of Business and Maintenance of Existence.
The
Company will continue, and will cause each Restricted Subsidiary and Subsidiary
Account Party to continue, to engage in business of the same general type as
conducted by the Company and its Restricted Subsidiaries, taken as a whole,
on
the date hereof and will preserve, renew and keep in full force and effect,
and
will cause each Restricted Subsidiary to preserve, renew and keep in full force
and effect, their respective corporate existence and their respective rights,
privileges, licenses and franchises which, in the judgment of the Board of
Directors of the Company, are necessary or desirable in the normal conduct
of
business.
SECTION
5.04. Maintenance
of Property; Insurance.
(a) The
Company will keep, and will cause each Restricted Subsidiary and Subsidiary
Account Party to keep, all property useful and necessary in its business in
good
working order and condition, ordinary wear and tear excepted.
(b) The
Company will maintain, and will cause each of its Restricted Subsidiaries to
maintain (either in the name of the Company or in such Subsidiary's own name)
with financially sound and responsible insurance companies, insurance on all
their respective properties and against at least such risks, in each case in
at
least such amounts (and with such risk retentions) as are usually insured
against in the same general area by companies of established repute engaged
in
the same or a similar business; and the Company will furnish to the Banks,
upon
request from the Administrative Agent, information presented in reasonable
detail as to the insurance so carried.
SECTION
5.05. Compliance
with Laws.
The
Company will comply, and will cause each Subsidiary to comply, in all material
respects with all applicable laws, ordinances, rules, regulations and
requirements of governmental authorities (including, without limitation,
Environmental Laws and ERISA and the rules and regulations thereunder) except
where the necessity of compliance therewith is contested in good faith by
appropriate proceedings, except where such non-compliance therewith would not
reasonably be expected to have a Material Adverse Effect.
SECTION
5.06. Inspection
of Property, Books and Records.
The
Company will keep, and will cause each Restricted Subsidiary and Subsidiary
Account Party to keep, proper books of record and account in which full, true
and correct entries shall be made of all dealings and transactions in relation
to its business and activities; and, subject in all cases to Section 10.11,
will permit, and will cause each Restricted Subsidiary and Subsidiary Account
Party to permit, representatives of any Bank to visit and inspect any of their
respective properties, to examine and make abstracts from any of their
respective books and records and to discuss their respective affairs, finances
and accounts with their respective officers, employees, actuaries and
independent public accountants, all upon reasonable notice, at such reasonable
times during ordinary business hours and as often as may reasonably be desired;
provided
that
neither the Company nor any of its Subsidiaries shall be required to disclose
any information subject to its attorney-client privilege.
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Agreement
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SECTION
5.07. Minimum
Adjusted Consolidated Net Worth.
The
Company will not permit Adjusted Consolidated Net Worth to be less than (a)
at
any time prior to the consummation of the Jefferson-Pilot Acquisition and the
delivery of the estimate contemplated in the last sentence of this Section,
$4,082,000,000, (b) from and after the delivery of such estimate to but not
including the last day of the first fiscal quarter ending after the consummation
of the Jefferson-Pilot Acquisition, an amount equal to 70% of Estimated Adjusted
Consolidated Net Worth (as defined below) and (c) at any time thereafter, an
amount equal to 70% of Adjusted Consolidated Net Worth determined as of the
end
of the fiscal quarter or fiscal year, as applicable, of the Company ended
immediately after the consummation of the Jefferson-Pilot Acquisition. Promptly
but not later than 45 days following the consummation of the Jefferson-Pilot
Acquisition, the Company shall furnish to the Administrative Agent a written
estimate of the Adjusted Consolidated Net Worth, determined as of the end of
the
most recently completed fiscal quarter or fiscal year of the Company for which
consolidated financial statements of the Company are then available and adjusted
to give pro forma effect to the Jefferson-Pilot Acquisition ("Estimated
Adjusted Consolidated Net Worth")
(and
the Administrative Agent shall promptly furnish a copy thereof to the
Banks).
SECTION
5.08. Negative
Pledge.
The
Company will not, and will not permit any Subsidiary to, create or suffer to
exist any Lien upon any present or future capital stock or any other Securities
of any of its Material Subsidiaries.
SECTION
5.09. Consolidations,
Mergers and Sales of Assets.
The
Company will not (i) consolidate or merge with or into any other Person or
(ii) sell, lease or otherwise transfer, directly or indirectly, all or
substantially all of the assets of the Company and its Subsidiaries, taken
as a
whole, to any other Person; provided
that the
Company may merge with another Person if (A) the Company is the corporation
surviving such merger and (B) immediately after giving effect to such
merger, no Default shall have occurred and be continuing.
SECTION
5.10. Use
of
Credit.
Each
Account Party shall use each Letter of Credit issued under this Agreement to
support its insurance or reinsurance business. The proceeds of each Loan made
hereunder will be used for general corporate purposes of the Company. No Letter
of Credit or proceeds of Loans will be used, directly or indirectly, for the
purpose, whether immediate, incidental or ultimate, of buying or carrying any
"margin stock" within the meaning of Regulations T, U and X.
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Agreement
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SECTION
5.11. Obligations
to be Pari Passu.
Each
Account Party's obligations under this Agreement and the other Credit Documents
to which it is a party will rank at all times pari passu as to priority of
payment and in all other respects with all other unsecured and unsubordinated
Debt of such Account Party with the exception of those obligations that are
mandatorily preferred by law and not by contract.
SECTION
5.12. Termination
of Jefferson-Pilot Credit Facility.
Upon
the consummation of the Jefferson-Pilot Acquisition, the Company will terminate
the commitments of the lenders and pay all amounts owing under (a) the Credit
Agreement dated as of December 23, 2004 among TSC Reassurance (Bermuda) Ltd.,
as
account party, Jefferson-Pilot Corporation, as guarantor, the lenders party
thereto and Wachovia Bank, National Association, as administrative agent, as
amended, and (b) the Credit Agreement dated as of May 7, 2002, among the
Jefferson-Pilot Corporation, as guarantor, the lenders party thereto and Bank
of
America, N.A., as administrative agent, as amended.
ARTICLE
VI
DEFAULTS
SECTION
6.01. Events
of Default.
If one
or more of the following events ("Events
of Default")
shall
have occurred and be continuing:
(a) (i) the
Company or any Account Party shall fail to pay when due any principal of any
Loan or any reimbursement obligation in respect of an LC Disbursement or
(ii) any Account Party shall fail to pay when due any interest on any Loan
or LC Disbursement or any fees or any other amounts payable hereunder and such
failure under this clause (ii) shall continue for four Domestic Business
Days;
(b) any
Account Party shall fail to observe or perform any covenant contained in
Sections 5.07 through 5.11, inclusive;
(c) any
Account Party shall fail to observe or perform any covenant or agreement
contained in this Agreement (other than those covered by clause (a) or (b)
above) for 30 days after written notice thereof has been given to the Company
by
the Administrative Agent at the request of any Bank;
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(d) any
representation, warranty, certification or statement made by any Account Party
in this Agreement or in any certificate, financial statement or other document
delivered pursuant to this Agreement shall prove to have been incorrect in
any
material respect when made (or deemed made);
(e) the
Company or any Subsidiary (other than a Newly Acquired Subsidiary) shall fail
to
make any payment in respect of any Debt (other than Loans and other extensions
of credit hereunder and any Debt solely of a Newly Acquired Subsidiary existing
at the time such Person becomes a Subsidiary and not created in contemplation
of
such event ("Newly
Acquired Subsidiary Debt"))
having a principal amount then outstanding of not less than $75,000,000 when
due
and such failure shall continue beyond any applicable grace period or the
Company or any Subsidiary (other than a Newly Acquired Subsidiary) shall fail
to
make any payment in an amount at least equal to $75,000,000 in respect of any
Derivative Financial Product when due and such failure shall continue beyond
any
applicable grace period;
(f) any
event
or condition shall occur which results in the acceleration of the maturity
of
any Debt (other than Loans and other extensions of credit hereunder and Newly
Acquired Subsidiary Debt) having a principal or face amount then outstanding
of
not less than $75,000,000 of the Company or any Subsidiary or enables (or,
with
the giving of notice or lapse of time or both, would enable) the holder of
such
Debt or any Person acting on such holder's behalf to accelerate the maturity
thereof;
(g) any
Account Party or Restricted Subsidiary (other than a Newly Acquired Subsidiary)
shall commence a voluntary case or other proceeding seeking rehabilitation,
dissolution, conservation, liquidation, reorganization or other relief with
respect to itself or its debts under any bankruptcy, insolvency or other similar
law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, rehabilitator, dissolver, conservator, custodian or other
similar official of it or any substantial part of its property, or shall consent
to any such relief or to the appointment of or taking possession by any such
official in an involuntary case or other proceeding commenced against it, or
shall make a general assignment for the benefit of creditors, or shall fail
generally to pay its debts as they become due, or shall take any corporate
action to authorize any of the foregoing;
(h) an
involuntary case or other proceeding shall be commenced against any Account
Party or Restricted Subsidiary (other than a Newly Acquired Subsidiary) seeking
rehabilitation, dissolution, conservation, liquidation, reorganization or other
relief with respect to it or its debts under any bankruptcy, insolvency or
other
similar law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, rehabilitator, dissolver, conservator, custodian or other
similar official of it or any substantial part of its property, and such
involuntary case or other proceeding shall remain undismissed and unstayed
for a
