EXHIBIT 10.75
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EXECUTION COPY
AMENDED AND RESTATED
364 DAY FACILITY CREDIT AGREEMENT
dated as of June 3, 2004
among
FRANKLIN RESOURCES, INC.,
THE BANKS PARTIES HERETO,
BANK OF AMERICA, N.A. and
THE BANK OF NEW YORK,
as Co-Syndication Agents,
CITIBANK, N.A. and
BNP PARIBAS,
as Co-Documentation Agents,
and
JPMORGAN CHASE BANK,
as Administrative Agent
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J.P. MORGAN SECURITIES INC.,
as Sole Bookrunner and Sole Lead Arranger
TABLE OF CONTENTS
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SECTION 1. DEFINITIONS......................................................1
1.1 Defined Terms...................................................1
1.2 Other Definitional Provisions..................................15
SECTION 2. AMOUNT AND TERMS OF LOANS.......................................16
2.1 Revolving Credit Commitments...................................16
2.2 Procedure for Revolving Credit Borrowing.......................16
2.3 The Bid Loans..................................................17
2.4 Repayment of Loans; Evidence of Debt...........................19
2.5 Optional Termination or Reduction of Commitments...............20
2.6 Optional Prepayments...........................................21
2.7 Mandatory Prepayments..........................................21
2.8 Conversion and Continuation Options............................22
2.9 Minimum Amounts of Tranches....................................22
2.10 Interest Rates and Payment Dates...............................22
2.11 Computation of Interest and Fees...............................23
2.12 Inability to Determine Interest Rate...........................24
2.13 Pro Rata Treatment and Payments................................24
2.14 Illegality.....................................................25
2.15 Requirements of Law............................................25
2.16 Taxes..........................................................26
2.17 Indemnity......................................................27
2.18 Facility and Utilization Fee...................................28
2.19 Mitigation of Costs............................................28
2.20 New Banks; Exiting Banks.......................................29
SECTION 3. REPRESENTATIONS AND WARRANTIES..................................29
3.1 Financial Condition............................................29
3.2 No Change......................................................30
3.3 Corporate Existence; Compliance with Law.......................30
3.4 Corporate Power; Authorization; Enforceable Obligations........30
3.5 No Legal Bar...................................................30
3.6 No Material Litigation.........................................30
3.7 Ownership of Property; Liens...................................31
3.8 Intellectual Property..........................................31
3.9 Taxes..........................................................31
3.10 Federal Regulations............................................31
3.11 ERISA..........................................................31
3.12 Investment Company Act; Other Regulations......................32
3.13 Investment Advisory Agreements.................................32
3.14 Subsidiaries...................................................33
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3.15 Purpose of Loans...............................................33
3.16 Environmental Matters..........................................33
3.17 Accuracy and Completeness of Information.......................33
SECTION 4. CONDITIONS PRECEDENT............................................34
4.1 Conditions to Execution........................................34
4.2 Conditions to Each Loan........................................35
SECTION 5. AFFIRMATIVE COVENANTS...........................................35
5.1 Financial Statements...........................................35
5.2 Certificates; Other Information................................36
5.3 Payment of Obligations.........................................37
5.4 Conduct of Business and Maintenance of Existence...............37
5.5 Maintenance of Property; Insurance.............................37
5.6 Inspection of Property; Books and Records; Discussions.........37
5.7 Notices........................................................38
5.8 Environmental Laws.............................................38
SECTION 6. NEGATIVE COVENANTS..............................................39
6.1 Financial Condition Covenants..................................39
6.2 Limitation on Indebtedness.....................................40
6.3 Limitation on Liens............................................40
6.4 Limitations on Fundamental Changes.............................41
6.5 Limitation on Sale of Assets...................................42
6.6 Limitation on Investments, Loans and Advances..................42
6.7 Transactions with Affiliates...................................43
6.8 Fiscal Year....................................................43
6.9 Restrictions Affecting Subsidiaries............................43
SECTION 7. EVENTS OF DEFAULT...............................................44
SECTION 8. THE AGENTS......................................................46
8.1 Appointment....................................................46
8.2 Delegation of Duties...........................................46
8.3 Exculpatory Provisions.........................................46
8.4 Reliance by Administrative Agent...............................47
8.5 Notice of Default..............................................47
8.6 Non-Reliance on Administrative Agent and Other Banks...........47
8.7 Indemnification................................................48
8.8 The Administrative Agent, the Co-Syndication Agents and the
Co-Documentation Agents in their Individual Capacities.........48
8.9 Successor Administrative Agent.................................49
8.10 Co-Syndication Agents and Co-Documentation Agents..............49
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SECTION 9. MISCELLANEOUS...................................................49
9.1 Amendments and Waivers.........................................49
9.2 Notices........................................................50
9.3 No Waiver; Cumulative Remedies.................................52
9.4 Survival of Representations and Warranties.....................52
9.5 Payment of Expenses and Taxes..................................52
9.6 Successors and Assigns; Participations; Purchasing Banks.......53
9.7 Adjustments; Set-off...........................................55
9.8 Counterparts...................................................56
9.9 Severability...................................................56
9.10 Integration....................................................56
9.11 GOVERNING LAW..................................................56
9.12 Submission To Jurisdiction; Waivers; Appointment of
Process Agent..................................................57
9.13 Acknowledgments................................................57
9.14 WAIVERS OF JURY TRIAL..........................................57
9.15 Confidentiality................................................58
SCHEDULES
Schedule I Commitments
Schedule II Sample Computations of Facility and Utilization Fees
Schedule III Required Consents
Schedule IV Subsidiary Investment Advisers
Schedule V Subsidiary Broker-Dealers
Schedule VI List of Subsidiaries of the Borrower
Schedule VII Outstanding Indebtedness
Schedule VIII Existing Liens
EXHIBITS
Exhibit A Form of Bid Loan Confirmation
Exhibit B Form of Bid Loan Offer
Exhibit C Form of Bid Loan Request
Exhibit D Form of Assignment and Assumption
Exhibit E-1 Form of Revolving Credit Note
Exhibit E-2 Form of Grid Bid Loan Note
Exhibit E-3 Form of Individual Bid Loan Note
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AMENDED AND RESTATED 364 DAY FACILITY CREDIT AGREEMENT, dated as of June 3,
2004 (as more fully defined below, this "AGREEMENT"), among Franklin Resources,
Inc., a Delaware corporation (the "BORROWER"), the several banks and other
financial institutions from time to time parties to this Agreement (the
"BANKS"), Bank of America, N.A. and The Bank of New York, as Co-Syndication
Agents, Citibank, N.A. and BNP Paribas, as Co-Documentation Agents, and JPMorgan
Chase Bank ("JPMCB"), as administrative agent for the Banks hereunder (in such
capacity, the "ADMINISTRATIVE AGENT").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, this Agreement amends and restates that certain 364 Day Facility
Credit Agreement, dated as of June 4, 2003 (as amended, supplemented or
otherwise modified prior to the date hereof and in effect immediately prior to
the effectiveness of this Agreement, the "EXISTING CREDIT Agreement") among the
Borrower, the several banks and other financial institutions from time to time
parties thereto (the "EXISTING BANKS"), Bank of America, N.A. and The Bank of
New York, as Co-Syndication Agents, Citicorp USA Inc. and BNP Paribas, as
Co-Documentation Agents, and JPMCB, as Administrative Agent;
WHEREAS, certain of the Existing Banks are willing to agree to the
amendment and restatement requested by the Borrower and have Commitments (as
defined herein) hereunder (the "CONTINUING BANKS"), and the other Existing
Banks, (individually, an "EXITING BANK", and collectively, the "EXITING BANKS")
will cease to be Banks under the Existing Credit Agreement on the Closing Date
(as defined herein); and
WHEREAS, certain financial institutions that are not now Banks,
(individually, a "NEW BANK", and collectively, the "NEW BANKS") will become
Banks and have Commitments hereunder on the Closing Date;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the parties hereto hereby agree that as of the Closing Date
the Existing Credit Agreement shall be amended and restated to read as follows:
SECTION 1. DEFINITIONS
1.1 DEFINED TERMS. As used in this Agreement, the following terms shall
have the following meanings:
"ABSOLUTE RATE BID LOAN REQUEST": any Bid Loan Request requesting the Bid
Loan Banks to offer to make Absolute Rate Bid Loans.
"ABSOLUTE RATE BID LOANS": Bid Loans made at an absolute rate (as opposed
to a rate composed of the Applicable Index Rate plus (or minus) a margin).
"ADMINISTRATIVE AGENT": as defined in the preamble hereto.
"ADMINISTRATIVE QUESTIONNAIRE": an administrative questionnaire in a form
supplied by the Administrative Agent.
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"ADVISERS ACT": as defined in subsection 3.12(b).
"AFFILIATE": as to any Person, (a) any other Person (other than a
Subsidiary) which, directly or indirectly, is in control of, is controlled by,
or is under common control with, such Person or (b) any Person who is a
director, officer, shareholder or partner (i) of such Person, (ii) of any
Subsidiary of such Person or (iii) of any Person described in the preceding
clause (a). For purposes of this definition, "control" of a Person means the
power, directly or indirectly, either to (i) vote 10% or more of the securities
having ordinary voting power for the election of directors of such Person or
(ii) direct or cause the direction of the management and policies of such Person
whether by contract or otherwise.
"AGREEMENT": this Amended and Restated 364 Day Facility Credit Agreement,
as the same may be amended, supplemented or otherwise modified from time to
time.
"ALTERNATE BASE RATE": for any day, a rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to the greatest of (a) the Prime Rate
in effect on such day, (b) the Base CD Rate in effect on such day plus 1%, and
(c) the Federal Funds Effective Rate in effect on such day plus 1/2 of 1%.
"PRIME RATE" shall mean the rate of interest per annum publicly announced from
time to time by the Administrative Agent as its prime rate in effect at its
principal office in New York City (the Prime Rate not being intended to be the
lowest rate of interest charged by JPMCB in connection with extensions of credit
to debtors); "BASE CD RATE" shall mean the sum of (a) the product of (i) the
Three-Month Secondary CD Rate and (ii) a fraction, the numerator of which is one
and the denominator of which is one minus the C/D Reserve Percentage and (b) the
C/D Assessment Rate. "THREE-MONTH SECONDARY CD RATE" shall mean, for any day,
the secondary market rate for three-month certificates of deposit reported as
being in effect on such day (or, if such day shall not be a Business Day, the
next preceding Business Day) by the Board of Governors of the Federal Reserve
Bank of New York (the "BOARD") through the public information telephone line of
the Federal Reserve Bank of New York (which rate will, under the current
practices of the Board, be published in Federal Reserve Statistical Release
H.15(519) during the week following such day), or, if such rate shall not be so
reported on such day or such next preceding Business Day, the average of the
secondary market quotations for three-month certificates of deposit of major
money center banks in New York City received at approximately 10:00 a.m., New
York City time, on such day (or, if such day shall not be a Business Day, on the
next preceding Business Day) by the Administrative Agent from three New York
City negotiable certificate of deposit dealers of recognized standing selected
by it; and "FEDERAL FUNDS EFFECTIVE RATE" shall mean, for any day, 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 on the
next succeeding Business Day by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day which is a Business Day, the average
of the quotations for the day of such transactions received by the
Administrative Agent from three federal funds brokers of recognized standing
selected by it. Any change in the Alternate Base Rate due to a change in the
Prime Rate, the Three-Month Secondary CD Rate or the Federal Funds Effective
Rate shall be effective as of the opening of business on the effective date of
such change in the Prime Rate, the Three-Month Secondary CD Rate or the Federal
Funds Effective Rate, respectively.
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"ALTERNATE BASE RATE LOANS": Revolving Credit Loans the rate of interest
applicable to which is based upon the Alternate Base Rate.
"APPLICABLE INDEX RATE": in respect of any Bid Loan requested pursuant to a
LIBOR Bid Loan Request, the LIBOR Adjusted Rate.
"APPLICABLE MARGIN": for any day, (a) for each LIBOR Loan 0.375% per annum,
and (b) for each Alternate Base Rate Loan, zero; PROVIDED that the Applicable
Margin for any day after the Termination Date if the Term-Out Maturity Date has
been elected shall be (x) for each LIBOR Loan, 0.625% per annum, and (y) for
each Alternate Base Rate Loan, 0.250% per annum.
"ASSET DISPOSITION": the sale, sale leaseback, exchange or other
disposition (including by means of a merger, consolidation or amalgamation) of
any property, business or assets (other than marketable securities (including
"margin stock" within the meaning of Regulation U), liquid investments and other
financial instruments) of the Borrower or any of its Subsidiaries to any Person
or Persons other than the Borrower or any of its Subsidiaries. Notwithstanding
the foregoing, the consummation by the Borrower or FTC of any transfers or other
transactions in connection with any Lease Financing Arrangement or otherwise
involving all or any portion of the Designated Property shall not constitute an
Asset Disposition.
"ASSIGNMENT AND ASSUMPTION": an assignment and assumption entered into by a
Bank and an assignee (with the consent of any party whose consent is required by
subsection 9.6), and accepted by the Administrative Agent, substantially in the
form of Exhibit D or any other form approved by the Administrative Agent.
"AVAILABLE COMMITMENT": as to any Bank at any time, an amount equal to the
excess, if any, of (a) the amount of such Bank's Commitment over (b) the
aggregate principal amount of all Revolving Credit Loans made by such Bank then
outstanding; collectively, as to all the Banks, the "AVAILABLE COMMITMENTS".
"BANKING SUBSIDIARY": at any time, Fiduciary Trust Company International,
Franklin Templeton Bank and Trust Company, F.S.B. or any other Subsidiary of the
Borrower licensed to engage, and principally engaged, at such time in the
banking or trust business or any Subsidiary of any such Subsidiary.
"BANKS": as defined in the preamble hereto.
"BID LOAN": each Bid Loan made pursuant to subsection 2.3; the aggregate
amount advanced by a Bid Loan Bank pursuant to subsection 2.3 on each Bid Loan
Date shall constitute one or more Bid Loans, as specified by such Bid Loan Bank
pursuant to subsection 2.3(b)(vi).
"BID LOAN BANKS": Banks from time to time designated as Bid Loan Banks by
the Borrower, by written notice to the Administrative Agent (which notice the
Administrative Agent shall transmit to each such Bid Loan Bank).
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"BID LOAN NOTES": the collective reference to the Grid Bid Loan Notes and
the Individual Bid Loan Notes.
"BID LOAN CONFIRMATION": each confirmation by the Borrower of its
acceptance of Bid Loan Offers, which Bid Loan Confirmation shall be
substantially in the form of Exhibit B and shall be delivered to the
Administrative Agent in writing, by telex or by facsimile transmission.
"BID LOAN OFFER": each offer by a Bid Loan Bank to make Bid Loans pursuant
to a Bid Loan Request, which Bid Loan Offer shall contain the information
specified in Exhibit B and shall be delivered to the Administrative Agent by
telephone, immediately confirmed by telex or facsimile transmission.
"BID LOAN REQUEST": each request by the Borrower for Bid Loan Banks to
submit bids to make Bid Loans, which shall contain the information in respect of
such requested Bid Loans specified in Exhibit C and shall be delivered to the
Administrative Agent in writing, by telex or facsimile transmission, or by
telephone, immediately confirmed by telex or facsimile transmission.
"BORROWER": as defined in the preamble hereto.
"BORROWING DATE": any Business Day or Working Day, as applicable, specified
in a notice pursuant to subsection 2.2 or 2.3 as a date on which the Borrower
requests the Banks to make Loans.
"BUSINESS DAY": a day other than a Saturday, Sunday or other day on which
commercial banks in New York City or San Francisco are authorized or required by
law to close.
"CAPITALIZATION RATIO": at a particular date, the ratio of (a) Indebtedness
of the Borrower and its Included Subsidiaries at such date to (b) the sum of (i)
Indebtedness of the Borrower and its Included Subsidiaries at such date and (ii)
the Consolidated Net Worth at such date.
"CAPITAL STOCK": any and all shares, interests, participations or other
equivalents (however designated) of capital stock of a corporation, any and all
equivalent ownership interests in a Person (other than a corporation) and any
and all warrants or options to purchase any of the foregoing.
"C/D ASSESSMENT RATE": for any day as applied to any C/D Rate Loan, the
annual assessment rate in effect on such day which is payable by a member of the
Bank Insurance Fund maintained by the Federal Deposit Insurance Corporation
("FDIC") classified as well-capitalized and within supervisory subgroup "B" (or
a comparable successor assessment risk classification) within the meaning of 12
C.F.R. ss. 327.3(d) (or any successor provision) to the FDIC (or such
successor's) insuring time deposits at offices of such institution in the United
States.
"C/D RATE LOANS": Loans the rate of interest applicable to which is based
upon the Base C/D Rate.
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"C/D RESERVE PERCENTAGE": for any day as applied to any C/D Rate Loan, that
percentage which is in effect on such day, as prescribed by the Board of
Governors of the Federal Reserve System (or any successor)(the "Board"), for
determining the maximum reserve requirement for a Depository Institution (as
defined in Regulation D of the Board) in respect of new non-personal time
deposits in Dollars having a maturity comparable to the Interest Period for such
C/D Rate Loan.
"CHANGE IN CONTROL": any purchase or other acquisition of more than 50% of
the shares of the common stock of the Borrower by any Person or "group" of
related Persons, within the meaning of Section 13(d)(3) under the Securities and
Exchange Act of 1934, as amended, other than Charles B. Johnson and members of
his family and Affiliates thereof.
"CLOSING DATE": the date on which each of the conditions set forth in
subsection 4.1 shall have been satisfied.
"CODE": the Internal Revenue Code of 1986, as amended from time to time.
"COMMITMENT": as to any Bank, the obligation of such Bank to make Revolving
Credit Loans to the Borrower hereunder in an aggregate principal amount at any
one time outstanding not to exceed the amount set forth opposite such Bank's
name on Schedule I, as such amount may be reduced pursuant to the terms hereof.
The initial aggregate amount of the Banks' Commitments is $210,000,000.
"COMMITMENT PERCENTAGE": as to any Bank at any time, the percentage of the
aggregate Commitments then constituted by such Bank's Commitment.
"COMMITMENT PERIOD": the period from and including the Closing Date to but
excluding the Termination Date or such earlier date as the Commitments shall
terminate as provided herein.
"COMMONLY CONTROLLED ENTITY": an entity, whether or not incorporated, which
is under common control with the Borrower within the meaning of Section 4001 of
ERISA or is part of a group which includes the Borrower and which is treated as
a single employer under Section 414 of the Code.
"CONSOLIDATED CURRENT ASSETS": at a particular date, all cash and
marketable securities owned by the Borrower and its Included Subsidiaries and
all liquid investments of such Person in the Funds as at such date.
"CONSOLIDATED CURRENT LIABILITIES": at a particular date, all amounts which
would, in conformity with GAAP, be included under current liabilities on a
consolidated balance sheet of the Borrower and its Included Subsidiaries as at
such date, excluding, however, the current maturities under the Five Year
Facility.
"CONSOLIDATED INTEREST EXPENSE": for any period, the aggregate interest
expense of the Borrower and its Included Subsidiaries for such period, as
determined in accordance with GAAP, including, without limitation, (a) all
commissions, discounts and other fees and charges owed with respect to letters
of credit allocable to or amortized over such period, (b) net costs
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under Interest Rate Agreements allocable to or amortized over such period and
(c) the portion of any amount payable under Financing Leases that is, in
accordance with GAAP, allocable to interest expense.
"CONSOLIDATED NET INCOME": for any period, the consolidated net income (or
deficit) of the Borrower and its Included Subsidiaries for such period (taken as
a cumulative whole), determined in accordance with GAAP, excluding, however:
(a) any gains or losses from the sale or other disposition of assets
(including any such sale or other disposition of marketable securities,
liquid investments or other financial instruments but excluding any such
sale of obsolete or worn-out assets in the ordinary course of business
consistent with past practice) and any other non-cash extraordinary or
non-recurring gains or losses; and
(b) the equity interest of the Borrower and its Included Subsidiaries
in the net income (or deficit) of any Joint Venture except to the extent of
the actual receipt or payment by the Borrower and its Subsidiaries thereof
or therefor.
"CONSOLIDATED NET WORTH": at a particular date, all amounts which would be
included, under stockholders' equity, on a consolidated balance sheet of the
Borrower and its Included Subsidiaries determined on a consolidated basis in
accordance with GAAP as at such date.
"CONSOLIDATED WORKING CAPITAL": at a particular date, the excess, if any,
of Consolidated Current Assets over Consolidated Current Liabilities at such
date.
"CONTINUING BANK": as defined in the recitals hereto.
"CONTRACTUAL OBLIGATION": as to any Person, any provision of any security
issued by such Person or of any agreement, instrument or other undertaking to
which such Person is a party or by which it or any of its property is bound.
"DEFAULT": any of the events specified in Section 7, whether or not any
requirement for the giving of notice, the lapse of time, or both, or any other
condition, has been satisfied.
"DESIGNATED PROPERTY": All right, title and interest of the Borrower or any
Affiliate in the real property and related improvements consisting of
approximately 32 acres in Phase I of the Bay Meadows development located in the
general vicinity of Franklin Parkway and Saratoga Avenue in San Mateo,
California, which includes without limitation Borrower's corporate campus and
other developed or undeveloped, contiguous or non-contiguous property located
thereon.
"DOLLARS" and "$": dollars in lawful currency of the United States of
America.
"EFFECTIVE DATE": shall be June 3, 2004.
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"ENVIRONMENTAL LAWS": any and all foreign, Federal, state, local or
municipal laws, rules, orders, regulations, statutes, ordinances, codes,
decrees, requirements of any Governmental Authority or requirements of law
(including common law) regulating, relating to or imposing liability or
standards of conduct concerning protection of human health or the environment,
as now or may at any time hereafter be in effect.
"ERISA": the Employee Retirement Income Security Act of 1974, as amended
from time to time.
"EVENT OF DEFAULT": any of the events specified in Section 7, PROVIDED that
any requirement for the giving of notice, the lapse of time, or both, or any
other condition, has been satisfied.
"EXCLUDED TAXES": with respect to the Administrative Agent, any Bank or any
other recipient of any payment to be made by or on account of any obligation of
the Borrower hereunder, (a) income or franchise taxes imposed on (or measured
by) its net income, net worth or capital (including taxes based on capital
gains, minimum taxes and alternative minimum taxes) by the United States of
America or any political subdivision thereof, or by the jurisdiction under the
laws of which such recipient is organized or in which its principal office is
located or, in the case of any Bank, in which its applicable Lending Office is
located and, (b) any branch profits taxes imposed by the United States of
America or any similar tax imposed by any other jurisdiction in which the
Borrower is located and (c) in the case of a Foreign Bank (including for
purposes of this definition a Participant claiming the benefits of subsection
2.16 pursuant to subsection 9.6(c)(ii) that would be a Foreign Bank if it were a
Bank), any withholding tax that is imposed on amounts payable to such Foreign
Bank at the time such Foreign Bank becomes a party to this Agreement (or
designates a new lending office other than at the request of the Borrower) or is
attributable to such Foreign Bank's failure to comply with subsection 2.16(e),
except to the extent that such Foreign Bank (or its assignor, if any) was
entitled, at the time of designation of a new lending office (or assignment), to
receive additional amounts from the Borrower with respect to such withholding
tax pursuant to subsection 2.16(a).
"EXISTING BANKS": as defined in the recitals hereto.
"EXISTING CREDIT AGREEMENT": as defined in the recitals hereto.
"EXITING BANKS": as defined in the recitals hereto.
"FEDERAL FUNDS EFFECTIVE RATE": as defined in the definition of "ALTERNATE
BASE RATE" contained in this subsection 1.1.
"FINANCE SUBSIDIARY": Franklin Capital Corporation.
