required prepayment or as a mandatory prepayment (unless such required prepayment or mandatory prepayment results from a default thereunder or an event of the type that constitutes an Event of Default), prior to the stated maturity thereof; or
Foreign Pension Plan or PBGC (or any combination of the foregoing) in excess of $30,000,000; or
hereby waived by each Borrower, (iii) terminate any Letter of Credit or give a Notice of Non-Extension in respect thereof if permitted in accordance with its terms, (iv) direct the applicable Borrower to pay (and the applicable Borrower hereby agrees upon receipt of such notice, or upon the occurrence of any Event of Default specified in Section 9.05, to pay) to the Administrative Agent at the Payment Office an amount of cash to be held as security for the respective Borrower’s reimbursement obligations in respect of all Letters of Credit then outstanding which were issued for the account of such Borrower, equal to the aggregate Stated Amount of all such Letters of Credit at such time, and/or (v) direct the Collateral Agent to enforce any or all of the Liens and security interests created pursuant to the Security Documents and/or exercise any of the rights and remedies provided therein. Notwithstanding the foregoing, the Administrative Agent shall have available to it all other remedies at law or equity, and shall exercise any one or all of them at the request of the Required Lenders.
“Account Control Agreement” means an account control agreement, dated as of the date of this Agreement, among JPMorgan Chase Bank, N.A., as custodian, the Grantors (as defined in the Security Agreement) from time to time party thereto and the Collateral Agent, as amended, modified and supplemented and as in effect from time to time.
“Additional Tranche 1 Commitment Agreement” shall mean an Additional Tranche 1 Commitment Agreement substantially in the form of Exhibit J-1 (appropriately completed).
“Additional Tranche 2 Commitment Agreement” shall mean an Additional Tranche 2 Commitment Agreement substantially in the form of Exhibit J-2 (appropriately completed).
“Additional Tranche 1 Commitment Date” shall mean each date upon which an Additional Tranche 1 Commitment under an Additional Tranche 1 Commitment Agreement becomes effective as provided in Section 1.15.
“Additional Tranche 2 Commitment Date” shall mean each date upon which an Additional Tranche 2 Commitment under an Additional Tranche 1 Commitment Agreement becomes effective as provided in Section 1.16.
“Additional Tranche 1 Lender” shall have the meaning provided in Section 1.15(b).
“Additional Tranche 2 Lender” shall have the meaning provided in Section 1.16(b).
“Administrative Agent” shall have the meaning provided in the first paragraph of this Agreement and shall include any successor to the Administrative Agent appointed pursuant to Section 11.09.
Investment Grade Municipal Bonds Level I: Municipal bonds rated at least (i) AAA from S&P and (ii) Aaa from Moody’s and maturing within five years from the date of acquisition | | 90% |
| | | |
Investment Grade Municipal Bonds Level II: Municipal bonds rated at least (i) BBB from S&P and (ii) Baa2 from Moody’s and maturing within five years from the date of acquisition, but no higher than (x) AA+ from S&P and (y) Aa1 from Moody’s. | | 85% |
| | | |
Investment Grade Nonconvertible Corporate Bonds Level I: Nonconvertible corporate bonds that are publicly traded on a nationally recognized exchange, eligible to be settled by the Depository Trust Company (“DTC”) and rated at least (i) AA- from S&P and (ii) Aa3 from Moody’s. | | With maturities of (x) two years or less from the date of acquisition, 90% and (y) three to ten years from the date of acquisition, 85%. |
Investment Grade Nonconvertible Corporate Bonds Level II: Nonconvertible corporate bonds that are publicly traded on a nationally recognized exchange, eligible to be settled by DTC and rated at least (i) BBB from S&P and (ii) Baa2 from Moody’s, but no higher than (x) A+ from S&P and (y) A1 from Moody’s. | | 80% |
Commercial Paper:
Commercial paper issued by any entity organized in the United States rated at least (i) A-1 or the equivalent thereof by S&P and (ii) P-1 or the equivalent thereof by Moody’s and maturing not more than one year after the date of acquisition. | | 90% |
| | | |
Asset-Backed Securities: Asset-backed securities rated at least (i) AAA by S&P and (ii) Aaa by Moody’s,provided that (x) such securities are backed by credit card receivables or automobile loans and have a remaining maturity of 10 years or less and (y) asset-backed securities will not constitute Eligible Securities if they are certificated securities that cannot be paid or delivered by book entry (and all asset-backed securities issued by an issuer incorporated in the United States of America must be capable of settlement through DTC). | | 80% |
| | | |
| All other securities | | 0% |
“Affected Loan” shall have the meaning provided in Section 4.02(h).
“Affiliate” shall mean, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under direct or indirect common control with, such
Person,provided, that a Person shall not be deemed to be an Affiliate solely as a result of a title or position held by such Person. A Person shall be deemed to control a corporation if such Person possesses, directly or indirectly, the power (i) to vote 10% or more of the actual voting power for the election of directors of such corporation or (ii) to direct or cause the direction of the management and policies of such corporation, whether through the ownership of voting securities, by contract or otherwise.
“Agents” shall mean, collectively, the Administrative Agent and the Collateral Agent.
“Aggregate Multicurrency Letter of Credit Limit” shall mean $200,000,000, as such amount may be increased as provided for in Sections 1.15(a) and 1.16(a).
“Agreement” shall mean this Credit Agreement, as the same may be from time to time modified, amended and/or supplemented.
“Applicable Insurance Regulatory Authority” shall mean, when used with respect to any Regulated Insurance Company, the insurance department or similar administrative authority or agency located in (x) each state in which such Regulated Insurance Company is domiciled or (y) to the extent asserting regulatory jurisdiction over such Regulated Insurance Company, the insurance department, authority or agency in each state in which such Regulated Insurance Company is licensed, and shall include any Federal insurance regulatory department, authority or agency that may be created and that asserts regulatory jurisdiction over such Regulated Insurance Company.
“Applicable Margin” shall mean, for any day:
(a) with respect to interest on any Tranche 1 Revolving Loan, Tranche 1 Facility Fee, Tranche 1 Utilization Fee or Tranche 1 Letter of Credit Fee, for any Margin Adjustment Period, from and after any Start Date to and including the corresponding End Date, the respective percentage per annum set forth below opposite the respective Level (i.e., Level 1, Level 2 or Level 3, as the case may be) indicated to have been achieved on the applicable Test Date for such Start Date (as shown in the respective officer’s certificate delivered pursuant to Section 7.01(c)):
| | | Level 1: | | Level 2: | | Level 3: | |
Leverage Ratio | | less than or equal to 0.20:1.00 | | greater than 0.20:1.00 and less than or equal to 0.25:1.00 | | greater than 0.25:1.00 | |
| Letter of Credit Fee and Applicable Margin for Eurodollar Loans | | | 0.165 | % | | 0.215 | % | | 0.29 | % |
| Applicable Margin for Base Rate Loans | | | 0.00 | % | | 0.00 | % | | 0.00 | % |
| Applicable Margin for Facility Fee | | | 0.06 | % | | 0.06 | % | | 0.06 | % |
| Applicable Margin for Utilization Fee | | | 0.10 | % | | 0.10 | % | | 0.10 | % |
(b) with respect to interest on any Tranche 2 Revolving Loan, Tranche 2 Facility Fee, Tranche 2 Utilization Fee or Tranche 2 Letter of Credit Fee, for any Margin Adjustment Period, from and after any Start Date to and including the corresponding End Date, the respective percentage per annum set forth below opposite the respective Level (i.e., Level 1, Level 2 or Level 3, as the case may be) indicated to have been achieved on the applicable Test Date for such Start Date (as shown in the respective officer’s certificate delivered pursuant to Section 7.01(c)):
| | | Level 1: | | Level 2: | | Level 3: | |
Leverage Ratio | | less than or equal to 0.20:1.00 | | greater than 0.20:1.00 and less than or equal to 0.25:1.00 | | greater than 0.25:1.00 | |
| Letter of Credit Fee and Applicable Margin for LIBOR Loans | | | 0.275 | % | | 0.35 | % | | 0.375 | % |
| Applicable Margin for Base Rate Loans | | | 0.00 | % | | 0.00 | % | | 0.00 | % |
| Applicable Margin for Facility Fee | | | 0.075 | % | | 0.10 | % | | 0.125 | % |
| Applicable Margin for Utilization Fee | | | 0.10 | % | | 0.10 | % | | 0.10 | % |
Notwithstanding the foregoing, (i) if the Parent Borrower fails to deliver the financial statements required to be delivered pursuant to Section 7.01(a) or (b) (accompanied by the officer’s certificate required to be delivered pursuant to Section 7.01(c) showing the applicable Leverage Ratio on the relevant Test Date) on or prior to the respective date required by such Sections, then Level 3 pricing shall apply until such time, if any, as the financial statements required as set forth above and the accompanying officer’s certificate have been delivered showing the pricing for the
respective Margin Adjustment Period is at a level below Level 3 (it being understood that, in the case of any late delivery of the financial statements and officer’s certificate as so required, any reduction in the Applicable Margin shall apply only from and after the date of the delivery of the complying financial statements and officer’s certificate); (ii) except when clause (iii) below is applicable Level 1 pricing shall apply for the period from the Effective Date to the date of the delivery of the Parent Borrower’s consolidated financial statements (and related officer’s certificate) in respect of its fiscal quarter ending June 30, 2007; and (iii) Level 3 pricing shall apply at all times when any Event of Default is in existence.
“Assignment Agreement” shall mean an assignment agreement in the form of Exhibit G (appropriately completed).
“Authorized Officer” shall mean any senior officer of a Borrower designated as such in writing by such Borrower to, and found acceptable by, the Administrative Agent.
“Bankruptcy Code” shall have the meaning provided in Section 9.05.
“Base Rate” at any time shall mean the higher of (x) the rate which is 1/2 of 1% in excess of the Federal Funds Effective Rate and (y) the Prime Lending Rate as in effect from time to time.
“Base Rate Loans” shall mean each Revolving Loan bearing interest at the rates provided in Section 1.08(a).
“Bermuda Companies Law” shall mean the Companies Act 1981 of Bermuda and other relevant Bermuda law.
“Borrower” or “Borrowers” shall mean the Parent Borrower, the Initial Designated Subsidiary Borrowers and each Person which is designated as a Designated Subsidiary Borrower after the Effective Date in accordance with Section 1.14. For the purposes of Sections 5, 6, 7, 8 and 9 (including the defined terms used therein) any reference to “Borrower” or “Borrowers” shall also mean, and include, the Parent Borrower in its capacity as guarantor under Section 13.
“Borrowing” shall mean the incurrence of one Type of Revolving Loan of a single Tranche hereunder by any Borrower from all of the Lenders of the respective Tranche on apro rata basis on a given date (or resulting from a conversion or conversions on such date), having in the case of Eurodollar Loans the same Interest Period,provided that Base Rate Loans incurred pursuant to Section 1.10(b) shall be considered part of any related Borrowing of Eurodollar Loans.
“Borrowing Base” shall mean, at any time, and in respect of each Borrower, the aggregate amount of Cash and Eligible Securities held in the Collateral Accounts applicable to such Borrower under the Security Agreement at such time multiplied in each case by the respective Advance Rates for Cash and such Eligible Securities;provided that (a) all Cash and Eligible Securities in respect of any Borrowing Base shall only be included in such Borrowing Base to the extent same are subject to a first priority perfected security interest in favor of the
Collateral Agent pursuant to the Security Documents and (b) Eligible Securities which are subject to a securities lending arrangement shall not be included in a Borrowing Base.
“Borrowing Base Certificate” shall mean a Borrowing Base Certificate substantially in the form of Exhibit K hereto.
“Business Day” shall mean (i) for all purposes other than as covered by clause (ii) below, any day, excluding Saturday, Sunday and any day which shall be in the City of New York a legal holiday or a day on which banking institutions are authorized by law or other governmental actions to close, and (ii) with respect to all notices and determinations in connection with, and payments of principal and interest on, Eurodollar Loans, any day which is a Business Day described in clause (i) and which is also a day for trading by and between banks in U.S. dollar deposits in the interbank Eurodollar market.
“Cash Collateral Agreement”: shall mean the certain agreement dated as of the Effective Date by and between ERCA and JPMorgan Chase Bank, N.A, as amended or modified from time to time, relating to the Letters of Credit (as defined therein).
“Cash Equivalents” shall mean, as to any Person, (i) securities issued or directly and fully guaranteed or insured by the United States or any agency or instrumentality thereof (provided that the full faith and credit of the United States is pledged in support thereof) having maturities of not more than one year from the date of acquisition, (ii) time deposits and certificates of deposit of any commercial bank having, or which is the principal banking subsidiary of a bank holding company organized under the laws of the United States, any State thereof, the District of Columbia or any foreign jurisdiction having capital, surplus and undivided profits aggregating in excess of $200,000,000, with maturities of not more than one year from the date of acquisition by such Person, (iii) repurchase obligations with a term of not more than 90 days for underlying securities of the types described in clause (i) above entered into with any bank meeting the qualifications specified in clause (ii) above, (iv) commercial paper issued by any Person incorporated in the United States rated at least A-1 or the equivalent thereof by S&P or at least P1 or the equivalent thereof by Moody’s and in each case maturing not more than one year after the date of acquisition by such Person, (v) investments in money market funds substantially all of whose assets are comprised of securities of the types described in clauses (i) through (iv) above.