period of 60 days; or an order for relief shall be entered against any Account
Party or such Restricted Subsidiary under the federal bankruptcy laws as now
or
hereafter in effect; or any governmental body, agency or official shall apply
for, or commence a case or other proceeding to seek, an order for the
rehabilitation, conservation, dissolution or other liquidation of Account Party
or Restricted Subsidiary or of the assets or any substantial part thereof of
any
Account Party or Restricted Subsidiary or any other similar remedy;
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Agreement
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(i) any
of
the following events or conditions shall occur, which, in the aggregate,
reasonably could be expected to involve possible taxes, penalties and other
liabilities in an aggregate amount in excess of $75,000,000: (i) any member
of
the ERISA Group shall fail to pay when due any amount or amounts which it shall
have become liable to pay under Title IV of ERISA; (ii) notice of intent to
terminate a Plan shall be filed under Title IV of ERISA by any member of the
ERISA Group, any plan administrator or any combination of the foregoing; (iii)
the PBGC shall institute proceedings under Title IV of ERISA to terminate,
to impose liability (other than for premiums under Section 4007 of ERISA)
in respect of, or to cause a trustee to be appointed to administer, any Plan;
(iv) a condition shall exist by reason of which the PBGC would be entitled
to
obtain a decree adjudicating that any Plan must be terminated; or (v) there
shall occur a complete or partial withdrawal from, or a default, within the
meaning of Section 4219(c)(5) of ERISA, with respect to, one or more
Multiemployer Plans;
(j) a
judgment or order for the payment of money in excess of the greater of (i)
$150,000,000 or (ii) 3% of the consolidated shareholders' equity of the Company
and its Consolidated Subsidiaries (after (without duplication) the actual
amounts of insurance recoveries, offsets and contributions received and amounts
thereof not yet received but which the insurer thereon has acknowledged in
writing its obligation to pay) shall be rendered against any Account Party
or
Restricted Subsidiary and such judgment or order shall continue unsatisfied
and
unstayed for a period of 90 days after entry of such judgment (and, for purposes
of this clause, a judgment shall be stayed if, among other things, an appeal
is
timely filed and such judgment cannot be enforced);
(k) (i)
any
person or group of persons (within the meaning of Section 13 or 14 of the
Securities Exchange Act of 1934, as amended) shall have acquired beneficial
ownership (within the meaning of Rule 13d-3 promulgated by the Securities and
Exchange Commission under said Act) of 20% or more of the outstanding shares
of
common stock of the Company; or (ii) occupation of a majority of the seats
(other than vacant seats) on the board of directors of the Company by Persons
who were neither (x) nominated by the board of directors of the Company or
(y)
appointed by directors so nominated; or
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(l) any
Subsidiary Account Party shall cease for any reason to be a Consolidated
Subsidiary, unless (i) such Subsidiary Account Party shall have been
consolidated or merged with or into a wholly owned Subsidiary or the Company
or
(ii) Subsidiary Account Party shall have been terminated as an Account
Party hereunder pursuant to Section 10.13;
then,
and
in every such event, and at any time thereafter during the continuance of such
event, the Administrative Agent shall, if requested by the Required Banks,
by
notice to the Company take any or all of the following actions, at the same
or
different times: (i) terminate the Commitments and they shall thereupon
terminate, (ii) declare the Loans then outstanding to be due and payable in
whole (or in part, in which case any principal not so declared to be due and
payable may thereafter be declared to be due and payable), and thereupon the
principal of the Loans so declared to be due and payable, together with accrued
interest thereon and all fees and other obligations of the Account Parties
accrued hereunder shall become due and payable immediately, without presentment,
demand, protest or other notice of any kind, all of which are hereby waived
by
each Account Party and the Guarantor, (iii) notify (or, in the case of any
Fronted Letter of Credit, request the applicable Fronting Issuing Bank (and
such
Fronting Issuing Bank agrees upon such request) to notify) each beneficiary
of
an outstanding Letters of Credit of the existence of an Event of Default
hereunder and cause a drawing of the aggregate undrawn amount thereunder (if
such Letters of Credit so permit) and (iv) demand provision of cover from
the Account Parties and the Guarantor in immediately available funds in an
amount equal to the then aggregate undrawn amount of all Letters of Credit
pursuant to Section 2.03(e); provided
that, in
the case of any of the Events of Default specified in clause (g) or (h)
above (A) with respect to the Company, without any notice to any Account
Party or the Guarantor or any other act by the Administrative Agent or the
Banks, the Commitments shall thereupon terminate and the principal of the Loans
then outstanding, together with accrued interest thereon and all fees and other
obligations of the Account Parties accrued hereunder, shall automatically become
due and payable without presentment, demand, protest or notice of any kind,
all
of which are hereby waived by each Account Party and the Guarantor and (B)
with
respect to any Account Party, without any notice to any Account Party or the
Guarantor or any other act by the Administrative Agent or the Banks, the
Commitments to issue Letters of Credit for the account of such Account Party
shall thereupon terminate and all fees and other obligations of such Account
Party shall become immediately due and payable without presentment, demand,
protest or notice of any kind, all of which are hereby waived by the Account
Parties and the Guarantor; provided,
further,
that,
in the case of an Event of Default under Section 6.01(b) resulting from a
default by any Subsidiary Account Party under Section 5.08, 5.10 or 5.11 or
under Section 6.01(c) or (d) (in the latter case, resulting from a default
by any Subsidiary Account Party under Section 4.15), the termination of the
Commitments, the acceleration of all fees and other obligations of the Account
Parties accrued hereunder and the causing of drawings under Letters of Credit
shall apply only to the Commitments, fees, obligations in respect of such
Subsidiary Account Party and to the Letters of Credit with respect to which
it
is the Account Party.
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Agreement
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SECTION
6.02. Notice
of Default.
The
Administrative Agent shall give notice to the Company under Section 6.01(c)
promptly upon being requested to do so by any Bank and shall thereupon notify
all the Banks thereof.
ARTICLE
VII
THE
ADMINISTRATIVE AGENT
SECTION
7.01. Appointment
and Authorization.
Each
Bank irrevocably appoints and authorizes the Administrative Agent to take such
action as agent on its behalf and to exercise such powers under this Agreement
and the other Credit Documents as are delegated to the Administrative Agent
by
the terms hereof or thereof, together with all such powers as are reasonably
incidental thereto.
SECTION
7.02. Agent's
Fee.
The
Company shall pay to the Administrative Agent for its own account fees in the
amounts and at the times previously agreed upon between the Company and the
Administrative Agent.
SECTION
7.03. Agent
and Affiliates.
JPMCB
shall have the same rights and powers under this Agreement as any other Bank
and
may exercise or refrain from exercising the same as though it were not the
Administrative Agent, and JPMCB and its Affiliates may accept deposits from,
lend money to, and generally engage in any kind of business with the Company
or
any Subsidiary or Affiliate of any thereof as if it were not the Administrative
Agent hereunder.
SECTION
7.04. Action
by Agent.
The
obligations of the Administrative Agent hereunder are only those expressly
set
forth herein. The Administrative Agent shall not have any duty to take any
discretionary action permitted to be taken by it pursuant to the provisions
of
this Agreement unless it shall be requested in writing to do so by the Required
Banks. Without limiting the generality of the foregoing, the Administrative
Agent shall not be required to take any action with respect to any Default,
except as expressly provided in Article VI. The Administrative Agent shall
have no duty to disclose to the Banks information that is not required to be
furnished by an Account Party to the Administrative Agent at such time, but
is
voluntarily furnished by an Account Party to the Administrative Agent (either
in
its capacity as Administrative Agent or in its individual
capacity).
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SECTION
7.05. Consultation
with Experts.
The
Administrative Agent may consult with legal counsel (who may be counsel for
any
Account Party), independent public accountants and other experts selected by
it
and shall not be liable for any action taken or omitted to be taken by it in
good faith in accordance with the advice of such counsel, accountants or
experts.
SECTION
7.06. Liability
of Agent.
Neither
the Administrative Agent nor any of its directors, officers, agents or employees
shall be liable to any Bank for any action taken or not taken by it in
connection herewith (i) with the consent or at the request of the Required
Banks or (ii) in the absence of its own gross negligence or willful
misconduct. The Administrative Agent shall be deemed not to have knowledge
of
any Default unless and until written notice thereof is given to the
Administrative Agent by an Account Party or a Bank. Neither the Administrative
Agent nor any of its directors, officers, agents or employees shall be
responsible to any Bank for or have any duty to any Bank to ascertain, inquire
into or verify (i) any statement, warranty or representation made in
connection with this Agreement or any borrowing hereunder or the issuance,
amendment, renewal or extension of any Letter of Credit; (ii) the
performance or observance of any of the covenants or agreements of any Account
Party; (iii) the satisfaction of any condition specified in
Article III, except receipt of items required to be delivered to the
Administrative Agent; (iv) the validity, effectiveness or genuineness of
this Agreement, any other Credit Document or any other instrument or writing
furnished in connection herewith; (v) the existence or possible existence
of any Default; (vi) the financial condition of any Account Party or any
Account Party's Subsidiaries; or (vii) the contents of any certificate,
report or other document delivered hereunder or in connection herewith. The
Administrative Agent shall not incur any liability by acting in reliance upon
any notice, consent, certificate, statement, or other writing (which may be
a
bank wire, telex or similar writing) believed by it in good faith to be genuine
or to be signed by the proper party or parties.