"FINANCING LEASE": any lease of property, real or personal, the obligations
of the lessee in respect of which are required in accordance with GAAP to be
capitalized on a balance sheet of the lessee.
"FIVE YEAR FACILITY": the Amended and Restated Five Year Facility Credit
Agreement, dated as of June 5, 2002, among the Borrower, the several banks and
other financial
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institutions from time to time parties thereto and JPMCB, as administrative
agent, as the same may be amended, supplemented or otherwise modified from time
to time.
"FOREIGN BANK": any Bank that is organized under the laws of a jurisdiction
other than that in which the Borrower is located. For purposes of this
definition, the United States of America, each State thereof and the District of
Columbia shall be deemed to constitute a single jurisdiction.
"FTC": Franklin Templeton Companies, LLC, a Delaware limited liability
company (formerly known as Franklin Templeton Corporate Services, Inc., a
Delaware Corporation).
"FUNDS": the collective reference to all investment companies advised by
the Borrower or any of its Subsidiaries.
"GAAP": generally accepted accounting principles in the United States of
America in effect from time to time. If, at any time, GAAP changes in a manner
which will materially affect the calculations determining compliance by the
Borrower with any of its covenants in subsection 6.1, either the Borrower or the
Majority Banks may request an amendment to such covenant (or the definitions
related thereto) and the Majority Banks or the Borrower, as the case may be,
shall negotiate in good faith with the requesting party to agree upon such
amendment to adjust such covenant to give to each of the parties hereto
substantially the same protection and benefits as were contemplated prior to
such changes.
"GOVERNMENTAL AUTHORITY": 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.
"GRID BID LOAN NOTE": as defined in subsection 2.4(e).
"GUARANTEE OBLIGATION": as to any Person (the "GUARANTEEING PERSON"), any
obligation of (a) the guaranteeing person or (b) another Person (including,
without limitation, any bank under any letter of credit) to induce the creation
of which the guaranteeing person has issued a reimbursement, counterindemnity or
similar obligation, in either case guaranteeing or in effect guaranteeing any
Indebtedness, leases, dividends or other obligations (the "PRIMARY OBLIGATIONS")
of any other third Person (the "PRIMARY obligor") in any manner, whether
directly or indirectly, including, without limitation, any obligation of the
guaranteeing person, whether or not contingent, (i) to purchase any such primary
obligation or any property constituting direct or indirect security therefor,
(ii) to advance or supply funds for the purchase or payment of any such primary
obligation or to maintain working capital or equity capital of the primary
obligor or otherwise to maintain the net worth or solvency of the primary
obligor, (iii) 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 (iv) otherwise
to assure or hold harmless the owner of any such primary obligation against loss
in respect thereof; PROVIDED, HOWEVER, that the term Guarantee Obligation shall
not include endorsements of instruments for deposit or collection in the
ordinary course of business. The amount of any Guarantee Obligation of any
guaranteeing person shall be deemed to be the lower
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of (a) an amount equal to the stated or determinable amount of the primary
obligation in respect of which such Guarantee Obligation is made and (b) the
maximum amount for which such guaranteeing person may be liable pursuant to the
terms of the instrument embodying such Guarantee Obligation, unless such primary
obligation and the maximum amount for which such guaranteeing person may be
liable are not stated or determinable, in which case the amount of such
Guarantee Obligation shall be such guaranteeing person's maximum reasonably
anticipated liability in respect thereof as determined by the Borrower in good
faith.
"INCLUDED SUBSIDIARY": any Subsidiary of the Borrower other than any
Banking Subsidiary, Finance Subsidiary, Insurance Subsidiary or Real Estate
Subsidiary.
"INDEBTEDNESS": of any Person at any date, without duplication, (a) all
indebtedness of such Person for borrowed money or for the deferred purchase
price of property or services (other than current trade liabilities incurred in
the ordinary course of business and payable in accordance with customary
practices) or which is evidenced by a note, bond, debenture or similar
instrument, (b) all obligations of such Person under Financing Leases, (c) all
obligations of such Person in respect of acceptances issued or created for the
account of such Person, (d) all liabilities secured by any Lien on any property
owned by such Person even though such Person has not assumed or otherwise become
liable for the payment thereof, (e) all obligations of such Person, whether
absolute or contingent, in respect of letters of credit opened for the account
of such Person (other than any such letters of credit opened for the purpose of
facilitating the purchase of goods and services in the ordinary course of
business and having a term of not more than 360 days) and (f) all Guarantee
Obligations of such Person in respect of any indebtedness, obligations or
liabilities of any other Person of the type referred to in clauses (a) through
(e) of this definition.
"INDEMNIFIED TAXES": Taxes other than Excluded Taxes.
"INDIVIDUAL BID LOAN NOTE": as defined in subsection 2.4(e).
"INSOLVENCY": with respect to any Multiemployer Plan, the condition that
such Plan is insolvent within the meaning of Section 4245 of ERISA.
"INSOLVENT": pertaining to a condition of Insolvency.
"INSURANCE SUBSIDIARY": at any time, ILA Financial Services, Inc., or any
other Subsidiary of the Borrower licensed to engage, and principally engaged, at
such time in the insurance business or any Subsidiary of such Subsidiary.
"INTEREST PAYMENT DATE": (a) as to any Alternate Base Rate Loan, the last
day of each March, June, September and December, (b) as to any LIBOR Loan or
LIBOR Bid Loan having an Interest Period of three months or less or any Absolute
Rate Bid Loan having an interest period of 90 days or less, the last day of such
Interest Period, and (c) as to any LIBOR Loan or Bid Loan having an Interest
Period longer than three months (in the case of LIBOR Loans and LIBOR Bid Loans)
or 90 days (otherwise), each day which is three months or 90 days, as the case
may be, or a whole multiple thereof, after the first day of such Interest Period
and the last day of such Interest Period and, in each case, on the day on which
a Loan becomes due and is payable in full and is paid or prepaid in full.
10
"INTEREST PERIOD": (a) with respect to any LIBOR Loans:
(i) initially, the period commencing on the borrowing or conversion
date, as the case may be, with respect to such LIBOR Loans and ending one,
two, three or six months thereafter, as selected by the Borrower in its
notice of borrowing as provided in subsection 2.2 or its notice of
conversion as provided in subsection 2.8(a), as the case may be; and
(ii) thereafter, each period commencing on the last day of the next
preceding Interest Period applicable to such LIBOR Loans and ending one,
two, three or six months thereafter, as selected by the Borrower by
irrevocable notice to the Administrative Agent not less than four Working
Days prior to the last day of the then current Interest Period with respect
to such LIBOR Loans;
(b) with respect to any Bid Loan, the period commencing on the
Borrowing Date in respect of such Bid Loan and ending on the scheduled
maturity date thereof;
PROVIDED that, all of the foregoing provisions relating to Interest Periods
are subject to the following:
(1) if any Interest Period pertaining to a LIBOR Loan or a LIBOR Bid
Loan would otherwise end on a day which is not a Working Day, such Interest
Period shall be extended to the next succeeding Working Day unless the
result of such extension would be to carry such Interest Period into
another calendar month in which event such Interest Period shall end on the
immediately preceding Working Day;
(2) if any Interest Period pertaining to an Absolute Rate Bid Loan
would otherwise end on a day that is not a Business Day such Interest
Period shall be extended to the next succeeding Business Day;
(3) any Interest Period pertaining to a LIBOR Loan or a LIBOR Bid Loan
that begins on the last Working Day of a calendar month (or on a day for
which there is no numerically corresponding day in the calendar month at
the end of such Interest Period) shall end on the last Working Day of a
calendar month;
(4) any Interest Period that would otherwise end after the Termination
Date (or, in the case of Revolving Credit Loans, if applicable, the
Term-Out Maturity Date) shall end on the Termination Date or the Term-Out
Maturity Date, as the case may be; and
(5) the Borrower shall use its best efforts to select Interest Periods
so as not to require a payment or prepayment of any LIBOR Loan during an
Interest Period for such Loan.
"INTEREST RATE AGREEMENT": any interest rate protection agreement, interest
rate future, interest rate option, interest rate swap, interest rate cap or
other interest rate hedge or arrangement under which the Borrower or any of its
Subsidiaries is a party or a beneficiary.
"INVESTMENT COMPANY ACT": as defined in subsection 3.12(a).
11
"JOINT VENTURE": any corporation, partnership or other entity (other than a
Subsidiary of the Borrower) as to which the Borrower, directly or indirectly,
owns 33% or more of the shares of any class of its capital stock or of its other
ownership interests, whether voting or non-voting, and as to which the Borrower
(or any relevant Subsidiary of the Borrower) is not simply a passive investor.
"JPMCB": as defined in the preamble hereto.
"LEASE FINANCING ARRANGEMENT": any indebtedness, obligation, contingent
liability, guaranty, pledge, lien, lease, sublease, ground lease, synthetic
lease, financing, re-financing, sale, sale-leaseback, exchange, disposition,
acquisition or other transaction incurred, granted or entered into by Borrower
or FTC pursuant to (or as a result of the rights or options available to
Borrower or FTC under) (i) the Participation Agreement, dated September 27,
1999, entered into by FTC, First Security Bank, National Association, as owner
trustee under the FRI Trust 1999-1, Bank of America, N.A., as the agent for
certain lenders and holders, and certain banks and other lending institutions,
as the same may be amended, supplemented or extended from time to time, (ii) the
leases and other documents entered into in connection therewith, in each case as
part of the lease financing transaction relating to the Designated Property, as
the same may be amended, supplemented or extended from time to time, or (iii)
any transaction entered into by Borrower, FTC or any affiliate thereof from time
to time to substitute, refinance, replace discharge, reconvey, restructure or
release or enter into any other related transactions with respect to any of the
foregoing with respect to all or a portion of the Designated Property.
"LENDING OFFICE": as defined in subsection 2.1(b).
"LIBOR": with respect to each day during each Interest Period pertaining to
a LIBOR Loan or a LIBOR Bid Loan, the rate per annum equal to the rate that
appears with respect to such Interest Period on Page 3750 of the Dow Jones
Market Service (or on any successor or substitute page of such service, or any
successor to or substitute for such service, providing rate quotations
comparable to those currently provided on such page for such service, as
determined by the Administrative Agent from time to time for purposes of
providing quotations of interest rates applicable to dollar deposits in the
London interbank market) as of 11:00 A.M., London time, two Working Days prior
to the beginning of such Interest Period (or, if such rate is not available on
any such page, the average (rounded upward to the nearest 1/16th of 1%) of the
respective rates notified to the Administrative Agent by each of the Reference
Banks as the rate at which such Reference Bank is offered Dollar deposits at or
about 11:00 A.M. London time, two Working Days prior to the beginning of such
Interest Period in the London interbank eurodollar market for delivery on the
first day of such Interest Period for the number of days comprised therein and
in an amount comparable to the amount of its LIBOR Loan to be outstanding during
such Interest Period or, in the case of a LIBOR Bid Loan, in an amount
approximately equal to such LIBOR Bid Loan).
"LIBOR ADJUSTED RATE": with respect to each day during each Interest Period
pertaining to a LIBOR Loan or LIBOR Bid Loan, a rate per annum determined for
such day in accordance with the following formula (rounded upward to the nearest
1/100th of 1%):
12
___________LIBOR____________
1.00 - LIBOR Reserve Requirements
"LIBOR BID LOAN REQUEST": any Bid Loan Request requesting the Bid Loan
Banks to offer to make Bid Loans at an interest rate equal to the Applicable
Index Rate plus (or minus) a margin.
"LIBOR BID LOANS": Bid Loans made at a rate of interest based on the
Applicable Index Rate.
"LIBOR LOANS": Revolving Credit Loans the rate of interest applicable to
which is based upon LIBOR.
"LIBOR RESERVE REQUIREMENTS": for any day as applied to a LIBOR Loan or
LIBOR Bid Loan, as the case may be, the aggregate (without duplication) of the
maximum rates (expressed as a decimal fraction) of reserve requirements in
effect on such day (including, without limitation, basic, supplemental, marginal
and emergency reserves under any regulations of the Board of Governors of the
Federal Reserve System or other Governmental Authority having jurisdiction with
respect thereto) dealing with reserve requirements prescribed for eurocurrency
funding (currently referred to as "Eurocurrency Liabilities" in Regulation D of
such Board) maintained by a member bank of such System. As at the Signing Date,
there are no such reserve requirements.
"LIEN": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), or preference, priority or
other security agreement or preferential arrangement of any kind or nature
whatsoever (including, without limitation, any conditional sale or other title
retention agreement, any Financing Lease having substantially the same economic
effect as any of the foregoing, and the filing of any financing statement under
the Uniform Commercial Code or comparable law of any jurisdiction in respect of
any of the foregoing).
"LOANS": the collective reference to the Revolving Credit Loans and the Bid
Loans.
"LOAN DOCUMENTS": this Agreement and any Note.
"MAJORITY BANKS": at any time, Banks the Commitment Percentages of which
aggregate more than 50%. If the Commitments are terminated, Majority Banks shall
mean Banks holding more than 50% of the outstanding Loans.
"MATERIAL ADVERSE EFFECT": a material adverse effect on (a) the business,
operations, property or condition (financial or otherwise) of the Borrower and
its Subsidiaries taken as a whole, (b) the ability of the Borrower and its
Subsidiaries to perform the obligations of the Borrower under this Agreement or
the Notes, or (c) the validity or enforceability of this Agreement, any of the
Notes or the rights or remedies of the Administrative Agent or the Banks
hereunder or thereunder.
13
"MULTIEMPLOYER PLAN": a Plan which is a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"NET PROCEEDS": with respect to any Asset Disposition, the net amount equal
to the aggregate amount received in cash (including any cash received by way of
deferred payment pursuant to a note receivable, other non-cash consideration or
otherwise, but only as and when such cash is so received) in connection with
such Asset Disposition MINUS the sum of (a) the reasonable fees, commissions and
other out-of-pocket expenses incurred by the Borrower or any Subsidiary, as
applicable, in connection with such Asset Disposition (other than amounts
payable to Affiliates of the Person making such disposition) and (b) federal,
state and local taxes incurred in connection with such Asset Disposition,
whether payable at such time or thereafter.
"NEW BANK": as defined in the recitals hereto.
"NON-MATERIAL SUBSIDIARY": as to any Person at any time of determination, a
Subsidiary of such Person in which such Person and its other Subsidiaries have
made an aggregate investment of not more than $2,000,000.
"NOTES": the collective reference to the Revolving Credit Notes and the Bid
Loan Notes.
"OBLIGATIONS": the unpaid principal of and interest on (including, without
limitation, interest accruing after the maturity of the Loans and interest
accruing on or after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding, relating to
the Borrower, whether or not a claim for post-filing or post-petition interest
is allowed in such proceeding) the Notes and all other obligations and
liabilities of the Borrower to the Administrative Agent or to the Banks, whether
direct or indirect, absolute or contingent, due or to become due, or now
existing or hereafter incurred, which may arise under, out of, or in connection
with, this Agreement, the Notes, any other Loan Document and any other document
made, delivered or given in connection herewith or therewith, whether on account
of principal, interest, reimbursement obligations, fees, indemnities, costs,
expenses (including, without limitation, all fees and disbursements of counsel,
and the allocated cost of internal counsel, to the Administrative Agent or to
the Banks that are required to be paid by the Borrower pursuant to the terms of
this Agreement) or otherwise.
"OTHER TAXES": any and all present or future stamp or documentary taxes or
any other excise or property taxes, charges or similar levies arising from any
payment made hereunder or from the execution, delivery or enforcement of, or
otherwise with respect to, this Agreement.
"PARTICIPANT": as defined in subsection 9.6(c).
"PBGC": the Pension Benefit Guaranty Corporation established pursuant to
Subtitle A of Title IV of ERISA.
"PERSON": an individual, partnership, corporation, business trust, joint
stock company, trust, unincorporated association, joint venture, Governmental
Authority or other entity of whatever nature.
14
"PLAN": at a particular time, any employee benefit plan which is covered by
ERISA and in respect of which the Borrower or a Commonly Controlled Entity is
(or, if such plan were terminated at such time, would under Section 4069 of
ERISA be deemed to be) an "employer" as defined in Section 3(5) of ERISA.
"PROPERTIES": the collective reference to the real and personal property
owned, leased or operated by the Borrower or any of its Subsidiaries.
"REAL ESTATE SUBSIDIARY": at any time, Franklin Properties, Inc. or any
other Subsidiary of the Borrower principally engaged at such time in the real
estate investment and property management business or any Subsidiary of any such
Subsidiary.
"REFERENCE BANKS": JPMCB, Bank of America, N.A., The Bank of New York,
Citibank, N.A., and BNP Paribas.
"REGISTER": as defined in subsection 9.6(b)(iv).
"REGULATION U": Regulation U of the Board of Governors of the Federal
Reserve System.
"REGULATION X": Regulation X of the Board of Governors of the Federal
Reserve System.
"REORGANIZATION": with respect to any Multiemployer Plan, the condition
that such plan is in reorganization within the meaning of Section 4241 of ERISA.
"REPORTABLE EVENT": any of the events set forth in Section 4043(b) of
ERISA, other than those events as to which the thirty day notice period is
waived under subsections .13, .14, .16, .18, .19 or .20 of PBGC Reg.ss.2615.
"REQUIREMENT OF LAW": as to any Person, the Certificate of Incorporation
and By-Laws or other organizational or governing documents of such Person, and
any law, treaty, rule or regulation or determination of an arbitrator or a court
or other Governmental Authority, in each case applicable to or binding upon such
Person or any of its property or to which such Person or any of its property is
subject.
"RESPONSIBLE OFFICER": the chief executive officer, the president, any
senior vice president or any vice president of the Borrower or, with respect to
financial matters, the chief financial officer, treasurer or controller of the
Borrower.
"REVOLVING CREDIT LOANS": as defined in subsection 2.1(a).
"REVOLVING CREDIT NOTES": as defined in subsection 2.4(e).
"SEC": the Securities and Exchange Commission, any successor thereto and
any analogous Governmental Authority.
"SIGNING DATE": the date hereof.
15
"SINGLE EMPLOYER PLAN": any Plan which is covered by Title IV of ERISA, but
which is not a Multiemployer Plan.
"SUBSIDIARY": as to any Person at any time of determination, a corporation,
partnership or other entity (other than any Fund or any other investment company
or similar investment entity existing under foreign law substantially equivalent
to an investment company) of which shares of stock or other ownership interests
having ordinary voting power (other than stock or such other ownership interests
having such power only by reason of the happening of a contingency) to elect a
majority of the board of directors or other managers of such corporation,
partnership or other entity are at the time owned, or the management of which is
otherwise controlled, directly or indirectly through one or more intermediaries
or Subsidiaries, or both, by such Person. Unless otherwise qualified, all
references to a "Subsidiary" or to "Subsidiaries" in this Agreement shall refer
to a Subsidiary or Subsidiaries of the Borrower.
"TAXES": any and all present or future taxes, levies, imposts, duties,
deductions, charges or withholdings imposed by any Governmental Authority.
"TERM-OUT MATURITY DATE": if so selected by the Borrower pursuant to
subsection 2.4(a), the first anniversary of the Termination Date.
"TERMINATION DATE": the date that is 364 days after the Effective Date.
"TRANCHE": the collective reference to LIBOR Loans the Interest Periods
with respect to all of which begin on the same date and end on the same later
date (whether or not such LIBOR Loans shall originally have been made on the
same day).
"TYPE": as to any Revolving Credit Loan, its nature as an Alternate Base
Rate Loan or a LIBOR Loan.
"WORKING DAY": any Business Day on which dealings in foreign currencies and
exchange between banks may be carried on in London, England.
1.2 OTHER DEFINITIONAL PROVISIONS. (a) Unless otherwise specified therein,
all terms defined in this Agreement shall have the defined meanings when used in
the Notes or any certificate or other document made or delivered pursuant
hereto.
(b) As used herein and in the Notes, and any certificate or other document
made or delivered pursuant hereto, accounting terms relating to the Borrower and
its Subsidiaries not defined in subsection 1.1 and accounting terms partly
defined in subsection 1.1, to the extent not defined, shall have the respective
meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and Section, subsection,
Schedule and Exhibit references are to this Agreement unless otherwise
specified.
(d) The meanings given to terms defined herein shall be equally applicable
to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF LOANS
2.1 REVOLVING CREDIT COMMITMENTS. (a) Subject to the terms and conditions
hereof, each Bank severally agrees to make revolving credit loans (the
"REVOLVING CREDIT LOANS") to the Borrower from time to time during the
Commitment Period in an aggregate principal amount not to exceed the amount of
such Bank's Commitment, PROVIDED that the aggregate principal amount of
Revolving Credit Loans and Bid Loans outstanding at any one time shall not
exceed the aggregate amount of the Commitments at such time. During the
Commitment Period the Borrower may use the Commitments by borrowing, prepaying
the Revolving Credit Loans in whole or in part, and reborrowing, all in
accordance with the terms and conditions hereof.
(b) The Revolving Credit Loans may from time to time be (i) LIBOR Loans,
(ii) Alternate Base Rate Loans or (iii) a combination thereof, as determined by
the Borrower and notified to the Administrative Agent in accordance with
subsections 2.2 and 2.8, PROVIDED that no Revolving Credit Loan shall be made as
a LIBOR Loan after the day that is one month prior to the Termination Date
unless at the time such Revolving Credit Loan is requested, the Borrower has
irrevocably and in writing selected the Term-Out Maturity Date. Each Bank may
make or maintain its Revolving Credit Loans to the Borrower by or through any
branch or other affiliate as determined by it from time to time and notified to
the Administrative Agent (any such branch or affiliate being herein called a
"LENDING OFFICE").
2.2 PROCEDURE FOR REVOLVING CREDIT BORROWING. The Borrower may borrow under
the Commitments during the Commitment Period on any Working Day if the borrowing
is a LIBOR Loan or on any Business Day if the borrowing is an Alternate Base
Rate Loan, PROVIDED that the Borrower shall give the Administrative Agent
irrevocable notice (which notice must be received by the Administrative Agent
(a) prior to 10:00 A.M., New York City time four Working Days prior to the
requested Borrowing Date, if all or any part of the requested Revolving Credit
Loans are to be initially LIBOR Loans or (b) prior to 10:30 A.M., New York City
time, on the requested Borrowing Date, otherwise), specifying (i) the aggregate
amount to be borrowed, (ii) the requested Borrowing Date, (iii) whether the
borrowing is to be of LIBOR Loans, Alternate Base Rate Loans or a combination
thereof and (iv) if the borrowing is to be entirely or partly of LIBOR Loans,
the amounts of such Type of Loan and the lengths of the initial Interest Periods
therefor. Each borrowing under the Commitments shall be in an amount equal to
(x) in the case of Alternate Base Rate Loans, $5,000,000 or a whole multiple of
$1,000,000 in excess thereof (or, if the then Available Commitments are less
than $5,000,000, such lesser amount) and (y) in the case of LIBOR Loans,
$5,000,000 or a whole multiple of $1,000,000 in excess thereof. Upon receipt of
any such notice from the Borrower, the Administrative Agent shall promptly
notify each Bank thereof. Each Bank will make the amount of its pro rata share
of each borrowing available to the Administrative Agent for the account of the
Borrower at the office of the Administrative Agent specified in subsection 9.2
prior to 2:00 P.M., New York City time, on the Borrowing Date requested by the
Borrower in funds immediately available to the Administrative Agent. Such amount
will then be made available to the relevant Borrower by the Administrative Agent
crediting the account of such Borrower on the books of such office with such
amount made available to the Administrative Agent by such Bank for such Borrower
and in like funds as received by the Administrative Agent.