“Change of Control” shall mean the occurrence of any of the following events or conditions: (a) any Person or group of Persons (as used in Sections 13 and 14 of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder), shall have become the beneficial owner (as defined in rules promulgated by the SEC) of more than 35% of the voting securities of the Parent Borrower; or (b) a majority of the members of the Parent Borrower’s board of directors are persons who are then serving on the board of directors without having been elected by the board of directors or having been nominated for election by its shareholders.
“Claims” shall have the meaning provided in Section 12.01.
“Code” shall mean the Internal Revenue Code of 1986, as amended from time to time, and the regulations promulgated and rulings issued thereunder. Section references to the Code are to the Code, as in effect at the date of this Agreement and any subsequent provisions of the Code, amendatory thereof, supplemental thereto or substituted therefor.
“Collateral” shall have the meaning provided in the Security Agreement.
“Collateral Account” shall have the meaning provided in the Security Agreement.
“Collateral Agent” shall have the meaning provided in the Security Agreement.
“Commitment” shall mean, collectively, the Tranche 1 Commitments and the Tranche 2 Commitments.
“Commitment Expiration Date” shall mean May 8, 2012.
“Consolidated Indebtedness” shall mean, as of any date of determination, (i) all Indebtedness for borrowed money of the Parent Borrower and its Subsidiaries at such time determined on a consolidated basis in accordance with GAAPplus (ii) any Indebtedness for borrowed money of any other Person as to which the Parent Borrower and/or any of its Subsidiaries has created a guarantee or other Contingent Obligation (but only to the extent of such guarantee or other Contingent Obligation). For the avoidance of doubt, “Consolidated Indebtedness” shall not include any contingent obligations of any Person under or in connection with letters of credit or similar facilities so long as no drawings or payments have been made in respect thereof.
“Consolidated Net Worth” shall mean, as of any date of determination, the Net Worth of the Parent Borrower and its Subsidiaries determined on a consolidated basis in accordance with GAAP after appropriate deduction for any minority interests in Subsidiaries.
“Consolidated Tangible Net Worth” shall mean, as of the date of any determination, Consolidated Net Worth of the Parent Borrower and its Subsidiaries on such date less the amount of all intangible items included therein, including, without limitation, goodwill, franchises, licenses, patents, trademarks, trade names, copyrights, service marks, brand names and write-ups of assets.
“Consolidated Total Capital” shall mean, as of any date of determination, the sum of (i) Consolidated Indebtedness and (ii) Consolidated Net Worth at such time.
“Contingent Obligations” shall mean, as to any Person, any obligation of such Person guaranteeing or intended to guarantee any Indebtedness, leases, dividends or other obligations (“primary obligations”) of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, including, without limitation, any obligation of such Person, whether or not contingent, (a) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (b) to advance or supply funds (i) for the purchase or payment of any such primary obligation or (ii) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (c) to purchase property, securities or services primarily for the purpose of assuring the
owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation or (d) otherwise to assure or hold harmless the owner of such primary obligation against loss in respect thereof;provided,however, that the term Contingent Obligation shall not include (x) endorsements of instruments for deposit or collection in the ordinary course of business, (y) obligations of any Regulated Insurance Company under Insurance Contracts, Reinsurance Agreements or Retrocession Agreements or (z) trusts or similar arrangements related to Insurance Contracts, Reinsurance Agreements or Retrocession Agreements. The amount of any Contingent Obligation shall be deemed to be an amount equal to the stated or determinable amount of the primary obligation in respect of which such Contingent Obligation is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder) as determined by such Person in good faith.
“Credit Documents” shall mean this Agreement, the Notes, each Assignment Agreement, each DSB Assumption Agreement, each Security Document and all other documents, instruments and agreements entered into in connection herewith or therewith.
“Default” shall mean any event, act or condition which, with notice or lapse of time, or both, would constitute an Event of Default.
“Defaulting Lender” shall mean any Lender with respect to which a Lender Default is in effect.
“Designated Subsidiary Borrower” shall mean (a) ESI, (b) EUHC, (c) EWHL, (d) EWIL and (e) each Person which is designated as an additional Designated Subsidiary Borrower after the Effective Date in accordance with Section 1.14.
“Dispositions” shall have the meaning provided in Section 8.02(b).
“Dollar” and the sign “$” shall each mean freely transferable lawful money of the United States.
“DSB Assumption Agreement” shall mean an assumption agreement in the form of Exhibit H.
“Effective Date” shall have the meaning set forth in this Amended and Restated Credit Agreement.
“Eligible Securities” shall have the meaning provided in the definition of the term Advance Rates.
“End Date” shall mean, with respect to any Margin Adjustment Period, the last day of such Margin Adjustment Period.
“Equity Interests” shall mean, with respect to any Person, shares of capital stock of (or other ownership or profit interests in) such Person, warrants, options or other rights for the purchase or other acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, securities convertible into or exchangeable for shares of
capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or other acquisition from such Person of such shares (or such other interests), and other ownership or profit interests in such Person (including, without limitation, partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are authorized or otherwise existing on any date of determination.
“ERCA” shall mean Endurance Reinsurance Corporation of America, a corporation organized under the laws of the State of New York.
“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time and the regulations promulgated and rulings issued thereunder. Section references to ERISA are to ERISA, as in effect at the date of this Agreement and any subsequent provisions of ERISA, amendatory thereof, supplemental thereto or substituted therefor.
“ERISA Affiliate” shall mean any corporation or trade or business which is a member of the same controlled group of corporations (within the meaning of Section 414(b) of the Code) as the Parent Borrower or any of its Subsidiaries or is under common control (within the meaning of Section 414(c) of the Code) with the Parent Borrower or any of its Subsidiaries.
“ESI” shall mean Endurance Specialty Insurance Ltd., a company organized under the laws of Bermuda.
“EUHC” shall mean Endurance U.S. Holdings Corp., a corporation organized under the laws of Delaware.
“Eurodollar Loans” shall mean each Revolving Loan bearing interest at the rates provided in Section 1.08(b).
“Eurodollar Rate” shall mean, with respect to each Interest Period for a Eurodollar Loan, (i) the rate per annum that appears on Reuters Screen LIBOR01 Page (or any successor page) for Dollar deposits with maturities comparable to such Interest Period as of 11:00 A.M. (London time) on the date which is two Business Days prior to the commencement of such Interest Period or, if such a rate does not appear on Reuters Screen LIBOR01 Page (or any successor page), the offered quotations to first-class banks in the London interbank market by JPMorgan Chase Bank, N.A. for Dollar deposits of amounts in same day funds comparable to the outstanding principal amount of such Dollar denominated Revolving Loan with maturities comparable to such Interest Period determined as of 11:00 A.M. (London time) on the date which is two Business Days prior to the commencement of such Interest Period divided (and rounded upward to the next whole multiple of 1/16 of 1%) by (ii) a percentage equal to 100% minus the then stated maximum rate of all reserve requirements (including, without limitation, any marginal, emergency, supplemental, special or other reserves) applicable to any member bank of the Federal Reserve System in respect of Eurocurrency liabilities as defined in Regulation D (or any successor category of liabilities under Regulation D).
“Event of Default” shall have the meaning provided in Section 9.
“EWHL” shall mean Endurance Worldwide Holdings Limited, a company organized under the laws of England.
“EWIL” shall mean Endurance Worldwide Insurance Limited, a company organized under the laws of England.
“Existing Credit Agreement” shall have the meaning provided in the recitals.
“Existing Lender Agreement” shall mean an Existing Lender Agreement substantially in the form of Exhibit M (appropriately completed).
“Existing Letters of Credit” shall mean, collectively, Existing Tranche 1 Letters of Credit and Existing Tranche 2 Letters of Credit.
“Existing Tranche 1 Letter of Credit” shall have the meaning provided in Section 2A.08(a).
“Existing Tranche 2 Letter of Credit” shall have the meaning provided in Section 2B.08(a).
“Expiration Date” shall mean May 8, 2007.
“Facility Fees” shall mean, collectively, the Tranche 1 Facility Fee and the Tranche 2 Facility Fee.
“Federal Funds Effective Rate” shall mean for any period, a fluctuating interest rate equal for each day during such period to the weighted average of the rates on overnight Federal Funds transactions with members of the Federal Reserve System arranged by Federal Funds brokers, as published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average of the quotations for such day on such transactions received by the Administrative Agent from three Federal Funds brokers of recognized standing selected in good faith by the Administrative Agent.
“Federal Reserve System” shall mean the Federal Reserve System of the United States of America.
“Fees” shall mean all amounts payable pursuant to, or referred to in, Section 3.01.
“Final Maturity Date” shall mean the date when the Commitment Expiration Date has occurred, all Letters of Credit have expired or terminated and all amounts owing hereunder have been paid in full.
“Financial Statement Delivery Date” shall mean each date upon which the respective officer’s certificate is delivered pursuant to Section 7.01(c) (together with the related financial statements pursuant to Section 7.01(a)).
“Foreign Pension Plan” shall mean any plan, fund (including, without limitation, any superannuation fund) or other similar program established or maintained outside the United States of America by the Parent Borrower or any one or more of its Subsidiaries primarily for the benefit of employees of the Parent Borrower or such Subsidiaries residing outside the United States of America, which plan, fund or other similar program provides, or results in, retirement income, a deferral of income in contemplation of retirement or payments to be made upon termination of employment, and which plan is not subject to ERISA or the Code.
“Fronted Letter of Credit Limit” shall mean $300,000,000, as such amount may be increased as provided for in Sections
1.15(a) and 1.16(a).
“GAAP” shall mean generally accepted accounting principles in the United States of America; it being understood and agreed that determinations in accordance with GAAP for purposes of Section 8, including defined terms as used therein, are subject (to the extent provided therein) to Section 12.07(a).
“Governmental Authority” shall mean any nation or government, any state or other political subdivision thereof and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, including any Applicable Insurance Regulatory Authority.
“Guaranteed Creditors” shall mean and include each of the Administrative Agent, the Lenders and the Issuing Agent.
“Indebtedness” of any Person shall mean, without duplication, (i) all indebtedness of such Person for borrowed money, (ii) the deferred purchase price of assets or services which in accordance with GAAP would be shown on the liability side of the balance sheet of such Person, (iii) the face amount of all letters of credit issued for the account of such Person and, without duplication, all drafts drawn thereunder, (iv) all indebtedness of a type referred to in clauses (i) through (iii) or (v) through (vii) of this definition of a second Person secured by any Lien on any property owned by such first Person, whether or not such Indebtedness has been assumed, (v) all capitalized lease obligations of such Person, (vi) all obligations of such Person under Interest Rate Protection Agreements and (vii) all Contingent Obligations of such Person with respect to any of the foregoing;provided that, Indebtedness shall not include (x) trade payables (including payables under insurance contracts and reinsurance payables) and accrued expenses, in each case arising in the ordinary course of business and (y) obligations with respect to Policies.
“Initial Designated Subsidiary Borrowers” shall mean those Designated Subsidiary Borrowers set forth in clauses (a) through (d), inclusive, of the definition thereof.
“Insurance Business” shall mean one or more aspects of the business of selling, issuing or underwriting insurance or reinsurance.
“Insurance Contract” shall mean any insurance contract or policy issued by a Regulated Insurance Company but shall not include any Reinsurance Agreement or Retrocession Agreement.
“Insurance Licenses” shall mean, with respect to each Regulated Insurance Company, licenses (including, without limitation, licenses or certificates of authority from Applicable Insurance Regulatory Authorities), permits or authorizations to transact insurance and reinsurance business held by such Regulated Insurance Company.
“Interest Period” shall mean, with respect to any Eurodollar Loan, the interest period applicable thereto, as determined pursuant to Section 1.09.
“Interest Rate Protection Agreement” shall mean any interest rate swap agreement, interest rate cap agreement, interest rate collar agreement, interest rate hedging agreement or other similar agreement or arrangement.
“Intermediate Holding Companies” shall mean, collectively, (x) EUHC and (y) any other Subsidiary of the Parent Borrower that is designated as an additional Designated Subsidiary Borrower after the Effective Date and is a “holding company” (i.e. such Designated Subsidiary Borrower does not own any material assets other than the equity interests of its direct Subsidiaries).