SECTION
7.07. Indemnification.
Each
Bank shall, ratably in accordance with its Commitment (determined as of the
time
that the applicable unreimbursed expense or indemnity payment is sought),
indemnify the Administrative Agent (to the extent not reimbursed by the Company)
against any cost, expense (including counsel fees and disbursements), claim,
demand, action, loss or liability (except such as result from the Administrative
Agent's gross negligence or willful misconduct) that the Administrative Agent
may suffer or incur in connection with this Agreement or any action taken or
omitted by the Administrative Agent hereunder. The Administrative Agent shall
be
fully justified in failing or refusing to take any action hereunder unless
it
shall first be indemnified to its satisfaction by the Banks pro rata against
any
and all liability, cost and expense that it may incur by reason of taking or
continuing to take any such action.
Credit
Agreement
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SECTION
7.08. Credit
Decision.
Each
Bank acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Bank, and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Bank also acknowledges that it
will,
independently and without reliance upon the Administrative Agent or any other
Bank, and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
any action under this Agreement.
SECTION
7.09. Successor
Agent.
The
Administrative Agent may resign at any time by giving written notice thereof
to
the Banks and the Company. Upon any such resignation, the Required Banks shall
have the right to appoint a successor Administrative Agent, which successor
Administrative Agent shall be satisfactory to the Company, provided
that no
Default is continuing. If no successor Administrative Agent shall have been
so
appointed by the Required Banks, and shall have accepted such appointment,
within 30 days after the retiring Administrative Agent gives notice of
resignation, then the retiring Administrative Agent may, on behalf of the Banks,
appoint a successor Agent, which shall be a commercial bank organized or
licensed under the laws of the United States of America or of any State thereof
and having a combined capital and surplus of at least $100,000,000 and (unless
a
Default has occurred and is continuing) shall otherwise be subject to the
consent of the Company, which consent shall not be unreasonably withheld. Upon
the acceptance of its appointment as Administrative Agent hereunder by a
successor Administrative Agent, such successor Administrative Agent shall
thereupon succeed to and become vested with all the rights and duties of the
retiring Administrative Agent, and the retiring Administrative Agent shall
be
discharged from its duties and obligations hereunder. After any retiring
Administrative Agent's resignation hereunder as Administrative Agent, the
provisions of this Article shall inure to its benefit as to any actions taken
or
omitted to be taken by it while it was Administrative Agent.
SECTION
7.10. Delegation
to Affiliates.
The
Account Party and the Banks agree that the Administrative Agent may delegate
any
of its duties under this Agreement to any of its Affiliates. Any such Affiliate
(and such Affiliate's directors, officers, agents and employees) which performs
duties in connection with this Agreement shall be entitled to the same benefits
of the indemnification, waiver and other protective provisions to which the
Administrative Agent is entitled under Articles VII and X.
SECTION
7.11. Joint
Lead Arrangers and Other Agents.
Notwithstanding anything herein to the contrary, none of the Joint Lead
Arrangers and Joint Bookrunners, the Syndication Agent or the Documentation
Agents listed on the cover page of this Agreement shall have any right, power,
obligation, liability, responsibility or duty under this Agreement in its
capacity as such, except in its respective capacity, if any, as a
Bank.
Credit
Agreement
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ARTICLE
VIII
CHANGE
IN
CIRCUMSTANCES
SECTION
8.01. Basis
for Determining Interest Rate Inadequate or Unfair.
If on
or prior to the first day of any Interest Period for any Euro-Dollar
Borrowing:
(a) the
Administrative Agent determines (which determination shall be conclusive absent
manifest error) that adequate and reasonable means do not exist for ascertaining
the LIBO Rate for such Interest Period, or
(b) the
Required Banks advise the Administrative Agent that the LIBO Rate as determined
by the Administrative Agent will not adequately and fairly reflect the cost
to
such Banks of funding their Euro-Dollar Loans for such Interest
Period,
the
Administrative Agent shall forthwith give notice thereof to the Company and
the
Banks, whereupon until the Administrative Agent notifies the Company that the
circumstances giving rise to such suspension no longer exist, the obligations
of
the Banks to make Euro-Dollar Loans shall be suspended. Unless the Company
notifies the Administrative Agent at least two Domestic Business Days before
the
date of any Euro-Dollar Borrowing for which a Notice of Borrowing has previously
been given that it elects not to borrow on such date, such Borrowing shall
instead be made as a Base Rate Borrowing.
SECTION
8.02. Illegality.
If,
after the date of this Agreement, the adoption of any applicable law, rule
or
regulation, or any change in any applicable law, rule or regulation, or any
change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation
or
administration thereof, or compliance by any Bank (or its Applicable Lending
Office) with any request or directive (whether or not having the force of law)
of any such authority, central bank or comparable agency shall make it unlawful
or impossible for any Bank (or its Applicable Lending Office) to make, continue,
maintain or fund its Euro-Dollar Loans and such Bank shall so notify the
Administrative Agent, the Administrative Agent shall forthwith give notice
thereof to the other Banks and the Company, whereupon until such Bank notifies
the Company and the Administrative Agent that the circumstances giving rise
to
such suspension no longer exist, the obligation of such Bank to make Euro-Dollar
Loans shall be suspended. Before giving any notice to the Administrative Agent
pursuant to this Section, such Bank shall designate a different Applicable
Lending Office if such designation will avoid the need for giving such notice
and will not, in the judgment of such Bank, be otherwise disadvantageous to
such
Bank. If such Bank shall determine that it may not lawfully continue to maintain
and fund any of its outstanding Euro-Dollar Loans to maturity and shall so
specify in such notice, the Company shall immediately prepay in full the then
outstanding principal amount of each such Euro-Dollar Loan, together with
accrued interest thereon. Concurrently with prepaying each such Euro-Dollar
Loan, the Company shall borrow a Base Rate Loan in an equal principal amount
from such Bank (on which interest and principal shall be payable
contemporaneously with the related Euro-Dollar Loans of the other Banks), and
such Bank shall make such a Base Rate Loan.
Credit
Agreement
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SECTION
8.03. Increased
Cost and Reduced Return.
(a) If
on or after the date hereof, in the case of any Loan or any obligation to make
Loans or in the case of any Letter of Credit or any obligation to issue,
participate in, renew or extend any Letter of Credit, the adoption of any
applicable law, rule or regulation, or any change in any applicable law, rule
or
regulation, or any change in the interpretation or administration thereof by
any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Bank (or its
Applicable Lending Office) with any request or directive (whether or not having
the force of law) of any such authority, central bank or comparable agency
shall
impose, modify or deem applicable any reserve (including, without limitation,
any such requirement imposed by the Board of Governors of the Federal Reserve
System, but excluding with respect to any Euro-Dollar Loan any such requirement
included in an applicable Euro-Dollar Reserve Percentage), special deposit,
insurance assessment or similar requirement against assets of, deposits with
or
for the account of, or credit extended by, any Bank (or its Applicable Lending
Office) or shall impose on any Bank (or its Applicable Lending Office) or the
London interbank market any other condition affecting its Euro-Dollar Loans,
its
Notes or its obligation to make Euro-Dollar Loans or its obligation to issue
or
participate in Letters of Credit, any outstanding Letters of Credit or
reimbursement claims in respect of LC Disbursements and the result of any of
the
foregoing is to increase the cost to such Bank (or its Applicable Lending
Office) of making or maintaining any Euro-Dollar Loan or of issuing,
participating in or maintaining any Letter of Credit, or to reduce the amount
of
any sum received or receivable by such Bank (or its Applicable Lending Office)
under this Agreement or under other Credit Document with respect thereto, by
an
amount deemed by such Bank to be material, then, within 15 days after demand
by
such Bank (with a copy to the Administrative Agent), the Company shall pay
to
such Bank such additional amount or amounts as will compensate such Bank for
such increased cost or reduction.
(b) If
any
Bank shall have determined that, after the date hereof, the adoption of any
applicable law, rule or regulation regarding capital adequacy, or any change
in
any applicable law, rule or regulation regarding capital adequacy, or any change
in the interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or any request or directive regarding capital adequacy
(whether or not having the force of law) of any such authority, central bank
or
comparable agency, has or would have the effect of reducing the rate of return
on capital of such Bank (or its Parent) as a consequence of such Bank's
obligations hereunder to a level below that which such Bank (or its Parent)
could have achieved but for such adoption, change, request or directive (taking
into consideration its policies with respect to capital adequacy) by an amount
deemed by such Bank to be material, then from time to time, within 15 days
after
demand by such Bank (with a copy to the Administrative Agent), the Company
shall
pay to such Bank such additional amount or amounts as will compensate such
Bank
(or its Parent) for such reduction.