17
2.3 THE BID LOANS. (a) The Borrower may borrow Bid Loans from time to time
on any Business Day (in the case of Bid Loans made pursuant to an Absolute Rate
Bid Loan Request) or on any Working Day (in the case of Bid Loans made pursuant
to a LIBOR Bid Loan Request) during the period from the Closing Date until the
date occurring 7 days prior to the Termination Date in the manner set forth in
this subsection 2.3 and in amounts such that the aggregate amount of Loans
outstanding at any time shall not exceed the aggregate amount of the Commitments
at such time.
(b) (i) The Borrower shall request Bid Loans by delivering a Bid Loan
Request to the Administrative Agent, not later than 12:00 Noon (New York City
time) four Working Days prior to the proposed Borrowing Date (in the case of a
LIBOR Bid Loan Request), and not later than 10:00 A.M. (New York City time) one
Business Day prior to the requested Borrowing Date (in the case of an Absolute
Rate Bid Loan Request). Each Bid Loan Request may solicit bids for Bid Loans in
an aggregate principal amount of $5,000,000 or an integral multiple of
$1,000,000 in excess thereof and for not more than three alternative maturity
dates for such Bid Loans. The maturity date for each Bid Loan shall be not less
than 7 days nor more than 360 days after the Borrowing Date therefor (and in any
event not after the Termination Date). The Administrative Agent shall promptly
notify each Bid Loan Bank by telex or facsimile transmission of the contents of
each Bid Loan Request received by it.
(ii) In the case of a LIBOR Bid Loan Request, upon receipt of notice
from the Administrative Agent of the contents of such Bid Loan Request, any
Bid Loan Bank that elects, in its sole discretion, to do so, shall
irrevocably offer to make one or more Bid Loans at the Applicable Index
Rate plus or minus a margin for each such Bid Loan determined by such Bid
Loan Bank in its sole discretion. Any such irrevocable offer shall be made
by delivering a Bid Loan Offer to the Administrative Agent, before 10:30
A.M. (New York City time) three Working Days before the proposed Borrowing
Date, setting forth the maximum amount of Bid Loans for each maturity date,
and the aggregate maximum amount for all maturity dates, which such Bid
Loan Bank would be willing to make (which amounts may, subject to
subsection 2.3(a), exceed such Bid Loan Bank's Commitment) and the margin
above or below the Applicable Index Rate at which such Bid Loan Bank is
willing to make each such Bid Loan; the Administrative Agent shall advise
the Borrower before 11:15 A.M. (New York City time) three Working Days
before the proposed Borrowing Date, of the contents of each such Bid Loan
Offer received by it. If the Administrative Agent in its capacity as a Bid
Loan Bank shall, in its sole discretion, elect to make any such offer, it
shall advise the Borrower of the contents of its Bid Loan Offer before
10:15 A.M. (New York City time) three Working Days before the proposed
Borrowing Date.
(iii) In the case of an Absolute Rate Bid Loan Request, upon receipt
of notice from the Administrative Agent of the contents of such Bid Loan
Request, any Bid Loan Bank that elects, in its sole discretion, to do so,
shall irrevocably offer to make one or more Bid Loans at a rate or rates of
interest for each such Bid Loan determined by such Bid Loan Bank in its
sole discretion. Any such irrevocable offer shall be made by delivering a
Bid Loan Offer to the Administrative Agent, before 9:30 A.M. (New York City
time) on the proposed Borrowing Date, setting forth the maximum amount of
Bid Loans for each maturity date, and the aggregate maximum amount for all
maturity dates,
18
which such Bid Loan Bank would be willing to make (which amounts may,
subject to subsection 2.3(a), exceed such Bid Loan Bank's Commitment) and
the rate or rates of interest at which such Bid Loan Bank is willing to
make such Bid Loan; the Administrative Agent shall advise the Borrower
before 10:15 A.M. (New York City time) on the proposed Borrowing Date of
the contents of each such Bid Loan Offer received by it. If the
Administrative Agent in its capacity as a Bid Loan Bank shall, in its sole
discretion, elect to make any such offer, it shall advise the Borrower of
the contents of its Bid Loan Offer before 9:15 A.M. (New York City time) on
the proposed Borrowing Date.
(iv) The Borrower shall before 11:30 A.M. (New York City time) three
Working Days before the proposed Borrowing Date (in the case of Bid Loans
requested by a LIBOR Bid Loan Request) and before 10:30 A.M. (New York City
time) on the proposed Borrowing Date (in the case of Bid Loans requested by
an Absolute Rate Bid Loan Request) either, in its absolute discretion:
(A) cancel such Bid Loan Request by giving the Administrative Agent
telephone notice to that effect; or
(B) accept one or more of the offers made by any Bid Loan Bank or Bid
Loan Banks pursuant to clause (ii) or clause (iii) above, as the case may
be, by giving telephone notice to the Administrative Agent (immediately
confirmed by delivery to the Administrative Agent of a Bid Loan
Confirmation) of the amount of Bid Loans for each relevant maturity date to
be made by each Bid Loan Bank (which amount for each such maturity date
shall be equal to or less than the maximum amount for such maturity date
specified in the Bid Loan Offer of such Bid Loan Bank, and for all maturity
dates included in such Bid Loan Offer shall be equal to or less than the
aggregate maximum amount specified in such Bid Loan Offer for all such
maturity dates) and reject any remaining offers made by Bid Loan Banks
pursuant to clause (ii) or clause (iii) above, as the case may be;
PROVIDED, HOWEVER, that (x) the Borrower may not accept offers for Bid
Loans for any maturity date in an aggregate principal amount in excess of
the maximum principal amount requested in the related Bid Loan Request, (y)
if the Borrower accepts any of such offers, it must accept offers strictly
based upon pricing for such relevant maturity date and not any other
criteria whatsoever and (z) if two or more Bid Loan Banks submit offers for
any maturity date at identical pricing and the Borrower accepts any of such
offers but does not wish to borrow the total amount offered by such Bid
Loan Banks with such identical pricing, the Borrower shall accept offers
from all of such Bid Loan Banks in amounts allocated among them PRO RATA as
shall be practicable after giving effect to the requirement that Bid Loans
made by a Bid Loan Bank on a Borrowing Date for each relevant maturity date
shall be in a principal amount of $5,000,000 or a whole multiple of
$1,000,000 in excess thereof).
(v) If the Borrower notifies the Administrative Agent that a Bid Loan
Request is cancelled pursuant to clause (iv) (A) above, the Administrative
Agent shall give prompt telephone notice thereof to the Bid Loan Banks, and
the Bid Loans requested thereby shall not be made.
19
(vi) If the Borrower accepts pursuant to clause (iv) (B) above one or
more of the offers made by any Bid Loan Bank or Bid Loan Banks, the
Administrative Agent shall promptly notify each Bid Loan Bank which has
made such an offer, of the aggregate amount of such Bid Loans to be made on
such Borrowing Date for each maturity date and of the acceptance or
rejection of any offers to make such Bid Loans made by such Bid Loan Bank.
Each Bid Loan Bank which is to make a Bid Loan shall, before 12:00 Noon
(New York City time) on the Borrowing Date specified in the Bid Loan
Request applicable thereto, make available to the Administrative Agent at
its office set forth in subsection 9.2 the amount of Bid Loans to be made
by such Bid Loan Bank, in immediately available funds. The Administrative
Agent will make such funds available to the Borrower as soon as practicable
on such date at the Administrative Agent's aforesaid address. As soon as
practicable after each Borrowing Date, the Administrative Agent shall
notify each Bank of the aggregate amount of Bid Loans advanced on such
Borrowing Date and the respective maturity dates thereof.
(c) Within the limits and on the conditions set forth in this subsection
2.3, the Borrower may from time to time borrow under this subsection 2.3, repay
pursuant to subsection 2.4, and reborrow under this subsection 2.3. The Borrower
shall not have the right to prepay any principal amount of any Bid Loan.
(d) The Borrower shall pay interest on the unpaid principal amount of each
Bid Loan made to it from the Borrowing Date to the stated maturity date thereof,
at the rate of interest determined pursuant to subsection 2.4 below (calculated
on the basis of a 360-day year for actual days elapsed), payable on each
Interest Payment Date for such Bid Loan. If all or a portion of the principal
amount of any Bid Loan shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise), such overdue principal amount shall,
without limiting any rights of any Bank under this Agreement, bear interest from
the date on which such payment was due at a rate per annum which is 2% above the
rate which would otherwise be applicable pursuant to such Bid Loan until the
scheduled maturity date with respect thereto, and for each day thereafter at a
rate per annum which is 2% above the Alternate Base Rate until paid in full (as
well after as before judgment). Interest accruing pursuant to the immediately
preceding sentence shall be payable on demand.
2.4 REPAYMENT OF LOANS; EVIDENCE OF DEBT. (a) The Borrower hereby
unconditionally promises to pay (i) to the Administrative Agent for the account
of each Bank the then unpaid principal amount of each Revolving Credit Loan on
the Termination Date (or any earlier date on which, subject to the terms and
conditions of this Agreement, such payment shall become due and payable, by
acceleration or otherwise) and (ii) to the Administrative Agent for the account
of each relevant Bid Loan Bank the then unpaid principal amount of each Bid Loan
on the maturity date for such Loan (such maturity date being that specified by
the Borrower for the repayment of such Bid Loan in the related Bid Loan
Request). Notwithstanding clause (i) above, the Borrower may, upon written
notice to the Administrative Agent given at least three Business Days prior to
the Termination Date, extend the date upon which the principal amount of the
Revolving Credit Loans outstanding as of the Termination Date will be due and
payable to the Term-Out Maturity Date; PROVIDED that no Default or Event of
Default shall have occurred and be continuing on the Termination Date and the
representations and warranties set forth in Section 3 shall be true and correct
in all material respects on and as of the Termination Date as if
20
made on and as of such date, except to the extent such representations and
warranties expressly relate to an earlier date. If the Borrower gives notice to
the Administrative Agent in accordance with the preceding sentence, the Borrower
hereby agrees that the outstanding principal balance of each Revolving Credit
Loan outstanding on the Termination Date shall be payable on the Term Out
Maturity Date or such earlier date as may be required hereunder, due to
accelerations or otherwise. It is understood that, whether or not the Term-Out
Maturity Date is selected, (x) the Commitments shall automatically terminate on
the Termination Date and (y) no maturity date for any Bid Loan may be extended
beyond the Termination Date.
(b) Each Bank shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Borrower to such Bank
resulting from each Loan made by such Bank, including the amounts of principal
and interest payable and paid to such Bank from time to time hereunder.
(c) The Administrative Agent shall maintain accounts in which it shall
record (i) the amount of each Loan made hereunder, whether such Loan is a
Revolving Credit Loan or a Bid Loan, the Type thereof and the Interest Period
or, in the case of Bid Loans, the maturity date applicable thereto, (ii) the
amount of any principal or interest due and payable or to become due and payable
from the Borrower to each Bank hereunder and (iii) the amount of any sum
received by the Administrative Agent hereunder for the account of the Banks and
each Bank's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraph (b)
or (c) of this Section shall be PRIMA FACIE evidence of the existence and
amounts of the obligations recorded therein; PROVIDED that the failure of any
Bank or the Administrative Agent to maintain such accounts or any error therein
shall not in any manner affect the obligation of the Borrower to repay the Loans
in accordance with the terms of this Agreement. The Administrative Agent shall
provide such back-up information and supporting documentation that is reasonably
requested by the Borrower from time to time to support entries made in said
accounts.
(e) Any Bank may request that Loans made by it be evidenced by a promissory
note. In such event, the Administrative Agent shall prepare and the Borrower
shall execute and deliver to such Bank, a promissory note payable to the order
of such Bank (or, if requested by such Bank, to such Bank and its registered
assigns) substantially in the form of Exhibit E-1, in the case of Revolving
Loans (a "REVOLVING CREDIT NOTE"), or Exhibit E-2, in the case of any Bid Loans
(a "GRID BID LOAN NOTE"); PROVIDED that any Bid Loan Bank may request that any
individual Bid Loan (or portion thereof) made by it in an amount of at least
$5,000,000 be evidenced by an individual note in the form of Exhibit E-3 (an
"INDIVIDUAL BID LOAN NOTE"). Thereafter, the Loans evidenced by such promissory
note and interest thereon shall at all times (including after assignment
pursuant to subsection 9.6) be represented by one or more promissory notes in
substantially such form payable to the order of the payee named therein (or, if
such promissory note is a registered note, to such payee and its registered
assigns).
2.5 OPTIONAL TERMINATION OR REDUCTION OF COMMITMENTS. The Borrower shall
have the right, upon not less than five Business Days' notice to the
Administrative Agent, to terminate the Commitments or, from time to time, to
reduce the amount of the Commitments,
21
PROVIDED that no such reduction or termination shall be permitted if, after
giving effect thereto, and to any prepayment of the Revolving Credit Loans made
on the effective date therein, the then outstanding principal amount of Loans
(including, without limitation, Bid Loans) would exceed the aggregate amount of
the Commitments as so reduced. Any such reduction shall be in an amount equal to
$5,000,000 or a whole multiple of $1,000,000 in excess thereof and shall reduce
permanently the Commitments then in effect.
2.6 OPTIONAL PREPAYMENTS. Subject to subsection 2.17, the Borrower may, at
any time and from time to time, prepay the Revolving Credit Loans, in whole or
in part, without premium or penalty, upon at least four Business Days'
irrevocable notice from the Borrower to the Administrative Agent, specifying the
date and amount of prepayment and whether the prepayment is of LIBOR Loans,
Alternate Base Rate Loans or a combination thereof, and, if of a combination
thereof, the amount allocable to each. Upon receipt of any such notice from the
Borrower, the Administrative Agent shall promptly notify each Bank thereof. If
any such notice is given, the amount specified in such notice shall be due and
payable by the Borrower on the date specified therein, together with accrued
interest to such date on the amount prepaid. Partial prepayments shall be in an
aggregate principal amount of $1,000,000 or a whole multiple thereof and may
only be made, if after giving effect thereto, subsection 2.9 shall not have been
contravened. The Borrower shall not have the right to prepay the principal
amount of any Bid Loan.
2.7 MANDATORY PREPAYMENTS. (a) Upon receipt by the Borrower or any of its
Subsidiaries of any Net Proceeds with respect to an Asset Disposition, (i) if
such Net Proceeds exceed $10,000,000 or (ii) if such Net Proceeds do not exceed
$10,000,000 but such Net Proceeds, together with all other Net Proceeds from
other, prior Asset Dispositions in the same fiscal year of the Borrower, which,
in each case, have not exceeded $10,000,000, exceed $25,000,000, then on the
first Business Day after the receipt of Net Proceeds from such Asset
Disposition, the Revolving Credit Loans shall be prepaid, without an
accompanying reduction of the Commitments, in an amount equal to 100% of such
Net Proceeds (or, in the case of Net Proceeds described in clause (ii) of this
paragraph (a), if less, the amount by which such Net Proceeds, together with
such other Net Proceeds, exceed $25,000,000). To the extent that the Borrower
makes mandatory prepayments with such Net Proceeds under subsection 2.7(a) of
the Five Year Facility Credit Agreement, no mandatory prepayment shall be due
under this subsection 2.7(a).
(b) In the event of any Change in Control, if the Majority Banks give the
Borrower a notice within 30 days of the announcement of such Change in Control
requiring the Borrower to prepay the Loans in full, then the Borrower shall
prepay the Loans in full on a date determined by the Borrower and notified by
the Borrower pursuant to the procedures of subsection 2.6 which is not more than
90 days after such Change in Control. If the Loans are required to be prepaid in
full pursuant to this subsection 2.7(b), such Loans shall not be permitted to be
reborrowed and the Commitments shall be deemed to be terminated as of the date
of such prepayment.
(c) If, after giving effect to any termination or reduction of any
Commitments pursuant to subsection 2.5 or this subsection 2.7, the outstanding
aggregate principal amount of the Loans exceeds the aggregate amount of such
Commitments then in effect, the Borrower shall
22
pay or prepay such Loans (including, without limitation, the Bid Loans) on the
date of such termination or reduction in an aggregate principal amount at least
equal to such excess, together with interest thereon accrued to the date of such
payment or prepayment. All prepayments made pursuant to this subsection 2.7(c)
shall be applied first to the Revolving Credit Loans until such Loans are paid
in full and second to the Bid Loans.
(d) Each prepayment of the Loans pursuant to this subsection 2.7 shall be
accompanied by payment in full of all accrued interest thereon to and including
the date of such prepayment, together with any additional amounts owing pursuant
to subsection 2.17.
2.8 CONVERSION AND CONTINUATION OPTIONS. (a) The Borrower may elect from
time to time to convert LIBOR Loans to Alternate Base Rate Loans, by giving the
Administrative Agent at least two Business Days' prior irrevocable notice of
such election, provided that any such conversion of LIBOR Loans may only be made
on the last day of an Interest Period with respect thereto. The Borrower may
elect from time to time to convert Alternate Base Rate Loans to LIBOR Loans by
giving the Administrative Agent at least three Working Days' prior irrevocable
notice of such election. Any such notice of conversion to LIBOR Loans shall
specify the length of the initial Interest Period or Interest Periods therefor.
Upon receipt of any such notice the Administrative Agent shall promptly notify
each Bank thereof. All or any part of outstanding LIBOR Loans and Alternate Base
Rate Loans may be converted as provided herein, provided that (i) any such
conversion may only be made if, after giving effect thereto, subsection 2.9
shall not have been contravened and (ii) no Revolving Credit Loan may be
converted into a LIBOR Loan after the date that is one month prior to the
Termination Date (or, if applicable, the Term-Out Maturity Date).
(b) Any LIBOR Loans may be continued as such upon the expiration of the
then current Interest Period with respect thereto by the Borrower giving notice
to the Administrative Agent, in accordance with the applicable provisions of the
term "Interest Period" set forth in subsection 1.1, of the length of the next
Interest Period to be applicable to such LIBOR Loans, PROVIDED that no LIBOR
Loan may be continued as such (i) if, after giving effect thereto, subsection
2.9 would be contravened or (ii) after the date that is one month prior to the
Termination Date (or, if applicable, the Term-Out Maturity Date) and PROVIDED,
further, that if the Borrower shall fail to give any required notice as
described above in this paragraph or if such continuation is not permitted
pursuant to the preceding proviso such Revolving Credit Loans shall be
automatically converted to Alternate Base Rate Loans on the last day of such
then expiring Interest Period.
2.9 MINIMUM AMOUNTS OF TRANCHES. All borrowings, conversions and
continuations of Revolving Credit Loans hereunder and all selections of Interest
Periods hereunder shall be in such amounts and be made pursuant to such
elections so that, after giving effect thereto, the aggregate principal amount
of the Revolving Credit Loans comprising each Tranche shall be equal to
$15,000,000 or a whole multiple of $1,000,000 in excess thereof.
2.10 INTEREST RATES AND PAYMENT DATES. (a) Each LIBOR Loan shall bear
interest for each day during each Interest Period with respect thereto at a rate
per annum equal to the LIBOR Adjusted Rate determined for such day plus the
Applicable Margin.
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(b) Each Alternate Base Rate Loan shall bear interest at a rate per annum
equal to the Alternate Base Rate plus the Applicable Margin.
(c) Each Bid Loan shall bear interest as provided in subsection 2.3.
(d) If all or a portion of the principal amount of any Revolving Credit
Loan or any interest payable on the Loans shall not be paid when due (whether at
the stated maturity, by acceleration or otherwise), such overdue amount shall
bear interest at a rate per annum which is (x) in the case of overdue principal
to the last day of any Interest Period then applicable thereto, the rate that
would otherwise be applicable thereto pursuant to the foregoing provisions of
this subsection plus 2% or (y) otherwise, the rate described in paragraph (b) of
this subsection plus 2%, in each case from the date of such non-payment until
such amount is paid in full (as well after as before judgment).
(e) Interest on each LIBOR Loan and Alternate Base Rate Loan shall be
payable in arrears on each Interest Payment Date, provided in each case that
interest accruing pursuant to paragraph (d) of this subsection shall be payable
on demand.
2.11 COMPUTATION OF INTEREST AND FEES. (a) Interest on Alternate Base Rate
Loans, facility fees and utilization fees shall be calculated on the basis of a
360-day year for the actual days elapsed, PROVIDED that interest on Alternate
Base Rate Loans the rate of interest on which are based on the Prime Rate shall
be calculated on the basis of a 365- (or 366-, as the case may be) day year for
the actual days elapsed. Interest on LIBOR Loans and Bid Loans shall be
calculated on the basis of a 360-day year for the actual days elapsed. The
Administrative Agent shall as soon as practicable notify the Borrower and the
Banks of each determination of a LIBOR Adjusted Rate. Any change in the interest
rate on a Loan resulting from a change in the Alternate Base Rate or the LIBOR
Reserve Requirements shall become effective as of the opening of business on the
day on which such change in the Alternate Base Rate is announced or such change
in the LIBOR Reserve Requirements becomes effective, as the case may be. The
Administrative Agent shall as soon as practicable notify the Borrower and the
Banks of the effective date and the amount of each such change in interest rate.
(b) Each determination of an interest rate by the Administrative Agent
pursuant to any provision of this Agreement shall be conclusive and binding on
the Borrower and the Banks in the absence of manifest error. The Administrative
Agent shall, at the request of the Borrower, deliver to the Borrower a statement
showing the quotations used by the Administrative Agent in determining any
interest rate pursuant to subsection 2.10(a) and the calculations made by the
Administrative Agent in determining any interest rate pursuant to subsection
2.10(b).
(c) If any Reference Bank's Commitment shall terminate or all its Loans
shall be assigned for any reason whatsoever, such Reference Bank shall thereupon
cease to be a Reference Bank, and if, as a result of the foregoing, there shall
only be one Reference Bank remaining, the Administrative Agent (after
consultation with the Borrower and the Banks) shall, by notice to the Borrower
and the Banks, designate another Bank as a Reference Bank so that there shall at
all times be at least two Reference Banks.
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(d) Each Reference Bank shall use its best efforts to furnish quotations of
rates to the Administrative Agent as contemplated hereby. If any of the
Reference Banks shall be unable or shall otherwise fail to supply such rates to
the Administrative Agent upon its request, the rate of interest shall, subject
to the provisions of subsection 2.12, be determined on the basis of the
quotations of the remaining Reference Banks or Reference Bank.
2.12 INABILITY TO DETERMINE INTEREST RATE. In the event that prior to the
first day of any Interest Period:
(a) the Administrative Agent shall have determined (which determination
shall be conclusive and binding upon the Borrower) that, by reason of
circumstances affecting the relevant market, adequate and reasonable means do
not exist for ascertaining the LIBOR Adjusted Rate for such Interest Period, or
(b) the Administrative Agent shall have received notice from the Majority
Banks that the LIBOR Adjusted Rate determined or to be determined for such
Interest Period will not adequately and fairly reflect the cost to such Banks
(as conclusively certified by such Banks) of making or maintaining their
affected Loans during such Interest Period,
the Administrative Agent shall give telex, telecopy or telephonic notice thereof
to the Borrower and the Banks as soon as practicable thereafter. If such notice
is given (x) any LIBOR Loans requested to be made on the first day of such
Interest Period shall be made as Alternate Base Rate Loans, (y) any Revolving
Credit Loans that were to have been converted on the first day of such Interest
Period to LIBOR Loans shall be converted to or continued as Alternate Base Rate
Loans and (z) any outstanding LIBOR Loans shall be converted, on the first day
of such Interest Period, to Alternate Base Rate Loans. Until such notice has
been withdrawn by the Administrative Agent, no further LIBOR Loans shall be made
or continued as such, nor shall the Borrower have the right to convert Alternate
Base Rate Loans to LIBOR Loans.