“Investment Grade Securities” shall mean and include (i) U.S. Government Obligations (other than Cash Equivalents), (ii) debt securities or debt instruments with a rating of BBB- or higher by S&P, Baa3 or higher by Moody’s, Class (2) or higher by NAIC or the equivalent of such rating by S&P, Moody’s or NAIC, or if none of S&P, Moody’s and NAIC shall then exist, the equivalent of such rating by any other nationally recognized securities rating agency, but excluding any debt securities or instruments constituting loans or advances among the Parent Borrower and its Wholly-Owned Subsidiaries, and (iii) any fund investing exclusively in investments of the type described in clauses (i) and (ii) which funds may also hold immaterial amounts of cash pending investment and/or distribution.
“Issuing Agent” shall mean JPMorgan Chase Bank, N.A.
“Issuing Lender” shall mean JPMorgan Chase Bank, N.A. or any other Lender that agrees to become an Issuing Lender under Sections 2A or 2B.
“Legal Requirements” shall mean all applicable laws, rules and regulations made by any governmental body or regulatory authority (including, without limitation, any Applicable Insurance Regulatory Authority) having jurisdiction over the Parent Borrower or a Subsidiary of the Parent Borrower.
“Lender” shall have the meaning provided in the first paragraph of this Agreement.
“Lender Default” shall mean (i) the refusal (which has not been retracted) of a Lender to make available its portion of any Borrowing or (ii) a Lender having notified the Administrative Agent and/or the applicable Borrower that it does not intend to comply with its obligations under Sections 1.01, 2A or 2B, in the case of either clause (i) or (ii) above as a result of the appointment of a receiver or conservator with respect to such Lender at the direction or request of any regulatory agency or authority.
“Letter of Credit Outstandings” shall mean, collectively, the Tranche 1 Letter of Credit Outstandings and the Tranche 2 Letter of Credit Outstandings.
“Letter of Credit Supportable Obligations” shall mean obligations of the Parent Borrower or any of its Subsidiaries to any other Person which are permitted to exist pursuant to the terms of this Agreement.
“Letters of Credit” shall mean, collectively, the Tranche 1 Letters of Credit and the Tranche 2 Letters of Credit.
“Leverage Ratio” shall mean the ratio of (i) Consolidated Indebtedness to (ii) Consolidated Total Capital.
“Lien” shall mean any mortgage, pledge, security interest, encumbrance, lien or charge of any kind (including any agreement to give any of the foregoing, any conditional sale or other title retention agreement or any lease in the nature thereof), or any understanding or agreement to repurchase any property or assets sold by the Parent Borrower or any of its Subsidiaries (including sales of accounts receivable or notes with recourse to the Parent Borrower or any of its Subsidiaries), or the assignment of any right to receive income, or the filing of any financing statement under the UCC or any other similar notice under any similar recording or notice statute relating to any property.
“Majority Tranche 1 Lenders” shall mean, at any time, Tranche 1 Lenders whose Tranche 1 Commitments (or, after the Tranche 1 Commitments have terminated, the sum of such Tranche 1 Lenders’ (x) then outstanding Tranche 1 Revolving Loansplus (y) Tranche 1 Percentages of the Tranche 1 Letter of Credit Outstandings at such time) represent an amount greater than 50% of the Total Tranche 1 Commitment (or after the termination thereof, the sum of (x) the then total outstanding Tranche 1 Revolving Loansplus (y) the Tranche 1 Letter of Credit Outstandings at such time).
“Margin Adjustment Period” shall mean each period which shall commence on the date upon which the respective officer’s certificate is delivered pursuant to Section 7.01(c) (together with the related financial statements pursuant to Section 7.01(a) or (b), as the case may be) and which shall end on the date of actual delivery of the next officer’s certificate pursuant to Section 7.01(c) (and related financial statements) or the latest date on which such next officer’s certificate (and related financial statements) is required to be so delivered; it being understood that the first Margin Adjustment Period shall commence with the delivery of the Parent Borrower’s financial statements (and related officer’s certificate) in respect of its fiscal quarter ending June 30, 2007.
“Margin Stock” shall have the meaning provided in Regulation U.
“Material Adverse Effect” shall mean, (i) a material adverse effect on the business, operations, property or financial condition of the Parent Borrower and its Subsidiaries taken as a whole or (ii) a material adverse effect on (x) the rights and remedies of the Administrative Agent or the Lenders under the Credit Documents, (y) the ability of any Borrower to perform its obligations under the Credit Documents to which it is a party or (z) the legality, validity or enforceability of any Credit Document.
“Material Subsidiary” shall mean any Subsidiary of the Parent Borrower whose (i) total assets or total written premiums exceed 10% of the total assets or gross written premiums, respectively, of the Parent Borrower and its Subsidiaries on a consolidated basis as of the most recent fiscal quarter end and for the most recent fiscal quarter period, respectively, determined in accordance with GAAP or (ii) gross written premiums of such Subsidiary are in excess of $50,000,000.
“Moody’s” shall mean Moody’s Investors Service, Inc. and its successors.
“Multiemployer Plan” shall mean any multiemployer plan as defined in Section 4001(a)(3) of ERISA, which is maintained or contributed to by (or to which there is an obligation to contribute of) the Parent Borrower, any of its Subsidiaries or any of its ERISA Affiliates, and each such plan for the five year period immediately following the latest date on which the Parent Borrower, such Subsidiary or such ERISA Affiliate maintained, contributed to or had an obligation to contribute to such plan.
“NAIC” shall mean the National Association of Insurance Commissioners.
“Net Worth” shall mean, as to any Person, the sum of its capital stock (including, without limitation, its preferred stock), capital in excess of par or stated value of shares of its capital stock (including, without limitation, its preferred stock), retained earnings and any other account which, in accordance with GAAP, constitutes stockholders equity, but excluding (i) any treasury stock and (ii) the effects of Financial Accounting Statement No. 115.
“Note” shall mean, collectively, each Tranche 1 Note and each Tranche 2 Note.
“Notice of Borrowing” shall have the meaning provided in Section 1.03.
“Notice of Conversion” shall have the meaning provided in Section 1.06.
“Notice of Non-Extension” shall have the meaning provided in Section 2A.05.
“Notice Office” shall mean, with respect to notices related to Revolving Loans, JPMorgan Chase Bank, N.A., 1111 Fannin Street, Houston, Texas 77002-6925, Attn: Andrew Perkins and, with respect to notices related to Letters of Credit, JPMorgan Chase Bank, N.A., 10420 Highland Manor Drive, 4th Floor, Tampa, Florida 33610-8128, Attn: Vera Kostic, or such other office as the Administrative Agent may designate to the Parent Borrower and the Lenders from time to time.
“Obligations” shall mean all amounts, direct or indirect, contingent or absolute, of every type or description, and at any time existing, owing to the Administrative Agent, the Issuing Agent or any Lender pursuant to the terms of this Agreement or any other Credit Document.
“Optional Currency” shall mean Canadian dollars, euros and British pounds sterling and to the extent generally available to all Lenders, Australian dollars and Japanese yen (or other currencies as are requested by a Borrower and reasonably acceptable to the applicable Lenders).
“Original Lenders” shall mean each Person which was a “Tranche 1 Lender” or a “Tranche 2 Lender” under, and as defined in, the Existing Credit Agreement.
“Overnight Eurodollar Rate” shall mean, with respect to any day in any period during which a reimbursement obligation in respect of any Letter of Credit denominated in an Optional Currency is outstanding, (i) the offered quotations by JPMorgan Chase Bank, N.A. to first-class banks in the New York interbank market (or such other market in which JPMorgan Chase Bank, N.A. customarily deals at such time) for deposits in such Optional Currency of amounts in same day funds approximately comparable to such reimbursement obligations with a maturity of the next Business Day determined as of 10:00 A.M. (New York time) (or, if later, the time on such day on which such reimbursement obligation arose) on such day (or if such day is not a Business Day, the next preceding Business Day) divided (and rounded upward to the next whole multiple of 1/16 of 1%) by (ii) a percentage equal to 100% minus the then stated maximum rate of all reserve requirements (including, without limitation, any marginal, emergency, supplemental, special or other reserves) applicable to any member bank of the Federal Reserve System in respect of “Eurocurrency liabilities” as defined in Regulation D (or any successor category of liabilities under Regulation D).
“Parent Borrower” shall have the meaning provided in the first paragraph of this Agreement. For the purposes of Sections 5, 6, 7, 8 and 9 (including the defined terms used therein) any reference to “Parent Borrower” shall also mean, and include, the Parent Borrower in its capacity as a guarantor under Section 13.
“Parent Borrower Guaranteed Obligations” shall mean the principal of and interest on all Revolving Loans incurred by any Designated Subsidiary Borrower and all reimbursement obligations and Unpaid Drawings with respect to Letters of Credit issued for the account of any Designated Subsidiary Borrower, together with all the other obligations (including obligations which, but for the automatic stay under Section 362(a) of the Bankruptcy Code, would become due) and liabilities (including, without limitation, indemnities, fees and interest thereon) of any Designated Subsidiary Borrower to any Lender, the Administrative Agent and the Issuing Agent now existing or hereafter incurred under, arising out of or in connection with, this Agreement and each other Credit Document pursuant to which any Designated Subsidiary Borrower is a party and the due performance and compliance by any such Designated Subsidiary Borrower with all the terms, conditions and agreements contained in this Agreement and each such other Credit Document.
“Parent Borrower Guaranty” shall mean the guaranty of the Parent Borrower provided in Section 13.
“Patriot Act” shall have the meaning set forth in Section 12.17.
“Payment Office” shall mean the office of the Administrative Agent at 1111 Fannin, Houston, Texas 77002, Attention: Andrew Perkins, Telephone: (713) 750-3510, Facsimile: (713) 750-2223, or such other office as the Administrative Agent may designate to the Parent Borrower and the Lenders from time to time.
“PBGC” shall mean the Pension Benefit Guaranty Corporation established pursuant to Section 4002 of ERISA, or any successor thereto.
“Person” shall mean any individual, partnership, joint venture, firm, corporation, association, trust or other enterprise or any government or political subdivision or any agency, department or instrumentality thereof.
“Plan” shall mean any pension plan as defined in Section 3(2) of ERISA and subject to Title IV of ERISA, which is maintained or contributed to by (or to which there is an obligation to contribute of) the Parent Borrower or any of its Subsidiaries or any of its ERISA Affiliates, and each such plan for the five year period immediately following the latest date on which the Parent Borrower, any of its Subsidiaries or any of its ERISA Affiliates maintained, contributed to or had an obligation to contribute to such plan.
“Policies” shall mean all insurance policies, annuity contracts, guaranteed interest contracts and funding agreements (including riders to any such policies or contracts, certificates issued with respect to group life insurance or annuity contracts and any contracts issued in connection with retirement plans or arrangements) and assumption certificates issued or to be issued (or filed pending current review by applicable Governmental Authorities) by any Regulated Insurance Company and any coinsurance agreements entered into or to be entered into by any Regulated Insurance Company.
“Prime Lending Rate” shall mean the rate which JPMorgan Chase Bank, N.A. announces from time to time as its prime commercial lending rate, the Prime Lending Rate to change when and as such prime commercial lending rate changes. The Prime Lending Rate is a reference rate and does not necessarily represent the lowest or best rate actually charged to any customer. JPMorgan Chase Bank, N.A. may make commercial loans or other loans at rates of interest at, above or below the Prime Lending Rate.
“Private Act” shall mean separate legislation enacted in Bermuda with the intention that such legislation apply specifically to any Borrower, in whole or in part.
“Register” shall have the meaning provided in Section 12.16.
“Regulated Insurance Company” shall mean any Subsidiary of the Parent Borrower, whether now owned or hereafter acquired, that is authorized or admitted to carry on or transact Insurance Business in any jurisdiction and is regulated by any Applicable Insurance Regulatory Authority.
“Regulation D” shall mean Regulation D of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor to all or a portion thereof establishing reserve requirements.
“Regulation U” shall mean Regulation U of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor to all or a portion thereof establishing margin requirements.
“Reinsurance Agreement” shall mean any agreement, contract, treaty, certificate or other arrangement whereby any Regulated Insurance Company agrees to transfer, cede or retrocede to another insurer or reinsurer all or part of the liability assumed or assets held by such Regulated Insurance Company under a policy or policies of insurance issued by such Regulated Insurance Company or under a reinsurance agreement assumed by such Regulated Insurance Company.
“REMIC” shall mean Real Estate Mortgage Investment Conduit.
“Replaced Lender” shall have the meaning provided in Section 1.13.
“Replacement Lender” shall have the meaning provided in Section 1.13.
“Required Lenders” shall mean, at any time, Lenders whose Commitments (or, after the Commitments have terminated, the sum of such Lenders’ (x) then outstanding Revolving Loansplus (y) Tranche 1 Percentages of the Tranche 1 Letter of Credit Outstandings at such timeplus (z) Tranche 2 Percentages of the Tranche 2 Letter of Credit Outstandings at such time) represent an amount greater than 50% of the Total Commitment (or after the termination thereof, the sum of (x) the then total outstanding Revolving Loansplus (y) the Tranche 1 Letter of Credit Outstandings at such timeplus (z) the Tranche 2 Letter of Credit Outstandings at such time).