Credit
Agreement
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(c) Each
Bank
will promptly notify the Company and the Administrative Agent of any event
of
which it has knowledge, occurring after the date hereof, which will entitle
such
Bank to compensation pursuant to this Section and will designate a different
Applicable Lending Office if such designation will avoid the need for, or reduce
the amount of, such compensation and will not, in the judgment of such Bank,
be
otherwise disadvantageous to such Bank. A certificate of any Bank claiming
compensation under this Section and setting forth the additional amount or
amounts to be paid to it hereunder and, in reasonable detail, such Bank's
computation of such amount or amounts, shall be conclusive in the absence of
manifest error. In determining such amount, such Bank may use any reasonable
averaging and attribution methods.
SECTION
8.04. Base
Rate Loans Substituted for Affected Euro-Dollar Loans.
If (i)
the obligation of any Bank to make or continue Euro-Dollar Loans has been
suspended pursuant to Section 8.02 or (ii) any Bank has demanded compensation
under Section 8.03(a) or 8.05 and the Company shall, by at least five
Euro-Dollar Business Days' prior notice to such Bank through the Administrative
Agent, have elected that the provisions of this Section shall apply to such
Bank, then, unless and until such Bank notifies the Company that the
circumstances giving rise to such suspension or demand for compensation no
longer apply:
(a) all
Loans
which would otherwise be made, or continued, by such Bank as Euro-Dollar Loans
shall be made instead as, or converted into, Base Rate Loans (on which interest
and principal shall be payable contemporaneously with the related Euro-Dollar
Loans of the other Banks), and
(b) after
each of its Euro-Dollar Loans has been repaid, all payments of principal which
would otherwise be applied to repay such Euro-Dollar Loans shall be applied
to
repay its Base Rate Loans instead.
Credit
Agreement
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SECTION
8.05. Taxes.
(a) For
purposes of this Section, the following terms have the following
meanings:
"Taxes"
means
any and all present or future taxes, duties, levies, imposts, deductions,
charges or withholdings of any nature with respect to any payment by any Account
Party or the Guarantor pursuant to this Agreement or any other Credit Document,
and all liabilities with respect thereto, excluding, in the case of each Bank
and the Administrative Agent, taxes imposed on its net income, and franchise
or
similar taxes imposed on it, by a jurisdiction under the laws of which such
Bank
or the Administrative Agent (as the case may be) is organized or in which its
principal executive office is located or, in the case of each Bank, in which
its
Applicable Lending Office is located (all such excluded taxes being hereinafter
referred to as "Domestic
Taxes").
If
the form provided by a Bank pursuant to Section 8.05(d) at the time such Bank
first becomes a party to this Agreement indicates a United States interest
withholding tax rate in excess of zero, any United States interest withholding
tax at such rate imposed on payments by the Company under this Agreement or
any
other Credit Document shall be excluded from the definition of
"Taxes".
"Other
Taxes"
means
any present or future stamp or documentary taxes and any other excise or
property taxes, or similar charges or levies, which arise from any payment
made
pursuant to this Agreement or any other Credit Document or from the execution,
delivery, registration or enforcement of, or otherwise with respect to, this
Agreement or any other Credit Document.
(b) Any
and
all payments by any Account Party or the Guarantor to or for the account of
any
Bank or the Administrative Agent hereunder or under any other Credit Document
shall be made without deduction or withholding for any Taxes or Other Taxes;
provided
that, if
any Account Party or the Guarantor shall be required by law to deduct any Taxes
or Other Taxes from any such payments, (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) such Bank or the Administrative Agent (as the case may
be)
receives an amount equal to the sum it would have received had no such
deductions or withholdings been made, (ii) such Account Party or the Guarantor
(as the case may be) shall make such deductions or withholdings, (iii) such
Account Party or the Guarantor (as the case may be) shall pay the full amount
deducted or withheld to the relevant taxation authority or other authority
in
accordance with applicable law and (iv) such Account Party or the Guarantor
(as
the case may be) shall promptly furnish to the Administrative Agent, at its
address referred to in Section 10.01, the original or a certified copy of a
receipt evidencing payment thereof, and, if such receipt relates to Taxes or
Other Taxes in respect of a sum payable to any Bank, the Administrative Agent
shall promptly deliver such original or certified copy to such
Bank.
Credit
Agreement
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(c) The
Company agrees to indemnify each Bank and the Administrative Agent for the
full
amount of Taxes or Other Taxes (including, without limitation, any Taxes or
Other Taxes imposed or asserted by any jurisdiction on amounts payable under
this Section), whether or not correctly or legally imposed, paid by such Bank
or
the Administrative Agent (as the case may be) and any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto.
In
addition, the Company agrees to indemnify each Bank and the Administrative
Agent
for all Domestic Taxes of such Bank or the Administrative Agent (calculated
based on a hypothetical basis at the maximum marginal rate for a corporation)
and any liability (including penalties, interest and expenses to the extent
not
attributable to the gross negligence or willful misconduct of each Bank or
the
Administrative Agent, as the case may be) arising therefrom or with respect
thereto, in each case to the extent that such Domestic Taxes result from any
payment or indemnification pursuant to this Section for any taxes imposed by
any
jurisdiction for which the Company or any Account Party is responsible under
Sections 8.05(a), (b) or (c). This indemnification shall be paid within 30
days
after such Bank or Agent, as the case may be, makes demand
therefor.
(d) At
least
five Domestic Business Days prior to the first date on which interest or fees
are payable hereunder for the account of any Bank, each Bank that is not
incorporated under the laws of the United States of America or a state thereof
agrees that it will deliver to each of the Company and the Administrative Agent
two duly completed copies of United States Internal Revenue Service Form W-8BEN
or W-8ECI, certifying in either case that such Bank is entitled to receive
payments under this Agreement and the Notes without deduction or withholding
of
any United States federal income taxes. Each Bank which so delivers a Form
W-8BEN or W-8ECI further undertakes to deliver to each of the Company and the
Administrative Agent two additional copies of such form (or successor form)
on
or before the date that such form expires or becomes obsolete or after the
occurrence of any event requiring a change in the most recent form so delivered
by it, and such amendments thereto or extensions or renewals thereof as may
be
reasonably requested by the Company or the Administrative Agent, in each case
certifying that such Bank is entitled to receive payments under this Agreement
and the Notes without deduction or withholding of any United States federal
income taxes, unless an event (including without limitation any change in
treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms inapplicable
or which would prevent such Bank from duly completing and delivering any such
form with respect to it and such Bank advises the Company and the Administrative
Agent that it is not capable of receiving payments without any deduction or
withholding of United States federal income tax.
(e) For
any
period with respect to which a Bank has failed to provide the Company or the
Administrative Agent with the appropriate form as required by Section 8.05(d)
(whether or not such Bank is lawfully able to do so, unless such failure is
due
to a change in treaty, law or regulation occurring subsequent to the date on
which such form originally was required to be provided), such Bank shall not
be
entitled to indemnification under Section 8.05(b) or (c) with respect to any
withholding of the United States federal income tax; provided
that if
a Bank, which is otherwise exempt from or subject to a reduced rate of
withholding tax, becomes subject to Taxes because of its failure to deliver
a
form required hereunder, the Company shall take such steps as such Bank shall
reasonably request to assist such Bank to recover such Taxes.
Credit
Agreement
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(f) If
any
Account Party or the Guarantor is required to pay additional amounts to or
for
the account of any Bank pursuant to this Section as a result of a change of
law
occurring after the date hereof, then such Bank, at the request of the Company,
will change the jurisdiction of its Applicable Lending Office if, in the sole
judgment of such Bank, such change (i) will eliminate or reduce any such
additional payment which may thereafter accrue and (ii) is not otherwise
disadvantageous to such Bank.
(g) Each
Bank
and the Administrative Agent shall, at the request of the Company, use
reasonable efforts (consistent with applicable legal and regulatory
restrictions) to file any certificate or document requested by the Company
if
the making of such a filing would avoid the need for or reduce the amount of
any
such additional amounts payable to or for the account of such Bank or the
Administrative Agent (as the case may be) pursuant to this Section which may
thereafter accrue and would not, in the sole judgment of such Bank or the
Administrative Agent, require such Bank or the Administrative Agent to disclose
any confidential or proprietary information or be otherwise disadvantageous
to
such Bank or the Administrative Agent.
(h) Notwithstanding
the foregoing, nothing in this Section shall interfere with the rights of any
Bank to conduct its fiscal or tax affairs in such manner as it deems
fit.
SECTION
8.06. Regulation
D Compensation.