2.13 PRO RATA TREATMENT AND PAYMENTS. Each borrowing of Revolving Credit
Loans by the Borrower from the Banks hereunder, each payment by the Borrower of
any facility, utilization or other fee hereunder, and any reduction of the
Commitments of the Banks shall be made pro rata according to the respective
Commitment Percentages of the Banks. Each payment (including each prepayment) by
the Borrower on account of principal of and interest on the Revolving Credit
Loans shall be made pro rata according to the respective outstanding principal
amounts of the Revolving Credit Loans then held by the Banks. All payments
(including prepayments) to be made by the Borrower hereunder and under the
Notes, whether on account of principal, interest, fees or otherwise, shall be
made without set off or counterclaim and shall be made prior to 12:00 Noon, New
York City time, on the due date thereof to the Administrative Agent, for the
account of the appropriate Banks, at the Administrative Agent's office specified
in subsection 9.2, in Dollars and in immediately available funds. The
Administrative Agent shall distribute such payments to such Banks promptly upon
receipt in like funds as received. If any payment hereunder (other than payments
on the LIBOR Loans or LIBOR Bid Loans) becomes due and payable on a day other
than a Business Day, such payment shall be extended to the next succeeding
Business Day, and, with respect to payments of principal, interest thereon shall
be payable at the then applicable rate during such extension. If any payment on
a LIBOR Loan or LIBOR Bid Loan becomes due and payable on a day other than a
Working Day, the maturity
25
thereof shall be extended to the next succeeding Working Day unless the result
of such extension would be to extend such payment into another calendar month,
in which event such payment shall be made on the immediately preceding Working
Day.
2.14 ILLEGALITY. Notwithstanding any other provision herein, if any change
in any Requirement of Law or in the interpretation or application thereof shall
make it unlawful for any Bank or Lending Office to make or maintain LIBOR Loans
as contemplated by this Agreement, (a) the commitment of such Bank hereunder to
make LIBOR Loans, continue LIBOR Loans as such and convert Alternate Base Rate
Loans to LIBOR Loans shall forthwith be cancelled and (b) the Loans of such Bank
or Lending Office then outstanding as LIBOR Loans, if any, shall be converted
automatically to Alternate Base Rate Loans on the respective last days of the
then current Interest Periods with respect to such Loans or within such earlier
period as required by law. If any such conversion of a LIBOR Loan occurs on a
day which is not the last day of the then current Interest Period with respect
thereto, the Borrower shall pay to such Bank such amounts, if any, as may be
required pursuant to subsection 2.17.
2.15 REQUIREMENTS OF LAW. (a) In the event that any change in any
Requirement of Law or in the interpretation or application thereof or compliance
by any Bank with any request or directive (whether or not having the force of
law but, if not having the force of law, generally applicable to and complied
with by banks of the same general type as such Bank in the relevant
jurisdiction) from any central bank or other Governmental Authority made
subsequent to the Effective Date:
(i) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances, loans or
other extensions of credit by, or any other acquisition of funds by, any
office of such Bank or Lending Office which is not otherwise included in
the determination of the LIBOR Adjusted Rate hereunder; or
(ii) shall impose on such Bank or Lending Office any other condition;
and the result of any of the foregoing is to increase the cost to such Bank or
Lending Office, by an amount which such Bank deems to be material, of making,
converting into, continuing or maintaining LIBOR Loans or Bid Loans or to reduce
any amount receivable hereunder in respect thereof then, in any such case, the
Borrower shall promptly pay such Bank or Lending Office, upon its demand, any
additional amounts necessary to compensate such Bank for such increased cost or
reduced amount receivable. If any Bank or any Lending Office becomes entitled to
claim any additional amounts pursuant to this subsection, it shall promptly
notify the Borrower, through the Administrative Agent, of the event by reason of
which it has become so entitled. A certificate as to any additional amounts
payable pursuant to this subsection submitted by such Bank or Lending Office,
through the Administrative Agent, to the Borrower shall be PRIMA FACIE evidence
of the accuracy of the information so recorded. This covenant shall survive the
termination of this Agreement and the payment of the Notes and all other amounts
payable hereunder for one year.
(b) If, after the date of this Agreement, the introduction of any
applicable law, rule, regulation or guideline regarding capital adequacy, or any
change therein or any change in
26
the interpretation or administration thereof by any Governmental Authority
charged with the interpretation or administration thereof, affects the amount of
capital required or expected to be maintained by any Bank or any corporation
controlling any Bank, and such Bank or such corporation (taking into
consideration such Bank's or such corporation's policies with respect to capital
adequacy) determines that the amount of capital maintained by such Bank or such
corporation which is attributable to or based upon the Loans, the Commitments or
this Agreement must be increased as a consequence of such introduction or
change, then, upon demand of the Administrative Agent at the request of such
Bank, the Borrower shall immediately pay to the Administrative Agent on behalf
of such Bank, additional amounts sufficient to compensate such Bank or such
corporation for the increased costs to such Bank or corporation of such
increased capital. Any such demand shall be accompanied by a certificate of such
Bank setting forth in reasonable detail the computation of any such increased
costs. This covenant shall survive the termination of this Agreement and the
payment of the Notes and all other amounts payable hereunder for one year.
(c) Each Bank will promptly notify the Borrower, through the Administrative
Agent, of any event of which it has knowledge that will entitle such Bank to
compensation pursuant to subsection 2.15(a) or (b) above. No failure by any Bank
to give (or delay in giving) such notice shall adversely affect such Bank's
rights to such compensation, except that the Borrower shall have no obligation
to compensate any Bank for any cost or reduction incurred or accrued by it more
than one year before such Bank gives notice of the event giving rise to such
cost or reduction as required by the preceding sentence.
2.16 TAXES. (a) Any and all payments by or on account of any obligation of
the Borrower hereunder or under any Note shall be made free and clear of and
without deduction for any Indemnified Taxes or Other Taxes; PROVIDED that if the
Borrower shall be required to deduct any Indemnified Taxes or Other Taxes from
such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this subsection) the Administrative Agent or Bank
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions and (iii) the
Borrower shall pay the full amount deducted to the relevant Governmental
Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent and each Bank,
within 10 days after written demand therefor, for the full amount of any
Indemnified Taxes or Other Taxes paid by the Administrative Agent or such Bank,
on or with respect to any payment by or on account of any obligation of the
Borrower hereunder (including Indemnified Taxes or Other Taxes imposed or
asserted on or attributable to amounts payable under this Section) and any
penalties, interest and reasonable expenses arising therefrom or with respect
thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority. A
certificate as to the amount of such payment or liability delivered to the
Borrower by a Bank, or by the Administrative Agent on its own behalf or on
behalf of a Bank, shall be conclusive absent manifest error.
27
(d) As soon as practicable after any payment of Indemnified Taxes or Other
Taxes by the Borrower to a Governmental Authority, the Borrower shall deliver to
the Administrative Agent the original or a certified copy of a receipt issued by
such Governmental Authority evidencing such payment, a copy of the return
reporting such payment or other evidence of such payment reasonably satisfactory
to the Administrative Agent.
(e) Each Foreign Bank hereby agrees that it shall deliver to the
Administrative Agent and the Borrower:
(i) two copies of Internal Revenue Service Form W-8-BEN or Form
W-8-ECI (or appropriate successor form), properly completed and duly
executed by such Foreign Bank claiming complete exemption from U.S. Federal
withholding tax on payments by the Borrower or the Administrative Agent
under this Agreement and the other Loan Documents;
(ii) any other documentation as may be required under applicable U.S.
tax law and regulations to evidence complete exemption from U.S. Federal
withholding tax on all payments by the Borrower or the Administrative Agent
under this Agreement and the Loan Documents.
Such forms and other documentation shall be delivered by each Foreign Bank on or
before the Initial Date (as defined below) and on or before the date, if any,
such Foreign Bank changes its applicable Lending Office by designating a
different Lending Office or selecting an additional office. In addition, each
Foreign Bank shall deliver appropriate replacements to such forms previously
delivered by it promptly upon the obsolescence or invalidity of any form or
other documentation previously delivered by such Foreign Bank unless an event
beyond the control of such Foreign Bank (including, without limitation, any
change in treaty, law or regulation) has occurred prior to the date on which any
such delivery would otherwise be required which renders all such forms
inapplicable or which would prevent such Foreign Bank from duly completing and
delivering any such form with respect to it and such Foreign Bank so advises the
Borrower and the Administrative Agent.
(f) For purposes of subsection (e), the term "Initial Date" shall mean (i)
with respect to each Foreign Bank that is a party hereto on the date hereof, the
date hereof, (ii) with respect to each Participant, the effective date of the
grant of a participation to such Participant, and (ii) with respect to each
transferee, the date of such transfer or assignment of an interest hereunder to
such transferee.
2.17 INDEMNITY. The Borrower agrees to indemnify each Bank and to hold each
Bank harmless from any loss or expense which such Bank may sustain or incur as a
consequence of (a) default by the Borrower in payment when due of the principal
amount of or interest on any LIBOR Loan or Bid Loan, (b) default by the Borrower
in making a borrowing of, conversion into or continuation of Bid Loans or LIBOR
Loans after the Borrower has given a notice requesting the same in accordance
with the provisions of this Agreement (and, in the case of Bid Loans, so long as
the Borrower has accepted a Bid Loan offered in connection with any such
notice), (c) default by the Borrower in making any prepayment after the Borrower
has given a notice thereof in accordance with the provisions of this Agreement
or (d) the making by the
28
Borrower of a prepayment of LIBOR Loans or (without prejudice to the last
sentence of subsection 2.3(c)) Bid Loans on a day which is not the last day of
an Interest Period with respect thereto, including, without limitation, in each
case, any such loss or expense arising from the reemployment of funds obtained
by it or from fees payable to terminate the deposits from which such funds were
obtained. This covenant shall survive the termination of this Agreement and the
payment of the Notes and all other amounts payable hereunder for one year.
2.18 FACILITY AND UTILIZATION FEE. (a) During the Commitment Period (and,
if the Term-Out Maturity Date has been selected, during the period from and
including the Termination Date to but excluding the Term-Out Maturity Date), the
Borrower agrees to pay to the Administrative Agent for the account of each Bank
a facility fee equal to the product of 0.080% per annum and the daily average
amount of the Commitment of such Bank during the quarter (or such other period)
for which such fee is to be paid (without regard to the principal amount of
Loans from time to time made by such Bank) (or, if the Commitments have been
terminated (including, without limitation, during any period after the
Termination Date if the Term-Out Maturity Date is selected), on the daily
average outstanding principal amount of the Loans of such Bank during the
quarter (or such other period) for which such fee is to be paid). Such facility
fee shall be payable quarterly in arrears on the last day of each March, June,
September and December, commencing June 30, 2004, and on the Termination Date
and, if applicable, the Term-Out Maturity Date (or, in any case, any earlier
date on which all amounts outstanding hereunder shall become due and payable by
acceleration or otherwise).
(b) During the Commitment Period (and, if the Term-Out Maturity Date has
been selected, during the period from and including the Termination Date to but
excluding the Term-Out Maturity Date), the Borrower agrees to pay to the
Administrative Agent for the account of each Bank a utilization fee computed at
the rate of 0.125% per annum on the aggregate average amount of the Revolving
Credit Loans under this Agreement and the Five Year Facility outstanding during
the quarter for which such fee is to be paid; PROVIDED, that no such fee shall
be required to be paid with respect to any quarter in which the aggregate
average amount of the Revolving Credit Loans and Bid Loans then outstanding
under this Agreement and the Five Year Facility ("TOTAL USAGE") does not exceed
50% of the aggregate Commitments of the Banks under this Agreement and the Five
Year Facility (the "UTILIZATION THRESHOLD"); PROVIDED, FURTHER, that if the
Borrower shall have selected the Term-Out Maturity Date, Total Usage shall be
deemed to exceed the Utilization Threshold during any period after the
Termination Date when Loans are outstanding under this Agreement. Such
utilization fee, to the extent payable, shall be payable quarterly in arrears on
the last day of each March, June, September and December, commencing on June 30,
2004 and on the Termination Date, and, if applicable, the Term-Out Maturity Date
(or, in any case, any earlier date on which all amounts outstanding hereunder
shall become due and payable by acceleration or otherwise).
Sample computations of the facility fee and the utilization fee are given
in Schedule II hereto.
2.19 MITIGATION OF COSTS(a) . If any Bank, by changing its Lending Office
or taking any other reasonable action, so long as making such change or taking
such other action is not, in the reasonable judgment of such Bank,
disadvantageous to it in any financial, regulatory
29
or other respect, can mitigate any adverse effect on the Borrower under
subsections 2.14, 2.15 or 2.16, such Bank shall take such action.
2.20 NEW BANKS; EXITING BANKS. (a) As of the Closing Date, the New Banks
shall become Banks parties to this Agreement, and the terms "Bank" and "Banks"
as used in this Agreement shall be deemed to include each New Bank. Each New
Bank (i) hereby appoints and authorizes the Administrative Agent to take such
action as agent on its behalf and to exercise such powers under this Agreement
and the other Loan Documents as provided by the terms thereof and in accordance
with Section 8 hereof and (ii) agrees that as of the Closing Date it will
perform in accordance with their terms all of the obligations which by the terms
of this Agreement and the other Loan Documents are required to be performed by
it as a Bank. As of the Closing Date, each New Bank shall have all the rights of
a Bank under this Agreement.
(b) As of the Closing Date, the Commitments of each of the Exiting Banks
shall be terminated, and the Exiting Banks shall no longer be parties to this
Agreement, PROVIDED that any indemnities or other agreements under this
Agreement or any other Loan Document which by their terms survive repayment of
amounts payable thereunder shall survive repayment pursuant hereto with respect
to the Exiting Banks.
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Banks to enter into this Agreement, and to make the Loans the
Borrower hereby represents and warrants to the Administrative Agent and each
Bank that:
3.1 FINANCIAL CONDITION. (a) The consolidated balance sheets of the
Borrower and its consolidated Subsidiaries as at September 30, 2002, and
September 30, 2003, and the related consolidated statements of income and of
cash flows for the fiscal year ended on such date, reported on by
PricewaterhouseCoopers LLP, copies of which have heretofore been furnished to
each Bank, present fairly the consolidated financial condition of the Borrower
and its consolidated Subsidiaries as at such dates, and the consolidated results
of their operations and their consolidated cash flows for the fiscal year then
ended. The unaudited consolidated balance sheet of the Borrower and its
consolidated Subsidiaries as at March 31, 2004 and the related unaudited
consolidated statements of income and of cash flows for the six-month period
ended on such date, certified to the best of their knowledge by a Responsible
Officer of the Borrower, copies of which have heretofore been furnished to each
Bank, present fairly the consolidated financial condition of the Borrower and
its consolidated Subsidiaries as at such date, and the consolidated results of
their operations and their consolidated cash flows for the six-month period then
ended (subject to normal year-end audit adjustments). All such financial
statements, including the related schedules and notes thereto, have been
prepared in accordance with GAAP applied consistently throughout the periods
involved (except as approved by such accountants or Responsible Officer, as the
case may be, and as disclosed therein). Neither the Borrower nor any of its
consolidated Subsidiaries had, at the date of the most recent balance sheet
referred to above, any material Guarantee Obligation, contingent liability or
liability for taxes, or any long-term lease or unusual forward or long-term
commitment, including, without limitation, any interest rate or foreign currency
swap or exchange transaction, which is not reflected in the foregoing statements
or in the notes thereto and which is material in relation to the consolidated
financial condition of the Borrower and its consolidated Subsidiaries at such
date. During the
30
period from March 31, 2004 to and including the Closing Date there has been no
sale, transfer or other disposition by the Borrower or any of its consolidated
Subsidiaries of any material part of its business or property and no purchase or
other acquisition of any business or property (including any capital stock of
any other Person) material in relation to the consolidated financial condition
of the Borrower and its consolidated Subsidiaries at March 31, 2004.
3.2 NO CHANGE. Since March 31, 2004 there has been no Material Adverse
Effect.
3.3 CORPORATE EXISTENCE; COMPLIANCE WITH LAW. Each of the Borrower and its
Subsidiaries (a) is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization, (b) has the corporate power
and authority, and the legal right, to own and operate its property, to lease
the property it operates as lessee and to conduct the business in which it is
currently engaged and in which it proposes to be engaged after the Closing Date,
(c) is duly qualified as a foreign corporation and in good standing under the
laws of each jurisdiction where its ownership, lease or operation of property or
the conduct of its business requires such qualification and (d) is in compliance
with all Requirements of Law except to the extent that the failure to comply
therewith could not, in the aggregate, reasonably be expected to have a Material
Adverse Effect.
3.4 CORPORATE POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS. The Borrower
has the corporate power and authority, and the legal right, to make, deliver and
perform the Loan Documents and to borrow hereunder and has taken all necessary
corporate action to authorize (i) the borrowings on the terms and conditions of
this Agreement and the Notes and (ii) the execution, delivery and performance of
the Loan Documents. Except as set forth on Schedule III hereto, no consent or
authorization of, filing with or other act by or in respect of, any Governmental
Authority or any other Person is required in connection with the borrowings
hereunder or with the execution, delivery, performance, validity or
enforceability of this Agreement or the Notes. This Agreement has been and each
of the Notes will be duly executed and delivered. This Agreement constitutes,
and each of the Notes when executed and delivered will constitute, a legal,
valid and binding obligation of the Borrower enforceable against the Borrower in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general equitable principles
(whether enforcement is sought by proceedings in equity or at law).
3.5 NO LEGAL BAR. The execution, delivery and performance of this Agreement
and the Notes, the borrowings hereunder and the use of the proceeds thereof will
not (a) violate, to the knowledge of the Borrower, any Requirement of Law or
Contractual Obligation of the Borrower, any of its Subsidiaries or any of the
Funds, or (b) violate any Requirement of Law or Contractual Obligation of the
Borrower, any of its Subsidiaries or any of the Funds which could reasonably be
expected to have a Material Adverse Effect and will not result in, or require,
the creation or imposition of any Lien on any of its or their respective
properties or revenues pursuant to any such Requirement of Law or Contractual
Obligation.
3.6 NO MATERIAL LITIGATION. No litigation, investigation or proceeding of
or before any arbitrator or Governmental Authority is pending or, to the
knowledge of the
31
Borrower, threatened by or against the Borrower or any of its Subsidiaries or
against any of its or their respective properties or revenues or by or against
any "affiliated person" of the Borrower or any of its Subsidiaries, within the
meaning of the Investment Company Act, (a) with respect to this Agreement or the
Notes or any of the transactions contemplated hereby or thereby, or (b) which
could reasonably be expected to have a Material Adverse Effect.
3.7 OWNERSHIP OF PROPERTY; LIENS. Each of the Borrower and its Subsidiaries
has good record and marketable title in fee simple to, or a valid leasehold
interest in, all its real property, and good title to all its other property
which is material to its business, and none of such property, and none of the
investment advisory agreements to which the Borrower or any of its Subsidiaries
is a party or any of the revenues thereunder, is subject to any Lien except as
permitted by subsection 6.3.
3.8 INTELLECTUAL PROPERTY. The Borrower and each of its Subsidiaries owns,
or is licensed to use, all trademarks, tradenames, copyrights, technology,
know-how and processes necessary for the conduct of its business as currently
conducted except for those the failure to own or license which could not
reasonably be expected to have a Material Adverse Effect (the "INTELLECTUAL
PROPERTY"). To the knowledge of the Borrower, no claim which could reasonably be
expected to have a Material Adverse Effect has been asserted and is pending by
any Person challenging or questioning the use of any such Intellectual Property
or the validity or effectiveness of any such Intellectual Property, nor does the
Borrower know of any valid basis for any such claim. To the knowledge of the
Borrower, the use of such Intellectual Property by the Borrower and its
Subsidiaries does not infringe on the rights of any Person, except for such
claims and infringements that, in the aggregate, could not reasonably be
expected to have a Material Adverse Effect.
3.9 TAXES. Each of the Borrower and its Subsidiaries has filed or caused to
be filed all material tax returns which, to the knowledge of the Borrower, are
required to be filed and has paid all taxes shown to be due and payable on said
returns or on any assessments made against it or any of its property and all
other taxes, fees or other charges imposed on it or any of its property by any
Governmental Authority (other than any the amount or validity of which are
currently being contested in good faith by appropriate proceedings and with
respect to which reserves in conformity with GAAP have been provided on the
books of the Borrower or its Subsidiaries, as the case may be); to the knowledge
of Borrower, no tax Lien has been filed, and no claim is being asserted with
respect to any such tax, fee or other charge which could reasonably be expected
to have a Material Adverse Effect.
3.10 FEDERAL REGULATIONS. No part of the proceeds of any Loans are intended
to be or will be used for "purchasing" or "carrying" any "margin stock" within
the respective meanings of each of the quoted terms under Regulations U and X,
or for any purpose which violates the provisions of the Regulations of the Board
of Governors of the Federal Reserve System. If requested by any Bank or the
Administrative Agent, the Borrower will furnish to the Administrative Agent and
each Bank a statement to the foregoing effect in conformity with the
requirements of FR Form U-1 referred to in said Regulation U.
3.11 ERISA. No Reportable Event has occurred during the five-year period
prior to the date on which this representation is made or deemed made with
respect to any Plan,
32
and each Plan has complied in all material respects with the applicable
provisions of ERISA and the Code. The present value of all accrued benefits
under each Single Employer Plan maintained by the Borrower or any Commonly
Controlled Entity (based on those assumptions used to fund the Plans) did not,
as of the last annual valuation date prior to the date on which this
representation is made or deemed made, exceed the value of the assets of such
Plan allocable to such accrued benefits. There are no Multiemployer Plans.
Neither the Borrower nor any Commonly Controlled Entity has had a complete or
partial withdrawal from any Multiemployer Plan. The present value (determined
using actuarial and other assumptions which are reasonable in respect of the
benefits provided and the employees participating) of the liability of the
Borrower and each Commonly Controlled Entity for post retirement benefits to be
provided to their current and former employees under Plans which are welfare
benefit plans (as defined in Section 3(1) of ERISA) does not, in the aggregate,
exceed the assets under all such Plans allocable to such benefits by an amount
in excess of $0.
3.12 INVESTMENT COMPANY ACT; OTHER REGULATIONS. (a) The Borrower is not an
"investment company", or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended (the
"INVESTMENT COMPANY ACT").
(b) Each of the Subsidiaries of the Borrower listed on Schedule IV hereto
is duly registered as an investment adviser under the Investment Advisers Act of
1940 (the "ADVISERS ACT"). None of the other Subsidiaries of the Borrower or the
Borrower is an "investment adviser" within the meaning of the Advisers Act and
the rules and regulations promulgated thereunder. Each entity for which any
Subsidiary of the Borrower acts as an investment adviser and which is required
to be registered as an "investment company" under the Investment Company Act is
duly registered as such thereunder.
(c) Except for the Subsidiaries of the Borrower listed on Schedule V
hereto, neither the Borrower nor any of its Subsidiaries is required to be duly
registered as a broker-dealer under the Securities and Exchange Act of 1934, as
amended, and such Subsidiaries so listed are duly registered as such.
(d) Each of the Borrower and its Subsidiaries is duly registered, licensed
or qualified as an investment adviser or broker-dealer in each State of the
United States where the conduct of its business requires such registration,
licensing or qualification and is in compliance in all material respects with
all Federal and State laws requiring such registration, licensing or
qualification, except to the extent where the failure to be so registered,
licensed or qualified or to be in such compliance will not have a Material
Adverse Effect.
3.13 INVESTMENT ADVISORY AGREEMENTS. Each of the investment advisory
agreements, distribution agreements and shareholder servicing contracts to which
the Borrower or any of its Subsidiaries is a party is a legal, valid and binding
obligation of the parties thereto enforceable against such parties in accordance
with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general equitable principles
(whether enforcement is sought by proceedings in equity or at law); and neither
the Borrower nor any of its Subsidiaries is in breach or violation of or in
default under any such agreement or
33
contract in any material respect which would individually or in the aggregate
have a Material Adverse Effect.