“Retrocession Agreement” shall mean any agreement, contract, treaty or other arrangement whereby one or more insurers or reinsurers, as retrocessionaires, assume liabilities of reinsurers under a Reinsurance Agreement or other retrocessionaires under another Retrocession Agreement.
“Revolving Loans” shall mean, collectively, each Tranche 1 Revolving Loan and each Tranche 2 Revolving Loan.
“S&P” shall mean Standard & Poor’s Ratings Services and its successors.
“S&P Equivalent Rating” shall mean, with respect to any Investment Grade Security, the rating given such security by S&P or the S&P equivalent rating of the rating given such security by Moody’s or NAIC, it being understood that if any such security is rated by more than one of S&P, Moody’s and NAIC and any of such ratings (or the S&P equivalent of such ratings) differ, then the S&P Equivalent Rating for such security shall be the lower or lowest, as the case may be, of such ratings (or the S&P equivalent of such ratings).
“SAP” shall mean, with respect to any Regulated Insurance Company, the accounting procedures and practices prescribed or permitted by the Applicable Insurance Regulatory Authority of the state in which such Regulated Insurance Company is domiciled; it being understood and agreed that determinations in accordance with SAP for purposes of Section 8, including defined terms as used therein, are subject (to the extent provided therein) to Section 12.07(a).
“SEC” shall mean the Securities and Exchange Commission or any successor thereto.
“SEC Regulation D” shall mean Regulation D as promulgated under the Securities Act of 1933, as amended, as the same may be in effect from time to time.
“Section 4.04(b)(ii) Certificate” shall have the meaning provided in Section 4.04(b)(ii).
“Security Agreement” means the security agreement substantially in the form of Exhibit L hereto, as the same may be amended, modified or supplemented from time to time in accordance with the provisions thereof.
“Security Documents” shall mean (i) the Security Agreement, (ii) the Account Control Agreement, (iii) each other security agreement executed and delivered pursuant to Section 7.13 of this Agreement and (iv) each other document, agreement, certificate and/or financing statement, executed, delivered, made or filed pursuant to the terms of the documents specified in foregoing clauses (i), (ii) and (iii).
“Start Date” shall mean, with respect to any Margin Adjustment Period, the first day of such Margin Adjustment Period.
“Stated Amount” of each Letter of Credit shall mean, at any time, the maximum amount available to be drawn thereunder (regardless of whether any conditions for drawing could be met).
“Statutory Statements” shall mean, with respect to any Regulated Insurance Company for any fiscal year, the annual or quarterly financial statements of such Regulated Insurance Company as required to be filed with the Insurance Regulatory Authority of its jurisdiction of domicile and in accordance with the laws of such jurisdiction, together with all exhibits, schedules, certificates and actuarial opinions required to be filed or delivered therewith.
“Subsidiary” of any Person shall mean and include (i) any corporation more than 50% of whose stock of any class or classes having by the terms thereof ordinary voting power to elect a majority of the directors of such corporation (irrespective of whether or not at the time stock of any class or classes of such corporation shall have or might have voting power by reason of the happening of any contingency) is at the time owned by such Person directly or indirectly through Subsidiaries and (ii) any partnership, association, joint venture or other entity in which such Person directly or indirectly through Subsidiaries has more than a 50% voting interest at the time for the board of directors or equivalent body. Unless otherwise expressly provided, all references to “Subsidiary” shall mean a Subsidiary of the Parent Borrower.
“Taxes” shall have the meaning provided in Section 4.04(a).
“Test Date” shall mean, with respect to any Start Date, the last day of the most recent fiscal quarter of the Parent Borrower ended immediately prior to such Start Date.
“Total Commitment” shall mean the sum of (i) the Total Tranche 1 Commitmentplus (ii) the Total Tranche 2 Commitment.
“Total Tranche 1 Commitment” shall mean the sum of the Tranche 1 Commitments of each Tranche 1 Lender.
“Total Tranche 2 Commitment” shall mean the sum of the Tranche 2 Commitments of each Tranche 2 Lender.
“Total Unutilized Tranche 1 Commitment” shall mean, at any time, an amount equal to the remainder of (x) the Total Tranche 1 Commitment then in effect less (y) the sum of the aggregate principal amount of Tranche 1 Revolving Loans then outstanding and the Tranche 1 Letter of Credit Outstandings at such time.
“Total Unutilized Tranche 2 Commitment” shall mean, at any time, an amount equal to the remainder of (x) the Total Tranche 2 Commitment then in effectless (y) the sum of the aggregate principal amount of Tranche 2 Revolving Loans then outstanding and the Tranche 2 Letter of Credit Outstandings at such time.
“Tranche” shall mean, at any time, the respective facility and commitments utilized in making Revolving Loans and/or issuing Letters of Credit hereunder, with there being three separate Tranches hereunder,i.e., Tranche 1 Commitments and Tranche 2 Commitments.
“Tranche 1 Commitment” shall mean, with respect to each Tranche 1 Lender, the amount set forth opposite such Tranche 1 Lender’s name on Annex I under the heading “Tranche 1 Commitment”, as the same may be (x) reduced or terminated pursuant to Sections 3.02, 3.03 and/or 9, (y) increased from time to time pursuant to Section 1.15 or 1.17 or (z) adjusted from time to time as a result of assignment to or from such Lender pursuant to Section 12.04(b).
“Tranche 1 Facility Fee” shall have the meaning provided in Section 3.01(a).
“Tranche 1 Fees” shall mean the Tranche 1 Facility Fee, the Tranche 1 Utilization Fee, the Tranche 1 Letter of Credit Fee and the Tranche 1 Fronted Letter of Credit Fee.
“Tranche 1 Fronted Letter of Credit” shall mean any Tranche 1 Letter of Credit issued by an Issuing Lender in reliance on the agreements of the other Lenders set forth in Section 2A.09.
“Tranche 1 Fronted Letter of Credit Fee” shall have the meaning provided in Section 3.01(e).
“Tranche 1 Fronted Letter of Credit Participants” shall have the meaning provided in Section 2A.09.
“Tranche 1 Lenders” shall mean each Lender with a Tranche 1 Commitment, outstanding Revolving Loans and/or Tranche 1 Letter of Credit Outstandings.
“Tranche 1 Letter of Credit” shall have the meaning provided in Section 2A.01(a).
“Tranche 1 Letter of Credit Fee” shall have the meaning provided in Section 3.01(e).
“Tranche 1 Letter of Credit Outstandings” shall mean, at any time, the sum of, without duplication (i) the aggregate Stated Amount of all Tranche 1 Letters of Creditplus (ii) the aggregate amount of all Tranche 1 Unpaid Drawings in respect of all Tranche 1 Letters of Credit.
“Tranche 1 Letter of Credit Request” shall have the meaning provided in Section 2A.02(a).
“Tranche 1 Non-Fronted Letter of Credit” shall mean any Tranche 1 Letter of Credit other than a Tranche 1 Fronted Letter of Credit.
“Tranche 1 Note” shall have the meaning provided in Section 1.05(a).
“Tranche 1 Obligations” shall mean all Obligations owing to any Tranche 1 Lender or the Issuing Lender in respect of Tranche 1 Revolving Loans and Tranche 1 Letters of Credit.
“Tranche 1 Participant” shall have the meaning provided in Section 2A.08(a).
“Tranche 1 Percentage” shall mean, at any time for each Tranche 1 Lender, the percentage obtained by dividing such Tranche 1 Lender’s Tranche 1 Commitment at such time by the Total Tranche 1 Commitment then in effect,provided that, if the Total Tranche 1 Commitment has been terminated, the Tranche 1 Percentage of each Tranche 1 Lender shall be determined by dividing such Tranche 1 Lender’s Tranche 1 Commitment as in effect immediately prior to such termination by the Total Tranche 1 Commitment as in effect immediately prior to such termination (but also giving effect to any assignments made in accordance with Section 12.04(b) after the date on which the Total Tranche 1 Commitment has terminated).
“Tranche 1 Reduction Percentage” shall mean, at any time, a percentage the numerator of which is the Total Tranche 1 Commitment and the denominator of which is the Total Commitment.
“Tranche 1 Revolving Loans” shall have the meaning provided in Section 1.01(a).
“Tranche 1 Unpaid Drawings” shall have the meaning provided in Section 2A.03(a).
“Tranche 1 Utilization Fee” shall have the meaning provided in Section 3.01(c).
“Tranche 2 Commitment” shall mean, with respect to each Tranche 2 Lender, the amount set forth opposite such Tranche 2 Lender’s name on Annex I under the heading “Tranche 2 Commitment”, as the same may be (x) reduced or terminated pursuant to Sections 3.02, 3.03 and/or 9, (y) increased from time to time pursuant to Section 1.16 or 1.17 (z) adjusted from time to time as a result of assignment to or from such Tranche 2 Lender pursuant to Section 12.04(b).
“Tranche 2 Facility Fee” shall have the meaning provided in Section 3.01(b).
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“Tranche 2 Fees” shall mean the Tranche 2 Facility Fee, the Tranche 2 Utilization Fee, the Tranche 2 Letter of Credit Fee and the Tranche 2 Fronted Letter of Credit Fee.
“Tranche 2 Fronted Letter of Credit” shall mean any Tranche 2 Letter of Credit issued by an Issuing Lender in reliance on the agreements of the other Lenders set forth in Section 2B.09.
“Tranche 2 Fronted Letter of Credit Fee” shall have the meaning provided in Section 3.01(f).
“Tranche 2 Fronted Letter of Credit Participants” shall have the meaning provided in Section 2B.09.
“Tranche 2 Lenders” shall mean each Lender with a Tranche 2 Commitment or with outstanding Tranche 2 Revolving Loans and/or Tranche 2 Letter of Credit Outstandings.
“Tranche 2 Letter of Credit” shall have the meaning provided in Section 2B.01(a).
“Tranche 2 Letter of Credit Fee” shall have the meaning provided in Section 3.01(f).
“Tranche 2 Letter of Credit Outstandings��� shall mean, at any time, the sum of, without duplication, (i) the aggregate Stated Amount of all Tranche 2 Letters of Creditplus (ii) the aggregate amount of all Tranche 2 Unpaid Drawings in respect of all Tranche 2 Letters of Credit.
“Tranche 2 Letter of Credit Request” shall have the meaning provided in Section 2B.02(a).
“Tranche 2 Non-Fronted Letter of Credit” shall mean any Tranche 2 Letter of Credit other than a Tranche 2 Fronted Letter of Credit.
“Tranche 2 Note” shall have the meaning provided in Section 1.05(a).
“Tranche 2 Percentage” shall mean, at any time for each Tranche 2 Lender, the percentage obtained by dividing such Tranche 2 Lender’s Tranche 2 Commitment at such time by the Total Tranche 2 Commitment then in effect,provided that, if the Total Tranche 2 Commitment has been terminated, the Tranche 2 Percentage of each Tranche 2 Lender shall be determined by dividing such Tranche 2 Lender’s Tranche 2 Commitment as in effect immediately prior to such termination by the Total Tranche 2 Commitment as in effect immediately prior to such termination (but also giving effect to any assignments made in accordance with Section 12.04(b) after the date on which the Total Tranche 2 Commitment has terminated).
“Tranche 2 Reduction Percentage” shall mean, at any time, a percentage the numerator of which is the Total Tranche 2 Commitment and the denominator of which is the Total Commitment.
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“Tranche 2 Revolving Loans” shall have the meaning provided in Section 1.01(b).
“Tranche 2 Unpaid Drawings” shall have the meaning provided in Section 2B.03(a).
“Tranche 2 Utilization Fee” shall have the meaning provided in Section 3.01(d).
“Type” shall mean any type of Revolving Loan determined with respect to the interest option applicable thereto,i.e., a Base Rate Loan or a Eurodollar Loan.
“UCC” shall mean the Uniform Commercial Code.
“Unpaid Drawings” shall mean, collectively, the Tranche 1 Unpaid Drawings and the Tranche 2 Unpaid Drawings.
“U.S. Borrower” shall have the meaning provided in Section 4.04(b).
“U.S. Dollar Equivalent” shall mean, on any Business Day with respect to any amount denominated in any currency other than Dollars, the amount of Dollars that would be required to purchase such amounts of such other currency, based upon the spot selling rate at which JPMorgan Chase Bank, N.A. offers to sell such other currency for Dollars in the New York foreign exchange market at approximately 10:00 a.m. New York time on such Business Day for delivery two Business Days later.
“U.S. Government Obligations” shall mean and include (A) securities that are (x) direct obligations of the United States of America for the timely payment of which its full faith and credit is pledged or (y) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America the timely payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, which, in either case, are not callable or redeemable at the option of the issuer thereof, and shall also include a depository receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act of 1933, as amended), as custodian with respect to any such U.S. Government Obligation or a specific payment of principal of or interest on any such U.S. Government Obligation held by such custodian for the account of the holder of such depository receipt;provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the U.S. Government Obligation or the specific payment of principal of or interest on the U.S. Government Obligation evidenced by such depository receipt and (B) to the extent in each case having an S&P Equivalent Rating of AAA, obligations issued or guaranteed by the Federal Home Loan Mortgage Corporation, the Federal National Mortgage Association, the Government National Mortgage Association, the Student Loan Marketing Association and the Federal Home Loan Bank.
“Utilization Fees” shall mean, collectively, the Tranche 1 Utilization Fees and the Tranche 2 Utilization Fees.
“Wholly-Owned Subsidiary” of any Person shall mean any Subsidiary of such Person to the extent all of the capital stock or other ownership interests in such Subsidiary, other than directors’ or nominees’ qualifying shares, is owned directly or indirectly by such Person.
“Written” or “in writing” shall mean any form of written communication or a communication by means of telex, facsimile device, telegraph or cable.
SECTION 11. The Agents.
11.01 Appointment. Each Lender hereby irrevocably designates and appoints JPMorgan Chase Bank, N.A. as Administrative Agent (such term as used in this Section 11 to include JPMorgan Chase Bank, N.A., acting as Issuing Agent under this Agreement and each Letter of Credit) to act as specified herein and in the other Credit Documents, and each such Lender hereby irrevocably authorizes JPMorgan Chase Bank, N.A., as the Administrative Agent for such Lender, to take such action on its behalf under the provisions of this Agreement and the other Credit Documents and to exercise such powers and perform such duties as are expressly delegated to the Administrative Agent by the terms of this Agreement and the other Credit Documents, together with such other powers as are reasonably incidental thereto. Each Lender hereby further irrevocably designates and appoints The Bank of New York as Collateral Agent, to act as specified herein and in the other Credit Documents, and each such Lender hereby irrevocably authorizes The Bank of New York, as the Collateral Agent for such Lender, to take such action on its behalf under the provisions of this Agreement and the other Credit Documents and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Agreement and the other Credit Documents, together with such other powers as are reasonably incidental thereto. Each Agent agrees to act as such upon the express conditions contained in this Section 11. Notwithstanding any provision to the contrary elsewhere in this Agreement, neither Agent shall have any duties or responsibilities, except those expressly set forth herein or in the other Credit Documents, nor any fiduciary relationship with any Lender, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or otherwise exist against such Agent. The provisions of this Section 11 are solely for the benefit of the Agents and the Lenders, and no Borrower shall have any rights as a third party beneficiary of any of the provisions hereof. In performing its functions and duties under this Agreement, each Agent shall act solely as agent of the Lenders and does not assume and shall not be deemed to have assumed any obligation or relationship of agency or trust with or for any Borrower.
11.02 Delegation of Duties. Each Agent may execute any of its duties under this Agreement or any other Credit Document by or through agents or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. Neither Agent shall be responsible for the negligence or misconduct of any agents or attorneys-in-fact selected by it with reasonable care except to the extent otherwise required by Section 11.03.
11.03 Exculpatory Provisions. Neither Agent nor any of their officers, directors, employees, agents, attorneys-in-fact or affiliates shall be (i) liable for any action lawfully taken or omitted to be taken by it or such Person under or in connection with this Agreement (except for its or such Person’s own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision)) or (ii) responsible in any manner
to any of the Lenders for any recitals, statements, representations or warranties made by the Parent Borrower or any of its Subsidiaries or any of their respective officers contained in this Agreement, any other Credit Document or in any certificate, report, statement or other document referred to or provided for in, or received by the Administrative Agent under or in connection with, this Agreement or any other Credit Document or for any failure of the Parent Borrower or any of its Subsidiaries or any of their respective officers to perform its obligations hereunder or thereunder. Neither Agent shall be under any obligation to any Lender to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement, or to inspect the properties, books or records of the Parent Borrower or any of its Subsidiaries. Neither Agent shall be responsible to any Lender for the effectiveness, genuineness, validity, enforceability, collectibility or sufficiency of this Agreement or any Credit Document or for any representations, warranties, recitals or statements made herein or therein or made in any written or oral statement or in any financial or other statements, instruments, reports, certificates or any other documents in connection herewith or therewith furnished or made by such Agent to the Lenders or by or on behalf of any Borrower to such Agent or any Lender or be required to ascertain or inquire as to the performance or observance of any of the terms, conditions, provisions, covenants or agreements contained herein or therein or as to the use of the proceeds of the Revolving Loans or of the existence or possible existence of any Default or Event of Default.
11.04 Reliance by Agents. Each Agent shall be entitled to rely, and shall be fully protected in relying, upon any note, writing, resolution, notice, consent, certificate, affidavit, letter, cablegram, telegram, facsimile transmission, telex or teletype message, statement, order or other document or conversation believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons and upon advice and statements of legal counsel (including, without limitation, counsel to the Borrowers), independent accountants and other experts selected by such Agent. Each Agent shall be fully justified in failing or refusing to take any action under this Agreement or any other Credit Document unless it shall first receive such advice or concurrence of the Required Lenders as it deems appropriate or it shall first be indemnified to its satisfaction by the Lenders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. Each Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement and the other Credit Documents in accordance with a request of the Required Lenders, and such request and any action taken or failure to act pursuant thereto shall be binding upon all the Lenders.
11.05 Notice of Default. Neither Agent shall be deemed to have knowledge or notice of the occurrence of any Default or Event of Default hereunder unless such Agent has received notice from a Lender or a Borrower referring to this Agreement, describing such Default or Event of Default and stating that such notice is a “notice of default”. In the event that the Administrative Agent receives such a notice, the Administrative Agent shall give prompt notice thereof to the Lenders. In the event the Collateral Agent receives such a notice, the Collateral Agent shall give prompt notice thereof to the Administrative Agent. The Administrative Agent shall take such action with respect to such Default or Event of Default as shall be reasonably directed by the Required Lenders,provided that unless and until the Administrative Agent shall have received such directions, the Administrative Agent may (but
shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default or Event of Default as it shall deem advisable in the best interests of the Lenders.
11.06 Non-Reliance. Each Lender expressly acknowledges that neither Agent nor any of their officers, directors, employees, agents, attorneys-in-fact or affiliates have made any representations or warranties to it and that no act by either Agent hereinafter taken, including any review of the affairs of the Parent Borrower or any of its Subsidiaries, shall be deemed to constitute any representation or warranty by such Agent to any Lender. Each Lender represents to each Agent that it has, independently and without reliance upon either Agent or any other Lender, and based on such documents and information as it has deemed appropriate, made its own appraisal of and investigation into the business, assets, operations, property, financial and other conditions, prospects and creditworthiness of the Parent Borrower and its Subsidiaries and made its own decision to make its Revolving Loans hereunder and enter into this Agreement. Each Lender also represents that it will, independently and without reliance upon either Agent or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under this Agreement, and to make such investigation as it deems necessary to inform itself as to the business, assets, operations, property, financial and other conditions, prospects and creditworthiness of the Parent Borrower and its Subsidiaries. Neither Agent shall have any duty or responsibility to provide any Lender with any credit or other information concerning the business, operations, assets, property, financial and other conditions, prospects or creditworthiness of the Parent Borrower or any Subsidiary which may come into the possession of such Agent or any of its officers, directors, employees, agents, attorneys-in-fact or affiliates.
11.07 Indemnification. Each Lender agrees to indemnify each Agent and The Bank of New York as Custodian, in each case in its capacity as such, ratably according to its respective “percentages” as used in determining the Required Lenders at such time from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, reasonable expenses or disbursements of any kind whatsoever which may at any time (including, without limitation, at any time following the payment of the Obligations) be imposed on, incurred by or asserted against such Agent or the Custodian, as the case may be, in its capacity as such in any way relating to or arising out of this Agreement or any other Credit Document, or any documents contemplated by or referred to herein or the transactions contemplated hereby or any action taken or omitted to be taken by such Agent or the Custodian, as the case may be, under or in connection with any of the foregoing, but only to the extent that any of the foregoing is not paid by the Parent Borrower or any of its Subsidiaries,provided that no Lender shall be liable to such Agent or the Custodian, as the case may be, for the payment of any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from the gross negligence or willful misconduct of such Agent or the Custodian, as the case may be (as determined by a court of competent jurisdiction in a final and non-appealable decision). If any indemnity furnished to either Agent or the Custodian, as the case may be, for any purpose shall, in the opinion of such Agent or the Custodian, as the case may be, be insufficient or become impaired, such Agent or the Custodian, as the case may be, may call for additional indemnity and cease, or not commence, to do the acts indemnified against until such additional indemnity is furnished. The agreements in this Section 11.07 shall survive the payment of all Obligations.
11.08 The Agents in Their Individual Capacities. Each Agent and its affiliates may make loans to, accept deposits from and generally engage in any kind of business with the Parent Borrower and its Subsidiaries as though not acting as Administrative Agent hereunder. With respect to the Revolving Loans made by it and all Obligations owing to it, such Agent shall have the same rights and powers under this Agreement as any Lender and may exercise the same as though it were not such Agent, and the terms “Lender” and “Lenders” shall include such Agent in its individual capacity.
11.09 Successor Agents.(a) Either the Administrative Agent or the Collateral Agent (or both) may resign from the performance of all its respective functions and duties hereunder and/or under the other Credit Documents at any time, in each case by giving 20 Business Days’ prior written notice to the Lenders and the Borrowers.
(b) Upon such resignation of the Administrative Agent, the Required Lenders shall, with the consent of the Parent Borrower (such consent not to be unreasonably withheld), appoint from among the Lenders a successor Administrative Agent for the Lenders, whereupon such successor agent shall succeed to the rights, powers and duties of the Administrative Agent, and the term “Administrative Agent” shall include such successor agent effective upon its appointment, and the resigning Administrative Agent’s rights, powers and duties as the Administrative Agent shall be terminated, without any other or further act or deed on the part of such former Administrative Agent or any of the parties to this Agreement. After the retiring Administrative Agent’s resignation hereunder as the Administrative Agent, the provisions of this Section 11 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Administrative Agent under this Agreement.
(c) Upon such resignation of the Collateral Agent, the Required Lenders shall, with the consent of the Parent Borrower (such consent not to be unreasonably withheld), appoint from among the Lenders a successor Collateral Agent for the Lenders, whereupon such successor agent shall succeed to the rights, powers and duties of the Collateral Agent, and the term “Collateral Agent” shall include such successor agent effective upon its appointment, and the resigning Collateral Agent’s rights, powers and duties as the Collateral Agent shall be terminated, without any other or further act or deed on the part of such former Collateral Agent or any of the parties to this Agreement. After the retiring Collateral Agent’s resignation hereunder as the Collateral Agent, the provisions of this Section 11 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Collateral Agent under this Agreement.
SECTION 12. Miscellaneous.
12.01 Payment of Expenses, etc. The Parent Borrower hereby agrees to: (i) whether or not the transactions herein contemplated are consummated, pay all reasonable out-of-pocket costs and expenses of the Administrative Agent in connection with the negotiation, preparation, syndication, execution, delivery and administration of the Credit Documents and the documents and instruments referred to therein (including, without limitation, the reasonable fees and disbursements of Simpson Thacher & Bartlett LLP and of consultants and advisors to the Administrative Agent and its counsel); (ii) whether or not the transactions herein contemplated are consummated, pay all reasonable out-of-pocket costs and expenses of the Administrative
Agent in connection with any amendment, waiver or consent relating to this Agreement or any other Credit Document; (iii) whether or not the transactions herein contemplated are consummated, pay all reasonable out-of-pocket costs and expenses of the Administrative Agent and each of the Lenders in connection with the enforcement of the Credit Documents and the documents and instruments referred to therein (including, without limitation, the reasonable fees and disbursements of counsel and consultants for the Administrative Agent and for each of the Lenders); (iv) pay and hold each of the Lenders harmless from and against any and all present and future stamp and other similar taxes with respect to the foregoing matters and save each of the Lenders harmless from and against any and all liabilities with respect to or resulting from any delay or omission to pay such taxes; and (v) indemnify the Administrative Agent and each Lender, and their respective officers, directors, employees, representatives and agents (each, an “indemnified person”) from and hold each of them harmless against any and all losses, liabilities, penalties, claims, damages or expenses (collectively, “Claims”) incurred by any of them as a result of, or arising out of, or in any way related to, or by reason of, any investigation, litigation or other proceeding (whether or not the Administrative Agent or any Lender is a party thereto) related to the entering into and/or performance of any Credit Document or the use of the proceeds of any Revolving Loans hereunder or the consummation of any other transactions contemplated in any Credit Document, including, without limitation, the reasonable fees and disbursements of counsel incurred in connection with any such investigation, litigation or other proceeding (but excluding any such losses, liabilities, claims, damages or expenses to the extent incurred by reason of the gross negligence or willful misconduct of the Person to be indemnified (as determined by a court of competent jurisdiction in a final and non-appealable decision)).
12.02 Right of Setoff. In addition to any rights now or hereafter granted under applicable law or otherwise, and not by way of limitation of any such rights, upon the occurrence and continuance of an Event of Default, each Lender is hereby authorized at any time or from time to time, without presentment, demand, protest or other notice of any kind to any Borrower or to any other Person, any such notice being hereby expressly waived, to set off and to appropriate and apply any and all deposits (general or special) and any other Indebtedness at any time held or owing by such Lender (including, without limitation, by branches and agencies of such Lender wherever located) to or for the credit or the account of any Borrower against and on account of the Obligations and liabilities of any such Borrower to such Lender or any other Lender under this Agreement or under any of the other Credit Documents, including, without limitation, all interests in Obligations of any such Borrower purchased by such Lender or any other Lender pursuant to Section 12.06(b), and all other claims of any nature or description arising out of or connected with this Agreement or any other Credit Document, irrespective of whether or not such Lender shall have made any demand hereunder and although said Obligations, liabilities or claims, or any of them, shall be contingent or unmatured. Each Lender is hereby designated the agent of all other Lenders for purposes of effecting set off pursuant to this Section 12.02 and each Borrower hereby grants to each Lender for such Lender’s own benefit and as agent for all other Lenders a continuing security interest in any and all deposits, accounts or moneys of the Borrowers maintained from time to time with such Lender.
12.03 Notices. Except as otherwise expressly provided herein, all notices and other communications provided for hereunder shall be in writing (including telegraphic, telex, facsimile or cable communication) and mailed, telegraphed, telexed, telecopied, cabled or delivered, if to a Borrower, at the address specified opposite its signature below; if to any
Lender, at its address specified for such Lender on Annex II hereto; or, at such other address as shall be designated by any party in a written notice to the other parties hereto. All such notices and communications shall be mailed, telegraphed, telexed, telecopied, cabled or sent by overnight courier and shall be effective when received.
12.04 Benefit of Agreement.(a) This Agreement shall be binding upon and inure to the benefit of and be enforceable by the respective successors and assigns of the parties hereto;provided,however, no Borrower may assign or transfer any of its rights or obligations hereunder without the prior written consent of the Lenders. Each Lender may at any time grant participations in any of its rights hereunder or under any of its Notes to any bank or other financial institution;provided that in the case of any such participation, the participant shall not have any rights under this Agreement or any of the other Credit Documents, including rights of consent, approval or waiver (the participant’s rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that the participant shall be entitled to receive the additional amounts under Sections 1.10, 1.11, 2.04 and 4.04 of this Agreement to, and only to, the extent that such Lender would be entitled to such benefits if the participation had not been entered into or sold; andprovided,further, that no Lender shall transfer, grant or assign any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other Credit Document except to the extent such amendment or waiver would (i) extend the final scheduled maturity of any Revolving Loan or Note in which such participant is participating or reduce the rate or extend the time of payment of interest thereon or Fees, or reduce the principal amount thereof, or increase such participant’s participating interest in any Commitment or Revolving Loan over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Total Commitment shall not constitute a change in the terms of any Commitment and that an increase in any Commitment shall be permitted without the consent of any participant if such participant’s participation is not increased as a result thereof) or (ii) consent to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement or any other Credit Document except in accordance with the terms hereof and thereof.
(b) Notwithstanding the foregoing, any Lender may assign all or a portion of its rights and obligations hereunder to a NAIC approved bank or other financial institution (unless otherwise agreed by the Parent Borrower and the Administrative Agent) with the prior written consent of each of (i) the Administrative Agent, (ii) in the case of an assignment of Tranche 1 Commitments or Tranche 2 Commitments (and/or the related obligations under such respective Tranche), the Issuing Agent and (iii) so long as no Default or Event of Default has occurred and is continuing, the Parent Borrower (such consent, in each case, not to be unreasonably withheld or delayed). No assignment of less than all of a Lender’s rights and obligations hereunder pursuant to the immediately preceding sentence shall, to the extent such transaction represents an assignment to an institution other than one or more Lenders hereunder, be in an aggregate amount less than the minimum of $5,000,000 unless otherwise agreed to by the Administrative Agent and the Parent Borrower in writing and no assignment shall be effective until all the then outstanding Tranche 1 Letters of Credit or Tranche 2 Letters of Credit, as the case may be, are returned by each respective beneficiary to the Issuing Agent either for
cancellation and/or to be exchanged for new or amended Letters of Credit which give effect to such assignment. If any Lender so sells or assigns all or a part of its rights hereunder or under the Notes, any reference in this Agreement or the Notes to such assigning Lender shall thereafter refer to such Lender and to the respective assignee to the extent of their respective interests and the respective assignee shall have, to the extent of such assignment (unless otherwise provided therein), the same rights and benefits as it would if it were such assigning Lender. Each assignment pursuant to this Section 12.04(b) shall be effected by the assigning Lender and the assignee Lender executing an Assignment Agreement (appropriately completed). At the time of any such assignment, (i) Annex I shall be deemed to be amended to reflect the Commitments, if any, and outstanding Revolving Loans, if any, of the respective assignee (which shall result in a direct reduction to the Commitments, if any, and outstanding Revolving Loans, if any, of the assigning Lender) and of the other Lenders, (ii) if any such assignment occurs after the Effective Date, at the request of the assignor or the assignee, the Parent Borrower will issue new Notes to the respective assignee and to the assigning Lender in conformity with the requirements of Section 1.05, (iii) all then outstanding Tranche 1 Letters of Credit or Tranche 2 Letters of Credit, as the case may be, shall be returned by each respective beneficiary to the Issuing Agent either for cancellation and/or to be exchanged for new or amended Letters of Credit to reflect such assignment (it being understood that to the extent the respective beneficiaries do not consent to such assignment, such assignment cannot occur) and (iv) the Administrative Agent shall receive from the assigning Lender and/or the assignee Lender or financial institution at the time of each assignment the payment of a nonrefundable assignment fee of $3,500, provided that such transfer or assignment will not be effective until recorded by the Administrative Agent on the Register pursuant to Section 12.16 hereof. At the time of each assignment pursuant to this Section 12.04(b) to a Person which (x) is not already a Lender hereunder and (y) is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) for Federal income tax purposes, the respective assignee Lender shall provide to the Borrowers and the Administrative Agent the appropriate Internal Revenue Service forms (and, if applicable a Section 4.04(b)(ii) Certificate) described in Section 4.04(b). Each Lender and each Borrower agrees to execute such documents (including, without limitation, amendments to this Agreement and the other Credit Documents) as shall be necessary to effect the foregoing. Promptly following any assignment pursuant to this Section 12.04(b), the assigning Lender shall promptly notify the Borrowers and the Administrative Agent thereof. Nothing in this Section 12.04 shall prevent or prohibit any Lender from pledging its Revolving Loans or Notes hereunder to a Federal Reserve Bank in support of borrowings made by such Lender from such Federal Reserve Bank.
(c) Notwithstanding any other provisions of this Section 12.04, no transfer or assignment of the interests or obligations of any Lender hereunder or any grant of participations therein shall be permitted if such transfer, assignment or grant would require any Borrower to file a registration statement with the SEC or to qualify the Revolving Loans under the “Blue Sky” laws of any State of the United States as may be required or appropriate in any report, statement or testimony submitted to any municipal, state or Federal regulatory body or self-regulatory body having or claiming jurisdiction or oversight such Lender and/or its affiliates.
(d) Each Lender initially party to this Agreement hereby represents, and each Person that becomes a Lender pursuant to an assignment permitted by clause (b) above will upon its becoming party to this Agreement represent, that it is a commercial lender, other financial institution or other “accredited investor” (as defined in SEC Regulation D) which makes loans in
the ordinary course of its business or is acquiring the Revolving Loans without a view to distribution of the Revolving Loans within the meaning of the federal securities laws, and that it will make or acquire Revolving Loans for its own account in the ordinary course of such business, provided that, subject to the preceding clauses (a) through (c), the disposition of any promissory notes or other evidences of or interests in Indebtedness held by such Lender shall at all times be within its exclusive control.
12.05 No Waiver; Remedies Cumulative. No failure or delay on the part of the Administrative Agent or any Lender in exercising any right, power or privilege hereunder or under any other Credit Document and no course of dealing between any Borrower and the Administrative Agent or any Lender shall operate as a waiver thereof; nor shall any single or partial exercise of any right, power or privilege hereunder or under any other Credit Document preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder or thereunder. The rights and remedies herein expressly provided are cumulative and not exclusive of any rights or remedies which the Administrative Agent or any Lender would otherwise have. No notice to or demand on any Borrower in any case shall entitle such Borrower to any other or further notice or demand in similar or other circumstances or constitute a waiver of the rights of the Administrative Agent or the Lenders to any other or further action in any circumstances without notice or demand.
12.06 Payments Pro Rata.(a) The Administrative Agent agrees that promptly after its receipt of each payment from or on behalf of each Borrower in respect of any Obligations of such Borrower, it shall distribute such payment to the Lenders (other than any Lender that has consented in writing to waive itspro rata share of such payment)pro rata based upon their respective shares, if any, of the Obligations with respect to which such payment was received.
(b) Each of the Tranche 1 Lenders agrees that, if it should receive any amount hereunder (whether by voluntary payment, by realization upon security, by the exercise of the right of setoff or banker’s lien, by counterclaim or cross action, by the enforcement of any right under the Credit Documents, or otherwise) which is applicable to the payment of the principal of, or interest on, the Tranche 1 Revolving Loans, Tranche 1 Unpaid Drawings or Tranche 1 Fees, of a sum which with respect to the related sum or sums received by other Tranche 1 Lenders is in a greater proportion than the total of such Tranche 1 Obligation then owed and due to such Tranche 1 Lender bears to the total of such Tranche 1 Obligation then owed and due to all of the Tranche 1 Lenders immediately prior to such receipt, then such Tranche 1 Lender receiving such excess payment shall purchase for cash without recourse or warranty from the other Tranche 1 Lenders an interest in the Tranche 1 Obligations of the respective Tranche 1 Borrower to such Tranche 1 Lenders in such amount as shall result in a proportional participation by all of the Tranche 1 Lenders in such amount,provided that if all or any portion of such excess amount is thereafter recovered from such Tranche 1 Lender, such purchase shall be rescinded and the purchase price restored to the extent of such recovery, but without interest.
(c) Each of the Tranche 2 Lenders agrees that, if it should receive any amount hereunder (whether by voluntary payment, by realization upon security, by the exercise of the right of setoff or banker’s lien, by counterclaim or cross action, by the enforcement of any right under the Credit Documents, or otherwise) which is applicable to the payment of the principal of,
or interest on, the Tranche 2 Revolving Loans, Tranche 2 Unpaid Drawings, Tranche 2 Fees, of a sum which with respect to the related sum or sums received by other Tranche 2 Lenders is in a greater proportion than the total of such Tranche 2 Obligation then owed and due to such Tranche 2 Lender bears to the total of such Tranche 2 Obligation then owed and due to all of the Tranche 2 Lenders immediately prior to such receipt, then such Tranche 2 Lender, as the case may be, receiving such excess payment shall purchase for cash without recourse or warranty from the other Tranche 2 Lenders an interest in the Tranche 2 Obligations of the respective Tranche 2 Borrower to such Tranche 2 Lenders, in such amount as shall result in a proportional participation by all of the Tranche 2 Lenders in such amount,provided that if all or any portion of such excess amount is thereafter recovered from such Tranche 2 Lender such purchase shall be rescinded and the purchase price restored to the extent of such recovery, but without interest.
12.07 Calculations; Computations.(a) The financial statements to be furnished to the Lenders pursuant hereto shall be made and prepared in accordance with GAAP or SAP, as the case may be, consistently applied throughout the periods involved (except as set forth in the notes thereto or as otherwise disclosed in writing by the Borrowers to the Lenders). In addition, except as otherwise specifically provided herein, all computations determining compliance with Section 8, including definitions used therein, shall utilize accounting principles and policies in effect from time to time;provided that (i) if any such accounting principle or policy (whether GAAP or SAP or both) shall change after the Effective Date, the Borrowers shall give reasonable notice thereof to the Administrative Agent and each of the Lenders and if within 30 days following such notice any Borrower, the Administrative Agent or the Required Lenders shall elect by giving written notice of such election to the other parties hereto, such computations shall not give effect to such change unless and until this Agreement shall be amended pursuant to Section 12.11 to give effect to such change, and (ii) if at any time the computations determining compliance with Section 8 utilize accounting principles different from those utilized in the financial statements then being furnished to the Lenders pursuant to Section 7.01, such financial statements shall be accompanied by reconciliation work-sheets.
(b) All computations of interest on Revolving Loans and Fees hereunder shall be made on the actual number of days elapsed over (i) a year of 365/366 days for interest on Revolving Loans maintained as Base Rate Loans when the Base Rate is based on the Prime Lending Rate and (ii) a year of 360 days in all cases other than that set forth in the preceding clause (i).
(c) All references in this Agreement to amounts in Dollars shall include, unless the context otherwise requires, amounts in Optional Currencies using the then U.S. Dollar Equivalent thereof.
12.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE.(a) THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS (OTHER THAN LETTERS OF CREDIT ISSUED UNDER THE LAWS OF ENGLAND AND WALES AND THE LAWS OF OTHER JURISDICTIONS, AS AGREED TO BETWEEN THE APPLICABLE BORROWER AND THE ISSUING LENDER IN ACCORDANCE WITH SECTIONS 2A.01 AND 2B.01) AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW
YORK. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT (OTHER THAN WITH RESPECT TO LETTERS OF CREDIT ISSUED UNDER THE LAWS OF THE UNITED KINGDOM IN ACCORDANCE WITH SECTIONS 2A.01 and 2B.01) MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH BORROWER AND EACH LENDER HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS. EACH BORROWER AND EACH LENDER HEREBY FURTHER IRREVOCABLY WAIVES ANY CLAIM THAT ANY SUCH COURTS LACK JURISDICTION OVER SUCH BORROWER OR SUCH LENDER, AND AGREES NOT TO PLEAD OR CLAIM, IN ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT BROUGHT IN ANY OF THE AFORESAID COURTS, THAT ANY SUCH COURT LACKS JURISDICTION OVER SUCH BORROWER OR SUCH LENDER. EACH BORROWER AND EACH LENDER FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO SUCH BORROWER OR SUCH LENDER, AS THE CASE MAY BE, AT ITS ADDRESS FOR NOTICES PURSUANT TO SECTION 12.03, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING. EACH BORROWER AND EACH LENDER, AS THE CASE MAY BE, HEREBY IRREVOCABLY WAIVES ANY OBJECTION TO SUCH SERVICE OF PROCESS AND FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY ACTION OR PROCEEDING HEREUNDER OR UNDER ANY OTHER CREDIT DOCUMENT THAT SERVICE OF PROCESS WAS IN ANY WAY INVALID OR INEFFECTIVE. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE ADMINISTRATIVE AGENT OR ANY LENDER TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST EACH BORROWER IN ANY OTHER JURISDICTION.
(b) EACH BORROWER AND EACH LENDER HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT BROUGHT IN THE COURTS REFERRED TO IN CLAUSE (a) ABOVE AND HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
12.09 Counterparts. This Agreement may be executed in any number of counterparts and by the different parties hereto on separate counterparts, each of which when so executed and delivered shall be an original, but all of which shall together constitute one and the
same instrument. A set of counterparts executed by all the parties hereto shall be lodged with the Parent Borrower and the Administrative Agent.
12.10 Headings Descriptive. The headings of the several sections and subsections of this Agreement are inserted for convenience only and shall not in any way affect the meaning or construction of any provision of this Agreement.
12.11 Amendment or Waiver. Neither this Agreement nor any other Credit Document (other than the Security Documents) nor any terms hereof or thereof may be changed, waived, discharged or terminated unless such change, waiver, discharge or termination is in writing signed by each Borrower and the Required Lenders,provided that no such change, waiver, discharge or termination shall, without the consent of each Lender (other than a Defaulting Lender) directly affected thereby, (i) extend the scheduled final maturity of any Revolving Loan or Note, or extend the required payment date of a reimbursement obligation in respect of any Letter of Credit, or extend the Commitment Expiration Date, or extend the stated expiration date of any Letter of Credit beyond the date occurring one year after the Commitment Expiration Date, or reduce the rate or extend the time of payment of interest on any Revolving Loan or Note (except in connection with the waiver of applicability of any post-default increase in interest rates), or reduce the principal amount of any Revolving Loan or Note, or reduce the amount or extend the time of payment of any Fee (it being understood that any amendment or modification to the financial definitions in this Agreement or to Section 12.07(a) shall not constitute a reduction in the rate of interest or reduction in the amount of Fees for purposes of this clause (i)), (ii) except as set forth in Section 1.15 or Section 1.16, increase the Commitment of any Lender over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Total Commitment shall not constitute a change in the terms of any Commitment of any Lender), (iii) amend, modify or waive any provision of this Section 12.11 (except for technical amendments with respect to additional extensions of credit pursuant to this Agreement which afford the protections to such additional extensions of credit of the type provided to the Revolving Loans and the Commitments on the Effective Date), (iv) reduce any percentage specified in, or otherwise modify, the definition of Required Lenders (it being understood that (A) the Additional Tranche 1 Commitments (and the additional Tranche 1 Revolving Loans incurred in connection therewith), (B) the Additional Tranche 2 Commitments (and the additional Tranche 2 Revolving Loans incurred in connection therewith) and (C) with the consent of the Required Lenders, other additional extensions of credit pursuant to this Agreement, in each case, may be included in the determination of the Required Lenders on substantially the same basis as the extensions of Revolving Loans and Commitments are included on the Effective Date), (v) release the Parent Borrower from its obligations under the Parent Borrower Guaranty, or (vi) consent to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement;provided further, that (A) no such change, waiver, discharge or termination shall (i) release all or substantially all of the Collateral (except as expressly provided in the Credit Documents) from the Liens under all of the Security Documents without the consent of each Tranche 1 Lender, (ii) modify the definitions in Section 10 of “Advance Rates”, “Borrowing Base” or “Eligible Securities” without the consent of the Majority Tranche 1 Lenders or (iii) reduce any percentage specified in, or otherwise modify, the definition of Majority Tranche 1 Lenders (it being understood that the Additional Tranche 1 Commitments (and the additional Tranche 1 Revolving Loans incurred in connection therewith) and, with the consent of the
Majority Tranche 1 Lenders, other additional extensions of credit pursuant to this Agreement, in each case, may be included in the determination of the Majority Tranche 1 Lenders on substantially the same basis as the extensions of Tranche 1 Revolving Loans and Tranche 1 Commitments are included on the Effective Date) and (B) no Security Document may be changed, waived, discharged or terminated unless each such change, waiver, discharge or termination is in writing signed by each Borrower and the Majority Tranche 1 Lenders. No provision of Section 11 or any other provision relating to the rights and/or obligations of the Administrative Agent may be amended without the consent of the Administrative Agent. No provision of Section 2 or any other provision relating to the rights and/or obligations of the Issuing Agent may be amended without the consent of the Issuing Agent.
12.12 Survival. All indemnities set forth herein including, without limitation, in Section 1.10, 1.11, 2.04, 4.04, 11.07 or 12.01 shall survive the execution and delivery of this Agreement and the making of the Revolving Loans, the repayment of the Obligations and the termination of the Total Commitment.
12.13 Domicile of Revolving Loans. Each Lender may transfer and carry its Revolving Loans at, to or for the account of any branch, office, Subsidiary or affiliate of such Lender. Notwithstanding anything to the contrary contained herein, to the extent that a transfer of Revolving Loans pursuant to this Section 12.13 would, at the time of such transfer, result in increased costs under Section 1.10, 1.11, 2.04 or 4.04 from those being charged by the respective Lender prior to such transfer, then the Parent Borrower shall not be obligated to pay such increased costs (although the Parent Borrower shall be obligated to pay any other increased costs of the type described above resulting from changes after the date of the respective transfer).
12.14 Confidentiality.(a) Each Lender shall (i) hold all non-public information (including, without limitation, all financial projections and analyses) furnished by any Borrower in connection with such Lender’s evaluation of whether to become a Lender hereunder or obtained by such Lender pursuant to the requirements of this Agreement (“Confidential Information”) confidential, (ii) use Confidential Information only for purposes related to this Agreement and its position as a Lender hereunder and (iii) not disclose such Confidential Information other than as provided herein;provided that any Lender and/or its affiliates may disclose any such Confidential Information (A) as has become generally available to the public other than as a result of disclosure in violation of this Section 12.14, (B) as has become available to such Lender or any such affiliate on a non-confidential basis from a source other than the Borrowers and their respective affiliates,provided that the source is not known by such Lender to be prohibited from transmitting such information to such Lender by a contractual, legal or fiduciary obligation, (C) as may be required or appropriate in any report, statement or testimony submitted to any municipal, state or Federal regulatory body or self-regulatory body having or claiming to have jurisdiction or oversight over such Lender and/or its affiliates, (D) as may be required or appropriate in respect to any summons or subpoena or in connection with any litigation or other judicial process (it being understood that, to the extent reasonably practicable under the circumstances, each Borrower shall be given prior notice and an opportunity to contest any proposed disclosure pursuant to this clause (D)), (E) in order to comply with any law, order, regulation or ruling applicable to such Lender and/or its affiliates, (F) subject to an agreement to comply with the provisions of this Section, to any direct or indirect counterparty to any swap agreement (or any professonal advisor to such counterparty) and (G) to any permitted
prospective or actual syndicate member or participant in any Revolving Loans,provided that such prospective or actual syndicate member or participant agrees with the respective assigning Lender to be bound by the provisions of this Section 12.14. The provisions of this Section 12.14 shall survive any termination of this Agreement.
(b) Notwithstanding anything herein to the contrary, any Lender (and any employee, representative or other agent of such Lender) may disclose to any and all persons, without limitation of any kind, such Lender’s U.S. federal income tax treatment and the U.S. federal income tax structure of the transactions contemplated hereby relating to such Lender and all materials of any kind (including opinions or other tax analyses) that are provided to it relating to such tax treatment and tax structure. However, no disclosure of any information relating to such tax treatment or tax structure may be made to the extent nondisclosure is reasonably necessary in order to comply with applicable securities laws.
12.15 WAIVER OF JURY TRIAL. EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE CREDIT DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
12.16 Register. Each Borrower hereby designates the Administrative Agent to serve as its agent, solely for purposes of this Section 12.16, to maintain a register (the “Register”) on which it will record the Commitments from time to time of each of the Lenders, the Revolving Loans made by each of the Lenders and each repayment in respect of the principal amount of the Revolving Loans of each Lender. Failure to make any such recordation, or any error in such recordation shall not affect the obligations any Borrower in respect of such Revolving Loans. With respect to any Lender, the transfer of the Commitments of such Lender and the rights to the principal of, and interest on, any Revolving Loan made pursuant to such Commitments shall not be effective until such transfer is recorded on the Register maintained by the Administrative Agent with respect to ownership of such Commitments and Revolving Loans and prior to such recordation all amounts owing to the transferor with respect to such Commitments and Revolving Loans shall remain owing to the transferor. The registration of assignment or transfer of all or part of any Commitments and any Revolving Loans shall be recorded by the Administrative Agent on the Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement pursuant to Section 12.04(b). Coincident with the delivery of such an Assignment Agreement to the Administrative Agent for acceptance and registration of assignment or transfer of all or part of a Revolving Loan, or as soon thereafter as practicable, the assigning or transferor Lender shall surrender the Note evidencing such Revolving Loan, and thereupon one or more new Notes in the same aggregate principal amount shall be issued to the assigning or transferor Lender and/or the new Lender. Each Borrower agrees to indemnify the Administrative Agent from and against any and all losses, claims, damages and liabilities of whatsoever nature which may be imposed on, asserted against or incurred by the Administrative Agent in performing its duties under this Section 12.16 (but excluding any such losses, liabilities, claims, damages or expenses to the extent incurred by reason of the gross negligence or willful misconduct of the Administrative Agent (as determined by a court of competent jurisdiction in a final and non-appealable decision)).
12.17 USA Patriot Act. Each Lender hereby notifies each Borrower that, pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Patriot Act”), it is required to obtain, verify and record information that identifies each Borrower, which information includes the name and address of each Borrower and other information that will allow such Lender to identify each Borrower in accordance with the Patriot Act.
SECTION 13. Parent Borrower Guaranty.
13.01 The Guaranty. In order to induce the Lenders to enter into this Agreement and to extend credit hereunder and in recognition of the direct benefits to be received by the Parent Borrower from the proceeds of the Revolving Loans and the issuance of the Letters of Credit, the Parent Borrower hereby agrees with the Lenders as follows: the Parent Borrower hereby unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, the full and prompt payment when due, whether upon maturity, acceleration or otherwise, of any and all of the Parent Borrower Guaranteed Obligations of each Designated Subsidiary Borrower to the Guaranteed Creditors. If any or all of the Parent Borrower Guaranteed Obligations of any Designated Subsidiary Borrower to the Guaranteed Creditors becomes due and payable hereunder, the Parent Borrower unconditionally promises to pay such indebtedness to the Guaranteed Creditors, or order, on demand, together with any and all expenses which may be incurred by the Guaranteed Creditors in collecting any of the Parent Borrower Guaranteed Obligations. This Parent Borrower Guaranty is a guaranty of payment and not of collection. If a claim is ever made upon any Guaranteed Creditor for repayment or recovery of any amount or amounts received in payment or on account of any of the Parent Borrower Guaranteed Obligations and any of the aforesaid payees repays all or part of said amount by reason of (i) any judgment, decree or order of any court or administrative body having jurisdiction over such payee or any of its property or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant, then and in such event the Parent Borrower agrees that any such judgment, decree, order, settlement or compromise shall be binding upon the Parent Borrower, notwithstanding any revocation of this Parent Borrower Guaranty or any other instrument evidencing any liability of any Designated Subsidiary Borrower, and the Parent Borrower shall be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payee.
13.02 Bankruptcy. Additionally, the Parent Borrower unconditionally and irrevocably guarantees the payment of any and all of the Parent Borrower Guaranteed Obligations of each Designated Subsidiary Borrower hereunder to the Guaranteed Creditors whether or not due or payable by any Designated Subsidiary Borrower upon the occurrence of any of the events specified in Section 9.05 with respect to such Designated Subsidiary Borrower, and unconditionally promises to pay such indebtedness to the Guaranteed Creditors, or order, on demand, in lawful money of the United States.
13.03 Nature of Liability. The liability of the Parent Borrower hereunder is exclusive and independent of any security for or other guaranty of the Parent Borrower Guaranteed Obligations of any Designated Subsidiary Borrower whether executed by the Parent Borrower, any other guarantor or by any other party, and the liability of the Parent Borrower
hereunder is not affected or impaired by (a) any direction as to application of payment by each Designated Subsidiary Borrower or by any other party (other than a direction by the Guaranteed Creditor receiving such payment), or (b) any other continuing or other guaranty, undertaking or maximum liability of a guarantor or of any other party as to the Parent Borrower Guaranteed Obligations of each Designated Subsidiary Borrower, or (c) any payment on or in reduction of any such other guaranty or undertaking, or (d) any dissolution, termination or increase, decrease or change in personnel by any Designated Subsidiary Borrower, or (e) any payment made to the Guaranteed Creditors on the Parent Borrower Guaranteed Obligations which any such Guaranteed Creditor repays to any Designated Subsidiary Borrower pursuant to court order in any bankruptcy, reorganization, arrangement, moratorium or other debtor relief proceeding, and the Parent Borrower waives any right to the deferral or modification of its obligations hereunder by reason of any such proceeding or (f) any action or inaction of the type described in Section 13.05.
13.04 Independent Obligation. The obligations of the Parent Borrower under this Section 13 are independent of the obligations of any other guarantor, any other party or any Designated Subsidiary Borrower, and a separate action or actions may be brought and prosecuted against the Parent Borrower whether or not action is brought against any other guarantor, any other party or any Designated Subsidiary Borrower and whether or not any other guarantor, any other party or any Designated Subsidiary Borrower be joined in any such action or actions. The Parent Borrower waives, to the full extent permitted by law, the benefit of any statute of limitations affecting its liability under this Section 13 or the enforcement thereof. Any payment by any Designated Subsidiary Borrower or other circumstance which operates to toll any statute of limitations as to any Designated Subsidiary Borrower shall operate to toll the statute of limitations as to the Parent Borrower.
13.05 Authorization. The obligations of the Parent Borrower under this Section 13 shall be unconditional and absolute and, without limiting the generality of the foregoing, shall not be released, discharged or otherwise affected by any action taken by any Guaranteed Creditor to:
(a) change the manner, place or terms of payment of, and/or change or extend the time of payment of, renew, increase, accelerate or alter, any of the Parent Borrower Guaranteed Obligations (including any increase or decrease in the rate of interest thereon), any security therefor, or any liability incurred directly or indirectly in respect thereof, and the Parent Borrower Guaranty herein made shall apply to the Parent Borrower Guaranteed Obligations as so changed, extended, renewed or altered;
(b) take and hold security for the payment of the Parent Borrower Guaranteed Obligations and sell, exchange, release, impair, surrender, realize upon or otherwise deal with in any manner and in any order any property by whomsoever at any time pledged or mortgaged to secure, or howsoever securing, the Parent Borrower Guaranteed Obligations or any liabilities (including any of those hereunder) incurred directly or indirectly in respect thereof or hereof, and/or any offset there against;
(c) exercise or refrain from exercising any rights against any Designated Subsidiary Borrower or others or otherwise act or refrain from acting;
(d) release or substitute any one or more endorsers, guarantors, any Designated Subsidiary Borrower or other obligors;
(e) settle or compromise any of the Parent Borrower Guaranteed Obligations, any security therefor or any liability (including any of those hereunder) incurred directly or indirectly in respect thereof or hereof, and may subordinate the payment of all or any part thereof to the payment of any liability (whether due or not) of any Designated Subsidiary Borrower to its creditors other than the Guaranteed Creditors;
(f) apply any sums by whomsoever paid or howsoever realized to any liability or liabilities of any Designated Subsidiary Borrower to the Guaranteed Creditors regardless of what liability or liabilities of any Designated Subsidiary Borrower remain unpaid;
(g) consent to or waive any breach of, or any act, omission or default under, this Agreement or any other Credit Document or any of the instruments or agreements referred to herein or therein, or otherwise amend, modify or supplement this Agreement, any other Credit Document or any of such other instruments or agreements; and/or
(h) take any other action which would, under otherwise applicable principles of common law, give rise to a legal or equitable discharge of the Parent Borrower from its liabilities under this Parent Borrower Guaranty.
13.06 Reliance. It is not necessary for the Guaranteed Creditors to inquire into the capacity or powers of any Designated Subsidiary Borrower or the officers, directors, partners or agents acting or purporting to act on their behalf, and any Parent Borrower Guaranteed Obligations made or created in reliance upon the professed exercise of such powers shall be guaranteed hereunder.
13.07 Subordination. Any indebtedness of any Designated Subsidiary Borrower now or hereafter owing to the Parent Borrower is hereby subordinated to the Parent Borrower Guaranteed Obligations of any Designated Subsidiary Borrower owing to the Guaranteed Creditors; and if the Administrative Agent so requests at a time when an Event of Default exists, no Designated Subsidiary Borrower shall make, or be permitted to make, any payment to the Parent Borrower in respect of such indebtedness owed to the Parent Borrower, but without affecting or impairing in any manner the liability of the Parent Borrower under the other provisions of this Parent Borrower Guaranty. Prior to the transfer by the Parent Borrower of any note or negotiable instrument evidencing any of the indebtedness of any Designated Subsidiary Borrower to the Parent Borrower, the Parent Borrower shall mark such note or negotiable instrument with a legend that the same is subject to this subordination. Without limiting the generality of the foregoing, the Parent Borrower hereby agrees with the Guaranteed Creditors that it will not exercise any right of subrogation which it may at any time otherwise have as a result of this Guaranty (whether contractual, under Section 509 of the Bankruptcy Code or otherwise) until all Parent Borrower Guaranteed Obligations have been irrevocably paid in full in cash.
13.08 Waiver.(a) The Parent Borrower waives any right (except as shall be required by applicable statute and cannot be waived) to require any Guaranteed Creditor to (i) proceed against each Designated Subsidiary Borrower, any other guarantor or any other party, (ii) proceed against or exhaust any security held from any Designated Subsidiary Borrower, any other guarantor or any other party or (iii) pursue any other remedy in any Guaranteed Creditor’s power whatsoever. The Parent Borrower waives any defense based on or arising out of any defense of any Designated Subsidiary Borrower, any other guarantor or any other party, other than payment in full of the Parent Borrower Guaranteed Obligations, based on or arising out of the disability of each Designated Subsidiary Borrower, any other guarantor or any other party, or the unenforceability of the Parent Borrower Guaranteed Obligations or any part thereof from any cause, or the cessation from any cause of the liability of any Designated Subsidiary Borrower other than payment in full of the Parent Borrower Guaranteed Obligations. The Guaranteed Creditors may, at their election, foreclose on any security held by the Administrative Agent or any other Guaranteed Creditor by one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable (to the extent such sale is permitted by applicable law), or exercise any other right or remedy the Guaranteed Creditors may have against any Designated Subsidiary Borrower or any other party, or any security, without affecting or impairing in any way the liability of the Parent Borrower hereunder except to the extent the Parent Borrower Guaranteed Obligations have been paid. The Parent Borrower waives any defense arising out of any such election by the Guaranteed Creditors, even though such election operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of the Parent Borrower against any Designated Subsidiary Borrower or any other party or any security.
(b) The Parent Borrower waives all presentments, demands for performance, protests and notices, including, without limitation, notices of nonperformance, notices of protest, notices of dishonor, notices of acceptance of this Parent Borrower Guaranty, and notices of the existence, creation or incurring of new or additional Parent Borrower Guaranteed Obligations. The Parent Borrower assumes all responsibility for being and keeping itself informed of each Designated Subsidiary Borrower’s financial condition and assets, and of all other circumstances bearing upon the risk of nonpayment of the Parent Borrower Guaranteed Obligations and the nature, scope and extent of the risks which the Parent Borrower assumes and incurs hereunder, and agrees that the Guaranteed Creditors shall have no duty to advise the Parent Borrower of information known to them regarding such circumstances or risks.
(c) The Parent Borrower warrants and agrees that each of the waivers set forth above in this Section 13 is made with full knowledge of its significance and consequences, and such waivers shall be effective to the maximum extent permitted by law.
* * *
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this Agreement to be duly executed and delivered as of the date first above written.
Address: | | |
Wellesley House 90 Pitts Bay Road Pembroke HM 08 Bermuda Attention: Michael McGuire Telephone: +1 (441) 278-0943 Facsimile: +1 (441) 278-0493 | | ENDURANCE SPECIALTY HOLDINGS LTD. By: /s/ John V. Del Col
Title: General Counsel and Secretary |
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Wellesley House 90 Pitts Bay Road Pembroke HM 08 Bermuda Michael McGuire Telephone: +1 (441) 278-0943 Facsimile: +1 (441) 278-0493 | | ENDURANCE SPECIALTY INSURANCE LTD. By:/s/ John V. Del Col
Title: General Counsel and Secretary |
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1209 Orange Street Wilmington, Delaware 19801 Attention: Emily Canelo, Esq. Telephone: +1 (914) 468-8000 Facsimile: +1 (914) 997-0331 | | ENDURANCE U.S. HOLDINGS CORP. By: /s/ Kenneth J. LeStrange
Title: Chairman of the Board and President |
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4th Floor, 2 Minster Court London, EC3R 7BB United Kingdom Attention: Simon Minshall Telephone:+44 (0)20 7337 2830 Facsimile: +44 (0)20 7337 2900 | | ENDURANCE WORLDWIDE HOLDINGS LIMITED By: /s/ Jon Godfray
Title: Chief Operating Officer |
4th Floor, 2 Minster Court London, EC3R 7BB United Kingdom Attention: Simon Minshall Telephone:+44 (0)20 7337 2830 Facsimile: +44 (0)20 7337 2900 | ENDURANCE WORLDWIDE INSURANCE LIMITED By: /s/ Jon Godfray
Name: Jon Godfray Title: Chief Operating Officer |
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| | JPMORGAN CHASE BANK, N.A., as Administrative Agent, Issuing Agent and a Lender By: /s/ Erin O'Rourke
Title: Vice President |
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| | WACHOVIA BANK, N.A. By: /s/ William R. Goley
Title: Director |
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| | ING BANK N.V., LONDON BRANCH By: /s/ N J Marchant
Title: Director By: /s/ M E R Sherman
Title: Managing Director |
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| | BANK OF AMERICA, N.A. By: /s/ Debra Basler
Title: Senior Vice President |
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| | BARCLAYS BANK PLC By: /s/ Nicholas Bell
Title: Director |
| | LLOYDS TSB BANK PLC By: /s/ Jason Eperon
Title: Vice President, Financial Institutions, USA By: /s/ Candi Obrentz
Title: Assistant Vice President, Financial Institutions, USA |
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| | THE BANK OF NEW YORK By: /s/ Richard G. Shaw
Title: Vice President |
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| | CALYON NEW YORK BRANCH By: /s/ Sebastian Rocco
Title: Managing Director By: /s/ Charlie Kornberger
Title: Managing Director |
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| | THE ROYAL BANK OF SCOTLAND PLC By: Greenwich Capital Markets, Inc., as agent for
The Royal Bank of Scotland plc By: /s/ David Howes
Title: Vice President |
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| | DEUTSCHE BANK AG NEW YORK BRANCH By: /s/ Richard Herder
Title: Managing Director By: /s/ Michael Campites
Title: Vice President |
| | THE BANK OF NOVA SCOTIA By: /s/ Todd Meller
Name: Todd Meller Title: Managing Director |
| | LANDESBANK HESSEN-THÜRINGEN NEW YORK BRANCH By: /s/ Samuel W. Bridges
Title: Senior Vice President Financial Institutions Public Finance By: /s/ Irina Rakhlis
Title: Credit Analyst Financial Institutions Public Finance |
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| | BNP PARIBAS By: /s/ Peter A. Nikitaidis
Title: Director By: /s/ Nair P. Raghu
Title: Vice President |
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| | COMERICA BANK By: /s/ Chatphet Saipetch
Name: Chatphet Saipetch Title: Vice President |
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| | MERRILL LYNCH COMMERCIAL FINANCE CORPORATION By: /s/ Louis Alder
Name: Louis Alder Title: Director |
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| | GOLDMAN SACHS CREDIT PARTNERSL.P. By: /s/ Mark Walton
Title: Managing Director |