For so
long as any Bank maintains reserves against "Eurocurrency liabilities" (or
any
other category of liabilities which includes deposits by reference to which
the
interest rate on Euro-Dollar Loans is determined or any category of extensions
of credit or other assets which includes loans by a non-United States office
of
such Bank to United States residents), and as a result the cost to such Bank
(or
its Applicable Lending Office) of making or maintaining its Euro-Dollar Loans
is
increased, then such Bank may require the Company to pay, contemporaneously
with
each payment of interest on the Euro-Dollar Loans, additional interest on the
related Euro-Dollar Loan of such Bank at a rate per annum up to but not
exceeding the excess of (i) (A) the applicable LIBO Rate divided by (B) one
minus
the
Euro-Dollar Reserve Percentage over (ii) the applicable LIBO Rate. Any Bank
wishing to require payment of such additional interest (x) shall so notify
the
Company and the Administrative Agent, in which case such additional interest
on
the Euro-Dollar Loans of such Bank shall be payable to such Bank at the place
indicated in such notice with respect to each Interest Period commencing at
least three Euro-Dollar Business Days after the giving of such notice and (y)
shall furnish to the Company at least five Euro-Dollar Business Days prior
to
each date on which interest is payable on the Euro-Dollar Loans an officer's
certificate setting forth the amount to which such Bank is then entitled under
this Section (which shall be consistent with such Bank's good faith estimate
of
the level at which the related reserves are maintained by it). Each such
certificate shall be accompanied by such information as the Company may
reasonably request as to the computation set forth therein.
Credit
Agreement
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ARTICLE
IX
GUARANTY
SECTION
9.01. The
Guaranty.
The
Company hereby unconditionally guarantees the full and punctual payment of
all
reimbursement obligations in respect of LC Disbursements and all interest
thereon payable by each Subsidiary Account Party pursuant to this Agreement
(including, without limitation, any Subsidiary Account Party that shall become
party hereto after the date hereof pursuant to Section 10.13), and the full
and
punctual payment of all other amounts payable by each Subsidiary Account Party
under this Agreement, including amounts payable as cover in respect of
outstanding letter of credit exposure pursuant to Sections 2.03(e) and
6.01. Upon failure by any Subsidiary Account Party to pay punctually any such
amount, the Company shall forthwith on demand pay the amount not so paid at
the
place and in the manner specified in this Agreement.
SECTION
9.02. Guaranty
Unconditional.
The
obligations of the Company hereunder shall be unconditional, absolute and
continuing and, without limiting the generality of the foregoing, shall not
be
released, discharged or otherwise affected by:
(i)
any
extension, renewal, settlement, compromise, waiver or release in respect of
any
obligation of any Subsidiary Account Party under this Agreement, by operation
of
law or otherwise;
(ii)
any
modification or amendment of or supplement to this Agreement;
(iii)
any
release, impairment, non-perfection or invalidity of any direct or indirect
security for any obligation of any Subsidiary Account Party under this
Agreement;
Credit
Agreement
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(iv)
any
change in the corporate existence, structure or ownership of any Subsidiary
Account Party, or any insolvency, bankruptcy, reorganization or other similar
proceeding affecting any Subsidiary Account Party or its assets or any resulting
release or discharge of any obligation of any Subsidiary Account Party contained
in this Agreement;
(v)
the
existence of any claim, set-off or other rights which the Company may have
at
any time against any Subsidiary Account Party, the Administrative Agent, any
Bank or any other Person, whether in connection herewith or any unrelated
transactions, provided
that
nothing herein shall prevent the assertion of any such claim by separate suit
or
compulsory counterclaim;
(vi)
any
invalidity or unenforceability relating to or against any Subsidiary Account
Party for any reason of this Agreement, or any provision of applicable law
or
regulation purporting to prohibit the payment by any Subsidiary Account Party
of
any reimbursement obligation, interest or any other amount payable by it under
this Agreement;
(vii)
any
other act or omission to act or delay of any kind by Subsidiary Account Party,
the Administrative Agent, any Bank or any other Person or any other circumstance
whatsoever which might, but for the provisions of this paragraph, constitute
a
legal or equitable discharge of or defense to the Company's obligations
hereunder; or
(viii)
any Bank and its Affiliates accepting deposits from, lending money to, or
otherwise engaging in any kind of business with the Company, its Subsidiaries,
the Subsidiary Account Parties or the Affiliates of any thereof.
SECTION
9.03. Discharge
Only Upon Payment In Full; Reinstatement In Certain
Circumstances.
The
Company's obligations hereunder shall remain in full force and effect until
the
Commitments shall have terminated and all reimbursement obligations, interest
and all other amounts payable by the Company and each Subsidiary Account Party
under this Agreement shall have been paid in full. If at any time any payment
of
reimbursement obligation, interest or any other amount payable by any Subsidiary
Account Party under this Agreement is rescinded or must be otherwise restored
or
returned upon the insolvency, bankruptcy or reorganization of such Subsidiary
Account Party or otherwise, the Company's obligations hereunder with respect
to
such payment shall be reinstated at such time as though such payment had been
due but not made at such time.
SECTION
9.04. Waiver
by the Company.
The
Company irrevocably waives acceptance hereof, presentment, demand, protest
and
any notice not provided for herein, as well as any requirement that at any
time
any action be taken by any Person against any Subsidiary Account Parties or
any
other Person.
Credit
Agreement
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SECTION
9.05. Subrogation.
Upon
making any payment with respect to the obligations of any Subsidiary Account
Party hereunder, the Company shall be subrogated to the rights of the payee
against such Subsidiary Account Party with respect to such payment; provided
that the
Company shall not enforce any payment by way of subrogation against such
Subsidiary Account Party so long as (i) any Bank has any Commitment hereunder
or
(ii) any amount payable hereunder remains unpaid.
ARTICLE
X
MISCELLANEOUS
SECTION
10.01. Notices.
All
notices, requests and other communications to any party hereunder shall be
in
writing (including bank wire, telex, facsimile transmission or similar writing,
or by electronic communication, if arrangements for doing so have been approved
by such party) and shall be given to such party: (a) in the case of any
Account Party, at the Company's address or telex or telecopier number set forth
on the Company's signature page hereof, (b) in the case of the Administrative
Agent, at its address or telex or telecopier number set forth on its respective
signature page hereof, (c) in the case of any Bank, at its address or telex
or telecopier number set forth in its Administrative Questionnaire or
(d) in the case of any party, such other address or telex or telecopier
number as such party may hereafter specify for the purpose by notice to the
Administrative Agent and the Company. Each such notice, request or other
communication shall be effective (i) if given by telex, when such telex is
transmitted to the telex number specified in this Section and the appropriate
answerback is received, (ii) if given by mail, 72 hours after such
communication is deposited in the mails with first class postage prepaid,
addressed as aforesaid and return receipt requested, (iii) if given by
telecopier, when transmitted to the telecopier number specified in this Section
or (iv) if given by any other means, when delivered at the relevant address
specified by such party pursuant to this Section; provided
that
notices to the Administrative Agent under Article II or Article VIII
shall not be effective until received.
Notices
and other communications to the Banks hereunder may be delivered or furnished
by
electronic communications pursuant to procedures approved by the Administrative
Agent; provided
that the
foregoing shall not apply to notices pursuant to Article II unless otherwise
agreed by the Administrative Agent and the applicable Bank. The Administrative
Agent or the Account Parties may, in its discretion, agree to accept notices
and
other communications to it hereunder by electronic communications pursuant
to
procedures approved by it; provided
that
approval of such procedures may be limited to particular notices or
communications.
Credit
Agreement
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SECTION
10.02. No
Waivers.
No
failure or delay by the Administrative Agent or any Bank in exercising any
right, power or privilege hereunder or under any other Credit Document shall
operate as a waiver thereof nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. The rights and remedies herein provided shall be
cumulative and not exclusive of any rights or remedies provided by
law.
SECTION
10.03. Expenses;
Indemnification; Non-Liability of Banks.
(a) The
Company shall pay (i) all out-of-pocket expenses of the Administrative
Agent, including reasonable fees and disbursements of special counsel for the
Administrative Agent, in connection with the preparation of this Agreement,
any
waiver or consent hereunder or any amendment hereof or any Default or alleged
Default hereunder and (ii) if an Event of Default occurs, all out-of-pocket
expenses incurred by the Administrative Agent and each Bank, including fees
and
disbursements of counsel including costs allocated to in-house counsel, in
connection with such Event of Default and collection, bankruptcy, insolvency
and
other enforcement proceedings resulting therefrom.
(b) The
Company agrees to indemnify the Administrative Agent, each Bank and each
Confirming Bank, their Affiliates and the respective directors, officers,
agents, advisors and employees of the foregoing (each an "Indemnitee")
and
hold each Indemnitee harmless from and against any and all liabilities, losses,
damages, costs and expenses of any kind, including, without limitation, the
reasonable fees and disbursements of counsel and costs of settlement, which
may
be incurred by such Indemnitee in connection with any investigative,
administrative or judicial proceeding (whether or not such Indemnitee shall
be
designated a party thereto) relating to or arising out of this Agreement or
any
actual or proposed use of proceeds of Loans or of the Letters of Credits;
provided
that no
Indemnitee shall have the right to be indemnified hereunder for its own gross
negligence or willful misconduct as determined by a court of competent
jurisdiction or for the breach by such Indemnitee of its obligations hereunder
or, in the case of a Confirming Bank, under its Confirming Bank
Agreement.
SECTION
10.04. Sharing
of Set-Offs.
Each
Bank agrees that if it shall, by exercising any right of set-off or counterclaim
or otherwise, receive payment of a proportion of the aggregate amount of
principal and interest due with respect to any Loan made by it or reimbursement
obligation or interest due with respect to any LC Disbursement made by it under
a Letter of Credit which is greater than the proportion received by any other
Bank in respect of the aggregate amount of principal and interest due with
respect to any Loan made by such other Bank or reimbursement obligation or
interest due, as the case may be, with respect to any LC Disbursement made
by
such other Bank under such Letter of Credit, the Bank receiving such
proportionately greater payment shall purchase such participations in the Loans
held by or the LC Exposure by the other Banks under such Letter of Credit,
as
applicable, and such other adjustments shall be made, as may be required so
that
all such payments of principal and interest with respect to the Loans and
reimbursement obligations and interest with respect to LC Disbursements made
by
the Banks under such Letter of Credit shall be shared by the Banks pro rata;
provided
that
nothing in this Section shall impair the right of any Bank to exercise any
right
of set-off or counterclaim it may have and to apply the amount subject to such
exercise to the payment of indebtedness of the applicable Account Party other
than its indebtedness under this Agreement. Each Account Party agrees, to the
fullest extent it may effectively do so under applicable law, that any holder
of
a participation in any Loan or LC Exposure, whether or not acquired pursuant
to
the foregoing arrangements, may exercise rights of set-off or counterclaim
and
other rights with respect to such participation as fully as if such holder
of a
participation were a direct creditor of such Account Party in the amount of
such
participation.
Credit
Agreement
-64-
SECTION
10.05. Amendments
and Waivers.
Any
provision of this Agreement may be amended or waived if, but only if, such
amendment or waiver is in writing and is signed by each Account Party and the
Required Banks or by the Administrative Agent (with the consent of the Required
Banks) (and, if the rights or duties of the Administrative Agent or any Fronting
Issuing Bank, in such capacity, are affected thereby, by the Administrative
Agent or any Fronting Issuing Bank, as the case may be); provided
that the
Administrative Agent may, with the consent of the Company (which shall not
be
unreasonably withheld), specify by notice to the Banks modifications in the
procedures set forth in Section 2.01(b); provided,
further,
that
the consent of each Bank affected thereby shall be required with respect to
any
amendment, waiver or modification that (i) increases the amount or extends
the expiry date of the Commitment of any Bank, increases the LC Exposure of
such
Bank or otherwise subjects any Bank to any additional obligation,
(ii) reduces the principal amount of any Loan or the amount of any
reimbursement obligation of any Account Party in respect of any LC Disbursement,
the rate or amount of interest thereon or any fees payable to such Bank
hereunder, (iii) postpones the scheduled date of payment of the principal
amount of any Loan or for reimbursement of any LC Disbursement, or any interest
thereon, or any fees payable hereunder, or waives or excuses any such payment,
or postpones the scheduled date of expiration of any Commitment, or
(iv) alters the manner in which reimbursement payments, payments or
prepayments of principal, interest or payment of other amounts hereunder shall
be applied as among the Banks; provided,
further,
that
the consent of 100% of the Banks shall be required with respect to (x) any
change in the percentage of the Commitments or of the Credit Exposure, or the
number of Banks, which shall be required for the Banks or any of them to take
any action under this Section or any other provision of this Agreement,
(y) the release of any of the collateral provided for cover of the LC
Exposure pursuant to Sections 2.03(e) and 6.01 other than as expressly provided
in Section 2.03(e) or (z) any change in the obligations of the Company
under Article IX.
Credit
Agreement
-65-
SECTION
10.06. Successors
and Assigns.
(a) The
provisions of this Agreement shall be binding upon and inure to the benefit
of
the parties hereto and their respective successors and assigns; provided,
however,
that no
Account Party may assign or otherwise transfer any of its rights or obligations
under this Agreement, without the prior written consent of the
Banks.
(b) Any
Bank
may at any time grant to one or more banks or other institutions (each a
"Participant")
participating interests in its Commitment or the Loans or any or all of its
Letters of Credit. In the event of any such grant by a Bank of a participating
interest to a Participant, whether or not upon notice to the Company and the
Administrative Agent, such Bank shall remain solely responsible for the
performance of its obligations hereunder, and the Account Parties and the
Administrative Agent shall continue to deal solely and directly with such Bank
in connection with such Bank's rights and obligations under this Agreement.
Any
agreement pursuant to which any Bank may grant such a participating interest
shall provide that such Bank shall retain the sole right and responsibility
to
enforce the obligations of the Account Parties hereunder including, without
limitation, the right to approve any amendment, modification or waiver of any
provision of this Agreement; provided
that
such participation agreement may provide that such Bank will not agree to any
modification, amendment or waiver of this Agreement described in
clause (i), (ii), (iii), (iv), (x), (y) or (z) of Section 10.05
without the consent of the Participant. Each Account Party agrees that each
Participant shall, to the extent provided in its participation agreement, be
entitled to the benefits of Article VIII with respect to its participating
interest. An assignment or other transfer which is not permitted by
subsection (c) or (d) below shall be given effect for purposes of this
Agreement only to the extent of a participating interest granted in accordance
with this subsection (b).
(c) Any
Bank
may at any time assign to one or more NAIC Approved Banks (each an "Assignee")
all,
or a proportionate part of all, of its rights and obligations under this
Agreement, and such Assignee shall assume such rights and obligations, pursuant
to an Assignment and Assumption executed by such Assignee and such transferor
Bank, with (and subject to) the consent of the Company, which shall not be
unreasonably withheld, and the Administrative Agent, which shall not be
unreasonably withheld; provided
that (i)
if an Assignee is an Affiliate of any Bank or was a Bank immediately prior
to
such assignment, no such consent of the Company shall be required and (ii)
if an
Assignee was a Bank immediately prior to such assignment, no such consent of
the
Administrative Agent shall be required; provided,
further,
that if
an Event of Default occurs and is continuing under Section 6.01(a), 6.01(g)
or
6.01(h) with respect to the Company, no such consent of the Company shall be
required; and provided,
further,
that
any such assignment (other than an assignment to another Bank or an Affiliate
of
any Bank or an assignment of the entire remaining amount of the transferor
Bank's Commitment and interests in outstanding Loans and Letters of Credit)
shall be in an amount that is at least $5,000,000 unless otherwise agreed by
the
Account Parties and the Administrative Agent. Upon execution and delivery of
such Assignment and Assumption and payment by such Assignee to such transferor
Bank of an amount equal to the purchase price agreed between such transferor
Bank and such Assignee, such Assignee shall be a Bank party to this Agreement
and shall have all the rights and obligations of a Bank with a Commitment as
set
forth in such instrument of assumption, and the transferor Bank shall be
released from its obligations hereunder to a corresponding extent, and no
further consent or action by any party shall be required. In connection with
any
such assignment, the transferor Bank or Assignee shall pay to the Administrative
Agent an administrative fee for processing such assignment in the amount of
$3,500. If the Assignee is not incorporated under the laws of the United States
of America or a state thereof, it shall, prior to the first date on which
interest or fees are payable hereunder for its account, deliver to the Company
and the Administrative Agent certification as to exemption from deduction or
withholding of any United States federal income taxes in accordance with
Section 8.05(d).
Credit
Agreement
-66-
(d) Any
Bank
may at any time assign all or any portion of its rights under this Agreement
to
any Person to secure obligations of such Bank, including, without limitation,
to
one or more of the Federal Reserve Banks which comprise the Federal Reserve
System. No such assignment shall release the transferor Bank from its
obligations hereunder.
(e) No
Assignee, Participant or other transferee of any Bank's rights shall be entitled
to receive any greater payment under Sections 8.03, 8.05 or 8.06 than such
Bank would have been entitled to receive with respect to the rights transferred,
unless such transfer is made (i) with the Company's prior written consent
or by reason of the provisions of Section 8.02, 8.03 or 8.05 requiring such
Bank to designate a different Applicable Lending Office under certain
circumstances or (ii) at a time when the circumstances giving rise to such
greater payment did not exist.
SECTION
10.07. Collateral.
Each of
the Banks represents to the Administrative Agent and each of the other Banks
that it in good faith is not relying upon any "margin stock" (as defined in
Regulation U) as collateral in the extension or maintenance of the credit
provided for in this Agreement.
SECTION
10.08. New
York Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York.
Credit
Agreement
-67-
SECTION
10.09. Judicial
Proceedings.
(a) Submission
to Jurisdiction.
Each
Account Party hereby submits to the nonexclusive jurisdiction of the United
States District Court for the Southern District of New York and of any New
York
State court sitting in New York City for purposes of all legal proceedings
arising out of or relating to this Agreement or any other Credit Document or
the
transactions contemplated hereby. Each Account Party irrevocably waives, to
the
fullest extent permitted by law, any objection which it may now or hereafter
have to the laying of the venue of any such proceeding brought in such a court
and any claim that any such proceeding brought in such a court has been brought
in an inconvenient forum.
(b) Appointment
of Agent for Service of Process.
Each
Subsidiary Account Party irrevocably designates and appoints the Company, and
the Company hereby accepts such appointment, at its office in Philadelphia,
Pennsylvania set forth beneath the Company's signature on the signature page
hereof, as the authorized agent of such Subsidiary Account Party, to accept
and
acknowledge on its behalf, service of any and all process which may be served
in
any suit, action or proceeding of the nature referred to in
Section 10.09(a) above in any federal or New York State court sitting in
New York City. Said designation and appointment shall be irrevocable by each
Subsidiary Account Party until all reimbursement obligations, interest thereon
and all other amounts payable hereunder shall have been paid in full in
accordance with the provisions hereof and thereof or, if earlier, when such
Subsidiary Account Party is terminated as an Account Party hereunder pursuant
to
Section 10.13.
(c) Service
of Process.
Each
Account Party hereby consents to process being served in any suit, action or
proceeding of the nature referred to in subsection (a) above in any federal
or New York State court sitting in New York City by service of process upon
its
agent appointed as provided in subsection (b) above; provided
that, to
the extent lawful and possible, notice of said service upon such agent shall
be
mailed by registered or certified air mail, postage prepaid, return receipt
requested, to such Account Party at its address specified on the signature
page
hereof (or, in the case of any Subsidiary Account Party, on the signature page
of the Subsidiary Joinder Agreement to which it is a party) or to any other
address of which such Account Party shall have given written notice to the
applicable Bank. Each Account Party irrevocably waives, to the fullest extent
permitted by law, all claim of error by reason of any such service in such
manner and agrees that such service shall be deemed in every respect effective
service of process upon such Account Party in any such suit, action or
proceeding and shall, to the fullest extent permitted by law, be taken and
held
to be valid and personal service upon and personal delivery to such Account
Party.
(d) No
Limitation on Service or Suit.
Nothing
in this Section shall affect the right of the Administrative Agent or any Bank
to serve process in any other manner permitted by law or limit the right of
the
Administrative Agent or any Bank to bring proceedings against any Account Party
in the courts of any jurisdiction or jurisdictions.
Credit
Agreement
-68-
SECTION
10.10. Counterparts;
Integration.
This
Agreement may be signed in any number of counterparts, each of which shall
be an
original, with the same effect as if the signatures thereto and hereto were
upon
the same instrument. This Agreement constitutes the entire agreement and
understanding among the parties hereto and supersedes any and all prior
agreements and understandings, oral or written, relating to the subject matter
hereof.
SECTION
10.11. Confidentiality.
The
Administrative Agent and each Bank agree that they will maintain the
confidentiality of, and will not use for any purpose (other than exercising
its
rights and enforcing its remedies hereunder and under the other Credit
Documents), any written or oral information provided under this Agreement by
or
on behalf of the Account Parties (hereinafter collectively called "Confidential
Information"),
subject to the Administrative Agent's and each Bank's (a) obligation to
disclose any such Confidential Information pursuant to a request or order under
applicable laws and regulations or pursuant to a subpoena or other legal
process, (b) right to disclose any such Confidential Information to its
bank examiners, auditors, counsel and other professional advisors and to other
Banks and to its subsidiaries and Affiliates and the subsidiaries and Affiliates
of its holding company, provided
that the
Administrative Agent or such Bank, as the case may be, shall cause each such
subsidiary or Affiliate to maintain the Confidential Information on the same
terms as the terms provided herein, (c) right to disclose any such
Confidential Information in connection with any litigation or dispute involving
the Banks and the Company or any of its Subsidiaries and Affiliates and
(d) right to provide such information to participants, prospective
participants or prospective assignees pursuant to Section 10.06 or to its
prospective Confirming Bank or Confirming Bank if prior thereto such
participant, prospective participant, prospective assignee, prospective
Confirming Bank or Confirming Bank agrees in writing to maintain the
confidentiality of such information on terms substantially similar to those
of
this Section as if it were a "Bank" party hereto. Notwithstanding the foregoing,
any such information supplied to a Bank, participant, prospective participant,
prospective assignee, prospective Confirming Bank or Confirming Bank under
this
Agreement shall cease to be Confidential Information if it is or becomes known
to such Person by other than unauthorized disclosure, or if it is, at the time
of disclosure, or becomes a matter of public knowledge.
SECTION
10.12. WAIVER
OF JURY TRIAL.
EACH OF
THE ACCOUNT PARTIES, THE ADMINISTRATIVE AGENT AND THE BANKS HEREBY IRREVOCABLY
WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT
OF
OR RELATING TO THIS AGREEMENT, THE NOTES OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
Credit
Agreement
-69-
SECTION
10.13. Joinder
and Termination of Subsidiary Account Party.
(a) Any
direct or indirect wholly-owned Subsidiary of the Company that is organized,
licensed or regulated under applicable law as an insurance or reinsurance
company may, with the consent of the Company, become a party to this Agreement
as an Account Party by delivering an executed Subsidiary Joinder Agreement,
substantially in the form of Exhibit F hereto, to the Administrative Agent
for
acceptance by it (which shall promptly notify the Banks), provided
that on
and as of the date of acceptance of such Subsidiary Joinder Agreement by the
Administrative Agent (i) no Default shall have occurred and be continuing,
(ii) each of the representations and warranties contained in this Agreement
(other than the representations and warranties set forth in Sections 4.04(e)
and
4.05 as to any matter which has theretofore been disclosed in writing by the
Account Parties to the Banks) shall be true with the same force and effect
as if
made on and as of such date (or, if any such representation or warranty is
expressly stated to have been made as of a specific date, as of such specific
date), (iii) such Subsidiary Account Party shall be deemed to have appointed
the
Company as its authorized agent pursuant to Section 10.09(b) to accept service
of any and all process which may be served in any suit, action or proceeding
of
any nature in any federal or New York State court sitting in New York City
arising out of or relating to this Agreement or any other Credit Document or
the
transactions contemplated hereby and (iv) such other documents as the
Administrative Agent shall reasonably request, which may include opinions of
counsel and other documents that are consistent with conditions set forth in
Section 3.02, each in form and substance satisfactory to the Administrative
Agent.
(b) The
Company may, at any time at which a Subsidiary Account Party shall not be an
Account Party with respect to an outstanding Letter of Credit and which shall
have no unpaid LC Disbursements or unpaid interest on any LC Disbursements,
terminate such Subsidiary Account Party as an Account Party hereunder by
delivering an executed notice thereof, substantially in the form of Exhibit
G
hereto, to the Administrative Agent (which shall promptly notify the Banks).
Immediately upon the receipt by the Administrative Agent of such notice, all
commitments of the Banks to issue Letters of Credit for the account of such
Subsidiary Account Party and all rights of such Subsidiary Account Party
hereunder, shall terminate and such Subsidiary Account Party shall immediately
cease to be an Account Party hereunder; provided
that all
obligations of such Subsidiary Account Party as an Account Party hereunder
arising in respect of any period in which such Subsidiary Account Party was,
or
on account of any action or inaction by such Subsidiary Account Party as, an
Account Party hereunder shall survive such termination.
SECTION
10.14. USA
PATRIOT Act.
Each
Bank hereby notifies the Account Parties that pursuant to the requirements
of
the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October
26, 2001)), such Bank may be required to obtain, verify and record
information that identifies the Account Parties, which information includes
the
name and address of the Account Parties and other information that will allow
such Bank to identify the Account Parties in accordance with said
Act.
Credit
Agreement
-70-
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective authorized officers as of the day and year first
above written.
LINCOLN
NATIONAL CORPORATION
By:
/s/
Xxxxxxxxx X. Xxxxxxxx
Name:
Xxxxxxxxx X. Xxxxxxxx
Title:
Senior Vice President &
Chief
Financial Officer
By:
/s/
Xxxxx X. Xxxxxxxxxxx
Name:
Xxxxx X. Xxxxxxxxxxx
Title:
2nd
Vice
President &
Assistant
Treasurer
U.S.
Federal Tax Identification No.: 00-0000000
Centre
Square, West Tower
0000
Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxxx,
XX 00000-0000
Attention:
Treasurer's Office
Tel: (000)
000-0000
Fax: (000)
000-0000
Credit
Agreement
SUBSIDIARY
ACCOUNT PARTIES
LINCOLN
NATIONAL REINSURANCE
COMPANY
(BARBADOS) LIMITED
By:
/s/
Xxxxx X. Xxxxxxxxxxx
Name:
Xxxxx X. Xxxxxxxxxxx
Title:
Treasurer
U.S.
Federal Tax Identification No.: 00-0000000
THE
LINCOLN NATIONAL LIFE INSURANCE
COMPANY
By:
/s/
Xxxxxxx X. Xxxxxx
Name:
Xxxxxxx X. Xxxxxx
Title:
Senior Vice President
U.S.
Federal Tax Identification No.: 00-0000000
LFG
SOUTH
CAROLINA REINSURANCE COMPANY
By:
/s/
Xxxxx X. Xxxxxxxxxxx
Name:
Xxxxx X. Xxxxxxxxxxx
Title:
Treasurer
U.S.
Federal Tax Identification No.: 00-0000000
Credit
Agreement
LINCOLN
REINSURANCE COMPANY OF BERMUDA, LIMITED
By:
/s/
Xxxxxxxxx X. Xxxxxxxx
Name:
Xxxxxxxxx X. Xxxxxxxx
Title:
President
Credit
Agreement
BANKS
JPMORGAN
CHASE BANK, N.A.,
individually
and as Administrative Agent
By:
/s/
Xxxxxxx Xxxxxxxxx
Name:
Xxxxxxx Xxxxxxxxx
Title:
Vice President
Address
for Notices (for the Administrative Agent):
JPMorgan
Chase Bank, N.A.
0000
Xxxxxx Xxxxxx
00xx
Xxxxx
Xxxxxxx,
Xxxxx 00000-0000
Attention:
Loan and Agency Services
Tel: (000)
000-0000
Fax: (000)
000-0000
with
a
copy to:
JPMorgan
Chase Bank, N.A.
000
Xxxx
Xxxxxx
00xx
Xxxxx
Xxx
Xxxx,
XX 00000
Attention:
Xxxxxxx Xxxxxxxxx
Tel: (000)
000-0000
Fax: (000)
000-0000
Credit
Agreement
WACHOVIA
BANK, NATIONAL ASSOCIATION
By:
/s/
Xxxx Xxxxxxxx
Name:
Xxxx Xxxxxxxx
Title:
Director
Credit
Agreement
THE
BANK
OF NEW YORK
By:
/s/
Xxxxxxx X. Xxxx
Name:
Xxxxxxx X. Xxxx
Title:
Vice President
Credit
Agreement
CITIBANK,
N.A.
By:
/s/
Xxxxxx Xxxxxxx
Name:
Xxxxxx Xxxxxxx
Title:
Managing Director
(On
behalf of Xxxxx Xxxxxxxx)
Credit
Agreement
HSBC
BANK
USA, N.A.
By:
/s/
Xxxxxx Xxxxx
Name:
Xxxxxx Xxxxx
Title:
Senior Vice President
Credit
Agreement
BANK
OF
AMERICA, N.A.
By:
/s/
Xxxxxxx X. Xxxxxx
Name:
Xxxxxxx X. Xxxxxx
Title:
Vice President
Credit
Agreement
KEYBANK
NATIONAL ASSOCIATION
By:
/s/
Xxxx X. Xxxxx
Name:
Xxxx X. Xxxxx
Title:
Senior Vice President
Credit
Agreement
MELLON
BANK, N.A.
By:
/s/
Xxxxxxx X. Xxxxxxxxx
Name:
Xxxxxxx X. Xxxxxxxxx
Title:
Executive Vice President
Credit
Agreement
XXXXX
FARGO BANK, NATIONAL ASSOCIATION
By:
/s/
Xxxxxx X. Xxxxx
Name:
Xxxxxx X. Xxxxx
Title:
Senior Vice President
By:
/s/
Xxxxxxxxx X. Xxxxxxx
Name:
Xxxxxxxxx X. Xxxxxxx
Title:
Vice President
Credit
Agreement
THE
NORTHERN TRUST COMPANY
By:
/s/
Xxxx Xxxxxxx
Name:
Xxxx Xxxxxxx
Title:
Second Vice President
Credit
Agreement
ABN
AMRO
BANK N.V.
By:
/s/
Xxxx X. Xxxxx
Name:
Xxxx X. Xxxxx
Title:
Director
By:
/s/
Xxxxxxx XxXxxxx
Name:
Xxxxxxx XxXxxxx
Title:
Vice President
Credit
Agreement
THE
BANK
OF TOKYO-MITSUBISHI TRUST COMPANY
By:
/s/
Xxxxx X. Xxxx, Xx.
Name:
Xxxxx X. Xxxx, Xx.
Title:
Authorized Signatory
Credit
Agreement
LLOYDS
TSB BANK PLC
By:
/s/
Xxxxxxx X.X. Tuck
Name:
Xxxxxxx X.X. Xxxx
Title:
Vice President
Financial
Institutions, USA
T020
By:
/s/
Xxxxxx X. Xxxxxxxxxx
Name:
Xxxxxx X. Xxxxxxxxxx
Title:
Assistant Vice President
Financial
Institutions, USA
K-027
Credit
Agreement
XXXXXX
XXXXXXX BANK
By:
/s/
Xxxxxx Xxxxxx
Name:
Xxxxxx Xxxxxx
Title:
Vice President
Credit
Agreement
U.S.
BANK
NATIONAL ASSOCIATION
By:
/s/
Xxxx X. Xxxx
Name:
Xxxx X. Xxxx
Title:
Assistant Vice President
Credit
Agreement
BNP
PARIBAS
By:
/s/
Laurent Vanderzyppe
Name:
Laurent Vanderzyppe
Title:
Managing Director
By:
/s/
Xxxxxxxxxx X. Xxxxx
Name:
Xxxxxxxxxx X. Xxxxx
Title:
Vice President
Credit
Agreement
PNC
BANK,
NATIONAL ASSOCIATION
By:
/s/
Xxxxxxx X. Xxxxxxx
Name:
Xxxxxxx X. Xxxxxxx
Title:
Senior Vice President
Credit
Agreement
COMERICA
BANK, NA
By:
/s/
Xxxx X. Xxxxx
Name:
Xxxx X. Xxxxx
Title:
First Vice President
Credit
Agreement
XXXXXXX
STREET CREDIT CORPORATION
By:
/s/
Xxxx Xxxxxx
Name:
Xxxx Xxxxxx
Title:
Assistant Vice President
Credit
Agreement
XXXXXX
BROTHERS BANK, FSB
By:
/s/
Xxxxxx X. Xxxxxx
Name:
Xxxxxx X. Xxxxxx
Title:
Authorized Signatory
Credit
Agreement
XXXXXXX
XXXXX BANK USA
By:
/s/
Xxxxx Xxxxx
Name:
Xxxxx Xxxxx
Title:
Director
Credit
Agreement
FIFTH
THIRD BANK
By:
/s/
Xxxxx Xxxxxx
Name:
Xxxxx Xxxxxx
Title:
Vice President
Credit
Agreement
NATIONAL
CITY BANK
By:
/s/
Xxxxxxxx Xxxx
Name:
Xxxxxxxx Xxxx
Title:
Vice President
Credit
Agreement
THE
ROYAL
BANK OF SCOTLAND PLC
By:
/s/
Xxxxxx Xxxxx
Name:
Xxxxxx Xxxxx
Title:
Vice President
Credit
Agreement
SOCIETE
GENERALE
By:
/s/
Xxxxxxx Xxxxxxx
Name:
Xxxxxxx Xxxxxxx
Title:
Vice President
Credit
Agreement
SCHEDULE
I
Commitments
|
Banks
|
Commitment
($)
|
|
|
JPMorgan
Chase Bank, N.A.
|
125,000,000
|
|
|
Wachovia
Bank, National Association
|
125,000,000
|
|
|
The
Bank of New York
|
100,000,000
|
|
|
Citibank,
N.A.
|
100,000,000
|
|
|
HSBC
Bank USA, N.A.
|
100,000,000
|
|
|
Bank
of America, N.A.
|
75,000,000
|
|
|
KeyBank
National Association
|
75,000,000
|
|
|
Mellon
Bank, N.A.
|
75,000,000
|
|
|
Xxxxx
Fargo Bank, National Association
|
75,000,000
|
|
|
The
Northern Trust Company
|
75,000,000
|
|
|
ABN
Amro Bank N.V.
|
50,000,000
|
|
|
The
Bank of Tokyo-Mitsubishi Trust Company
|
50,000,000
|
|
|
Lloyds
TSB Bank Plc
|
50,000,000
|
|
|
Xxxxxx
Xxxxxxx Bank
|
50,000,000
|
|
|
U.S.
Bank National Association
|
50,000,000
|
|
|
BNP
Paribas
|
50,000,000
|
|
|
PNC
Bank, National Association
|
50,000,000
|
|
|
Comerica
Bank, NA
|
35,000,000
|
|
|
Xxxxxxx
Street Credit Corporation
|
30,000,000
|
|
|
Xxxxxx
Brothers Bank, FSB
|
30,000,000
|
|
|
Xxxxxxx
Xxxxx Bank USA
|
30,000,000
|
|
|
Fifth
Third Bank
|
25,000,000
|
|
|
National
City Bank
|
25,000,000
|
|
|
The
Royal Bank of Scotland Plc
|
25,000,000
|
|
Schedule
I (Commitments)
|
Société
Génèrale
|
25,000,000
|
|
|
TOTAL
COMMITMENTS
|
$1,500,000,000 | |
Schedule
I (Commitments)
-2-
SCHEDULE
II
List
of Restricted Subsidiaries
Lincoln
National Life Insurance Company
Schedule
II (Restricted Subsidiaries)
Form
Exhibits Omitted.