3.14 SUBSIDIARIES. The Subsidiaries listed on Schedule VI hereto constitute
all the Subsidiaries of the Borrower at the Closing Date, other than any
Subsidiary having a net worth of less than $5,000,000; PROVIDED, that the
aggregate net worth of all Subsidiaries not listed on Schedule VI may not exceed
$25,000,000.
3.15 PURPOSE OF LOANS. The proceeds of the Revolving Credit Loans and the
Bid Loans, if any, shall be used for general corporate purposes, including
commercial paper backup.
3.16 ENVIRONMENTAL MATTERS. To the best knowledge of the Borrower:
(a) The Properties and all operations at the Properties are in compliance
in all material respects with all applicable Environmental Laws, and there is no
contamination at, under or about the Properties, or violation of any
Environmental Law with respect to the Properties or the business conducted at
the Properties which could materially interfere with the continued operation of
the Properties.
(b) Neither the Borrower nor any of its Subsidiaries has received any
notice of violation, alleged violation, non-compliance, liability or potential
liability regarding environmental matters or compliance with Environmental Laws
with regard to any of the Properties or the business conducted at the
Properties, nor does the Borrower have knowledge or reason to believe that any
such notice will be received or is being threatened except insofar as such
notice or threatened notice, or any aggregation thereof, does not involve a
matter or matters that is or are reasonably likely to cause a Material Adverse
Effect.
(c) No judicial proceedings or governmental or administrative action is
pending, or, to the knowledge of the Borrower, threatened, under any
Environmental Law to which the Borrower or any of its Subsidiaries is or will be
named as a party with respect to the Properties or the business conducted at the
Properties, nor are there any consent decrees or other decrees, consent orders,
administrative orders or other orders, or other administrative or judicial
requirements outstanding under any Environmental Law with respect to the
Properties or such business except insofar as such proceeding, action, decree,
order or other requirement, or any aggregation thereof, is not reasonably likely
to cause a Material Adverse Effect.
3.17 ACCURACY AND COMPLETENESS OF INFORMATION. To the best of the
Borrower's knowledge, the documents furnished and the statements made in writing
to the Banks by the Borrower in connection with the negotiation, preparation or
execution of this Agreement taken as a whole do not contain any untrue statement
of fact material to the credit worthiness of the Borrower or omit to state any
such material fact necessary in order to make the statements contained therein
not misleading, in either case which has not been corrected, supplemented or
remedied by subsequent documents furnished or statements made in writing to the
Banks prior to the date hereof.
34
SECTION 4. CONDITIONS PRECEDENT
4.1 CONDITIONS TO EXECUTION. The parties acknowledge that the execution,
delivery and effectiveness of this Agreement is subject to the satisfaction of
the following conditions precedent:
(a) CREDIT AGREEMENT. The Administrative Agent shall have received this
Agreement, executed and delivered by a Responsible Officer of the Borrower with
a counterpart for each Bank, and such officer shall be covered by an incumbency
certificate which has been executed and delivered to the Administrative Agent.
(b) INCUMBENCY CERTIFICATES. The Administrative Agent shall have received
an Incumbency Certificate of the Borrower as of the Closing Date, dated the
Closing Date, executed by one of its Responsible Officers and its Secretary or
Assistant Secretary.
(c) CORPORATE PROCEEDINGS. The Administrative Agent shall have received a
copy of the resolutions of the Board of Directors of the Borrower as of the
Closing Date authorizing (i) the execution, delivery and performance of this
Agreement and (ii) the borrowings contemplated hereunder, certified by the
Secretary or an Assistant Secretary as of the Closing Date, which certificate
states that the resolutions thereby certified have not been amended, modified,
revoked or rescinded.
(d) CORPORATE DOCUMENTS. The Administrative Agent shall have received
copies of the certificate of incorporation and by-laws of the Borrower as of the
Closing Date, certified as of the Closing Date as complete and correct copies
thereof by the Secretary or an Assistant Secretary of the Borrower.
(e) FEES. The Banks, the Administrative Agent and J.P. Morgan Securities
Inc. shall have received all fees required to be paid, and all expenses for
which invoices have been presented.
(f) LEGAL OPINIONS. The Administrative Agent shall have received the
executed legal opinions of (i) Morrison & Foerster, counsel to the Borrower and
(ii) Murray L. Simpson, General Counsel to the Borrower, and each such legal
opinion shall be satisfactory in form and substance to the Administrative Agent
and its counsel.
(g) NO DEFAULT. No Default or Event of Default shall have occurred and be
continuing as of the Closing Date.
(h) REPRESENTATIONS AND WARRANTIES. All representations and warranties
contained in Section 3 shall be true and correct in all material respects on the
Closing Date as if made on the Closing Date.
(i) EXISTING CREDIT AGREEMENT. The Administrative Agent shall have received
evidence reasonably satisfactory to it that all amounts outstanding, if any,
under the Existing Credit Agreement have been repaid in full as of the Closing
Date.
35
(j) REVOLVING CREDIT NOTES. The Administrative Agent shall have received,
for the account of each Bank that has requested a Revolving Credit Note pursuant
to subsection 2.4(e), a Revolving Credit Note conforming to the requirements of
this Agreement, and executed by a duly authorized officer of the Borrower.
4.2 CONDITIONS TO EACH LOAN. The agreement of each Bank to make any Loan
requested to be made by it on any date is subject to the satisfaction of the
following conditions precedent:
(a) REPRESENTATIONS AND WARRANTIES. Each of the representations and
warranties made by the Borrower in or pursuant to the Loan Documents (or, in the
case of any Loan requested to be made hereunder the proceeds of which are solely
to be used to repay any then outstanding Loans, solely the representation
contained in subsection 3.2), shall be true and correct in all material respects
on and as of such date as if made on and as of such date, except to the extent
such representations and warranties expressly relate to an earlier date in which
case, such representations and warranties shall be true and correct in all
material respects as of such earlier date.
(b) NO DEFAULT. No Default or Event of Default shall have occurred and be
continuing on such date or after giving effect to the Loans requested to be made
on such date.
(c) BID LOAN CONFIRMATION. With respect to any Bid Loan, a Bid Loan
Confirmation shall have been delivered in accordance with subsection 2.3(b)(iv).
Each borrowing by the Borrower hereunder shall constitute a representation
and warranty by the Borrower as of the date of such Loan that the conditions
contained in this subsection 4.2 have been satisfied.
SECTION 5. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that from and after the Closing Date, so long as
the Commitments remain in effect, any Loan remains outstanding or any other
amount is owing to any Bank or the Administrative Agent hereunder:
5.1 FINANCIAL STATEMENTS. The Borrower shall furnish to the Administrative
Agent (for distribution to each Bank):
(a) as soon as available, but in any event within 90 days after the end of
each fiscal year of the Borrower, a copy of the consolidated balance sheet of
the Borrower and its consolidated Subsidiaries as at the end of such year and
the related consolidated statements of income and retained earnings and of cash
flows for such year, setting forth in each case in comparative form the figures
for the previous year, reported on without a "going concern" or like
qualification or exception, or qualification arising out of the scope of the
audit, by PricewaterhouseCoopers LLP or other independent certified public
accountants of nationally recognized standing; and
(b) as soon as available, but in any event within 10 days after delivery of
the financial statements described in paragraph (a) above, the corresponding
consolidating balance
36
sheet as at the end of such year and the related consolidating statements of
income and retained earnings and of cash flows for such year, all showing
separately the principal lines of business conducted by separate Subsidiaries or
groups of Subsidiaries to the extent requested by the Administrative Agent,
certified by a Responsible Officer of the Borrower as being fairly stated in all
material respects when considered in relation to the consolidated financial
statements of the Borrower and its consolidated Subsidiaries, taken as a whole;
(c) as soon as available, but in any event not later than 45 days after the
end of each of the first three quarterly periods of each fiscal year of the
Borrower, the unaudited consolidated balance sheet of the Borrower and its
consolidated Subsidiaries as at the end of such quarter and the related
unaudited consolidated statements of income and retained earnings and of cash
flows of the Borrower and its consolidated Subsidiaries for such quarter and the
portion of the fiscal year through the end of such quarter, setting forth in
each case in comparative form the figures for the previous year, certified by a
Responsible Officer as being fairly stated in all material respects when
considered in relation to the consolidated financial statements of the Borrower
and its consolidated Subsidiaries (subject to normal year-end audit
adjustments); and
(d) as soon as available, but in any event within 10 days after delivery of
the financial statements described in paragraph (c) above, the corresponding
consolidating balance sheet as at the end of such quarter and the related
consolidating statements of income and retained earnings and of cash flows for
the portion of the fiscal year through such date, all showing separately the
entities described in paragraph (b) above, certified by a Responsible Officer of
the Borrower as being fairly stated in all material respects when considered in
relation to the consolidated financial statements of the Borrower for such
quarter taken as a whole;
all such financial statements to be complete and correct in all material
respects and to be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or officer, as the case may be,
and disclosed therein).
Any delivery required to be made pursuant to subsections 5.1(a), (b), (c)
or (d) shall be deemed to have been made on the date on which the Borrower posts
such delivery on the Internet at the website of the Borrower or when such
delivery is posted on the SEC's website on the Internet at www.sec.gov; PROVIDED
that the Borrower shall have given notice of any such posting to the Banks,
which notice shall include a link to the applicable website to which such
posting was made; PROVIDED, FURTHER, that the Borrower shall deliver paper
copies of any delivery referred to in subsections 5.1(a), (b), (c) or (d) to any
Bank that requests the Borrower to deliver such paper copies until notice to
cease delivering such paper copies is given by such Bank.
5.2 CERTIFICATES; OTHER INFORMATION. The Borrower shall furnish to the
Administrative Agent (for distribution to each Bank):
(a) concurrently with the delivery of the financial statements referred to
in subsections 5.1(a) and 5.1(c), a certificate of a Responsible Officer of the
Borrower (i) stating that, to the best of such officer's knowledge, the Borrower
during such period has observed or performed all of its covenants and other
agreements, and satisfied every condition, contained in
37
this Agreement to be observed, performed or satisfied by it, and that such
officer has obtained no knowledge of any Default or Event of Default except as
specified in such certificate and (ii) with respect to the covenants contained
in subsection 6.1, setting forth such calculations as are necessary to
demonstrate compliance with such covenants;
(b) within five days after the same are sent, copies of all financial
statements and reports which the Borrower sends to its stockholders, and within
five days after the same are filed, copies of all financial statements and
reports which the Borrower may make to, or file with, the SEC or any successor
or analogous Governmental Authority; and
(c) promptly, such additional financial and other information as any Bank
may from time to time reasonably request.
5.3 PAYMENT OF OBLIGATIONS. The Borrower shall, and shall cause each of its
Subsidiaries to, pay, discharge or otherwise satisfy at or before maturity or
before they become delinquent, as the case may be, all its obligations of
whatever nature, except where the amount or validity thereof is currently being
contested in good faith by appropriate proceedings and reserves in conformity
with GAAP with respect thereto have been provided on the books of the Borrower
or its Subsidiaries, as the case may be.
5.4 CONDUCT OF BUSINESS AND MAINTENANCE OF EXISTENCE. The Borrower shall,
and shall cause each of its Subsidiaries to, continue to engage in business of
the same general type as now conducted by the Borrower and its Subsidiaries and
preserve, renew and keep in full force and effect its corporate existence and
take all reasonable action to maintain all rights, registrations, licenses,
privileges and franchises necessary or desirable in the normal conduct of its
business (including, without limitation, all such registrations under the
Advisers Act and all material investment advisory agreements, distribution
agreements and shareholder servicing contracts), except as otherwise permitted
pursuant to subsection 6.5; comply, and to the extent reasonably within its
control cause each Fund to comply, with all Contractual Obligations and
Requirements of Law except to the extent that failure to comply therewith could
not, in the aggregate, have a Material Adverse Effect.
5.5 MAINTENANCE OF PROPERTY; INSURANCE. The Borrower shall, and shall cause
each of its Subsidiaries to, keep all property useful and necessary in its
business in good working order and condition; maintain with financially sound
and reputable insurance companies insurance on all its property in at least such
amounts and against at least such risks as are usually insured against in the
same general area by companies engaged in the same or a similar business; and
furnish to the Administrative Agent, upon written request, full information as
to the insurance carried.
5.6 INSPECTION OF PROPERTY; BOOKS AND RECORDS; DISCUSSIONS. The Borrower
shall, and shall cause each of its Subsidiaries to, keep proper books of records
and account in which full, true and correct entries in conformity with GAAP or
with respect to foreign Subsidiaries in conformity with appropriate local
accounting practices, and all Requirements of Law shall be made of all dealings
and transactions in relation to its business and activities; and permit
representatives of any Bank to visit and inspect any of its properties and
examine and make abstracts from any of its books and records at any reasonable
time and as often as may
38
reasonably be desired and to discuss the business, operations, properties and
financial and other condition of the Borrower and its Subsidiaries with officers
and employees of the Borrower and its Subsidiaries and with its independent
certified public accountants.
5.7 NOTICES. The Borrower shall promptly give notice to the Administrative
Agent, which shall promptly give notice to each Bank, of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual Obligation of
the Borrower or any of its Subsidiaries, which default or event of default could
reasonably be expected to have a Material Adverse Effect, or (ii) litigation,
investigation or proceeding which may exist at any time between the Borrower or
any of its Subsidiaries and any Governmental Authority or any Fund, which in
either case, if not cured or if adversely determined, as the case may be, would
have a Material Adverse Effect;
(c) any litigation or proceeding affecting the Borrower or any of its
Subsidiaries or any "affiliated person" of the Borrower or any of its
Subsidiaries, within the meaning of the Investment Company Act, in which the
amount involved is $10,000,000 or more and not covered by insurance or in which
injunctive or similar relief is sought or which could reasonably be expected to
have a Material Adverse Effect;
(d) the following events, as soon as possible and in any event within 30
days after the Borrower knows or has reason to know thereof: (i) the occurrence
or expected occurrence of any Reportable Event with respect to any Plan, or any
withdrawal from, or the termination, Reorganization or Insolvency of any
Multiemployer Plan or (ii) the institution of proceedings or the taking of any
other action by the PBGC or the Borrower or any Commonly Controlled Entity or
any Multiemployer Plan with respect to the withdrawal from, or the terminating,
Reorganization or Insolvency of, any Plan;
(e) any suspension or termination of the registration of any Subsidiary of
the Borrower as an investment adviser under the Advisers Act or any cancellation
or expiration without renewal of any investment advisory agreement, distribution
agreement or shareholder servicing contract to which the Borrower or any of its
Subsidiaries is a party the revenues under which have exceeded in the most
recent fiscal year of the Borrower $25,000,000; and
(f) a development or event which could reasonably be expected to have a
Material Adverse Effect.
Each notice pursuant to this subsection shall be accompanied by a statement of a
Responsible Officer of the Borrower setting forth details of the occurrence
referred to therein and stating what action the Borrower proposes to take with
respect thereto.
5.8 ENVIRONMENTAL LAWS. The Borrower shall, and shall cause each of its
Subsidiaries to:
(a) Comply with, and ensure compliance by all tenants and subtenants, if
any, with, all applicable Environmental Laws and obtain and comply in all
material respects with and
39
maintain, and ensure that all tenants and subtenants obtain and comply with and
maintain, any and all licenses, approvals, notifications, registrations or
permits required by applicable Environmental Laws except to the extent that
failure to do so could not be reasonably expected to have a Material Adverse
Effect;
(b) Conduct and complete all investigations, studies, sampling and testing,
and all remedial, removal and other actions required under Environmental Laws
and promptly comply in all material respects with all lawful orders and
directives of all Governmental Authorities regarding Environmental Laws except
to the extent that the same are being contested in good faith by appropriate
proceedings and the pendency of such proceedings could not be reasonably
expected to have a Material Adverse Effect; and
(c) Defend, indemnify and hold harmless the Administrative Agent and the
Banks, and their respective employees, agents, officers and directors, from and
against any claims, demands, penalties, fines, liabilities, settlements,
damages, costs and expenses of whatever kind or nature known or unknown,
contingent or otherwise, arising out of, or in any way relating to the violation
of, noncompliance with or liability under any Environmental Laws applicable to
the operations of the Borrower or the Properties, or any orders, requirements or
demands of Governmental Authorities related thereto, including, without
limitation, attorney's and consultant's fees, investigation and laboratory fees,
response costs, court costs and litigation expenses, except to the extent that
any of the foregoing arise out of the gross negligence or willful misconduct of
the party seeking indemnification therefor. This indemnity shall continue in
full force and effect regardless of the termination of this Agreement.
SECTION 6. NEGATIVE COVENANTS
The Borrower hereby agrees that from and after the Closing Date, so long as
the Commitments remain in effect, any Loan remains outstanding or any other
amount is owing to any Bank or the Administrative Agent hereunder:
6.1 FINANCIAL CONDITION COVENANTS. The Borrower shall not:
(a) INTEREST COVERAGE. Permit for any period of four consecutive fiscal
quarters of the Borrower commencing on or after the Closing Date (or for any of
the periods of one, two and three consecutive fiscal quarters of the Borrower
commencing on or immediately after the Closing Date) the ratio of (i) the sum of
Consolidated Net Income for such period plus income taxes deducted in
determining such Consolidated Net Income plus Consolidated Interest Expense for
such period to (ii) Consolidated Interest Expense for such period to be less
than 4.0 to 1.
(b) MAINTENANCE OF CONSOLIDATED WORKING CAPITAL. Permit Consolidated
Working Capital on any date on or after the Closing Date to be less than
$100,000,000.
(c) MAXIMUM CAPITALIZATION RATIO. Permit the Capitalization Ratio at any
time to be greater than 55%.
40
6.2 LIMITATION ON INDEBTEDNESS. The Borrower shall not create, incur,
assume or suffer to exist any secured Indebtedness, and shall not permit any of
its Included Subsidiaries to create, incur, assume or suffer to exist any
Indebtedness, except for:
(a) Indebtedness of the Borrower or any of its Subsidiaries in an aggregate
principal amount not exceeding as to the Borrower and its Included Subsidiaries
$50,000,000 at any time outstanding;
(b) Indebtedness outstanding on the Closing Date and listed on Schedule VII
or reflected in the financial statements referred to in subsection 3.1;
(c) Indebtedness of a corporation which becomes a Subsidiary after the date
hereof, PROVIDED that (i) such Indebtedness existed at the time such corporation
became a Subsidiary and was not created in anticipation thereof and (ii)
immediately after giving effect to the acquisition of such corporation by the
Borrower or any existing Subsidiary no Default or Event of Default shall have
occurred and be continuing;
(d) unsecured Indebtedness of any Subsidiary owing to the Borrower or any
other Subsidiary or secured Indebtedness of any Subsidiary owing to the
Borrower;
(e) Indebtedness created by this Agreement and by the Five Year Facility;
and
(f) Indebtedness consisting of the obligations of the Borrower and FTC
under any Lease Financing Arrangement.
6.3 LIMITATION ON LIENS. The Borrower shall not, and shall not permit any
of its Included Subsidiaries to, create, incur, assume or suffer to exist any
Lien upon any of its property, assets or revenues, whether now owned or
hereafter acquired, except for:
(a) Liens for taxes not yet due or which are being contested in good faith
by appropriate proceedings, PROVIDED that adequate reserves with respect thereto
are maintained on the books of the Borrower or its Subsidiaries, as the case may
be, in conformity with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's or
other like Liens arising in the ordinary course of business which are not
overdue for a period of more than 60 days or which are being contested in good
faith by appropriate proceedings;
(c) pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation and deposits
securing liability to insurance carriers under insurance or self-insurance
arrangements;
(d) deposits to secure the performance of bids, trade contracts (other than
for borrowed money), leases, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature incurred in the
ordinary course of business;
(e) easements, rights-of-way, restrictions and other similar encumbrances
incurred in the ordinary course of business which, in the aggregate, are not
substantial in amount and which do not in any case materially detract from the
value of the property subject thereto or
41
materially interfere with the ordinary conduct of the business of the Borrower
or such Subsidiary;
(f) Liens in existence on the Closing Date listed on Schedule VIII or
described in the financial statements referred to in subsection 3.1 or in any
notes thereto, securing Indebtedness permitted by subsection 6.2(b), PROVIDED
that no such Lien is spread to cover any additional property after the Closing
Date and that the amount of Indebtedness secured thereby is not increased;
(g) Liens securing Indebtedness of the Borrower and its Subsidiaries
permitted by subsection 6.2(a) incurred to finance the acquisition of fixed or
capital assets, PROVIDED that (i) such Liens shall be created substantially
simultaneously with the acquisition of such fixed or capital assets, (ii) such
Liens do not at any time encumber any property other than the property financed
by such Indebtedness, (iii) the amount of Indebtedness secured thereby is not
increased and (iv) the principal amount of Indebtedness secured by any such Lien
shall at no time exceed the purchase price of such property;
(h) Liens on the property or assets of a corporation which becomes a
Subsidiary after the date hereof securing Indebtedness permitted by subsection
6.2(c), PROVIDED that (i) such Liens existed at the time such corporation became
a Subsidiary and were not created in anticipation thereof, (ii) any such Lien is
not spread to cover any property or assets of such corporation after the time
such corporation becomes a Subsidiary, and (iii) the amount of Indebtedness
secured thereby is not increased;
(i) Liens (not otherwise permitted hereunder) which secure obligations in
an aggregate amount at any one time outstanding not exceeding as to the Borrower
and its Included Subsidiaries an amount equal to 5% of the Consolidated Net
Worth, measured at the time of the creation, incurrence or assumption of any
such Lien and based upon the Consolidated Net Worth as at the end of the most
recently completed fiscal quarter of the Borrower for which financial statements
have been furnished to the Administrative Agent pursuant to subsection 5.1;
(j) Liens on "margin stock" within the meaning of Regulation U to the
extent that margin stock would, but for this paragraph (j), represent more than
25% of the value of the assets subject to this subsection 6.3;
(k) Liens on cash or cash equivalents to secure obligations of the Borrower
and its Subsidiaries in respect of any interest rate and currency hedging
agreements entered into in the ordinary course of business and not for
speculative purposes, and Liens with respect to hedging accounts maintained with
dealers of NYMEX or similar contracts which require the maintenance of cash
margin account balances; and
(l) Liens provided for or required to be granted by the Borrower or FTC
under any Lease Financing Arrangement, which Liens shall not limit or apply
against the right of the Borrower and its Included Subsidiaries to create,
incur, assume or permit to exist Liens that comply with the provisions of
paragraphs (a) through (k) of this subsection 6.3.
6.4 LIMITATIONS ON FUNDAMENTAL CHANGES. The Borrower shall not, and shall
not permit any of its Subsidiaries to, enter into any merger, consolidation or
amalgamation, or
42
liquidate, wind up or dissolve itself (or suffer any liquidation or
dissolution), or convey, sell, lease, assign, transfer or otherwise dispose of,
all or substantially all of its property, business or assets, except, so long as
no Default or Event of Default has occurred and is continuing or would result
therefrom:
(a) that the Borrower may enter into any merger, consolidation or
amalgamation for the purpose of effecting any corporate or tax reorganization of
the Borrower and the Subsidiaries or for the purpose of effecting any investment
permitted under subsection 6.6, PROVIDED that such merger, consolidation or
amalgamation is not with any Banking Subsidiary, Insurance Subsidiary or Real
Estate Subsidiary (or with any other Person which is principally engaged in the
banking or trust, insurance or real estate business), that the ownership of the
Borrower (or its successor) is not materially different after such transaction
from what it was prior thereto, that the Borrower (or its successor) remains the
holding company for the Subsidiaries of the Borrower prior thereto, and that, if
the Borrower is not the successor corporation in such transaction, such
successor corporation is a corporation organized and validly existing under the
laws of the United States or any state thereof and, by operation of law or
otherwise, assumes the obligations of the Borrower hereunder and such
organization and assumption are evidenced by an opinion of counsel to such
successor satisfactory in form and substance to the Administrative Agent; and
(b) that any Subsidiary of the Borrower may enter into any such transaction
for the purpose of effecting any corporate or tax reorganization of the Borrower
and its Subsidiaries or for the purpose of effecting any sale or other
disposition of any of its property, business or assets permitted under
subsection 6.5 or any investment permitted under subsection 6.6, PROVIDED that
such merger, consolidation or amalgamation is not with any Banking Subsidiary,
Insurance Subsidiary or Real Estate Subsidiary (or with any other Person which
is principally engaged in the banking or trust, insurance or real estate
business), unless such Subsidiary is also a Banking Subsidiary, Insurance
Subsidiary or Real Estate Subsidiary, as the case may be.
6.5 LIMITATION ON SALE OF ASSETS. The Borrower shall not, and shall not
permit any of its Included Subsidiaries to, make any Asset Disposition, unless
the Revolving Credit Loans are reduced to the extent required pursuant to
subsection 2.7 and the Borrower makes the mandatory prepayment, if any, required
in connection therewith pursuant to subsection 2.7.
6.6 LIMITATION ON INVESTMENTS, LOANS AND ADVANCES. The Borrower shall not,
and shall not permit any of its Included Subsidiaries to, make any advance,
loan, extension of credit or capital contribution to, or purchase any stock,
bonds, notes, debentures or other securities of or any assets constituting a
business unit of, or make any other investment in (any of the foregoing, an
"INVESTMENT"), any Person, except for:
(a) investments in marketable securities, liquid investments and other
financial instruments that are acquired for investment purposes and that have a
value which may be readily established, including any such investment that may
be readily sold or otherwise liquidated in any Fund or in any investment company
managed by any Joint Venture pursuant to an investment advisory agreement;
43
(b) any investment in any Included Subsidiary of the Borrower or in any
other Person principally engaged in the business of providing investment
advisory services and related (including distribution and shareholder servicing)
services, PROVIDED that, after giving effect to any such investment in any such
other Person, such other Person is a Subsidiary or a Joint Venture;
(c) any investment in any Banking Subsidiary or in any other Person which,
after giving effect to any such investment, is a Banking Subsidiary;
(d) extensions of trade credit in the ordinary course of business;
(e) loans to officers of the Borrower or any of its Subsidiaries consistent
with past practices of the Borrower and its Subsidiaries, and advances to
employees of the Borrower or its Subsidiaries for travel, entertainment and
relocation expenses in the ordinary course of business;
(f) investments in the Finance Subsidiary;
(g) investments constituting non-cash consideration received in connection
with an Asset Disposition, PROVIDED that such non-cash consideration shall not
exceed 25% of the aggregate consideration received for such Asset Disposition;
and PROVIDED FURTHER that the aggregate amount of any such non-cash
consideration with respect to Asset Dispositions shall not exceed $10,000,000 at
any one time outstanding; and
(h) other investments in an aggregate amount as to the Borrower and its
Subsidiaries (other than the Banking Subsidiaries and the Finance Subsidiary)
not exceeding $125,000,000 for the period since the Closing Date.
6.7 TRANSACTIONS WITH AFFILIATES. The Borrower shall not, and shall not
permit any of its Subsidiaries to, enter into any transaction, including,
without limitation, any purchase, sale, lease or exchange of property or the
rendering of any service, with any Affiliate or any Subsidiary less than 80%
owned, directly or indirectly, by the Borrower, unless such transaction is
otherwise permitted under this Agreement, is in the ordinary course of the
Borrower's or such Subsidiary's business and is upon fair and reasonable terms
no less favorable to the Borrower or such Subsidiary, as the case may be, than
it would obtain in a comparable arm's length transaction with a Person not an
Affiliate.
6.8 FISCAL YEAR. The Borrower shall not permit the fiscal year of the
Borrower to end on a day other than September 30, except with the consent of the
Majority Banks (which consent shall not be unreasonably withheld and which
consent may be conditioned upon adjusting the covenants in a manner to give each
of the parties hereto substantially the same protection and benefits as were in
effect prior to any such change in the fiscal year of the Borrower).
6.9 RESTRICTIONS AFFECTING SUBSIDIARIES. The Borrower shall not, and shall
not permit any of its Included Subsidiaries to, enter into, or suffer to exist,
any agreement with any Person other than the Banks which prohibits or limits the
ability of any Included Subsidiary to (a) pay dividends or make other
distributions or pay any Indebtedness owed to the Borrower or
44
any other Included Subsidiary, (b) make loans or advances to the Borrower or any
other Included Subsidiary or (c) transfer any of its properties or assets to the
Borrower or any other Included Subsidiary. Notwithstanding the foregoing, the
provisions of this subsection shall not apply to the obligations of the Borrower
and FTC under any Lease Financing Arrangement.
SECTION 7. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Loan when due in
accordance with the terms hereof; or the Borrower shall fail to pay any interest
on any Loan, or any other amount payable hereunder, within five days after any
such interest or other amount becomes due in accordance with the terms hereof;
or
(b) Any representation or warranty made or deemed made by the Borrower
herein or in any other Loan Document or which is contained in any certificate,
document or financial or other statement furnished at any time under or in
connection with this Agreement shall prove to have been incorrect in any
material respect on or as of the date made or deemed made; or
(c) The Borrower shall default in the observance or performance of any
agreement contained in subsection 6.1 or 6.4; or
(d) The Borrower shall default in the observance or performance of any
other agreement contained in this Agreement or the Notes (other than as provided
in paragraphs (a) through (c) of this Section), and such default shall continue
unremedied for a period of 30 days or, if longer, a period ending 15 days after
the giving of notice of such default by the Administrative Agent to the Borrower
(or, in the case of any such default in the observance or performance of
subsection 5.7(a), for a period of 30 days after a Responsible Officer has
knowledge of a Default or Event of Default as to which notice is required by
said subsection); or
(e) The Borrower or any of its Subsidiaries shall (i) default in any
payment of principal of or interest, regardless of the amount, due in respect of
any Indebtedness other than amounts due hereunder, including all of the
Indebtedness issued under the same indenture or other agreement, of $75,000,000
or greater or in the payment of any Guarantee Obligation with respect to an
amount of $75,000,000 or greater, beyond the period of grace, if any, provided
in the instrument or agreement under which such Indebtedness or Guarantee
Obligation was created; or (ii) default in the observance or performance of any
other agreement or condition relating to any such Indebtedness or Guarantee
Obligation or contained in any instrument or agreement evidencing, securing or
relating thereto, or any other event shall occur or condition exist, the effect
of which default or other event or condition is to cause, or to permit the
holder or holders of such Indebtedness or beneficiary or beneficiaries of such
Guarantee Obligation (or a trustee or agent on behalf of such holder or holders
or beneficiary or beneficiaries) to cause, with the giving of notice if
required, such Indebtedness to become due prior to its stated maturity or such
Guarantee Obligation to become payable; or
(f) (i) The Borrower or any of its Subsidiaries, except for Non-Material
Subsidiaries, shall commence any case, proceeding or other action (A) under any
existing or
45
future law of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to have an order for
relief entered with respect to it, or seeking to adjudicate it a bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with respect to it or its
debts, or (B) seeking appointment of a receiver, trustee, custodian or other
similar official for it or for all or any substantial part of its assets, or the
Borrower or any of its Subsidiaries, except for Non-Material Subsidiaries, shall
make a general assignment for the benefit of its creditors; or (ii) there shall
be commenced against the Borrower or any of its Subsidiaries, except for
Non-Material Subsidiaries, any case, proceeding or other action of a nature
referred to in clause (i) above which (A) results in the entry of an order for
relief or any such adjudication or appointment or (B) remains undismissed,
undischarged or unbonded for a period of 60 days; or (iii) there shall be
commenced against the Borrower or any of its Subsidiaries, except for
Non-Material Subsidiaries, any case, proceeding or other action seeking issuance
of a warrant of attachment, execution, distraint or similar process against all
or any substantial part of its assets which results in the entry of an order for
any such relief which shall not have been vacated, discharged, or stayed or
bonded pending appeal within 60 days from the entry thereof; or (iv) the
Borrower or any of its Subsidiaries, except for Non-Material Subsidiaries, shall
take any action in furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in clause (i), (ii), or (iii) above;
or (v) the Borrower or any of its Subsidiaries, except for Non-Material
Subsidiaries, shall generally not, or shall be unable to, or shall admit in
writing its inability to, pay its debts as they become due; or
(g) (i) Any Person shall engage in any "prohibited transaction" (as defined
in Section 406 of ERISA or Section 4975 of the Code) involving any Plan, (ii)
any "accumulated funding deficiency" (as defined in Section 302 of ERISA),
whether or not waived, shall exist with respect to any Plan, (iii) a Reportable
Event shall occur with respect to, or proceedings shall commence to have a
trustee appointed, or a trustee shall be appointed, to administer or to
terminate, any Single Employer Plan, which Reportable Event or commencement of
proceedings or appointment of a trustee is, in the reasonable opinion of the
Majority Banks, likely to result in the termination of such Plan for purposes of
Title IV of ERISA, (iv) any Single Employer Plan shall terminate for purposes of
Title IV of ERISA, (v) the Borrower or any Commonly Controlled Entity shall, or
in the reasonable opinion of the Majority Banks is likely to, incur any
liability in connection with a withdrawal from, or the Insolvency or
Reorganization of, a Multiemployer Plan or (vi) any other event or condition
shall occur or exist, with respect to a Plan; and in each case in clauses (i)
through (vi) above, such event or condition, together with all other such events
or conditions, if any, could subject the Borrower or any of its Subsidiaries to
any tax, penalty or other liabilities in the aggregate material in relation to
the business, operations, property or financial or other condition of the
Borrower and its Subsidiaries taken as a whole; or
(h) One or more judgments or decrees shall be entered against the Borrower
or any of its Subsidiaries involving in the aggregate a liability (not paid or
fully covered by insurance) of $75,000,000 or more and all such judgments or
decrees shall not have been vacated, discharged, stayed or bonded pending appeal
within 60 days from the entry thereof;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) above with respect to the Borrower,
automatically the Commitments to the
46
Borrower shall immediately terminate and the Loans made to such Borrower
hereunder (with accrued interest thereon) and all other amounts owing by the
Borrower under this Agreement and the Notes shall immediately and automatically
become due and payable, and (B) if such event is any other Event of Default,
either or both of the following actions may be taken: (i) with the consent of
the Majority Banks, the Administrative Agent may, or upon the request of the
Majority Banks, the Administrative Agent shall, by notice to the Borrower
declare the Commitments of the Borrower to be terminated forthwith, whereupon
such Commitments shall immediately terminate; and (ii) with the consent of the
Majority Banks, the Administrative Agent may, or upon the request of the
Majority Banks, the Administrative Agent shall, by notice of default to the
Borrower, declare the Loans hereunder made (with accrued interest thereon) and
all other amounts owing by the Borrower under this Agreement and the Notes to be
due and payable forthwith, whereupon the same shall immediately become due and
payable. Except as expressly provided above in this Section, presentment,
demand, protest and all other notices of any kind are hereby expressly waived.
SECTION 8. THE AGENTS
8.1 APPOINTMENT. Each Bank hereby irrevocably designates and appoints JPMCB
as Administrative Agent, Bank of America, N.A. and The Bank of New York as
Co-Syndication Agents and Citibank, N.A. and BNP Paribas as Co-Documentation
Agents of such Bank under this Agreement, and each such Bank irrevocably
authorizes JPMCB, as the Administrative Agent, Bank of America, N.A. and The
Bank of New York, as the Co-Syndication Agents and Citibank, N.A. and BNP
Paribas, as Co-Documentation Agents for such Bank, to take such action on its
behalf under the provisions of this Agreement and to exercise such powers and
perform such duties as are expressly delegated to the Administrative Agent, the
Co-Syndication Agents or the Co-Documentation Agents, as the case may be, by the
terms of this Agreement , together with such other powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary elsewhere in
this Agreement, neither the Administrative Agent, the Co-Syndication Agents nor
the Co-Documentation Agents shall have any duties or responsibilities, except
those expressly set forth herein, or any fiduciary relationship with any Bank,
and no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against the Administrative Agent, the Co-Syndication Agents or
the Co-Documentation Agents in such respective capacities.
8.2 DELEGATION OF DUTIES. The Administrative Agent, the Co-Syndication
Agents or the Co-Documentation Agents may execute any of their respective duties
under this Agreement by or through agents or attorneys-in-fact and shall be
entitled to advice of counsel concerning all matters pertaining to such duties.
Neither the Administrative Agent, the Co-Syndication Agents nor the
Co-Documentation Agents shall be responsible for the negligence or misconduct of
any agents or attorneys-in-fact selected by it with reasonable care.
8.3 EXCULPATORY PROVISIONS. Neither the Administrative Agent, the
Co-Syndication Agents, the Co-Documentation Agents nor any of their respective
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 or any other Loan Document
(except for its or such Person's own gross negligence or willful
47
misconduct) or (ii) responsible in any manner to any of the Banks for any
recitals, statements, representations or warranties made by the Borrower or any
officer thereof contained in this Agreement or any other Loan Document or in any
certificate, report, statement or other document referred to or provided for in,
or received by the Administrative Agent, the Co-Syndication Agents or the
Co-Documentation Agents under or in connection with, this Agreement or any other
Loan Document or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or for any failure of the
Borrower to perform its obligations hereunder or thereunder. Neither the
Administrative Agent, the Co-Syndication Agents nor the Co-Documentation Agents
shall be under any obligation to any Bank to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions
of, this Agreement or any other Loan Document, or to inspect the properties,
books or records of the Borrower.
8.4 RELIANCE BY ADMINISTRATIVE AGENT. The Administrative 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, telecopy, telex or teletype message, statement, order or other
document or conversation believed by any of them 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 Borrower), independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent shall be fully justified in
failing or refusing to take any action under this Agreement or any other Loan
Document unless it shall first receive such advice or concurrence of the
Majority Banks as it deems appropriate or it shall first be indemnified to its
satisfaction by the Banks against any and all liability and expense which may be
incurred by it by reason of taking or continuing to take any such action. The
Administrative Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement in accordance with a request of the
Majority Banks, and such request and any action taken or failure to act pursuant
thereto shall be binding upon all the Banks.
8.5 NOTICE OF DEFAULT. The Administrative Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Administrative Agent has received notice from a Bank or the
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 notice thereof to the Banks. The Administrative Agent shall take such
action with respect to such Default or Event of Default as shall be reasonably
directed by the Majority Banks; 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 Banks.
8.6 NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER BANKS. Each Bank
expressly acknowledges that none of the Administrative Agent or any of its
respective officers, directors, employees, agents, attorneys-in-fact or
Affiliates has made any representations or warranties to it and that no act by
the Administrative Agent hereinafter taken, including any review of the affairs
of the Borrower, shall be deemed to constitute any representation or warranty by
the Administrative Agent to any Bank. Each Bank represents to the Administrative
48
Agent that it has, independently and without reliance upon the Administrative
Agent or any other Bank, and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, operations, property, financial and other condition and
creditworthiness of the Borrower and made its own decision to make its Loans
hereunder and enter into this Agreement. Each Bank also represents that it will,
independently and without reliance upon the Administrative Agent or any other
Bank, and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit analysis, appraisals and decisions
in taking or not taking action under this Agreement or its Note(s), and to make
such investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of the
Borrower. Except for notices, reports and other documents expressly required to
be furnished to the Banks by the Administrative Agent hereunder, the
Administrative Agent shall not have any duty or responsibility to provide any
Bank with any credit or other information concerning the business, operations,
property, condition (financial or otherwise), prospects or creditworthiness of
the Borrower which may come into the possession of the Administrative Agent or
any of its respective officers, directors, employees, agents, attorneys-in-fact
or Affiliates.
8.7 INDEMNIFICATION. The Banks agree to indemnify the Administrative Agent
in its respective capacities as such (to the extent not reimbursed by the
Borrower and without limiting the obligation of the Borrower to do so), ratably
according to the respective amounts of their original Commitments, from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs (including, without limitation, the allocated
cost of internal counsel), expenses or disbursements of any kind whatsoever
which may at any time (including, without limitation, at any time following the
repayment of the Loans) be imposed on, incurred by or asserted against the
Administrative Agent in any way relating to or arising out of this Agreement,
the Notes or any documents contemplated by or referred to herein or therein or
the transactions contemplated hereby or thereby or any action taken or omitted
by the Administrative Agent under or in connection with any of the foregoing;
PROVIDED that no Bank shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements to the extent resulting from the Administrative
Agent's gross negligence or willful misconduct. The agreements in this
subsection shall survive the repayment of the Loans and all other amounts
payable hereunder.
8.8 THE ADMINISTRATIVE AGENT, THE CO-SYNDICATION AGENTS AND THE
CO-DOCUMENTATION AGENTS IN THEIR INDIVIDUAL CAPACITIES. The Administrative
Agent, the Co-Syndication Agents, the Co-Documentation Agents and their
respective Affiliates may make loans to, accept deposits from and generally
engage in any kind of business with the Borrower as though the Administrative
Agent, the Co-Syndication Agents and the Co-Documentation Agents were not the
Administrative Agent, the Co-Syndication Agents and the Co-Documentation Agents,
respectively, hereunder. With respect to the Administrative Agent, the
Co-Syndication Agents or the Co-Documentation Agents, such Loans made or renewed
by the Administrative Agent, the Co-Syndication Agents or the Co-Documentation
Agents, the Administrative Agent, the Co-Syndication Agents or the
Co-Documentation Agents, as the case may be, shall have the same rights and
powers under this Agreement as any Bank and may exercise the same as though it
were not the Administrative Agent, the Co-Syndication Agents or the
Co-Documentation Agents, as the case may be, and the terms "Bank" and "Banks"
shall include the Administrative
49
Agent, the Co-Syndication Agents and the Co-Documentation Agents in their
individual capacities.
8.9 SUCCESSOR ADMINISTRATIVE AGENT. The Administrative Agent may resign as
Administrative Agent upon 30 days' notice to the Banks. If the Administrative
Agent shall resign as Administrative Agent under this Agreement, then the
Majority Banks shall appoint from among the Banks a successor administrative
agent for the Banks, which successor administrative agent shall be approved by
the Borrower, whereupon such successor administrative agent shall succeed to the
rights, powers and duties of the Administrative Agent and the term
"Administrative Agent" shall mean such successor administrative agent effective
upon its appointment, and the former Administrative Agent's rights, powers and
duties as 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 any retiring Administrative Agent's resignation
as Administrative Agent, the provisions of this subsection 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.
8.10 CO-SYNDICATION AGENTS AND CO-DOCUMENTATION AGENTS. Without limiting
any provision contained in this Section 8, none of the Banks identified in this
Agreement as the Co-Syndication Agents or the Co-Documentation Agents shall
have, except as and to the limited extent expressly provided herein, any
obligation, responsibility or duty under this Agreement other than those
applicable to all Banks as such. Each Bank acknowledges that it has not relied,
and will not rely, on any of the Banks so identified in deciding to enter into
this Agreement or in taking or not taking action hereunder.
SECTION 9. MISCELLANEOUS
9.1 AMENDMENTS AND WAIVERS. Neither this Agreement, any Note, nor any terms
hereof or thereof may be amended, supplemented or modified except in accordance
with the provisions of this subsection. With the written consent of the Majority
Banks, the Administrative Agent and the Borrower may, from time to time, enter
into written amendments, supplements or modifications hereto and to the Notes
for the purpose of adding any provisions to this Agreement or the Notes or
changing in any manner the rights of the Banks or the Borrower hereunder or
thereunder or waiving, on such terms and conditions as the Administrative Agent
may specify in such instrument, any of the requirements of this Agreement or the
Notes or any Default or Event of Default and its consequences; PROVIDED,
HOWEVER, that no such waiver and no such amendment, supplement or modification
shall (a) reduce the amount or extend the maturity of any Loan, or reduce the
rate or extend the time of payment of interest thereon, or reduce or extend the
time of payment of any fee payable to any Bank hereunder, or change the amount
of any Bank's Commitment, in each case without the written consent of the Bank
affected thereby, or (b) amend, modify or waive any provision of this subsection
or reduce the percentage specified in the definition of Majority Banks, or
consent to the assignment or transfer by the Borrower of any of its rights and
obligations under this Agreement , in each case without the written consent of
all the Banks, or (c) amend, modify or waive any provision of Section 8 without
the written consent of the then Administrative Agent. Any such waiver and any
such amendment, supplement or modification shall apply equally to each of the
Banks and shall be binding upon the Borrower, the Banks and the Administrative
Agent. In the case of any waiver,
50
the Borrower, the Banks and the Administrative Agent shall be restored to their
former position and rights hereunder, and any Default or Event of Default waived
shall be deemed to be cured and not continuing; but no such waiver shall extend
to any subsequent or other Default or Event of Default, or impair any right
consequent thereon.
9.2 NOTICES. All notices, requests and demands to or upon the respective
parties hereto to be effective shall be in writing (including by telecopy or
other electronic transmission), and, unless otherwise expressly provided herein,
shall be deemed to have been duly given or made when delivered by hand, or 3
days after being deposited in the mail, postage prepaid, or, in the case of
telecopy or other electronic notice, when received, addressed as follows in the
case of the Borrower, the Co-Syndication Agents, the Co-Documentation Agents and
the Administrative Agent, and as set forth in Schedule I in the case of the
other parties hereto, or to such other address as may be hereafter notified by
the respective parties hereto:
The Borrower: Franklin Resources, Inc.
One Franklin Parkway
San Mateo, California 94403-1906
Attention: Martin L. Flanagan
President and Co-Chief
Executive Officer
Telecopy: 650-312-3528
With a copy to:
Attention: Lawrence M. Chew
Associate General Counsel and
Assistant Secretary
Telecopy: 650-312-6656
51
JPMCB, as JPMorgan Chase Bank
Administrative Agent: 270 Park Avenue, Floor 4
New York, New York 10017
Attention: Marybeth Mullen
Telecopy: 212-270-1511
With a copy to:
JPMorgan Chase Bank
270 Park Avenue, Floor 15
New York, New York 10017
Attention: Patricia Ciocco
Telecopy: 212-270-0670
With a copy to:
JPMorgan Chase Bank
Loan and Agency Services
1111 Fannin, Floor 10
Houston, TX 77002
Attention: Omar Musule
Telecopy: 713-750-2223
Bank of America, N.A., as Bank of America, N.A.
Co-Syndication Agent: 231 South LaSalle Street, Suite 1044
Chicago, IL 60697
Attention: Elizabeth Bishop
Telecopy: 312-987-0889
The Bank of New York, as The Bank of New York
Co-Syndication Agent: One Wall Street, 17th Floor
New York, NY 10286
Attention: Scott Buitekant
Telecopy: 212-635-6348
Citibank, N.A., as Citibank, N.A.
Co-Documentation Agent: 399 Park Avenue, 12th Floor
New York, NY 10043
Attention: Alexander Duka
Telecopy: 212-371-6309
BNP Paribas, as BNP Paribas
Co-Documentation Agent 499 Park Avenue, 3rd Floor
New York, NY 10022-1278
Attention: Laurent Vanderzyppe
Telecopy: 212-841-2299
52
PROVIDED that any notice, request or demand to or upon the Administrative Agent,
the Co-Syndication Agents, the Co-Documentation Agents or the Banks pursuant to
subsection 2.2, 2.6, 2.7 or 2.8 or any notice to the Borrower pursuant to
Section 7 shall not be effective until received.
9.3 NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise and no delay in
exercising, on the part of the Administrative Agent, the Co-Syndication Agents,
the Co-Documentation Agents or any Bank, any right, remedy, power or privilege
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
9.4 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties made hereunder and in any document, certificate or statement
delivered pursuant hereto or in connection herewith shall survive the execution
and delivery of this Agreement.
9.5 PAYMENT OF EXPENSES AND TAXES. The Borrower agrees (a) to pay or
reimburse the Administrative Agent, the Co-Syndication Agents and the
Co-Documentation Agents for all their reasonable costs and out-of-pocket
expenses incurred in connection with the development, preparation and execution
of, and any amendment, supplement or modification to, this Agreement and any
other documents prepared in connection herewith or therewith, and the
consummation and administration of the transactions contemplated hereby and
thereby, including, without limitation, the reasonable fees and disbursements of
one external counsel to the Administrative Agent, the Co-Syndication Agents, the
Co-Documentation Agents and the Banks, (b) after the occurrence of an Event of
Default, to pay or reimburse each Bank, the Co-Syndication Agents, the
Co-Documentation Agents and the Administrative Agent for all its costs and
expenses incurred in connection with the enforcement or preservation of any
rights under this Agreement and any such other documents, including, without
limitation, fees and disbursements of counsel to the Administrative Agent, the
Co-Syndication Agents, the Co-Documentation Agents and to the several Banks and
the allocated cost of internal counsel to the Administrative Agent, (c) to pay,
indemnify, and hold each Bank, the Co-Syndication Agents, the Co-Documentation
Agents and the Administrative Agent harmless from, any and all recording and
filing fees and any and all liabilities with respect to, or resulting from any
delay in paying, stamp, excise and other taxes, if any, which may be payable or
determined to be payable in connection with the execution and delivery of, or
consummation or administration of any of the transactions contemplated by, or
any amendment, supplement or modification of, or any waiver or consent under or
in respect of, this Agreement and any such other documents, and (d) to pay,
indemnify, and hold each Bank, the Co-Syndication Agents, the Co-Documentation
Agents and the Administrative Agent harmless from and against any and all other
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever with respect
to the execution, delivery, enforcement, performance and administration of this
Agreement and any such other documents (all the foregoing, collectively, the
"indemnified liabilities"), PROVIDED, that the Borrower shall have no obligation
hereunder to the Administrative Agent, the Co-Syndication Agents, the
Co-Documentation Agents or any Bank with respect to indemnified liabilities
arising from (i) the negligence or willful misconduct of the Administrative
Agent or any such Bank or their agents or
53
attorneys-in-fact, (ii) legal proceedings commenced against the Administrative
Agent or any such Bank by any security holder or creditor thereof arising out of
and based upon rights afforded any such security holder or creditor solely in
its capacity as such or (iii) legal proceedings commenced against any such Bank,
the Administrative Agent, the Co-Syndication Agents or the Co-Documentation
Agents by any other Bank or the Administrative Agent with respect to fee
arrangements and other payment obligations between the Administrative Agent, the
Co-Syndication Agents, the Co-Documentation Agents and the Banks. The agreements
in this subsection shall survive repayment of all amounts payable hereunder. The
Administrative Agent and the Banks agree to provide reasonable details and
supporting information concerning any costs and expenses required to be paid by
the Borrower pursuant to the terms hereof.
9.6 SUCCESSORS AND ASSIGNS; PARTICIPATIONS; PURCHASING BANKS. (a) This
Agreement shall be binding upon and inure to the benefit of the Borrower, the
Banks, the Co-Syndication Agents, the Co-Documentation Agents and the
Administrative Agent, all future holders of Loans or Commitments and their
respective successors and assigns, except that the Borrower may not assign or
transfer any of its rights or obligations under this Agreement without the prior
written consent of each Bank.
(b) (i) Subject to the conditions set forth in paragraph (b)(ii) below, any
Bank may assign to one or more assignees all or a portion of its rights and
obligations under this Agreement (including all or a portion of its Commitment
and the Loans at the time owing to it) with the prior written consent (any such
consent not to be unreasonably withheld or delayed) of:
(A) the Borrower, PROVIDED that no consent of the Borrower shall be
required for an assignment to an assignee that is a Bank immediately prior
to giving effect to such assignment, an Affiliate of a Bank, an Approved
Fund (as defined below) or, if an Event of Default has occurred and is
continuing, any other assignee; and
(B) the Administrative Agent, PROVIDED that no consent of the
Administrative Agent shall be required for an assignment to an assignee
that is a Bank immediately prior to giving effect to such assignment..
(ii) Assignments shall be subject to the following additional
conditions:
(A) except in the case of an assignment to a Bank or an Affiliate of a
Bank or an assignment of the entire remaining amount of the assigning
Bank's Commitment, the amount of the Commitment of the assigning Bank
subject to each such assignment (determined as of the date the Assignment
and Assumption with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $5,000,000 unless each of the
Borrower and the Administrative Agent otherwise consent, PROVIDED that no
such consent of the Borrower shall be required if an Event of Default has
occurred and is continuing;
(B) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Bank's rights and obligations under
this Agreement, PROVIDED that this clause shall not apply to rights in
respect of outstanding Bid Loans;
54
(C) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee of $3,500; and
(D) the assignee, if it shall not be a Bank prior to such assignment,
shall deliver to the Administrative Agent an Administrative Questionnaire.
For the purposes of this subsection 9.6, the term "Approved Fund" has the
following meaning:
"APPROVED FUND" means (a) a CLO and (b) with respect to any Bank that is a
fund which invests in bank loans and similar extensions of credit, any other
fund that invests in bank loans and similar extensions of credit and is managed
by the same investment advisor as such Bank or by an Affiliate of such
investment advisor.
(iii) Subject to acceptance and recording thereof pursuant to
paragraph (b)(iv) of this subsection, from and after the effective date
specified in each Assignment and Assumption the assignee thereunder shall
be a party hereto and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and obligations of a Bank under
this Agreement, and the assigning Bank thereunder shall, to the extent of
the interest assigned by such Assignment and Assumption, be released from
its obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Bank's rights and obligations
under this Agreement, such Bank shall cease to be a party hereto but shall
continue to be entitled to the benefits of subsections 2.15, 2.16, 2.17 and
9.5). Any assignment or transfer by a Bank of rights or obligations under
this Agreement that does not comply with this subsection 9.6 shall be
treated for purposes of this Agreement as a sale by such Bank of a
participation in such rights and obligations in accordance with paragraph
(c) of this Section.
(iv) The Administrative Agent, acting for this purpose as an agent of
the Borrower, shall maintain at one of its offices a copy of each
Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Banks, and the Commitment of,
and principal amount of the Loans owing to, each Bank pursuant to the terms
hereof from time to time (the "REGISTER"). The entries in the Register
shall be conclusive, in the absence of demonstrable error, and the
Borrower, the Administrative Agent and the Banks may treat each Person
whose name is recorded in the Register pursuant to the terms hereof as a
Bank hereunder for all purposes of this Agreement, notwithstanding notice
to the contrary. The Register shall be available for inspection by the
Borrower and any Bank, at any reasonable time and from time to time upon
reasonable prior notice.
(v) Upon its receipt of a duly completed Assignment and Assumption
executed by an assigning Bank and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Bank
hereunder), the processing and recordation fee referred to in paragraph (b)
of this Section and any written consent to such assignment required by
paragraph (b) of this Section, the Administrative Agent shall promptly
accept such Assignment and Assumption and record the information contained
55
therein in the Register. No assignment shall be effective for purposes of
this Agreement unless it has been recorded in the Register as provided in
this paragraph.
(c) (i) Any Bank may, without the consent of the Borrower or the
Administrative Agent, sell participations to one or more banks or other entities
(a "PARTICIPANT") in all or a portion of such Bank's rights and obligations
under this Agreement (including all or a portion of its Commitment and the Loans
owing to it); PROVIDED that (A) such Bank's obligations under this Agreement
shall remain unchanged, (B) such Bank shall remain solely responsible to the
other parties hereto for the performance of such obligations and (C) the
Borrower, the Administrative Agent and the other Banks shall continue to deal
solely and directly with such Bank in connection with such Bank's rights and
obligations under this Agreement. Any agreement or instrument pursuant to which
a Bank sells such a participation shall provide that such Bank shall retain the
sole right to enforce this Agreement and to approve any amendment, modification
or waiver of any provision of this Agreement; PROVIDED that such agreement or
instrument may provide that such Bank will not, without the consent of the
Participant, agree to any amendment, modification or waiver described in clause
(a) or (b) of subsection 9.1 that affects such Participant. Subject to paragraph
(c)(ii) of this subsection, the Borrower agrees that each Participant shall be
entitled to the benefits of subsections 2.15, 2.16 and 2.17 to the same extent
as if it were a Bank and had acquired its interest by assignment pursuant to
paragraph (b) of this subsection. To the extent permitted by law, each
Participant also shall be entitled to the benefits of subsection 9.7(b) as
though it were a Bank, provided such Participant agrees to be subject to
subsection 9.7(a) as though it were a Bank.
(ii) A Participant shall not be entitled to receive any greater
payment under subsection 2.15, 2.16 or 2.17 than the applicable Bank would
have been entitled to receive with respect to the participation sold to
such Participant, unless the sale of the participation to such Participant
is made with the Borrower's prior written consent. Subject to the preceding
sentence, a Participant that would be a Foreign Bank if it were a Bank
shall not be entitled to the benefits of subsection 2.16 unless the
Borrower is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrower, to comply with
subsection 2.16(e) as though it were a Bank and for purposes of claiming
any benefit under subsection 2.16, any reference to a Foreign Bank shall be
deemed to refer to such Participant.
(d) Any Bank may at any time pledge or assign a security interest in all or
any portion of its rights under this Agreement (including any Note) to secure
obligations of such Bank, including any pledge or assignment to secure
obligations to a Federal Reserve Bank, and this Section shall not apply to any
such pledge or assignment of a security interest; PROVIDED that no such pledge
or assignment of a security interest shall release a Bank from any of its
obligations hereunder or substitute any such pledgee or assignee for such Bank
as a party hereto.
9.7 ADJUSTMENTS; SET-OFF. (a) If any Bank (a "BENEFITTED BANK") shall at
any time receive any payment of all or part of its Loans, or interest thereon,
or receive any collateral in respect thereof (whether voluntarily or
involuntarily, by set-off, pursuant to events or proceedings of the nature
referred to in subsection 7(g), or otherwise), in a greater proportion than any
such payment to or collateral received by any other Bank, if any, in respect of
such other Bank's Loans, or interest thereon, such Benefitted Bank shall
purchase for cash from the
56
other Banks such portion of each such other Bank's Loans, or shall provide such
other Banks with the benefits of any such collateral, or the proceeds thereof,
as shall be necessary to cause such Benefitted Bank to share the excess payment
or benefits of such collateral or proceeds ratably with each of the Banks;
PROVIDED, HOWEVER, that if all or any portion of such excess payment or benefits
is thereafter recovered from such Benefitted Bank, such purchase shall be
rescinded, and the purchase price and benefits returned, to the extent of such
recovery, but without interest. The Borrower agrees that each Bank so purchasing
a portion of another Bank's Loan may exercise all rights of payment (including,
without limitation, rights of set-off) with respect to such portion as fully as
if such Bank were the direct holder of such portion.
(b) In addition to any rights and remedies of the Banks provided by law,
each Bank shall have the right, exercisable upon the occurrence of an Event of
Default and acceleration of the obligations of the Borrower owing in connection
with this Agreement, without prior notice to the Borrower, any such notice being
expressly waived by the Borrower to the extent permitted by applicable law, to
set-off and appropriate and apply against any such obligations any and all
deposits (general or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in any currency, in
each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by such Bank or any branch or agency
thereof to or for the credit or the account of the Borrower (except for any such
deposits, credits, indebtedness or claims held in any accounts maintained at any
Bank as to which such Bank has waived its right of set-off). Each Bank agrees
promptly to notify the Borrower, and the Administrative Agent after any such
set-off and application made by such Bank, PROVIDED that the failure to give
such notice shall not affect the validity of such set-off and application.
9.8 COUNTERPARTS. This Agreement may be executed by one or more of the
parties to this Agreement on any number of separate counterparts, and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument. A set of the copies of this Agreement signed by all the parties
shall be lodged with the Borrower and the Administrative Agent.
9.9 SEVERABILITY. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
9.10 INTEGRATION. This Agreement represents the agreement of the Borrower,
the Administrative Agent and the Banks with respect to the subject matter
hereof, and there are no promises, undertakings, representations or warranties
by the Administrative Agent, the Co-Syndication Agents, the Co-Documentation
Agents or any Bank relative to subject matter hereof not expressly set forth or
referred to herein.
9.11 GOVERNING LAW. THIS AGREEMENT (INCLUDING SECTION 9) AND THE NOTES AND
THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE
57
STATE OF NEW YORK (INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAWS BUT
OTHERWISE WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES).
9.12 SUBMISSION TO JURISDICTION; WAIVERS; APPOINTMENT OF PROCESS AGENT. (a)
The Borrower, to the extent permitted by applicable law, hereby irrevocably and
unconditionally:
(i) submits for itself and its property in any legal action or
proceeding relating to this Agreement or any Note to which it is a party,
or for recognition and enforcement of any judgment in respect thereof, to
the non-exclusive general jurisdiction of the Courts of the State of New
York, the courts of the United States of America for the Southern District
of New York, and appellate courts from any thereof;
(ii) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have to
the venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient court and agrees not to
plead or claim the same;
(iii) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail
(or any substantially similar form of mail), postage prepaid, to the
Borrower at its address set forth in subsection 9.2 or at such other
address of which the Administrative Agent shall have been notified pursuant
thereto; and
(iv) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to sue in any other jurisdiction.
9.13 ACKNOWLEDGMENTS. The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement;
(b) neither the Administrative Agent, the Co-Syndication Agents, the
Co-Documentation Agents nor any Bank has any fiduciary relationship to the
Borrower, solely by virtue of any of the Loan Documents, and the
relationship pursuant to the Loan Documents between the Administrative
Agent, the Co-Syndication Agents, the Co-Documentation Agents and the
Banks, on one hand, and the Borrower, on the other hand, is solely that of
creditor and debtor; and
(c) no joint venture exists among the Banks or among the Borrower and
the Banks.
9.14 WAIVERS OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE AGENT, THE
CO-SYNDICATION AGENTS, THE CO-DOCUMENTATION AGENTS AND THE BANKS HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR
58
PROCEEDING RELATING TO THIS AGREEMENT AND FOR ANY COUNTERCLAIM THEREIN.
9.15 CONFIDENTIALITY. Each of the Administrative Agent and the Banks agree
to maintain the confidentiality of the Information (as defined below), except
that Information may be disclosed (i) to its and its Affiliates' directors,
officers, employees and agents, including accountants, legal counsel and other
advisors (it being understood that the Persons to whom such disclosure is made
will be informed of the confidential nature of such Information and instructed
to keep such Information confidential), (ii) to the extent requested by any
regulatory authority, (iii) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (iv) to any other party
to this Agreement, (v) in connection with the exercise of any remedies hereunder
or any suit, action or proceeding relating to this Agreement or the enforcement
of rights hereunder, (vi) subject to an agreement containing provisions
substantially the same as those of this Section, to (A) any assignee of or
Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement or (B) any actual or prospective
counterparty (or its advisors) to any securitization or swap or derivative
transaction relating to the Borrower and its obligations, (vii) with the consent
of the Borrower or (viii) to the extent such Information (ix) becomes publicly
available other than as a result of a known breach of this Section or (x)
becomes available to the Administrative Agent or any Bank on a nonconfidential
basis from a source other than the Borrower. For the purposes of this Section,
"INFORMATION" means all information received whether on or prior to the date
hereof or hereafter from the Borrower relating to the Borrower or its business,
other than any such information that is available to the Administrative Agent or
any Bank on a nonconfidential basis prior to disclosure by the Borrower.
9.16 USA PATRIOT ACT. Each Bank hereby notifies the 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 "Act"), it is required to obtain, verify and
record information that identifies the Borrower, which information includes the
name and address of the Borrower and other information that will allow such Bank
to identify the Borrower in accordance with the Act.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered in New York, New York by their proper and duly
authorized officers as of the day and year first above written.
FRANKLIN RESOURCES, INC.
By: /s/ Kenneth A. Lewis
--------------------
Name: Kenneth A. Lewis
Title: Vice President and Treasurer
JPMORGAN CHASE BANK,
as Administrative Agent and a Bank
By: /s/ Marybeth Mullen
-------------------
Name: Marybeth Mullen
Title: Vice President
BANK OF AMERICA, N.A.,
as Co-Syndication Agent and a Bank
By: /s/ Sean W. Cassidy
-------------------
Name: Sean W. Cassidy
Title: Principal
THE BANK OF NEW YORK,
as Co-Syndication Agent and a Bank
By: /s/ Gary R. Overton
-------------------
Name: Gary R. Overton
Title: Vice President
CITIBANK, N.A.,
as Co-Documentation Agent and a Bank
By: /s/ Alexander F. Duka
---------------------
Name: Alexander F. Duka
Title: Director
BNP PARIBAS,
as Co-Documentation Agent and a Bank
By: /s/ Laurent Vanderzyppe
-----------------------
Name: Laurent Vanderzyppe
Title: Director
By: /s/ Toivo Kiiver
----------------
Name: Toivo Kiiver
Title: Vice President
Signature page to the AMENDED AND
RESTATED 364 DAY FACILITY CREDIT
AGREEMENT dated as of June 3, 2004 (this
"AGREEMENT") among Franklin Resources,
Inc., a Delaware corporation (the
"BORROWER"), the several banks and other
financial institutions from time to time
parties to this Agreement (the "BANKS"),
Bank of America, N.A. and The Bank of
New York, as Co-Syndication Agents,
Citibank, N.A. and BNP Paribas, as
Co-Documentation Agents, and JPMorgan
Chase Bank ("JPMCB"), as administrative
agent for the Banks hereunder (in such
capacity, the "ADMINISTRATIVE AGENT").
Deutsche Bank AG New York Branch
By: /s/ Gayma Shivnarain
--------------------
Name: Gayma Shivnarain
Title: Director
By: /s/ Kathleen Bowers
--------------------
Name: Kathleen Bowers
Title: Director
Signature page to the AMENDED AND
RESTATED 364 DAY FACILITY CREDIT
AGREEMENT dated as of June 3, 2004 (this
"AGREEMENT") among Franklin Resources,
Inc., a Delaware corporation (the
"BORROWER"), the several banks and other
financial institutions from time to time
parties to this Agreement (the "BANKS"),
Bank of America, N.A. and The Bank of
New York, as Co-Syndication Agents,
Citibank, N.A. and BNP Paribas, as
Co-Documentation Agents, and JPMorgan
Chase Bank ("JPMCB"), as administrative
agent for the Banks hereunder (in such
capacity, the "ADMINISTRATIVE AGENT").
HSBC Bank USA
By: /s/ Scott H. Buitekant
----------------------
Name: Scott H. Buitekant
Title: Senior Vice President
Signature page to the AMENDED AND
RESTATED 364 DAY FACILITY CREDIT
AGREEMENT dated as of June 3, 2004 (this
"AGREEMENT") among Franklin Resources,
Inc., a Delaware corporation (the
"BORROWER"), the several banks and other
financial institutions from time to time
parties to this Agreement (the "BANKS"),
Bank of America, N.A. and The Bank of
New York, as Co-Syndication Agents,
Citibank, N.A. and BNP Paribas, as
Co-Documentation Agents, and JPMorgan
Chase Bank ("JPMCB"), as administrative
agent for the Banks hereunder (in such
capacity, the "ADMINISTRATIVE AGENT").
ROYAL BANK OF CANADA
By: /s/ Gabriella King
------------------
Name: Gabriella King
Title: Authorized Signatory
Signature page to the AMENDED AND
RESTATED 364 DAY FACILITY CREDIT
AGREEMENT dated as of June 3, 2004 (this
"AGREEMENT") among Franklin Resources,
Inc., a Delaware corporation (the
"BORROWER"), the several banks and other
financial institutions from time to time
parties to this Agreement (the "BANKS"),
Bank of America, N.A. and The Bank of
New York, as Co-Syndication Agents,
Citibank, N.A. and BNP Paribas, as
Co-Documentation Agents, and JPMorgan
Chase Bank ("JPMCB"), as administrative
agent for the Banks hereunder (in such
capacity, the "ADMINISTRATIVE AGENT").
Toronto Dominion (Texas), Inc.
By: /s/ Neva Nesbitt
----------------------
Name: Neva Nesbitt
Title: Vice President
Signature page to the AMENDED AND
RESTATED 364 DAY FACILITY CREDIT
AGREEMENT dated as of June 3, 2004 (this
"AGREEMENT") among Franklin Resources,
Inc., a Delaware corporation (the
"BORROWER"), the several banks and other
financial institutions from time to time
parties to this Agreement (the "BANKS"),
Bank of America, N.A. and The Bank of
New York, as Co-Syndication Agents,
Citibank, N.A. and BNP Paribas, as
Co-Documentation Agents, and JPMorgan
Chase Bank ("JPMCB"), as administrative
agent for the Banks hereunder (in such
capacity, the "ADMINISTRATIVE AGENT").
BANCA DI ROMA
By: /s/ Richard G. Dietz
--------------------
Name: Richard G. Dietz (#97271)
Title: Vice President
By: /s/ Luca Balestra
-----------------
Name: Luca Balestra (#25050)
Title: Senior Vice President
and Manager
Signature page to the AMENDED AND
RESTATED 364 DAY FACILITY CREDIT
AGREEMENT dated as of June 3, 2004 (this
"AGREEMENT") among Franklin Resources,
Inc., a Delaware corporation (the
"BORROWER"), the several banks and other
financial institutions from time to time
parties to this Agreement (the "BANKS"),
Bank of America, N.A. and The Bank of
New York, as Co-Syndication Agents,
Citibank, N.A. and BNP Paribas, as
Co-Documentation Agents, and JPMorgan
Chase Bank ("JPMCB"), as administrative
agent for the Banks hereunder (in such
capacity, the "ADMINISTRATIVE AGENT").
STATE STREET AND TRUST COMPANY
By: /s/ Charles A. Garrity
----------------------
Name: Charles A. Garrity
Title: VP
SCHEDULE I
LOANS; ADDRESSES OF LENDERS
NAME AND ADDRESS OF LENDER LOAN AMOUNT
- -------------------------- -----------
JPMorgan Chase Bank $22,000,000
270 Park Avenue
New York, New York 10017
Attention: Thorne Gregory
Phone: (212) 622-6936
Citibank, N.A. $22,000,000
388 Greenwich Street, 22nd Floor
New York, New York 10013
Attn: Alexander Duka
Phone: (212) 816-3260
HSBC Bank USA $18,000,000
452 5th Avenue, 25th Floor
New York, New York 10018
Attn: Scott Buitekant
Phone: (212) 525-2571
BNP Paribas $22,000,000
787 Seventh Avenue, 28th Floor
New York, New York 10019
Attn: Toivo Kiiver
Phone: (212) 841-3168
Deutsche Bank AG, New York Branch $18,000,000
31 West 52nd Street, 23rd Floor
New York, New York 10019
Attn: Gayma Shivnarain
Phone: (212) 469-8551
The Bank of New York $22,000,000
One Wall Street, 17th Floor
New York, New York 10286
Attn: Phillip Evans
Phone: (212) 635-7110
Royal Bank of Canada $18,000,000
1 Liberty Plaza, 4th Floor
New York, New York 10006-1404
Attn: Gabriella King
Phone: (212) 428-6318
Bank of America, N.A. $22,000,000
335 Madison Avenue, 5th Floor
New York, New York 10017
Attn: Aaron Siegel
Phone: (212) 502-7887
Toronto Dominion, Inc. $18,000,000
31 West 52nd Street, 20th Floor
New York, New York 10019
Attn: Jennifer McQuillan
Phone: (212) 827-7440
State Street Bank and Trust Company $14,000,000
2 Avenue de Lafayette, 2nd Floor
Boston, Massachusetts 02211
Attn: Charlie Garrity
Phone: (617) 662-1282
Banca Di Roma $14,000,000
One Market Plaza, Steuart Tower, Suite 1000
San Francisco, California 94105
Attn: Rick Dietz
Phone: (415) 977-7310
SCHEDULE II
SAMPLE COMPUTATIONS OF
FACILITY AND UTILIZATION FEES
Example 1:
Average Aggregate Commitment of All Banks: $210,000,000
Facility Fee: $210,000,000 x .00080 = $168,000
Average Aggregate Loans Over Quarter
(under this Agreement AND the Five Year Facility): $0
Utilization Fee: $0
Example 2:
Average Aggregate Commitment of All Banks: $210,000,000
Facility Fee: $210,000,000 x .00080 = $168,000
Average Aggregate Loans Over Quarter
(under this Agreement AND the Five Year Facility): $300,000,000
Utilization Fee: $300,000,000 x .00125 = $375,000
SCHEDULE III - CONSENT AND AUTHORIZATIONS
None.
SCHEDULE IV - U.S. REGISTERED INVESTMENT ADVISORS
Fiduciary International, Inc.
Fiduciary Investment Management International, Inc.
Fiduciary Trust International Limited
Franklin Advisors, Inc.
Franklin Advisory Services, LLC
Franklin Investment Advisory Services, Inc.
Franklin Private Client Group, Inc.
Franklin Mutual Advisers, LLC
Franklin Templeton Alternative Strategies, Inc.
Franklin Templeton Investment Management Limited
Franklin Templeton Investments (Asia) Limited
Franklin Templeton Investments Corp.
Franklin Templeton Institutional, LLC
Templeton Asset Management Ltd.
Templeton Global Advisors Limited
Templeton Investment Counsel, LLC
Templeton/Franklin Investment Services, Inc.
SCHEDULE V - U.S. BROKER/DEALERS
Fiduciary Financial Services Corp.
Franklin/Templeton Distributors, Inc.
Templeton/Franklin Investment Services, Inc.
SCHEDULE VI - LIST OF SUBSIDIARIES OF BORROWER
Darby Asia Investors, Ltd.
Darby Asia Investors (HK), Ltd.
Darby Holdings, Inc.
Darby Overseas Partners, L.P.
Fiduciary International Holding, Inc.
Fiduciary International, Inc.
Fiduciary Investment Corporation
Fiduciary Investment Management International, Inc.
Fiduciary Trust (International) S.A.
Fiduciary Trust Company International
Fiduciary Trust International Limited
Fiduciary Trust International of California
Fiduciary Trust International of the South
Franklin Advisers, Inc.
Franklin Advisory Services, LLC
Franklin Mutual Advisers, LLC
Franklin Receivables LLC
Franklin Templeton Bank & Trust, F.S.B.
Franklin Templeton Fiduciary Bank & Trust, Ltd.
Franklin Templeton Global Investors Limited
Franklin Templeton Holding Limited
Franklin Templeton International Services S.A.
Franklin Templeton Investment Management Limited
Franklin Templeton Investment Services GmbH
Franklin Templeton Investment Trust Management Co., Ltd.
Franklin Templeton Investments Corp.
Franklin Templeton Investments Japan Limited
Franklin/Templeton Distributors, Inc.
Franklin Templeton Services, LLC
FTI-Banque Fiduciary Trust
Templeton Asset Management (India) Private Limited
Templeton Asset Management (Labuan) Limited
Templeton Asset Management Ltd.
Templeton Asset Management Ltd. - Hong Kong
Templeton Funds Annuity Company
Templeton Global Advisors Limited
Templeton Global Holdings Ltd.
Templeton International, Inc.
Templeton Investment Counsel, LLC
Templeton Worldwide, Inc.
SCHEDULE VII - OUTSTANDING INDEBTEDNESS
$877,000,000.00 Face Value Franklin Resources, Inc. Liquid Yield Option Notes
due 2031 (Zero Coupon-Senior)
Outstanding Indebtedness under the Amended and Restated 5 Year Facility Credit
Agreement dated as of June 05, 2002 among the Company, the several banks parties
thereto, Bank of America, N.A. and The Bank of New York, as Co-Syndication
Agents, Citicorp USA Inc. and BNP Paribas as Co-Documentation Agents, JPMorgan
Chase Bank as Administrative Agent and J.P. Morgan Securities Inc., as Sole
Bookrunner and Sole Lead Arranger.
$420,000,000.00, Franklin Resources, Inc. 3.700% senior notes due 2008.
SCHEDULE VIII - EXISTING LIENS
None.
EXHIBIT A TO
CREDIT AGREEMENT
[FORM OF BID LOAN CONFIRMATION]
_____, 200_
JPMorgan Chase Bank,
as Administrative Agent
270 Park Avenue
New York, New York 10017
Dear Sirs:
Reference is made to the Amended and Restated 364 Day Facility Credit
Agreement, dated as of June 3, 2004 (as amended, supplemented or otherwise
modified from time to time, the "CREDIT AGREEMENT"), among the Borrower, the
Banks parties thereto, Bank of America, N.A. and The Bank of New York, as
Co-Syndication Agents, Citibank, N.A. and BNP Paribas as Co-Documentation Agents
and JPMorgan Chase Bank, as Administrative Agent. Capitalized terms used but not
defined herein shall have the meanings assigned to such terms in the Credit
Agreement.
In accordance with subsection 2.3(b) of the Credit Agreement, the
undersigned accepts and confirms on behalf of Franklin Resources, Inc. the
offers by Bid Loan Bank(s) to make Bid Loans to Franklin Resources, Inc. on
_____, 200 [Bid Loan Date] under subsection 2.3 of the Credit Agreement in the
[respective] amount(s) set forth on the attached list of Bid Loans offered.
Very truly yours,
FRANKLIN RESOURCES, INC.
By:_________________________
Name:
Title:
[Borrower to attach Bid Loan offer list prepared by Administrative Agent with
accepted amount entered by the Borrower to right of each Bid Loan offer].
EXHIBIT B TO
CREDIT AGREEMENT
[FORM OF BID LOAN OFFER]
_______, 200_
JPMorgan Chase Bank,
as Administrative Agent
270 Park Avenue
New York, New York 10017
Dear Sirs:
Reference is made to the Amended and Restated 364 Day Facility Credit
Agreement, dated as of June 3, 2004 (as amended, supplemented or otherwise
modified from time to time, the "CREDIT AGREEMENT"), among the Borrower, the
Banks parties thereto, Bank of America, N.A. and The Bank of New York, as
Co-Syndication Agents, Citibank, N.A. and BNP Paribas as Co-Documentation Agents
and JPMorgan Chase Bank, as Administrative Agent. Capitalized terms used but not
defined herein shall have the meanings assigned to such terms in the Credit
Agreement.
In accordance with subsection 2.3(b) of the Credit Agreement, the
undersigned Bank offers to make Bid Loans thereunder in the following amounts to
Franklin Resources, Inc. the following maturity dates:
Bid Loan Date: _____, 200
Aggregate Maximum Amount: $_____
MATURITY DATE 1 _____: MATURITY DATE 2 _____: MATURITY DATE 3 _____:
Maximum Amount $___ Maximum Amount $___ Maximum Amount $___
Rate * Amount $___ Rate * Amount $___ Rate * Amount $___
Rate * Amount $___ Rate * Amount $___ Rate * Amount $___
Borrower: ______ Borrower: ______ Borrower: ______
[The undersigned Bank hereby waives the requirement, set forth in
subsection 2.3(b)(iv)(B) of the Credit Agreement, that the Bid Loans made to the
Borrower by any Bid Loan Bank be in a minimum amount of $5,000,000.]
Very truly yours,
[NAME OF BIDDING BANK]
By:_________________________
Name:
Title:
Tel.:
Fax:
- ------------
* In the case of LIBOR Bid Loans, insert margin bid. In the case of Absolute
Rate Bid Loans, insert fixed rate bid.
EXHIBIT C TO
CREDIT AGREEMENT
[FORM OF BID LOAN REQUEST]
_________, 200_
JPMorgan Chase Bank,
as Administrative Agent
270 Park Avenue
New York, New York 10017
Dear Sirs:
Reference is made to the Amended and Restated 364 Day Facility Credit
Agreement, dated as of June 3, 2004 (as amended, supplemented or otherwise
modified from time to time, the "CREDIT AGREEMENT"), among the Borrower, the
Banks parties thereto, Bank of America, N.A. and The Bank of New York, as
Co-Syndication Agents, Citibank, N.A. and BNP Paribas as Co-Documentation Agents
and JPMorgan Chase Bank, as Administrative Agent. Capitalized terms used but not
defined herein shall have the meanings assigned to such terms in the Credit
Agreement.
This is a[n] [LIBOR] [Absolute Rate] Bid Loan Request pursuant to
subsection 2.3(b) of the Credit Agreement requesting quotes for the following
Bid Loans:
Aggregate Principal Amount: $_____ $_____ $_____
Bid Loan Date: _____ _____ _____
[Interest Period:]* _____ _____ _____
Maturity Date:** _____ _____ _____
Interest Payment Dates: _____ _____ _____
Borrower: _____ _____ _____
- --------
* Insert only in a LIBOR Bid Loan Request.
** In a LIBOR Bid Loan Request, insert last day of Interest Period.
- ------------
Note: Pursuant to the Credit Agreement, a Bid Loan Request may be
transmitted in writing, by telex or by facsimile transmission, or by
telephone, immediately confirmed by telex or facsimile transmission.
In any case, a Bid Loan Request shall contain the information
specified in the second paragraph of this form.
Very truly yours,
FRANKLIN RESOURCES, INC.
By:_________________________
Name:
Title:
EXHIBIT D TO
CREDIT AGREEMENT
[ASSIGNMENT AND ASSUMPTION]
Reference is made to the Amended and Restated 364 Day Facility Credit
Agreement, dated as of June 3, 2004 (as amended, supplemented or otherwise
modified from time to time, the "CREDIT AGREEMENT"), among the Borrower, the
Banks parties thereto, Bank of America, N.A. and The Bank of New York, as
Co-Syndication Agents, Citibank, N.A. and BNP Paribas as Co-Documentation Agents
and JPMorgan Chase Bank, as Administrative Agent. Capitalized terms used but not
defined herein shall have the meanings assigned to such terms in the Credit
Agreement.
The Assignor named below hereby sells and assigns, without recourse, to the
Assignee named below, and the Assignee hereby purchases and assumes, without
recourse, from the Assignor, effective as of the Assignment Date set forth
below, the interests set forth below (the "Assigned Interest") in the Assignor's
rights and obligations under the Credit Agreement, including, without
limitation, the interests set forth below in the Commitment of the Assignor on
the Assignment Date and Bid Loans and Revolving Loans owing to the Assignor
which are outstanding on the Assignment Date, but excluding accrued interest and
fees to and excluding the Assignment Date. The Assignee hereby acknowledges
receipt of a copy of the Credit Agreement. From and after the Assignment Date
(i) the Assignee shall be a party to and be bound by the provisions of the
Credit Agreement and, to the extent of the Assigned Interest, have the rights
and obligations of a Bank thereunder and (ii) the Assignor shall, to the extent
of the Assigned Interest, relinquish its rights and be released from its
obligations under the Credit Agreement.
The Assignor (a) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement or with respect to the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of the Credit Agreement, any other Loan Document or any other instrument or
document furnished pursuant thereto, other than that the Assignor has not
created any adverse claim upon the interest being assigned by it hereunder and
that such interest is free and clear of any such adverse claim and (b) makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrower, any of its Affiliates or any other obligor
or the performance or observance by the Borrower, any of its Affiliates or any
other obligor of any of their respective obligations under the Credit Agreement
or any other Loan Document or any other instrument or document furnished
pursuant hereto or thereto.
This Assignment and Assumption is being delivered to the Administrative
Agent together with (i) if the Assignee is a Foreign Lender, any documentation
required to be delivered by the Assignee pursuant to Section 2.16(e) of the
Credit Agreement, duly completed and executed by the Assignee, and (ii) if the
Assignee is not already a Lender under the Credit Agreement, an Administrative
Questionnaire in the form supplied by the Administrative Agent,
duly completed by the Assignee. The [Assignee/Assignor] shall pay the fee
payable to the Administrative Agent pursuant to Section 9.6(b) of the Credit
Agreement.
This Assignment and Assumption shall be governed by and construed in
accordance with the laws of the State of New York.
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address for Notices:
Effective Date of Assignment
("Assignment Date"):
================================================================================
Percentage Assigned of
Facility/Commitment set
Principal Amount forth, to at least 8 decimals,
Assigned (and as a percentage of the
identifying Facility and the aggregate
information as to Commitments of all
FACILITY individual BID LOANS) Lenders THEREUNDER)
- -------------------------------------------------------------------------
Commitment Assigned: $ %
- -------------------------------------------------------------------------
Revolving Loans:
- -------------------------------------------------------------------------
Competitive Loans:
- -------------------------------------------------------------------------
================================================================================
The terms set forth above are hereby agreed to:
[Name of Assignor] , as Assignor
By:
------------------------------
Name:
Title:
[Name of Assignee] , as Assignee
By:
------------------------------
Name:
Title:
The undersigned hereby consent to the within assignment:
Franklin Resources, Inc., JPMorgan Chase Bank,
(if required) as Administrative Agent,
(if required)
By:
----------------------
Name: By:
Title: ----------------------
Name:
Title:
EXHIBIT E-1 TO
CREDIT AGREEMENT
[FORM OF REVOLVING CREDIT NOTE]
$______________ New York, New York
________ __, 200_
FOR VALUE RECEIVED, the undersigned, Franklin Resources, Inc., a Delaware
corporation (the "BORROWER"), hereby unconditionally promises to pay on the
Termination Date to the order of ____________________________________________
(the "BANK") at the office of JPMORGAN CHASE BANK, located at 270 Park Avenue,
New York, New York 10017, in lawful money of the United States of America and in
immediately available funds, the principal amount of the lesser of (a)
______________________ DOLLARS ($__________) and (b) the aggregate unpaid
principal amount of all Revolving Credit Loans made by the Bank to the
undersigned pursuant to subsection 2.1 of the Credit Agreement referred to
below.
The undersigned further agrees to pay interest in like money at such office
on the unpaid principal amount hereof from time to time from the Effective Date
at the applicable rates per annum set forth in subsection 2.10 of the Credit
Agreement referred to below until any such amount shall become due and payable
(whether at the stated maturity, by acceleration or otherwise), and thereafter
on such overdue amount at the rate per annum set forth in subsection 2.10(d) of
the Credit Agreement until paid in full (both before and after judgment).
Interest shall be payable in arrears on each applicable Interest Payment Date,
commencing on the first such date to occur after the date hereof and terminating
upon payment (including prepayment) in full of the unpaid principal amount
hereof; PROVIDED that interest accruing on any overdue amount shall be payable
on demand.
The holder of this Note is authorized to record the date and amount of each
Revolving Credit Loan made pursuant to subsection 2.1 of the Credit Agreement,
its character as an Alternate Base Rate Loan or LIBOR Loan, the date and amount
of each payment or prepayment of principal with respect thereto, the length of
each Interest Period with respect to the portion of such Revolving Credit Loan
made and/or maintained as a LIBOR Loan, and the LIBOR Adjusted Rate with respect
thereto and each conversion made pursuant to subsection 2.8 of the Credit
Agreement, on the schedules annexed hereto and made a part hereof, or on a
continuation thereof which shall be attached hereto and made a part hereof,
which recordation shall constitute PRIMA FACIE evidence of the accuracy of the
information so recorded; PROVIDED that failure by the Bank to make any such
recordation on this Note shall not affect the obligations of the Borrower under
this Note or under the Credit Agreement.
This Note is one of the Revolving Credit Notes referred to in the Amended
and Restated 364 Day Facility Credit Agreement, dated as of June 3, 2004 (as
amended, supplemented or otherwise modified from time to time, the "CREDIT
AGREEMENT"), among the Borrower, the Banks parties thereto, Bank of America,
N.A. and The Bank of New York, as Co-Syndication Agents, Citibank, N.A. and BNP
Paribas, as Co-Documentation Agents and JPMorgan Chase Bank, as Administrative
Agent, is entitled to the benefits thereof and is subject to optional and
mandatory prepayment in whole or in part as provided therein. Capitalized terms
used but not defined herein shall have the meanings assigned to such terms in
the Credit Agreement.
Upon the occurrence of any one or more of the Events of Default specified
in the Credit Agreement, all amounts then remaining unpaid on this Note shall
become, or may be declared to be, immediately due and payable, all as provided
therein.
THIS REVOLVING CREDIT NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
FRANKLIN RESOURCES, INC.
By:_________________________
Name:
Title:
SCHEDULE A to
REVOLVING CREDIT NOTE
LOANS, CONVERSIONS AND PAYMENTS
OF ALTERNATE BASE RATE LOANS
Amount of Amount of Unpaid
LIBOR Loans Alternate Base Principal
Converted into Rate Loans Amount of Balance of
Amount Alternate Base Converted into Principal Alternate Base Notation
DATE OF LOAN RATE LOANS LIBOR LOANS REPAID RATE LOANS MADE BY
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SCHEDULE B to
REVOLVING CREDIT NOTE
LOANS, CONVERSIONS AND
PAYMENTS OF LIBOR LOANS
Amount of Amount of
Alternate LIBOR Loans
Base Rate Interest Converted
Loans Period and into Unpaid
Converted LIBOR Adjusted Alternate Amount of Principal
Amount into LIBOR Rate with Base Rate Principal Balance of Notation
Date of Loan Loans Respect Thereto Loans Repaid LIBOR Loans Made by
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EXHIBIT E-2 TO
CREDIT AGREEMENT
[FORM OF GRID BID LOAN NOTE]
PROMISSORY NOTE
$ New York, New York
-----------------
_______, 200_
FOR VALUE RECEIVED, the undersigned, Franklin Resources, Inc., a Delaware
corporation, (the "BORROWER"), hereby unconditionally promises to pay to the
order of _________________ (the "BANK") at the office of JPMorgan Chase Bank
located at 270 Park Avenue, New York, New York 10017, in lawful money of the
United States of America and in immediately available funds, the principal
amount of (a) ________DOLLARS ($____), or, if less, (b) the aggregate unpaid
principal amount of each Bid Loan which is (i) made by the Bank to the Borrower
pursuant to subsection 2.3 of the Credit Agreement hereinafter referred to and
(ii) not evidenced by an Individual Bid Loan Note executed and delivered by the
Borrower pursuant to subsection 2.4(e) of the Credit Agreement. The principal
amount of each Bid Loan evidenced hereby shall be payable on the maturity date
therefor set forth on the schedule annexed hereto and made a part hereof or on a
continuation thereof which shall be attached hereto and made a part hereof (the
"GRID"). The Borrower further agrees to pay interest in like money at such
office on the unpaid principal amount of each Bid Loan evidenced hereby, at the
rate per annum set forth in respect of such Bid Loan on the Grid, calculated on
the basis of a year of 360 days and actual days elapsed from the date of such
Bid Loan until the due date thereof (whether at the stated maturity, by
acceleration or otherwise) and thereafter at the rates determined in accordance
with subsection 2.3(d) of the Credit Agreement. Interest on each Bid Loan
evidenced hereby shall be payable on the date or dates set forth in respect of
such Bid Loan on the Grid. Bid Loans evidenced by this Note may not be
optionally prepaid.
The holder of this Note is authorized to endorse on the Grid the date,
amount, interest rate, interest payment dates and maturity date in respect of
each Bid Loan made pursuant to subsection 2.3 of the Credit Agreement, each
payment of principal with respect thereto and any transfer of such Bid Loan from
this Note to an Individual Bid Loan Note delivered to the Bank pursuant to
subsection 2.4(e) of the Credit Agreement, which endorsement shall constitute
PRIMA FACIE evidence of the accuracy of the information endorsed; PROVIDED,
HOWEVER, that the failure to make any such endorsement shall not affect the
obligations of the Borrower in respect of such Bid Loan.
This Note is one of the Grid Bid Loan Notes referred to in the Amended and
Restated 364 Day Facility Credit Agreement, dated as of June 3, 2004 (as
amended, supplemented or otherwise modified from time to time, the "CREDIT
AGREEMENT"), among the Borrower, the Banks parties thereto, Bank of America,
N.A. and The Bank of New York, as Co-Syndication Agents, Citibank, N.A. and BNP
Paribas, as Co-Documentation Agents and
JPMorgan Chase Bank, as Administrative Agent, is entitled to the benefits
thereof and is subject to optional and mandatory prepayment in whole or in part
as provided therein.
Upon the occurrence of any one or more of the Events of Default specified
in the Credit Agreement, all amounts then remaining unpaid on this Note shall
become, or may be declared to be, immediately due and payable, all as provided
therein.
All parties now and hereafter liable with respect to this Note, whether
maker, principal, surety, guarantor, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind.
Capitalized terms used but not defined herein shall have the meanings
assigned to such terms in the Credit Agreement.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
Very truly yours,
FRANKLIN RESOURCES, INC.
By:_________________________
Name:
Title:
SCHEDULE OF BID LOANS
Date of
Transfer to
Date Amount Interest Individual
of of Interest Payment Maturity Payment Bid Loan Loan
Bid Loan Rate Dates Date Date Note Authorization
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EXHIBIT E-3 TO
CREDIT AGREEMENT
[FORM OF INDIVIDUAL BID LOAN NOTE]
NON-NEGOTIABLE BID NOTE
$_________________ New York, New York
_____________, 200_
FOR VALUE RECEIVED, the undersigned, Franklin Resources, Inc., a Delaware
corporation (the "BORROWER"), promises to pay on __________, 200 to the order of
___________(the "BANK") at the office of JPMorgan Chase Bank located at 270 Park
Avenue, New York, New York 10017, in lawful money of the United States of
America and in immediately available funds, the principal sum of _____DOLLARS
($______). The Borrower further agrees to pay interest in like money at such
office on the unpaid principal amount hereof from time to time from the date
hereof at the rate of _% per annum (calculated on the basis of a year of 360
days and actual days elapsed) until the due date hereof (whether at the stated
maturity, by acceleration, or otherwise) and thereafter at the rates determined
in accordance with subsection 2.4(e) of the Amended and Restated 364 Day
Facility Credit Agreement, dated as of June 3, 2004 (as amended, supplemented or
otherwise modified from time to time, the "CREDIT AGREEMENT"), among the
Borrower, the Banks parties thereto, Bank of America, N.A. and The Bank of New
York, as Co-Syndication Agents, Citibank, N.A. and BNP Paribas, as
Co-Documentation Agents and JPMorgan Chase Bank, as Administrative Agent.
Interest shall be payable on ________. This Note may not be optionally prepaid.
This Note is one of the Individual Bid Loan Notes referred to in, is
subject to and is entitled to the benefits of, the Credit Agreement, which
Credit Agreement, among other things, contains provisions for acceleration of
the maturity and mandatory prepayments hereof upon the happening of certain
stated events.
All parties now and hereafter liable with respect to this Note, whether
maker, principal, surety, guarantor, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind.
Capitalized terms used but not defined herein shall have the meanings
assigned to such terms in the Credit Agreement.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
FRANKLIN RESOURCES, INC.
By:_________________________
Name:
Title: