$20,000,000
CREDIT AGREEMENT
Dated as of February 12, 1996
Among
HILB, ROGAL, AND HAMILTON COMPANY
The Banks Listed Herein
and
CRESTAR BANK,
as Agent for the Banks
===============================================================================
TABLE OF CONTENTS
ARTICLE I
LOANS . . . . . . . . . . . .. . . . 1
SECTION 1.01. Commitment.. . . . . . . . . . . . . . . . .. . . . 1
SECTION 1.02. Funding Loans. . . . . . . . . . . . . . . .. . . . 1
SECTION 1.03. Notes; Principal Payments. . . . . . . . . .. . . . 2
SECTION 1.04. Interest.. . . . . . . . . . . . . . . . . .. . . . 2
SECTION 1.05. Commitment Fee; Termination and Reduction of
Commitments. . . . . . . . . . . . . . . . . . . . . .. . . . 3
SECTION 1.06. Additional Interest; Alternate Rate of
Interest; Maximum Interest Rate. . . . . . . . . . . .. . . . 4
SECTION 1.07. Continuation and Conversion of Loans.. . . .. . . . 4
SECTION 1.08. Optional Prepayment of Loans.. . . . . . . .. . . . 6
SECTION 1.09. Manner of Payment. . . . . . . . . . . . . .. . . . 6
SECTION 1.10. Change in Circumstances. . . . . . . . . . .. . . . 7
SECTION 1.11. Change in Legality.. . . . . . . . . . . . .. . . . 7
SECTION 1.12. Indemnity for Eurodollar Loans.. . . . . . .. . . . 8
SECTION 1.13. Capital Adequacy.. . . . . . . . . . . . . .. . . . 8
SECTION 1.14. Reasonableness of Increased Costs. . . . . .. . . . 9
SECTION 1.15. Pro Rata Treatment.. . . . . . . . . . . . .. . . . 9
SECTION 1.16. Certain Notices. . . . . . . . . . . . . . .. . . . 9
ARTICLE II
COLLATERAL AND GUARANTIES . . . . . . .. . . . 10
SECTION 2.01. Unsecured Obligations. . . . . . . . . . . .. . . . 10
SECTION 2.02. Guaranty . . . . . . . . . . . . . . . . . .. . . . 10
SECTION 2.03. Loan Documents . . . . . . . . . . . . . . .. . . . 10
ARTICLE III
CONDITIONS OF LENDING . . . . . . . .. . . . 10
SECTION 3.01. Initial Loans. . . . . . . . . . . . . . . .. . . . 10
SECTION 3.02. All Loans. . . . . . . . . . . . . . . . . .. . . . 11
ARTICLE IV
REPRESENTATIONS AND WARRANTIES . . . . . .. . . . 11
SECTION 4.01. Organization; Powers; Qualification. . . . .. . . . 11
SECTION 4.02. Authorization; Enforceability. . . . . . . .. . . . 12
SECTION 4.03. Consents and Approvals.. . . . . . . . . . .. . . . 12
SECTION 4.04. Financial Statements.. . . . . . . . . . . .. . . . 12
SECTION 4.05. No Material Adverse Change.. . . . . . . . .. . . . 13
SECTION 4.06. Subsidiaries . . . . . . . . . . . . . . . .. . . . 13
SECTION 4.07. Litigation.. . . . . . . . . . . . . . . . .. . . . 13
SECTION 4.08. Tax Returns. . . . . . . . . . . . . . . . .. . . . 13
SECTION 4.09. Properties.. . . . . . . . . . . . . . . . .. . . . 14
SECTION 4.10. Employee Benefit Plans.. . . . . . . . . . .. . . . 14
SECTION 4.11. Government Regulation. . . . . . . . . . . .. . . . 14
SECTION 4.12. Margin Stock.. . . . . . . . . . . . . . . .. . . . 15
SECTION 4.13. No Material Misstatements. . . . . . . . . .. . . . 15
SECTION 4.14. Patents, Trademarks, etc.. . . . . . . . . .. . . . 15
SECTION 4.15. Hazardous Wastes.. . . . . . . . . . . . . .. . . . 16
SECTION 4.16. No Brokers or Finders. . . . . . . . . . . .. . . . 16
SECTION 4.17. No Default of Indebtedness; Solvency.. . . .. . . . 16
SECTION 4.18. Agreements.. . . . . . . . . . . . . . . . .. . . . 16
SECTION 4.19. Compliance with Law. . . . . . . . . . . . .. . . . 17
SECTION 4.20. Labor Controversies. . . . . . . . . . . . .. . . . 17
SECTION 4.21. Non-Material Subsidiaries. . . . . . . . . .. . . . 17
RTICLE V
AFFIRMATIVE COVENANTS . . . . . . . .. . . . 17
SECTION 5.01. Corporate Existence and Maintenance of
Properties.. . . . . . . . . . . . . . . . . . . . . .. . . . 17
SECTION 5.02. Compliance with Laws.. . . . . . . . . . . .. . . . 18
SECTION 5.03. Insurance. . . . . . . . . . . . . . . . . .. . . . 19
SECTION 5.04. Obligations and Taxes. . . . . . . . . . . .. . . . 19
SECTION 5.05. Accounting Methods and Financial Records.. .. . . . 19
SECTION 5.06. Financial Statements, Certificates and
Reports. . . . . . . . . . . . . . . . . . . . . . . .. . . . 19
SECTION 5.07. Access to Premises and Records.. . . . . . .. . . . 21
SECTION 5.08. Notice of Default. . . . . . . . . . . . . .. . . . 21
SECTION 5.09. Notice of Litigation.. . . . . . . . . . . .. . . . 21
SECTION 5.10. Notice of Strikes, Labor Controversies, etc.. . . . 21
SECTION 5.11 Update of Subsidiaries. . . . . . . . . . 22
ARTICLE VI
NEGATIVE COVENANTS . . . . . . . . .. . . . 21
SECTION 6.01. Liens. . . . . . . . . . . . . . . . . . . .. . . . 22
SECTION 6.02. Indebtedness.. . . . . . . . . . . . . . . .. . . . 23
SECTION 6.03. Liquidation, Sale of Assets and Merger.. . .. . . . 23
SECTION 6.04. Investments. . . . . . . . . . . . . . . . .. . . . 24
SECTION 6.05. Guarantees.. . . . . . . . . . . . . . . . .. . . . 25
SECTION 6.06. Breach or Violation. . . . . . . . . . . . .. . . . 25
SECTION 6.07. No Amendments. . . . . . . . . . . . . . . .. . . . 25
SECTION 6.08. Use of Proceeds. . . . . . . . . . . . . . .. . . . 26
SECTION 6.09. Transactions with Affiliates.. . . . . . . .. . . . 26
SECTION 6.10. Restrictive Covenants. . . . . . . . . . . .. . . . 26
SECTION 6.11. Increase in Benefits; New Plans. . . . . . .. . . . 26
ARTICLE VII
FINANCIAL COVENANTS. . . . . . . . .. . . . 27
SECTION 7.01. Adjusted Funded Debt to Adjusted Cash Flow
Ratio. . . . . . . . . . . . . . . . . . . . . . . . .. . . . 27
SECTION 7.02. Consolidated Net Worth.. . . . . . . . . . .. . . . 27
SECTION 7.03. Debt Service Coverage. . . . . . . . . . . .. . . . 27
ARTICLE VIII
EVENTS OF DEFAULT . . . . . . . . .. . . . 27
SECTION 8.01. Events of Default. . . . . . . . . . . . . .. . . . 27
SECTION 8.02. Exercise of Remedies.. . . . . . . . . . . .. . . . 30
ARTICLE IX
THE AGENT . . . . . . . . . . .. . . . 31
SECTION 9.01. Appointment and Authorization. . . . . . . .. . . . 31
SECTION 9.02. Noteholders. . . . . . . . . . . . . . . . .. . . . 31
SECTION 9.03. Consultation with Counsel. . . . . . . . . .. . . . 31
SECTION 9.04. Documents. . . . . . . . . . . . . . . . . .. . . . 31
SECTION 9.05. Resignation or Removal of the Agent. . . . .. . . . 32
SECTION 9.06. Responsibility of the Agent. . . . . . . . .. . . . 32
SECTION 9.07. Notices of Event of Default. . . . . . . . .. . . . 33
SECTION 9.08. Bank Credit Decision.. . . . . . . . . . . .. . . . 33
SECTION 9.09. Indemnification. . . . . . . . . . . . . . .. . . . 33
SECTION 9.10. Benefit of Article IX. . . . . . . . . . . .. . . . 34
ARTICLE X
MISCELLANEOUS . . . . . . . . . .. . . . 34
SECTION 10.01. Modification. . . . . . . . . . . . . . . .. . . . 34
SECTION 10.02. Waiver. . . . . . . . . . . . . . . . . . .. . . . 34
SECTION 10.03. Payment of Expenses.. . . . . . . . . . . .. . . . 35
SECTION 10.04. Notices.. . . . . . . . . . . . . . . . . .. . . . 36
SECTION 10.05. Governing Law.. . . . . . . . . . . . . . .. . . . 37
SECTION 10.06. Invalid Provisions. . . . . . . . . . . . .. . . . 37
SECTION 10.07. Nonliability of Banks.. . . . . . . . . . .. . . . 38
SECTION 10.08. Binding Effect and Assignability. . . . . .. . . . 38
SECTION 10.09. Entirety; Conflicts.. . . . . . . . . . . .. . . . 38
SECTION 10.10. Headings, etc.. . . . . . . . . . . . . . .. . . . 38
SECTION 10.11. Survival. . . . . . . . . . . . . . . . . .. . . . 38
SECTION 10.12. Sale and Transfers etc. . . . . . . . . . .. . . . 38
SECTION 10.13. No Third Party Beneficiary. . . . . . . . .. . . . 39
SECTION 10.14. Waiver of Jury Trial. . . . . . . . . . . .. . . . 40
SECTION 10.15. Consent to Jurisdiction.. . . . . . . . . .. . . . 40
SECTION 10.16. Multiple Counterparts.. . . . . . . . . . .. . . . 41
SECTION 10.17. Disclosures.. . . . . . . . . . . . . . . .. . . . 42
SECTION 10.18. Sharing of Setoffs. . . . . . . . . . . . .. . . . 42
SECTION 10.19. Repayments in Bankruptcy. . . . . . . . . .. . . . 43
ARTICLE XI
DEFINITIONS. . . . . . . . . . .. . . . 43
SECTION 11.01. Definitions.. . . . . . . . . . . . . . . .. . . . 43
SECTION 11.02. Other Definitional Provisions.. . . . . . .. . . . 43
SECTION 11.03. Accounting Matters. . . . . . . . . . . . .. . . . 43
CREDIT AGREEMENT
THIS CREDIT AGREEMENT dated as of February 12, 1996, among
HILB, ROGAL, AND HAMILTON COMPANY, a Virginia corporation (the
"Borrower"), the Banks set forth on the signature page hereto
(the "Banks"), and CRESTAR BANK, a Virginia banking corporation,
as agent for the Banks under this Agreement (in such capacity,
the "Agent")(unless otherwise indicated, capitalized terms herein
have the meanings set forth in Exhibit A hereto), recites and
provides as follows:
RECITALS
WHEREAS, the Borrower has requested that the Banks extend
credit to the Borrower in an aggregate principal amount of up to
$20,000,000 to finance the repurchase of the Borrower's Capital
Securities, to finance acquisitions and to provide funds for
other general corporate purposes; and
WHEREAS, the Banks are willing to extend such credit on the
terms and subject to the conditions set forth herein;
NOW THEREFORE, in consideration of the mutual promises set
forth herein and for other valuable consideration, the parties
agree as follows:
ARTICLE I
LOANS
SECTION 1.01. Commitment. Subject to the terms and
conditions and relying upon the representations and warranties
herein, each Bank, severally and not jointly, agrees to make
Loans to the Borrower, from time to time on or after the date
hereof and until the Commitment Termination Date, in an aggregate
principal amount at any time outstanding not exceeding the amount
of its Commitment. The Borrower may borrow, repay and reborrow
hereunder on or after the date hereof and prior to the Commitment
Termination Date, subject to the terms and conditions herein.
SECTION 1.02. Funding Loans. (a) Each Loan shall be
either a Eurodollar Loan or a Base Rate Loan as the Borrower may
request subject to and in accordance with this Section. The
Eurodollar Loans made by the Banks in any one borrowing shall be
in a minimum aggregate principal amount of $2,000,000 and in
integral multiples of $1,000,000 in excess thereof. The Base
Rate Loans made by the Banks in any one borrowing shall be in a
minimum aggregate principal amount of $1,000,000 and in integral
multiples of $1,000,000 in excess thereof. Loans shall be made
ratably by the Banks in accordance with their respective
Percentages; provided, however, that the failure of any Bank to
make its Loan shall not in itself relieve any other Bank of its
obligation to lend hereunder. Each Bank may, at its option,
fulfill its commitment with respect to any Eurodollar Loan by
causing a foreign branch or Affiliate of such Bank to make such
Loan, provided that any exercise of such option shall not affect
the obligation of the Borrower to repay such Loan in accordance
with the terms of the applicable Note. Subject to the other
provisions of this Section and the provisions of Section 1.07,
Loans of more than one type may be outstanding at the same time.
(b) The Borrower shall give the Agent written notice (as
provided in Section 1.16) of each borrowing under Section 1.01.
Upon receipt by the Agent of notice from the Borrower pursuant to
this paragraph, the Agent shall promptly notify the Banks
thereof. On the borrowing date requested in such notice, each
Bank shall make its ratable share (determined by its Percentage)
of the borrowing available to the Borrower at its account
maintained at the offices of the Agent no later than 2:00 p.m.
Richmond time, in federal or other immediately available funds.
(c) Notwithstanding any provision in this Agreement to the
contrary, the Borrower shall not in any notice of borrowing under
this Section 1.02 request any Eurodollar Loan that would not be
permitted if characterized as a continuation or conversion
pursuant to Section 1.07.
SECTION 1.03. Notes; Principal Payments. (a) The Loans
made by each Bank and the Borrower's obligation to repay the
Loans with interest in accordance with the terms of this
Agreement shall be evidenced by this Agreement, the records of
such Bank and a Note duly executed on behalf of the Borrower,
dated the Closing Date, in substantially the form attached hereto
as Exhibit B, payable to the order of such Bank in a principal
amount equal to its Commitment. Each Note shall bear interest
from its date on the outstanding principal balance thereof as set
forth in Section 1.04. The outstanding aggregate unpaid amount
of the Loans of each Bank at any time shall be the principal
amount owing on the Note of such Bank at such time. The records
of each Bank shall be prima facie evidence of the Loans of such
Bank and accrued interest thereon and of all payments made in
respect thereof.
(b) If not sooner paid, the entire unpaid principal balance
of each Note shall be due and payable on the Commitment
Termination Date.
SECTION 1.04. Interest. (a) Subject to the provisions of
Section 1.06, each Base Rate Loan and each other amount (other
than principal on the Loans) becoming due hereunder shall bear
interest at a rate per annum (computed on the basis of the actual
number of days elapsed over a year of 360 days) equal to the Base
Rate.
(b) Subject to the provisions of Section 1.06, each
Eurodollar Loan shall bear interest at a rate per annum (computed
on the basis of the actual number of days elapsed over a year of
360 days) equal to the Adjusted Eurodollar Rate plus the
Applicable Margin. The Agent shall determine the applicable
Adjusted Eurodollar Rate for each such Loan as at 11:00 a.m.,
London time, or as soon as practicable thereafter, on the date
when such determination is to be made in respect of such Interest
Period and shall notify the Borrower and the Banks of the
Adjusted Eurodollar Rate so determined.
(c) Interest on each Loan shall be payable on each
applicable Interest Payment Date, commencing with the first of
such dates after the date of such Loan, and on each Conversion
Date and the Commitment Termination Date.
SECTION 1.05. Commitment Fee; Termination and Reduction of
Commitments.
(a) In consideration of the Commitments hereunder, the
Borrower shall pay in immediately available funds to the Agent,
for the pro rata account of each Bank, on the last day of each
calendar quarter, commencing with the first such date after the
Closing Date, and on the date of any reduction or termination of
the Commitments of the Banks hereunder, a commitment fee (the
"Commitment Fee") in an amount equal to the Commitment Rate
(computed on the basis of the actual number of days elapsed in a
year of 360 days) multiplied by the average daily unused amount
of the Commitment of such Bank during the period or quarter then
ending. The Commitment Fee shall commence to accrue as of the
Closing Date, and shall cease to accrue on the Commitment
Termination Date.
(b) The Borrower may, by written notice to the Agent (as
provided in Section 1.16) terminate in full, or from time to time
permanently reduce in part, the aggregate Commitments. Each such
voluntary partial reduction of the aggregate Commitments shall be
in an aggregate principal amount of $2,000,000 and in integral
multiples of $1,000,000 in excess thereof.
(c) The Borrower shall repay the Loans upon reduction of
the Commitments pursuant to this Section 1.05 in an amount
sufficient to reduce the outstanding principal balance of the
Loans to an amount not greater than the aggregate reduced
Commitments. All repayments under this Section shall be
accompanied by accrued interest on the principal amount being
repaid to the date of repayment.
(d) Each reduction in the aggregate Commitments shall be
made ratably among the Banks in accordance with each Bank's
Percentage. Once reduced, the Commitments cannot be reinstated
without the unanimous consent of the Banks.
SECTION 1.06. Additional Interest; Alternate Rate of
Interest; Maximum Interest Rate. (a) Upon the occurrence and
during the continuation of an Event of Default, the outstanding
principal balance of the Loans and all other amounts becoming due
hereunder shall accrue interest at a rate per annum equal to the
Base Rate plus 2%.
(b) If the Agent, in its reasonable judgment, determines at
any time that dollar deposits in the amount of the principal
amount of any requested Eurodollar Loan are not generally
available in the relevant interbank market, or that the rate at
which such dollar deposits are being offered will not adequately
and fairly reflect the cost to the Banks of making or maintaining
the principal amount of such requested Eurodollar Loan during
such Interest Period, or that reasonable means do not exist for
ascertaining the Adjusted Eurodollar Rate, the Agent shall, as
soon as practicable thereafter, give prompt written or telephonic
notice of such determination to the Borrower and the Banks.
After such notice has been given and until the circumstances
giving rise to such notice no longer exist, each request for a
Eurodollar Loan or for conversion to or maintenance of a
Eurodollar Loan shall be deemed to be a request for a Base Rate
Loan. Each determination by the Agent hereunder shall be
conclusive absent manifest error.
(c) Nothing contained in this Agreement or any Note shall
require the Borrower at any time to pay interest at a rate
exceeding the Maximum Permitted Rate. If interest payable to any
Bank on any date would exceed the maximum amount permitted by the
Maximum Permitted Rate, such interest payment shall automatically
be reduced to such maximum permitted amounts, and interest for
any subsequent period, to the extent less than the maximum amount
permitted for such period by the Maximum Permitted Rate, shall be
increased by the unpaid amount of such reduction. Any interest
actually received for any period in excess of such maximum
allowable amount for such period shall be deemed to have been
applied as a prepayment of the then outstanding Loans in
accordance with Section 1.08.
SECTION 1.07. Continuation and Conversion of Loans.
Subject to Sections 1.10 and 1.11, the Borrower may, by written
notice to the Agent (as provided in Section 1.16) at any time,
continue any Eurodollar Loan or portion thereof, into a
subsequent Interest Period and convert any Loan or portion
thereof into a Loan of a different type, subject in each case to
the following:
(a) no Default (except in the case of conversion to Base
Rate Loans) shall have occurred and be continuing at the time of
such notice or such continuation or conversion;
(b) On and as of the date of such continuation or
conversion, each representation and warranty set forth in Article
IV shall be true and correct, as determined by the Agent, it
being understood that the representations and warranties set
forth in Sections 4.04 and 4.05 shall be deemed to apply to the
most recent financial statements furnished by the Borrower to the
Banks prior to such Loan;
(c) the notice given to the Agent by the Borrower shall
specify the Loans (identified by reference to the aggregate
amount of such Loans by all of the Banks) to be continued or
converted and provide the information required pursuant to
Section 1.16 with respect to the continuation or conversion;
(d) such continuation or conversion shall be made pro rata
among the Banks in accordance with their respective Percentages;
(e) in the case of a continuation or conversion of less
than all Loans, the aggregate principal amount of Loans continued
or converted shall not be less than the minimum borrowing amounts
set forth in Section 1.02(a);
(f) no Loan may be continued or converted to a Eurodollar
Loan having an Interest Period that would extend beyond the
scheduled Commitment Termination Date;
(g) the Conversion Date must be a Business Day with respect
to the new Loan;
(h) no Loan (or portion thereof) may be converted to a
Eurodollar Loan if, after such conversion, and after giving
effect to any prepayment of Loans, an aggregate of more than five
separate Eurodollar Loans of any Bank would be outstanding
hereunder, it being understood that for such purposes Loans
having different Interest Periods, regardless of whether they
commence or end on the same date, shall be considered separate
Loans;
(i) each request for continuation of or conversion into a
Eurodollar Loan that fails to state an applicable Interest Period
shall be deemed to be a request for an Interest Period of one-
month;
(j) in the event that the Borrower fails to give notice to
continue any Eurodollar Loan into a subsequent Interest Period or
convert any such Loan into a Loan of another type, such Loan
(unless repaid in full) shall automatically become a Base Rate
Loan at the expiration of the then current Interest Period; and
(k) each continuation or conversion shall be effected by
each Bank as if the proceeds of the new Loan were applied to
payment of the Loan (or portion thereof) being continued or
converted, and accrued interest on the Loan (or portion thereof)
being continued or converted shall be paid by the Borrower on and
as of the Conversion Date.
SECTION 1.08. Optional Prepayment of Loans. (a) The
Borrower shall have the right at any time and from time to time
to prepay any Base Rate Loan in whole or in part, without premium
or penalty, upon prior written notice to the Agent; provided,
however, that each such partial prepayment shall be in the
principal amount of at least $1,000,000 and in increments of
$1,000,000 in excess thereof.
(b) The Borrower shall have the right to prepay any
Eurodollar Loan, in whole or in part, upon prior written notice
to the Agent (as provided in Section 1.16); provided, however,
that each such partial prepayment shall be in the principal
amount of at least $2,000,000 and in increments of $1,000,000 in
excess thereof. If the Borrower prepays any Eurodollar Loan
except on the last day of the Interest Period in effect for such
Loan, then the Borrower shall make the payments required by
Section 1.12.
(c) Each notice of prepayment shall specify which Loan(s)
is to be prepaid, the prepayment date and the principal amount of
each Loan to be prepaid. All prepayments under this Section
shall be accompanied by accrued interest on the principal amount
being prepaid to the date of prepayment. Amounts prepaid
pursuant to this Section prior to the Commitment Termination Date
shall be available to be reborrowed from the Banks hereunder in
accordance with the terms hereof to the extent such reborrowings
do not cause the outstanding Loans to exceed the then outstanding
Commitments of the Banks.
SECTION 1.09. Manner of Payment. (a) All payments by the
Borrower hereunder and under the Notes shall be made to the
Agent, at its primary office in Richmond, Virginia, for the
account of each Bank in Dollars in federal or other immediately
available funds by 11:00 a.m., Richmond time, on the date on
which such payment is due, in all cases without any deduction or
withholdings whatsoever, including any deduction or withholding
for any setoff, recoupment, counterclaim or Tax. Whenever any
payment required to be made hereunder or under the Notes is
stated to be due on a day other than a Business Day, such payment
shall be made on the next succeeding Business Day, and interest
shall continue to accrue thereon until such payment is made.
Interest in respect of any Loan hereunder shall accrue from and
including the date of such Loan to but excluding the date on
which such Loan is paid in full. If such payments are not
received by the Agent within five (5) Business Days after the due
date thereof, such payments may be deducted by the Banks in
accordance with Section 10.18.
(b) All payments received by the Agent shall be remitted to
the Banks on the Business Day on which such payments are received
or deemed to be received by the Agent.
SECTION 1.10. Change in Circumstances. In the event of any
Regulatory Change or any change after the date hereof in
conditions with respect to cost of funding or otherwise affecting
the transactions contemplated by this Agreement or the Notes
that:
(a) subjects any Bank to any tax of any kind or changes the
basis of taxation with respect to any Eurodollar Loan (other than
any tax on the overall net income of such Bank or of the lending
office or Affiliate of such Bank making any Eurodollar Loan
hereunder) imposed by the United States of America or by the
jurisdiction in which such Bank has its principal office (or in
which such lending office or Affiliate is located) or any
political subdivision or taxing authority therein; or
(b) imposes, modifies or deems applicable any reserve
(other than, in the case of Eurodollar Loans, any reserve taken
into account in the computation of Eurodollar Statutory
Reserves), deposit or similar requirement against any assets held
by, deposits with or for the account of or loans or commitments
by an office of such Bank; or
(c) imposes upon such Bank or the relevant interbank market
any other condition with respect to Eurodollar Loans or upon the
Bank any other condition with respect to this Agreement;
and the result of any of the foregoing shall be to increase the
cost to such Bank of making or maintaining any Eurodollar Loan
hereunder or to reduce the amount of any payment (whether of
principal, interest or otherwise) received or receivable by such
Bank, or to require such Bank to make any payment in connection
with any Eurodollar Loan, then and in each such case the Borrower
shall pay to such Bank such amounts as shall be necessary to
compensate such Bank for such cost, reduction or payment. The
protection of this Section shall be available to each Bank
regardless of any possible contention of the invalidity or
inapplicability of any law, regulation or other condition that
gives rise to any right of such Bank for compensation hereunder.
SECTION 1.11. Change in Legality. Notwithstanding any
provision in this Agreement to the contrary, if any Regulatory
Change shall make it unlawful for a Bank to make or maintain a
Eurodollar Loan or to give effect to its obligations as
contemplated hereby with respect to a Eurodollar Loan, then, by
written notice to the Borrower, such Bank may:
(a) declare that Eurodollar Loans will not thereafter be
made by such Bank hereunder, whereupon the Borrower shall be
prohibited from requesting Eurodollar Loans from such Bank
hereunder unless such declaration is subsequently withdrawn; and
(b) to the extent that maintenance of any Eurodollar Loan
has been made unlawful, require that all outstanding Eurodollar
Loans made by it be converted to Base Rate Loans, whereupon all
of such Eurodollar Loans shall be automatically converted to Base
Rate Loans upon receipt by the Borrower of such notice, and the
Borrower shall make the payments, if any, required by Section
1.12.
SECTION 1.12. Indemnity for Eurodollar Loans. The Borrower
shall reimburse each Bank for any loss incurred or to be incurred
by it in the reemployment of the funds released by any prepayment
or conversion of any Eurodollar Loan required or permitted by any
other provision of this Agreement if such Loan is prepaid or
converted other than on the last day of the Interest Period for
such Loan. Such loss shall be the difference as determined by
such Bank between (a) the amount that would have been realized by
such Bank for the remainder of such Interest Period for such Loan
and (b) any lesser amount that would be realized by such Bank in
reemploying such funds by purchasing on the date of prepayment or
conversion a U.S. Treasury security in the principal amount
prepaid or converted that matures on the last day of the Interest
Period of the Loan being prepaid or converted. Without
duplication of the foregoing indemnity payments, the Borrower
shall indemnify each Bank against any actual loss or expense that
such Bank may sustain or incur as a consequence of any default in
payment or prepayment of the principal amount of any Loan or any
part thereof or interest accrued thereon, as and when due and
payable (at the due date thereof, by notice of prepayment or
otherwise), or the occurrence of any Event of Default, including
but not limited to any loss or expense sustained or incurred in
liquidating or employing deposits from third parties acquired to
effect or maintain such Loan or any part thereof.
SECTION 1.13. Capital Adequacy. If, after the date hereof,
any Bank shall have determined that any Regulatory Change
regarding capital adequacy or compliance by such Bank with any
request or directive regarding capital adequacy (whether or not
having the force of law) of any Governmental Authority, has or
would have the effect of reducing the rate of return on such
Bank's (or its holding company's) capital as a consequence of
this Agreement or the Loans to a level below that which such Bank
(or its holding company) could have achieved but for such
Regulatory Change or compliance (taking into consideration such
Bank's policies with respect to capital adequacy), then from time
to time, the Borrower shall pay to such Bank such additional
amount or amounts as will compensate such Bank for such
reduction. In determining any such amount, the Bank may use any
reasonable averaging and attribution methods.
SECTION 1.14. Reasonableness of Increased Costs.
Notwithstanding anything to the contrary in Sections 1.10, 1.11,
1.12 and 1.13, the amounts payable by the Borrower thereunder
shall not exceed the amounts necessary to indemnify the affected
Bank against such increased cost actually incurred or the
reduction in amount actually received. A certificate in
reasonable detail as to the amount of such increased cost or
reduction in amount received and the method of calculation shall
be submitted to the Borrower by such Bank and shall be conclusive
absent manifest error. The Borrower shall pay to each Bank the
amounts shown as due on any such certificate within ten (10) days
after its receipt of the same. No failure on the part of any
Bank to demand compensation under such Sections above on any one
occasion shall constitute a waiver of its right to demand such
compensation on any other occasion.
SECTION 1.15. Pro Rata Treatment. Except as otherwise
provided in Sections 1.10, 1.11, 1.12 and 1.13, all payments and
prepayments of principal and interest in respect of the Loans,
all payments of Commitment Fees and all borrowings hereunder
shall be made pro rata among the Banks in accordance with their
respective Percentages.
SECTION 1.16. Certain Notices. Notices by the Borrower to
the Agent of any terminations or reductions of the Commitments,
of borrowings and prepayments of Loans, of continuation and
conversion of Loans, of type of Loans and of the duration of
Interest Periods shall be irrevocable and shall be effective only
if received by the Agent not later than 11:00 a.m. Richmond time
on the number of Business Days prior to the date of the relevant
termination, reduction, borrowing, continuation, conversion, or
prepayment or the first day of such Interest Period specified
below (it being understood that notices received by the Agent
after 11:00 a.m. Richmond time shall be considered timely
received on the next Business Day):
Number of
Business
Notice Days Prior
Termination or reduction of
Commitment
10
Borrowing, continuation
or prepayment of or conversion
into Base Rate Loans same day
Borrowing, continuation
or prepayment of, conversion
into, or notification of duration
of Interest Period for,
Eurodollar Loans
3
Each such notice of termination or reduction shall specify the
amount of the Commitment to be terminated or reduced. Each such
notice of borrowing, continuation, conversion or prepayment shall
specify the Loans to be borrowed, continued, converted or prepaid
and the amount and type of the Loans to be borrowed, continued,
converted or prepaid and the date of borrowing, continuation,
conversion or prepayment (which shall be a Business Day). Each
such notice of the duration of an Interest Period shall specify
the Loans to which such Interest Period is to relate. In the
event that the Borrower fails to select within the time period
and otherwise as provided in this Section 1.16 the type of Loan
or the duration of the Interest Period for any Eurodollar Loan,
such Loan shall be automatically converted into a Base Rate Loan
on the last day of the then current Interest Period for such Loan
or will remain as, or will be made as, a Base Rate Loan.
ARTICLE II
COLLATERAL AND GUARANTIES
SECTION 2.01. Unsecured Obligations. The parties
acknowledge that the Loans are unsecured obligations of the
Borrower.
SECTION 2.02. Guaranty. Payment of the Obligations is not
guaranteed by any third party.
SECTION 2.03. Loan Documents. The Borrower agrees to
execute and deliver all Loan Documents and other instruments
contemplated by this Agreement, in form and substance reasonably
satisfactory to the Agent and its counsel.
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. Initial Loans. In addition to the conditions
precedent in Section 3.02, the obligations of the Banks to make
initial Loans hereunder are subject to the following conditions
precedent:
(a) Satisfaction of each of the conditions set forth on
Exhibit C hereto, the satisfaction of which shall be determined
by the Banks and the Agent in their sole discretion.
(b) All legal matters incident to this Agreement and the
Loans shall be satisfactory to Hunton & Williams, special counsel
for the Agent.
SECTION 3.02. All Loans. As conditions to each Loan to be
made hereunder:
(a) The Agent shall have received a notice of such Loan as
required by Section 1.02.
(b) On and as of the date of such Loan, both before and
after giving effect to such Loan and applying the proceeds
thereof:
(i) each representation and warranty set forth in
Article IV shall be true and correct, as determined by the Agent
in its sole and absolute discretion, it being understood that the
representations and warranties set forth in Sections 4.04 and
4.05 shall be deemed to apply to the most recent financial
statements furnished by the Borrower to the Banks prior to such
Loan, and
(ii) the Borrower shall be in compliance with all
the terms and provisions of this Agreement on its part to be
observed or performed, no Default shall have occurred and be
continuing, and the Agent and the Banks shall have received a
certificate to such effect.
(c) Such Loan will not contravene any Legal Requirement
applicable to the Agent or any Bank.
The Borrower shall be deemed to make representations and
warranties on the date of each Loan as to the matters specified
in paragraphs (b) and (c) of this Section.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
To induce the Banks to enter into this Agreement and to make
Loans hereunder, the Borrower represents and warrants to the
Agent and to each of the Banks that:
SECTION 4.01. Organization; Powers; Qualification. The
Borrower is (a) a corporation duly organized, validly existing
and in good standing under the laws of Virginia, (b) has the
power and authority to own its properties and to carry on its
businesses as now conducted, (c) is qualified to do business in
the jurisdictions indicated on Schedule 4.01, (d) is not required
to be qualified in any other jurisdiction where the failure to be
so qualified would have a Material Adverse Effect, and (e) has
the power to execute, deliver and perform its obligations under
this Agreement, to borrow hereunder and to execute and deliver
the Notes and the other Loan Documents and to perform its
obligations thereunder.
SECTION 4.02. Authorization; Enforceability. The
execution, delivery and performance of this Agreement, the
borrowings hereunder, the execution, delivery and performance of
the Notes and the other Loan Documents and the transactions
contemplated hereby and thereby (a) have been duly authorized by
all requisite action on the part of the Borrower, (b) will not
(i) violate (A) any provision of law, the Organizational
Documents of the Borrower or any Material Subsidiary or (B) any
applicable order of any Governmental Authority, (ii) violate,
conflict with, breach or constitute (with due notice or lapse of
time or both) a default under any indenture, agreement for
borrowed money, bond, note, instrument or other agreement to
which the Borrower or any Material Subsidiary is a party or by
which the Borrower or any Material Subsidiary or any of their
respective property is bound or (iii) result in the creation or
imposition of any Lien of any nature whatsoever upon any property
or assets of the Borrower or any Material Subsidiary. This
Agreement has been duly executed and delivered by the Borrower
and constitutes, and the Notes and the other Loan Documents party
when executed and delivered will constitute, legal, valid and
binding obligations of the Borrower enforceable against the
Borrower in accordance with their respective terms.
SECTION 4.03. Consents and Approvals. No action, consent
or approval of, or registration or filing with, or any other
action by any Governmental Authority or of shareholders is
required in connection with the execution, delivery and
performance by the Borrower of this Agreement, the borrowings
hereunder or the execution, delivery and performance of the Notes
or any other Loan Document.
SECTION 4.04. Financial Statements. The Borrower has
heretofore furnished the following financial statements to each
of the Banks: (i) the consolidated balance sheet of the Borrower
and the Consolidated Subsidiaries as of December 31, 1994 and the
consolidated statements of income, retained earnings and cash
flows of the Borrower and the Consolidated Subsidiaries for the
fiscal year then ended, reported on by Ernst & Young, independent
public accountants, and (ii) the unaudited consolidated balance
sheet of the Borrower and the Consolidated Subsidiaries as of
June 30, 1995, and the related statements of income, retained
earnings and cash flows of the Borrower and the Consolidated
Subsidiaries for the period then ended, duly certified by a
financial officer of the Borrower. Such financial statements
fairly present the consolidated financial condition of the
Borrower and the Consolidated Subsidiaries as of the dates
thereof and the consolidated results of the operations of the
Borrower and the Consolidated Subsidiaries for the periods
covered thereby and are complete and correct. All such financial
statements were prepared in accordance with Generally Accepted
Accounting Principles applied on a consistent basis (subject, in
the case of such interim statements, to the omission of footnotes
and year-end audit adjustments).
SECTION 4.05. No Material Adverse Change. There has been
no material adverse change in the business, assets, liabilities,
condition (financial or otherwise), results of operations or
business prospects, on a consolidated basis, of the Borrower and
the Consolidated Subsidiaries since June 30, 1995.
SECTION 4.06. Subsidiaries. (a) Set forth on Schedule
4.06(a) is a complete and accurate list of all Material
Subsidiaries of the Borrower on the date hereof, showing as to
each such Material Subsidiary the jurisdiction of its
organization, its type of entity and its principal place of
business. All of the outstanding Capital Securities of each of
the Material Subsidiaries are wholly owned, directly or
indirectly, by the Borrower. Such Capital Securities are owned
free and clear of all Liens except Permitted Liens, and the owner
of such Capital Securities has the unrestricted right to vote,
and (subject to limitations imposed by applicable law) to receive
dividends and distributions on, such Capital Securities.
(b) Each of the Material Subsidiaries is (i) duly
organized, validly existing and in good standing under the laws
of the jurisdiction of its organization and is the type of entity
described in Schedule 4.06(a), (ii) has the power and authority
to own its properties and to carry on its businesses as now
conducted, and (iii) is qualified to do business in every
jurisdiction where such qualification is necessary or failure to
qualify would have a Material Adverse Effect.
(c) Set forth on Schedule 4.06(c) is a complete and
accurate list of all foreign Subsidiaries of the Borrower on the
date hereof that have annual revenues (either historically or on
a pro forma basis) exceeding 2.25% of total consolidated revenues
of the Borrower and the Consolidated Subsidiaries, showing as to
each such Subsidiary the jurisdiction of its organization, its
type of entity and its principal place of business. All of the
outstanding Capital Securities of each of the foreign
Subsidiaries are wholly owned, directly or indirectly, by the
Borrower. Such Capital Securities are owned free and clear of
all Liens except Permitted Liens, and the owner of such Capital
Securities has the unrestricted right to vote, and (subject to
limitations imposed by applicable law) to receive dividends and
distributions on, such Capital Securities.
SECTION 4.07. Litigation. Borrower has filed with the SEC
all reports it is required to file with the SEC regarding any
action, suit or proceeding at law or in equity or by or before
any court or Governmental Authority now pending or threatened
against or affecting the Borrower or any of the Material
Subsidiaries or any property or rights of the Borrower or any of
the Material Subsidiaries.
SECTION 4.08. Tax Returns. Except as set forth in Schedule
4.08, the Borrower and the Material Subsidiaries have filed or
caused to be filed all federal, state and local tax returns that
are required to be filed and have paid or caused to be paid all
taxes as shown on such returns or on any assessment received by
any of them to the extent that such taxes have become due, except
taxes the validity of which is being contested in good faith by
appropriate proceedings and with respect to which the Borrower or
such Material Subsidiary, as the case may be, has set aside on
its books adequate reserves, if any, required in accordance with
Generally Accepted Accounting Principles.
SECTION 4.09. Properties. The Borrower and the Material
Subsidiaries have good and marketable title (subject to minor
title defects) to all their respective properties and assets
reflected on the consolidated balance sheet of the Borrower and
the Consolidated Subsidiaries dated June 30, 1995, referred to in
Section 4.04, except for such properties and assets as have been
disposed of since such date as no longer necessary in the conduct
of their respective businesses or as have been disposed of in the
ordinary course of business. The Borrower and the Material
Subsidiaries have good and marketable title to all their
respective properties and assets and own all such properties and
assets free and clear of any Liens except Permitted Liens.
SECTION 4.10. Employee Benefit Plans. Schedule 4.10 sets
forth a true and complete list of all Plans that the Borrower or
any Material Subsidiary maintains, or expects to maintain, or to
which the Borrower or any Material Subsidiary is, or is expected
to be, required to make any contribution. The Borrower, the
Material Subsidiaries and each Plan are in compliance in all
material respects with the applicable provisions of law,
including the applicable provisions of ERISA and the regulations
and published interpretations thereunder. No Plan is (i) a
multiemployer plan (as defined in Section 3(37) of ERISA), (ii)
subject to the provisions of Title IV of ERISA or (iii) subject
to the minimum funding provisions of ERISA or the Internal
Revenue Code. Neither the Borrower nor any ERISA Affiliate has
maintained, contributed to, or had an obligation to contribute
to, any plan described in items (i), (ii) or (iii) of the
preceding sentence. Except for the continued coverage
requirements of the Consolidated Omnibus Budget Reconciliation
Act of 1985 and subsequent legislation and as disclosed in
Schedule 4.10, the Borrower and the Material Subsidiaries are not
obligated to provide medical benefits, hospitalization benefits
or benefits under any other employee welfare benefit plan (within
the meaning of Section 3(1) of ERISA) to any former employee or
the spouse or dependent of any former employee.
SECTION 4.11. Government Regulation. Neither the Borrower
nor any Subsidiary is subject to regulation under the Public
Utility Holding Company Act of 1935, the Federal Power Act, the
Investment Company Act of 1940, the Interstate Commerce Act (as
any of such acts may be amended) or any other law (other than
Regulation X) that regulates the incurring by the Borrower or any
Subsidiary of indebtedness.
SECTION 4.12. Margin Stock. No proceeds of any Loan will
be used for the purpose of purchasing or carrying any Margin
Stock or for the purpose of reducing or retiring any indebtedness
which was originally incurred to purchase or carry a Margin Stock
or for any other purpose which might constitute this transaction
a "purpose credit" within the meaning of Regulation U or G.
Neither the Borrower nor any Subsidiary is engaged in the
business of extending credit for the purpose of purchasing or
carrying Margin Stocks. Neither the Borrower nor any Person
acting on behalf of the Borrower has taken or will take any
action which might cause the Notes or any of the other Loan
Documents, including this Agreement, to violate Regulation U or G
or any other regulations of the Federal Reserve Board or to
violate Section 7 of the Securities Exchange Act of 1934 or any
rule or regulation thereunder, in each case as now in effect or
as the same may hereinafter be in effect. Neither the Borrower
nor any Subsidiary owns any Margin Stock except as set forth in
Schedule 4.12 and, as of the date hereof, the aggregate value of
all Margin Stock owned by the Borrower does not exceed 25% of all
of the value of all of the Borrower's assets.
SECTION 4.13. No Material Misstatements. All information,
financial statements and documents furnished to the Agent and the
Banks in connection herewith are complete and accurate in all
material respects. No information, report, financial statement,
exhibit or schedule furnished by or on behalf of the Borrower to
the Agent or any Bank in connection with the negotiation,
execution, delivery or performance of this Agreement, any Note or
any other Loan Document hereunder, or any schedule hereto or
thereto contains any material misstatement of fact or omitted or
omits to state any material fact necessary to make the statements
herein or therein not misleading. There is no event or fact that
the Borrower has not disclosed to the Banks in writing that
causes a Material Adverse Effect or, so far as the Borrower can
now foresee, is likely to cause a Material Adverse Effect.
SECTION 4.14. Patents, Trademarks, etc. Each of the
Borrower and the Material Subsidiaries possesses adequate assets,
licenses, patents, patent applications, copyrights, trademarks,
service marks, trademark applications, trade names, technology,
processes and permits and other governmental approvals and
authorizations to conduct its business. Except as set forth in
Schedule 4.14, there are no existing or, to the knowledge of the
Borrower, threatened claims of any Person based on the use of
such permits, patents, trademarks, trade names, copyrights,
technology and processes by the Borrower or any of the Material
Subsidiaries and to the knowledge of the Borrower, no such use
infringes on the rights of any Person.
SECTION 4.15. Hazardous Wastes. To the best of Borrower's
knowledge, all land owned, leased or otherwise used by the
Borrower and the Material Subsidiaries is free from reportable
quantities of Hazardous Wastes, and no portion of such land would
subject the Borrower or any Material Subsidiary to liability
under federal, state or local law or regulation because of the
presence of stored, leaked or spilled Toxic Substances or
Hazardous Wastes, underground storage tanks, "asbestos" (as
defined in 40 C.F.R. 61.141) or the past or present
accumulation, spillage or leakage of any such substance, nor has
the Borrower or any Material Subsidiary arranged for disposal or
treatment (or arranged with a transporter for transport for
disposal or treatment) of any such substance to any other
location except in compliance with Environmental Laws. Neither
the Borrower nor any Material Subsidiary has received any notice
from the Environmental Protection Agency or any other
Governmental Authority alleging that it is a "responsible party"
with respect to any of the foregoing.
SECTION 4.16. No Brokers or Finders. No broker or finder
brought about or contributed to the obtaining, making or closing
of the Loans made pursuant to this Agreement, and the Borrower
has no obligation to any person in respect of any finder's or
brokerage fees in connection with the Loans contemplated by this
Agreement.
SECTION 4.17. No Default of Indebtedness; Solvency.
(a) Neither the Borrower nor any of the Material
Subsidiaries is in default of any Indebtedness, and no holder of
any such Indebtedness has given notice of an asserted default
thereunder. No liquidation, dissolution or other winding up of
the Borrower or any of the Material Subsidiaries and no
bankruptcy or similar proceedings relative to them or their
property are pending or, to the knowledge of the Borrower,
threatened against them.
(b) On the date hereof, each of the Borrower and the
Material Subsidiaries is, and after consummation of this
Agreement and after giving effect to all Indebtedness incurred
(assuming the entire Commitment is fully advanced on the Closing
Date) and Liens, if any, created by the Borrower and the Material
Subsidiaries in connection herewith will be, Solvent.
SECTION 4.18. Agreements. Neither the Borrower nor any
Material Subsidiary is a party to any agreement or instrument or
subject to any provision in its Organizational Documents that
could have a Material Adverse Effect or conflict with or
constitute a Default under this Agreement or any other Loan
Document. Neither the Borrower nor any Material Subsidiary is in
default in the performance, observance or fulfillment of any of
the obligations, covenants or conditions contained in any
agreement or instrument to which it is a party in any manner that
could have a Material Adverse Effect. The Banks understand that
the Borrower and its Subsidiaries are parties to agency and
brokerage contracts that are material to their respective
businesses and that such contracts are subject to negotiation and
may be amended, extended or terminated from time to time in the
ordinary course of business.
SECTION 4.19. Compliance with Law. Each of the Borrower
and the Material Subsidiaries has complied in all material
respects with all applicable statutes, rules, regulations, orders
and restrictions of any Governmental Authority.
SECTION 4.20. Labor Controversies. Neither the Borrower
nor any Material Subsidiary is a party to any collective
bargaining agreement. To the best knowledge of the Borrower, it
and the Material Subsidiaries are in compliance with all
applicable laws respecting employment and employment practices
where such failure to comply could reasonably be expected to have
a Material Adverse Effect.
SECTION 4.21. Non-Material Subsidiaries. To the best of
the Borrower's knowledge, each of the representations and
warranties set forth in this Article IV (except for Section
4.06(a)) with respect to the Material Subsidiaries is true and
correct with respect to all Subsidiaries that are not Material
Subsidiaries except for such matters as would not have a Material
Adverse Effect.
ARTICLE V
AFFIRMATIVE COVENANTS
The Borrower covenants and agrees with the Agent and the
Banks that until the Repayment Date, unless the Majority Banks
otherwise consent in writing, as follows:
SECTION 5.01. Corporate Existence and Maintenance of
Properties. The Borrower shall, and shall cause each of the
Material Subsidiaries to, do or cause to be done all things
necessary to preserve, maintain, renew and keep in full force and
effect its corporate existence and all of its material rights,
licenses, permits and franchises; conduct its business in
substantially the same manner as heretofore conducted; at all
times maintain and preserve all property used or useful in the
conduct of its business and keep the same in good repair, working
order and condition (ordinary wear and tear excepted), and from
time to time make, or cause to be made, all necessary and proper
repairs, renewals and replacements thereto, so that the business
carried on in connection therewith may be properly conducted at
all times.
SECTION 5.02. Compliance with Laws. The Borrower shall,
and shall cause each of the Material Subsidiaries to, do or cause
to be done all things necessary to comply with all laws and
regulations applicable to it, including without limitation the
following:
(a) SEC Filings. The Borrower shall make, and shall cause
each of the Subsidiaries to make, on a timely basis, all filings,
if any, it is required to make with the SEC.
(b) ERISA. The Borrower shall comply, and shall cause each
of its ERISA Affiliates to comply, in all material respects with
the applicable provisions of ERISA and as soon as possible, and
in any event within 10 days after the Borrower knows or has
reason to know of a violation of ERISA with respect to any Plan,
shall deliver to the Agent and each Bank a statement signed by a
senior financial officer of the Borrower setting forth details
respecting such event or condition and the action, if any, that
the Borrower or its ERISA Affiliate proposes to take with respect
thereto.
(c) Environmental Laws. (i) The Borrower shall be and
remain, and shall cause each Material Subsidiary to be and
remain, in compliance in all material respects with the
provisions of all federal, state and local environmental, health
and safety laws, codes and ordinances, and all rules and
regulations issued thereunder. The Borrower shall notify the
Banks immediately of any notice of a hazardous discharge or
environmental complaint received from any Governmental Authority
or any other Person; notify the Banks immediately of any
hazardous discharge from or affecting the Premises, which is also
required to be reported to any Governmental Authority;
immediately contain and remove the same, in compliance with all
applicable Legal Requirements; permit the Banks to inspect the
Premises, to conduct tests thereon, and to inspect all books,
correspondence and records pertaining thereto; and at a Bank's
request, and at the Borrower's expense, provide a report of a
qualified environmental engineer satisfactory in scope, form, and
contents to the Banks, and such other and further assurances
reasonably satisfactory to the Banks that the condition has been
corrected.
(ii) The Borrower acknowledges that the Agent and
the Banks have entered into this Agreement and made the Loans in
reliance upon the Borrower's representations and warranties in
Section 4.15 and its covenants in this Section 5.02(c).
Accordingly, the Borrower hereby agrees that the Borrower shall
be liable for all costs and expenses incurred by or asserted
against the Agent or any Bank arising under violations of the
terms of this Section 5.02(c) or a breach of any representation
or warranty contained in Section 4.15 of this Agreement. All of
the representations and warranties contained in Section 4.15 and
the Borrower's covenants under this Section 5.02(c) shall survive
the Repayment Date.
SECTION 5.03. Insurance. The Borrower shall maintain, and
shall cause each of the Material Subsidiaries to maintain,
insurance with financially sound and reputable insurance
companies or associations, in such amounts and covering such
risks (but including, in any event, public liability) as is
usually carried by companies engaged in the same or similar
businesses and owning similar properties in the same general
areas in which the Borrower and each of the Material Subsidiaries
operates and furnish to the Agent, upon reasonable request, full
information (including certificates and originals or certified
copies of the policies) as to the insurance carried.
SECTION 5.04. Obligations and Taxes. The Borrower shall
pay, and shall cause each of the Material Subsidiaries to pay,
all of its Indebtedness and obligations promptly and in
accordance with the terms thereof and pay and discharge promptly
all taxes, assessments and governmental charges or levies imposed
upon it or upon its income or profits or in respect of its
property, before the same shall become in default or delinquent,
as the case may be, as well as all lawful claims for labor,
materials and supplies or otherwise that, if unpaid, might become
a Lien upon such properties or any part thereof; provided,
however, that neither the Borrower nor any of the Subsidiaries
shall be required to pay and discharge or to cause to be paid and
discharged any such tax, assessment, charge, levy or claim so
long as the validity or amount thereof is contested in good faith
by appropriate proceedings and the Borrower or such Subsidiary,
as the case may be, sets aside on its books adequate reserves
therefor, if any, required in accordance with Generally Accepted
Accounting Principles.
SECTION 5.05. Accounting Methods and Financial Records.
The Borrower shall maintain, and shall cause each Subsidiary to
maintain, a system of accounting and financial records in
accordance with Generally Accepted Accounting Principles, and
keep such books, records and accounts (which shall be true and
complete), as may be required or necessary to permit (a) the
preparation of financial statements required to be delivered
pursuant to Section 5.06 and (b) the determination of the
Borrower's compliance with the terms of this Agreement.
SECTION 5.06. Financial Statements, Certificates and
Reports. The Borrower shall furnish to the Agent and the Banks:
(a) Quarterly Financial Statements. As soon as available,
and in any event within forty-five (45) days after the end of
each of the first three fiscal quarters of the Borrower, copies
of the Quarterly Report of the Borrower on Form 10-Q as filed
with the SEC, containing a balance sheet of the Borrower and the
Consolidated Subsidiaries as of the end of such quarter, and
consolidated statements of income and cash flows of the Borrower
and the Consolidated Subsidiaries for such quarter and for the
portion of the fiscal year ending with such quarter, in each case
setting forth in comparative form the figures for the
corresponding period of the preceding fiscal year;
(b) Annual Statements. As soon as available and in any
event within ninety (90) days after the close of each fiscal year
of the Borrower, copies of the Annual Report of the Borrower on
Form 10-K as filed with the SEC, containing a consolidated
balance sheet of the Borrower and the Consolidated Subsidiaries
as of the close of such fiscal year and consolidated statements
of income and cash flows of the Borrower and the Consolidated
Subsidiaries for such fiscal year, in each case setting forth in
comparative form the figures for the preceding fiscal year;
(c) Other SEC Filings. The Borrower shall deliver to the
Agent and the Banks promptly upon its becoming available, one
copy of each financial statement, report, notice or proxy
statement sent by the Borrower or any Material Subsidiary to
holders of its Capital Securities and of each regular or periodic
report, registration statement or prospectus, if any, filed by
the Borrower or any Material Subsidiary with any securities
exchange or the SEC or any successor agency, including without
limitations Forms 10-K, 8-K and 10-Q.
(d) Audit Reports. Promptly upon receipt thereof, one copy
of each written report submitted to the Borrower by independent
accountants in any annual, quarterly or special audit made;
(e) Compliance Certificate. As soon as available, and in
any event within forty-five (45) days after the end of each of
the first three fiscal quarters of each fiscal year and within
ninety (90) days after the end of the fourth quarter of each
fiscal year of the Borrower hereafter, a Compliance Certificate.
(f) Notices of Discrepancies. Immediately after Borrower's
discovery thereof, written notice of any inaccuracy or incorrect
statement contained in any of the foregoing that is material or
that changes any of the financial calculations under this
Agreement, including a statement containing the correct
information required; and
(g) Other Information. Such other information concerning
the business, properties or financial condition of the Borrower
and the Material Subsidiaries as the Majority Banks shall
request, including without limitation pro forma financial
information, which shall be prepared in such form and such detail
as shall be satisfactory to the Agent and the Banks, shall be
prepared on the same basis as those prepared by the Borrower in
prior years and shall be the same financial reports as those
furnished to the Borrower's officers and directors.
SECTION 5.07. Access to Premises and Records. Upon
reasonable notice, the Borrower shall permit, and shall cause
each Material Subsidiary to permit, representatives of the Agent
and each Bank to have access to the financial records and the
premises of the Borrower and each Material Subsidiary at
reasonable times and to make copies of such records.
SECTION 5.08. Notice of Default. The Borrower shall give
to the Agent and each Bank, promptly after learning of the
occurrence of any Default that has not previously been disclosed
in writing to the Agent and the Banks, (a) notice of such event,
(b) the Borrower's assessment of the effect such event is likely
to have on the financial condition of the Borrower and the
Material Subsidiaries during the following ninety days, (c) the
Borrower's plan for minimizing the adverse effects of such event
and (d) a description of any material development in any such
event.
SECTION 5.09. Notice of Litigation. The Borrower shall,
upon request, deliver or cause to be delivered to the Agent and
each Bank, a description of any material development in any of
the matters described in Section 4.07 that has been disclosed in
filings with the SEC.
SECTION 5.10. Notice of Strikes, Labor Controversies, etc.
The Borrower shall deliver or cause to be delivered to the Agent
and each Bank, promptly after learning of the occurrence of any
event described in Section 4.20 that has not previously been
disclosed in writing to the Agent and the Banks, (a) notice of
such event, (b) the Borrower's assessment of the effect such
event is likely to have on the financial condition of the
Borrower and the Material Subsidiaries during the following
ninety days, (c) the Borrower's plan for minimizing the adverse
effects of such event and (d) a description of any material
development in any such event.
SECTION 5.11. Update of Subsidiaries. The Borrower
shall, upon request, deliver or cause to be delivered to the
Agent and each Bank an update of the Material Subsidiaries listed
on Schedule 4.06(a) and the foreign Subsidiaries listed on
Schedule 4.06(c).
ARTICLE VI
NEGATIVE COVENANTS
The Borrower covenants and agrees with the Agent and the
Banks that, until the Repayment Date, unless the Majority Banks
otherwise consent in writing, as follows:
SECTION 6.01. Liens. The Borrower shall not, and shall not
cause, permit or suffer any of the Material Subsidiaries,
directly or indirectly, to create, incur, assume or suffer to
exist any Lien upon or with respect to any of its assets or
properties, now owned or hereafter acquired, or assign or
otherwise convey any right to receive income; provided that the
foregoing restrictions shall not apply to Liens:
(a) for taxes, assessments or governmental charges or
levies on its property if they (i) are not delinquent at the time
or thereafter can be paid without penalty and (ii) are being
contested in good faith and by appropriate proceedings and with
respect to which it has set aside on its books adequate reserves,
if any, required in accordance with Generally Accepted Accounting
Principles;
(b) imposed by law, such as carriers', warehousemen's and
mechanics' liens and other similar liens, that arise in the
ordinary course of business with respect to obligations not yet
due or being contested in good faith and by appropriate
proceedings and with respect to which it has set aside on its
books adequate reserves, if any, required in accordance with
Generally Accepted Accounting Principles;
(c) arising in the ordinary course of business out of
pledges or deposits under workmen's compensation laws,
unemployment insurance, pensions, or other social security or
retirement benefits, or similar legislation;
(d) incidental to the conduct of its business or the
ownership of its property and assets (such as easements, zoning
restrictions and restrictive covenants) not incurred in
connection with the borrowing of money or the obtaining of
advances or credit, and which do not in the aggregate materially
detract from the value of its property or assets or materially
impair the use thereof in the operation of its business;
(e) arising in the ordinary course of business out of
pledges or deposits to secure performance in connection with
bids, tenders, contracts (other than contracts for the payment of
money), bonds (other than bonds of or for the benefit of the
Borrower or any Subsidiary) or leases to which the Borrower or
any Subsidiary is a party;
(f) securing Indebtedness owing by any Subsidiary to the
Borrower or any Material Subsidiary;
(g) in respect of property acquired or constructed by it
after the date hereof for use in the business of the Borrower and
the Material Subsidiaries (such as real property and equipment),
which Liens (including Capitalized Lease Obligations) exist or
are created at the time of acquisition or completion of
construction of such property or within 60 days thereafter, to
secure Indebtedness assumed or incurred to finance all or any
part of the purchase price or cost of construction of such
property, but any such Lien shall cover only the property so
acquired or constructed and the aggregate amount secured by such
Liens shall not exceed $2,500,000 at any time outstanding;
(h) in respect of automobiles and office equipment acquired
by it prior to the date hereof for use in the business of the
Borrower and the Material Subsidiaries, which Liens (including
Capitalized Lease Obligations) existed or were created at the
time of acquisition of such property, or within 60 days
thereafter, to secure Indebtedness assumed or incurred to finance
all or any part of the purchase price of such property, but any
such Lien shall cover only the property so acquired and the
amount secured by each such Lien shall not exceed $50,000;
(i) on assets of any Person existing at the time such
Person becomes, by acquisition, consolidation or merger, a
Material Subsidiary, provided that such Lien covers only the
assets of the Person so acquired and was not created in
connection with or in contemplation of such acquisition; and
(j) set forth in Schedule 6.01.
SECTION 6.02. Indebtedness. The Borrower shall not, and
shall not cause, permit or suffer any of the Material
Subsidiaries, directly or indirectly, to create, incur, assume or
suffer to exist any Indebtedness, except:
(a) Indebtedness hereunder and under the Loan Documents in
respect of the Notes;
(b) Indebtedness to the Agent pursuant to the Balancing
Line;
(c) Indebtedness of the Material Subsidiaries to the
Borrower or another Material Subsidiary;
(d) Indebtedness of the Material Subsidiaries (other than
as permitted in clause (c) above) that is not guaranteed by the
Borrower in an aggregate principal amount not to exceed
$2,000,000;
(e) Indebtedness assumed or incurred to finance all or any
part of the purchase price or cost of acquisition or construction
of property and secured by Liens permitted pursuant to Section
6.01(g);
(f) Indebtedness assumed in connection with any acquisition
permitted pursuant to Section 6.03 provided that such
Indebtedness was not created in connection with or in
contemplation of such acquisition; and
(g) Indebtedness payable to the applicable seller as all or
any part of the purchase price of any acquisition permitted
pursuant to Section 6.03.
SECTION 6.03. Liquidation, Sale of Assets and Merger.
(a) Except as otherwise provided herein, the Borrower shall
not, and shall not cause, permit or suffer any of the Material
Subsidiaries to, (i) sell, lease, transfer or otherwise dispose
of any portion of its properties and assets to any Person (other
than in the ordinary course of business, including sales for fair
value to former employees of their "book of business" so long as
such business does not account for more than (x) $750,000 in
annual revenue per employee for any fiscal year, or (y)
$3,000,000 in annual revenue for all employees for any fiscal
year) or (ii) liquidate or discontinue its business; provided,
however, that a Material Subsidiary may sell, lease or transfer
all or substantially all of its assets to the Borrower or another
Material Subsidiary and the Borrower may acquire (for an amount
not exceeding the fair value thereof) all or substantially all of
the properties and assets of the Material Subsidiary so to be
sold, leased or transferred to it, if immediately before and
after giving effect to such sale, lease or transfer, no Default
shall have occurred and be continuing.
(b) The Borrower shall not, and shall not cause,
permit or suffer any of the Material Subsidiaries to, merge or
consolidate with or into any other Person or acquire all or
substantially all the Capital Securities, properties or assets of
any other Person except that (i) a Material Subsidiary may be
merged into, or consolidated with, the Borrower or another
Material Subsidiary and (ii) the Borrower or any Material
Subsidiary may acquire all or substantially all of the properties
or assets of any other Person or a Controlling Interest in any
other Person, provided that (A) if the acquisition of such
Controlling Interest is by way of a merger with the Borrower, the
Borrower will be the surviving entity, (B) if a Controlling
Interest is acquired other than through a merger with the
Borrower, such Controlling Interest shall constitute such Person
a Material Subsidiary, (C) immediately prior to such acquisition,
no Default shall have occurred and be continuing, and (D)
immediately after giving effect to such acquisition, no Default
shall have occurred or be continuing.
SECTION 6.04. Investments. The Borrower shall not, and
shall not cause, permit or suffer any of the Material
Subsidiaries to, make or commit to make any advance, loan,
extension of credit or capital contribution to, or purchase of
any stock, bonds, notes, debentures or other securities of, or
make any other investment (by way of guarantee or otherwise) in
any Person other than (i) investments in obligations of, and
obligations of third parties that are fully guaranteed as to
principal and interest by, the United States of America; or (ii)
investments in commercial paper issued by any Person having at
least an A2 credit rating from the publication services of
Standard & Poor's Credit Corp. ("S&P"), or P2 by Moody's Investor
Services, Inc. ("Moody's"), or similar ratings provided by
successor rating agencies; or (iii) demand deposits maintained in
the ordinary course of the Borrower's business or that of any of
the Material Subsidiaries; or (iv) repurchase agreements
collateralized by the investments referred to in (i) or (ii)
above; or (v) certificates of deposit, master notes, bankers'
acceptances, or Eurodollar time deposits issued by commercial
banks or trust companies having capital and surplus in excess of
$100,000,000; or (vi) obligations of states, municipalities,
counties, political subdivisions, agencies of the foregoing and
other similar entities, rated at least A, MIG-1, or MIG-2 by
Moody's or at least A by S&P, or similar ratings by successor
rating agencies; or (vii) unrated obligations of states, munici-
palities, counties, political subdivisions, agencies of the
foregoing and other similar entities, supported by irrevocable
letters of credit issued by commercial banks having capital and
surplus in excess of $100,000,000 and long-term debt that is
rated at least A by Moody's or S&P (or similar ratings by
successor rating agencies) or commercial paper that is rated at
least A2 by Moody's or P2 by S&P (or similar ratings by successor
rating agencies); or (viii) unrated general obligations of
states, municipalities, counties, political subdivisions,
agencies of the foregoing and other similar entities, provided
that the issuer has other outstanding general obligations rated
at least A, MIG-1 or MIG-2 by Moody's or A by S&P (or similar
ratings by successor rating agencies; (ix) repurchases of Capital
Securities of the Borrower pursuant to Borrowers Stock Repurchase
Plan; (x) investments permitted pursuant to Section 6.03(b); and
(xi) other investments not to exceed in the aggregate $2,000,000
acquired in the ordinary course of business. Nothing in this
Section 6.04 shall be construed to restrict the ability of the
Borrower and the Subsidiaries to invest in insurance agencies.
SECTION 6.05. Guarantees. The Borrower shall not, and
shall not cause, permit or suffer any of the Material
Subsidiaries to, issue any Guaranty except that (i) the Borrower
and the Material Subsidiaries may endorse checks for deposit in
the ordinary course of business and (ii) the Borrower may
guarantee the obligations of the Material Subsidiaries to the
extent such obligations are permitted hereunder (provided,
however, that the Borrower shall not guarantee, directly or
indirectly, the obligations of any partnership or joint venture
which is a Subsidiary or in which the Borrower or any Subsidiary
has invested), and (iii) the Borrower and the Material
Subsidiaries may enter into Guaranties of obligations (other than
Premium Payment Obligations and lease payments) in the ordinary
course of business not exceeding $2,500,000 in the aggregate and
Guaranties of Premium Payment Obligations in the ordinary course
of business.
SECTION 6.06. Breach or Violation. The Borrower shall not,
and shall not cause, permit or suffer any of the Material
Subsidiaries to, enter into any agreement containing any
provision that would be violated or breached by the performance
of the Borrower's or any Material Subsidiary's obligations under
this Agreement, the Notes or any of the other Loan Documents.
SECTION 6.07. No Amendments. The Borrower shall not, and
shall not cause, permit or suffer any amendment or modification
of its Organizational Documents without the written consent of
the Banks, which shall not be unreasonably withheld.
SECTION 6.08. Use of Proceeds. The Borrower shall not, and
shall not cause, permit or suffer any of the Subsidiaries to, use
any of the proceeds of any of the Loans for any purpose other
than the purposes set forth in the Recitals herein. Without
limiting the generality of the foregoing, no part of the proceeds
of the Loans hereunder will be used (a) to purchase or carry any
Margin Stock or to extend credit to others for the purpose of
purchasing or carrying any Margin Stock if such action would
violate, or be inconsistent with, any rules or regulations of the
Federal Reserve Board, including without limitation any
provisions of Regulation G, U or X, or (b) to acquire any
security in any transaction that is subject to Section 13 or 14
of the Securities Exchange Act of 1934, including particularly
(but without limitation) Sections 13(d) and 14(d) thereof. If
requested by the Agent or any Bank, the Borrower will furnish to
the Banks a statement in conformity with the requirements of
Federal Reserve Form U-1 referred to in Regulation U.
SECTION 6.09. Transactions with Affiliates. The Borrower
shall not, and shall not cause, permit or suffer any of the
Material Subsidiaries to, effect any transaction with any
Affiliate on a basis less favorable than would at the time be
obtainable for a comparable transaction in arms-length dealing
with an unrelated third party.
SECTION 6.10. Restrictive Covenants. The Borrower shall
not, and shall not cause, permit or suffer any of the Material
Subsidiaries to, enter into any Contract, or otherwise create or
cause or permit to exist or become effective any consensual
restriction, limiting the ability (whether by covenant, event of
default or otherwise) of any Material Subsidiary to (a) pay
dividends or make any other distributions on its Capital
Securities held by the Borrower or any other Material Subsidiary,
(b) pay any obligation owed to the Borrower or any other Material
Subsidiary, (c) make any loans or advances to or investments in
the Borrower or in any other Material Subsidiary, (d) transfer
any of its property or assets to the Borrower or any other
Material Subsidiary, or (e) create any Lien (other than Permitted
Liens) upon its property or assets whether now owned or hereafter
acquired or upon any income or profits therefrom.
SECTION 6.11. Increase in Benefits; New Plans. The
Borrower shall not, and shall not cause, permit or suffer any
ERISA Affiliate to, (a) increase benefits under any Plan or adopt
or establish any new employee benefit plans (within the meaning
of Section 3(3) of ERISA), fringe benefit plans or arrangements,
or executive or incentive plans, if such action would require it
to make substantial additional contributions thereto or to incur
a substantial obligation thereto, except for changes in the
ordinary course of business consistent with past practices of the
Borrower (such as annual cost of living increases) and changes to
existing benefits or new benefits deemed necessary by the
Borrower to remain competitive with the benefits generally
offered by other companies in the same business as the Borrower;
or (b) adopt, establish, or become a party to any Plan that is
subject to the provisions of Title IV of ERISA or any
multiemployer plan (within the meaning of Section 3(37) of
ERISA).
ARTICLE VII
FINANCIAL COVENANTS
The Borrower covenants and agrees with the Agent and the
Banks that, until the Repayment Date, unless the Majority Banks
otherwise consent in writing, it shall comply with the following
financial covenants:
SECTION 7.01. Adjusted Funded Debt to Adjusted Cash Flow
Ratio. The ratio of Adjusted Funded Debt to Adjusted Cash Flow
as of the last day of each calendar quarter shall not exceed 3.00
to 1.00.
SECTION 7.02. Consolidated Net Worth. On the last day of
each quarter, commencing March 31, 1996, Consolidated Net Worth
shall not be less than the sum of (a) $42,500,000, plus (b)
twenty five percent (25%) of positive Consolidated Net Income, if
any, for each fiscal quarter beginning after December 31, 1995,
and ending on or before the date of such determination, plus (c)
fifty percent (50%) of the net proceeds received by the Borrower
or any Subsidiary after December 31, 1995, from the sale of
Capital Securities.
SECTION 7.03. Debt Service Coverage. The ratio of Adjusted
Cash Flow to Debt Service as of the last day of each calendar
quarter shall not be less than 2.50 to 1.00.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.01. Events of Default. Each of the following
shall constitute an "Event of Default", whatever the reason for
such event and whether it shall be voluntary or involuntary, or
within or beyond the control of the Borrower or any Subsidiary,
or be effected by operation of law or pursuant to any judgment or
order of any court or any order, rule or regulation of any
governmental or nongovernmental body:
(a) any payment of the principal of or interest on any Note
or of the Commitment Fee or any other amount due under this
Agreement or the Notes shall not be made, within five Business
Days after the same shall become due and payable, whether at the
due date thereof or at a date fixed for prepayment thereof or by
acceleration thereof or otherwise;
(b) any representation or warranty made herein or in any
other Loan Document or any statement or representation made in
any report, certificate, financial statement or other instrument
furnished by the Borrower to the Agent or the Banks pursuant to
this Agreement shall prove to have been false or misleading in
any material respect (whether or not known to the Borrower) when
made or delivered or when deemed made in accordance with the
terms hereof;
(c) the Borrower gives notice to the Agent or the Banks or
the Banks otherwise become aware that an event has occurred or a
circumstance exists or has become known after the Closing Date,
including without limitation notices pursuant to Sections 5.02.
5.06, 5.08, 5.09 and 5.10, that, after notice to the Borrower and
an opportunity (within five Business Days) to discuss Borrower's
plans with respect thereto, the Agent and the Banks determine
could reasonably be expected to have a Material Adverse Effect;
(d) the Borrower or any Subsidiary shall fail to observe or
perform any covenant, warranty or agreement contained in or
referred to in Sections 5.02 and 5.07 and Article VII;
(e) the Borrower or any Subsidiary shall fail to observe or
perform any covenant, warranty or agreement contained in or
referred to in Article VI, provided that any such inadvertent
failure made in good faith shall not constitute an Event of
Default if it is curable and is cured promptly after notice from
Agent (not to exceed, in any event, 15 days);
(f) the Borrower or any Subsidiary shall fail to observe or
perform any other covenant, condition or agreement to be observed
or performed pursuant to the terms hereof and such default shall
continue unremedied for thirty (30) days after written notice
thereof to the Borrower by the Agent or the Majority Banks;
(g) the Borrower or any Material Subsidiary shall fail to
pay any Indebtedness under the Balancing Line or any other
Indebtedness other than the Loans hereunder greater than
$1,000,000 owing by the Borrower or such Material Subsidiary, or
any interest or premium thereon, when due (whether by scheduled
maturity, required prepayment, acceleration, demand or
otherwise), and such failure shall continue after the applicable
grace period, if any, specified in the agreement or instrument
relating to such Indebtedness; or the Borrower or any Material
Subsidiary shall fail to perform any term, covenant or agreement
on its part to be performed under any agreement or instrument
evidencing or securing or relating to the Balancing Line or such
Indebtedness; provided that in the case of Indebtedness payable
to sellers in connection with acquisitions by the Borrower and
its Subsidiaries, such failure shall not constitute an Event of
Default if there is a valid dispute regarding the payment or a
valid counterclaim exists against such seller and, in either
case, the payment of such Indebtedness is contested in good
faith;
(h) the Borrower or any Material Subsidiary shall
(i) voluntarily commence any proceeding or file any petition
seeking relief under Title 11 of the United States Code or any
other federal, state or foreign bankruptcy, insolvency or similar
law, (ii) consent to the institution of, or fail to controvert in
a timely and appropriate manner, any such proceeding or the
filing of any such petition, (iii) apply for or consent to the
appointment of a receiver, trustee, custodian, sequestrator or
similar official for the Borrower or such Material Subsidiary or
for a substantial part of its property, (iv) file an answer
admitting the material allegations of a petition filed against it
in any such proceeding, (v) make a general assignment for the
benefit of creditors, (vi) admit in writing its inability or fail
generally to pay its debts as they become due, or (vii) take
corporate action for the purpose of effecting any of the
foregoing;
(i) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed in a court of competent
jurisdiction seeking (i) relief in respect of the Borrower or any
Material Subsidiary, or of a substantial part of its property,
under Title 11 of the United States Code or any other federal,
state or foreign bankruptcy, insolvency or similar law, (ii) the
appointment of a receiver, trustee, custodian, sequestrator or
similar official for the Borrower or such Material Subsidiary or
for a substantial part of its property or (iii) the winding-up or
liquidation of the Borrower or such Material Subsidiary; and such
proceeding or petition shall continue undismissed for 60 days or
an order or decree approving or ordering any of the foregoing
shall continue unstayed and in effect for 30 days;
(j) a default or event of default shall have occurred and
be continuing pursuant to any other Loan Document after the
expiration of any applicable notice and cure period provided
therein;
(k) a judgment or order for the payment of money shall be
entered against the Borrower or any Material Subsidiary by any
court, and either (i) such judgment or order shall continue
undischarged and unstayed for a period of 10 days in which the
aggregate amount of all such judgments and orders exceeds
$500,000 or (ii) enforcement proceedings shall have been
commenced upon such judgment or order;
(l) any Person or group of related Persons owns of record
or beneficially, or files with the SEC notice of intent to
acquire, 20% or more of the voting Capital Securities of the
Borrower (excluding amounts owned by such Persons as of the date
hereof), it being understood that for purposes hereof employees
of the Borrower and the Subsidiaries shall not be deemed to be
"related Persons" solely as a result of their common employment;
(m) (i) any Person shall engage in any transaction
involving any Plan that is prohibited under Internal Revenue Code
Section 4975 or ERISA Section 406 and not exempt under Internal
Revenue Code Section 4975 or ERISA Section 408, (ii) the Borrower
or any ERISA Affiliate shall fail to pay when due an amount that
is payable by it to a Plan or (iii) any other event or condition
shall occur or exist with respect to a Plan, except that no event
or condition referred to in clauses (i) through (iii) shall
constitute an Event of Default if it, together with all other
such events or conditions at the time existing, has not
subjected, or in the reasonable determination of the Majority
Banks would not subject, the Borrower or any ERISA Affiliate to
any Indebtedness or liability that, alone or in the aggregate
with all such Indebtedness and liabilities, would have a Material
Adverse Effect; or
(n) the Borrower shall fail to deliver any notice
required to be delivered to the Agent and the Banks pursuant to
any of Sections 5.02. 5.06, 5.08, 5.09 and 5.10 within ten (10)
days after the event giving rise to the obligation to give notice
thereunder.
SECTION 8.02. Exercise of Remedies. Upon the
occurrence of an Event of Default and in every such event and at
any time thereafter during the continuance of such event, the
Agent, upon written request from the Majority Banks, shall by
written notice to the Borrower, take either or both of the
following actions, at the same or different times:
(a) terminate the Commitments and
(b) declare the Notes to be forthwith due and payable,
whereupon the Notes shall become forthwith due and payable, both
as to principal and interest (which, after such declaration,
shall bear interest as provided in Section 1.06(a)), without
presentment, demand, protest or any other notice of any kind, all
of which are hereby expressly waived by the Borrower, anything
contained herein or in the Notes to the contrary notwithstanding.
Notwithstanding the foregoing, if an Event of Default specified
in paragraph (h) or (i) of Section 8.01 occurs with respect to
the Borrower or any Material Subsidiary, the Commitments shall
automatically terminate and the Notes shall become immediately
due and payable, both as to principal and interest, without any
action by any Bank or the Agent and without presentment, demand,
protest or any other notice of any kind, all of which are hereby
expressly waived by the Borrower, anything contained herein or in
the Notes to the contrary notwithstanding. The Agent shall
further be entitled to exercise, for the benefit of the Banks,
all of the rights and remedies available under the Loan Documents
and applicable law.
ARTICLE IX
THE AGENT
SECTION 9.01. Appointment and Authorization. Each Bank
hereby irrevocably appoints and authorizes the Agent to take such
action on its behalf and to exercise such powers hereunder and
under the other Loan Documents as are delegated to the Agent by
the terms hereof and thereof together with such powers as are
incidental thereto. With respect to the Loans made by it and the
Notes issued to it, the Agent shall have the same rights and
powers under this Agreement and the other Loan Documents as any
other Bank and may exercise the same as though it were not the
Agent; and the term "Bank" or "Banks" shall, unless otherwise
expressly indicated, include the Agent in its capacity as a Bank.
The Agent and its Affiliates may accept deposits from, lend money
to, act as trustee under indentures of and generally engage in
any kind of business with, the Borrower, and any Person that may
do business with the Borrower, all as if the Agent were not the
Agent hereunder and without any duty to account therefor to the
Banks.
SECTION 9.02. Noteholders. The Agent may treat the payee
of any Note as the holder thereof.
SECTION 9.03. Consultation with Counsel. The Banks agree
that the Agent may consult with legal counsel selected by it and
shall not be liable for any action taken or suffered in good
faith by it in accordance with the advice of such counsel.
SECTION 9.04. Documents. The Agent shall not be under a
duty to examine or pass upon the validity, effectiveness,
enforceability, genuineness or value of any of the Loan Documents
or any other instrument or document furnished pursuant thereto or
in connection therewith, and the Agent shall be entitled to
assume that the same are valid, effective, enforceable and
genuine and what they purport to be.
SECTION 9.05. Resignation or Removal of the Agent. Subject
to the appointment and acceptance of a successor Agent as
provided below, the Agent may resign at any time by giving
written notice thereof to the Banks and the Borrower and the
Agent may be removed at any time with or without cause by the
Majority Banks. Upon any such resignation or removal, the
Majority Banks shall have the right to appoint a successor Agent.
If no successor Agent shall have been so appointed by the
Majority Banks and shall have accepted such appointment within
thirty (30) days after the retiring Agent's giving of notice of
resignation or the Majority Banks' removal of the retiring Agent,
then the retiring Agent may, on behalf of the Banks, appoint a
successor Agent. Upon the acceptance of any appointment as the
Agent hereunder by a successor Agent, such successor Agent shall
thereupon succeed to and become vested with all the rights,
powers, privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and
obligations hereunder. After any retiring Agent's resignation or
removal hereunder as the Agent, the provisions of this Article IX
shall continue in effect for its benefit in respect to any
actions taken or omitted to be taken by it while it was acting as
the Agent.
SECTION 9.06. Responsibility of the Agent. (a) It is
expressly understood and agreed that the obligations of the Agent
under the Loan Documents are only those expressly set forth in
the Loan Documents and that the Agent shall be entitled to assume
that no Default has occurred and is continuing, unless the Agent
has actual knowledge of such fact or has received written notice
from the Borrower or from a Bank that such Bank considers that a
Default has occurred and is continuing and specifying the nature
thereof. The Banks recognize and agree that the Agent shall not
be required to determine independently whether the conditions
described in Articles I and III have been satisfied and, in
disbursing funds to the Borrower, may rely fully upon statements
contained in the relevant notice. Neither the Agent nor any of
its directors, officers or employees shall be liable for any
action taken or omitted to be taken by it under or in connection
with the Loan Documents, except for its own gross negligence or
willful misconduct. The Agent shall incur no liability under or
in respect of any of the Loan Documents by acting upon any
notice, consent, certificate, warranty or other paper or
instrument believed by it to be genuine or authentic or to be
signed by the proper party or parties, or with respect to
anything that it may do or refrain from doing in the reasonable
exercise of its judgment, or that may seem to it to be necessary
or desirable in the circumstances.
(b) The Agent shall not be responsible to the Banks for any
recitals, statements, representations or warranties contained in
this Agreement, or in any certificate or other document referred
to or provided for in, or received by any Bank under, this
Agreement, or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or
any document referred to or provided for herein or for any
failure by the Borrower to perform any of its obligations
hereunder. The Agent may employ agents and attorneys-in-fact and
shall not be answerable, except as to money or securities
received by it or its authorized agents, for the negligence or
misconduct of any such agents or attorneys-in-fact.
(c) The relationship between the Agent and each of the Banks
is only that of agent and principal and has no fiduciary aspects,
and the Agent's duties hereunder are acknowledged to be only
administrative and ministerial and not involving the exercise of
discretion on its part. Nothing in this Agreement or elsewhere
contained shall be construed to impose on the Agent any duties or
responsibilities other than those for which express provision is
herein made. In performing its duties and functions hereunder,
the Agent does not assume and shall not be deemed to have
assumed, and hereby expressly disclaims, any obligation or
responsibility toward or any relationship of agency or trust with
or for the Borrower. As to any matters not expressly provided
for by this Agreement (including, without limitation, enforcement
or collection of the Notes), the Agent shall not be required to
exercise any discretion or take any action, but shall be required
to act or to refrain from acting (and shall be fully protected in
so acting or refraining from acting) upon the instructions of the
Majority Banks and such instructions shall be binding upon all
the Banks and all holders of Notes; provided, however, that the
Agent shall not be required to take any action that exposes the
Agent to personal liability or that is contrary to this Agreement
or applicable law.
SECTION 9.07. Notices of Event of Default. In the event
that the Agent shall have acquired actual knowledge of any
Default or Event of Default, the Agent shall promptly give notice
thereof to the other Banks.
SECTION 9.08. Bank Credit Decision. Each Bank acknowledges
that it has, independently and without reliance upon the Agent or
any other Bank and based on the financial information referred to
in Section 4.04 and such other documents and information as it
has deemed appropriate, made its own independent credit analysis
and decision to enter into this Agreement. Each Bank also
acknowledges that it will, independently and without reliance
upon the Agent or any other Bank and based on such documents and
information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action
under this Agreement.
SECTION 9.09. Indemnification. (a) The Banks jointly and
severally agree to indemnify the Agent (to the extent not
reimbursed by the Borrower), from and against any and all
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses, or disbursements of any kind
or nature whatsoever that may be imposed on, incurred by or
asserted against the Agent in any way relating to or arising out
of the Loan Documents or any action taken or omitted by the Agent
(other than in its capacity as a Bank hereunder) under the Loan
Documents, provided that (i) payment of each Bank's
indemnification shall be made ratably according to its Percentage
unless one or more Banks is not able or permitted to make such
indemnification, in which case each other Bank ratably shall make
payments on behalf of the Bank(s) not so permitted or able and
(ii) no Bank shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from the
Agent's gross negligence or willful misconduct.
(b) The Banks hereby agree that any amounts owed to the
Agent by any of the Banks may be deducted by the Agent, and
applied to such amounts, from amounts made available, in
accordance with any of the Loan Documents to the Agent for the
account of the Banks, with the Banks remaining liable for any
deficiency.
SECTION 9.10. Benefit of Article IX. The agreements
contained in this Article IX are solely for the benefit of the
Agent and the Banks, and are not for the benefit of or to be
relied upon by, the Borrower or any third party.
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Modification. All modifications, consents,
amendments or waivers of any provision of any Loan Document, or
consent to any departure by the Borrower therefrom, shall be
effective only if the same shall be in writing and concurred in
by the Majority Banks and then shall be effective only in the
specific instance and for the purpose for which given; provided,
however, that no change in the provisions of Articles I, III and
VII, this Section 10.01 or in the definition of the Majority
Banks, shall be effective absent the written concurrence of all
of the Banks, and no change in the provisions of Article IX shall
be effective absent the written concurrence of the Agent.
SECTION 10.02. Waiver. No failure to exercise, and no
delay in exercising, on the part of any Bank, any right hereunder
shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof
or the exercise of any other right. The rights of the Banks
hereunder and under the Loan Documents shall be in addition to
all other rights provided by law. No modification or waiver of
any provision of this Agreement, the Notes or any Loan Documents,
nor consent to departure therefrom, shall be effective unless in
writing and no such consent or waiver shall extend beyond the
particular case and purpose involved. No notice or demand given
in any case shall constitute a waiver of the right to take other
action in the same, similar or other instances without such
notice or demand.
SECTION 10.03. Payment of Expenses. Whether or not any
Loans are made hereunder, the Borrower shall, on demand, pay or
reimburse (a) the Agent and the Banks for all transfer,
documentary, stamp and similar taxes, and all recording and
filing fees, payable in connection with, arising out of or in any
way related to the execution, delivery and performance of this
Agreement, the Notes or the making of the Loans, (b) the Agent
for all of its costs and expenses (including reasonable fees and
disbursements of legal counsel and other experts employed or
retained by the Agent) incurred, and all payments made, and
indemnify and hold the Agent harmless from and against all losses
suffered, by the Agent and the Banks in connection with, arising
out of, or in any way related to (i) the negotiation,
preparation, execution and delivery of (A) this Agreement and the
other Loan Documents and (B) (whether or not executed) any
waiver, amendment or consent hereunder or thereunder and (ii) the
administration of any operations under this Agreement, and (c)
the Agent and the Banks for all of their reasonable costs and
expenses (including reasonable fees and disbursements of legal
counsel and other experts employed or retained by the Agent and
the Banks) incurred, and all payments made, and indemnify and
hold the Agent and the Banks harmless from and against all losses
suffered, by the Agent and the Banks in connection with, arising
out of, or in any way related to (i) consulting with respect to
any matter in any way arising out of, relating to, or connected
with, this Agreement or any other Loan Document, including but
not limited to the enforcement by the Agent and the Banks of any
of their rights hereunder or thereunder or the performance by the
Agent and the Banks of any of their obligations hereunder or
thereunder, (ii) protecting, preserving, exercising or enforcing
any of the rights of the Agent and the Banks hereunder and under
the other Loan Documents, (iii) any claim (whether asserted by
the Agent, the Banks or the Borrower or any other Person and
whether asserted before or after the payment, performance and
observance in full of the Borrower's obligations hereunder and
under the other Loan Documents) and the prosecution or defense
thereof, in any way arising under, related to, or connected with,
this Agreement, the other Loan Documents or the relationship
established hereunder or thereunder and (iv) any governmental
investigation arising out of, relating to, or in any way
connected with this Agreement or any other Loan Document, except
that the foregoing indemnity shall not be applicable to any loss
suffered by the Agent and the Banks to the extent such loss is
determined by a judgment of a court that is binding on the Agent
and the Banks, final and not subject to review on appeal, to be
the result of acts or omissions on the Agent's or the Banks'
part, as the case may be, constituting (x) willful misconduct,
(y) knowing violations of law or, in the case only of claims by
the Borrower against the Agent or the Banks, the Agent's or the
Banks' failure, as the case may be, to comply with its
contractual obligations under this Agreement or any other Loan
Document or, but only to the extent not waivable thereunder,
applicable law. Upon request of the Borrower, the Banks shall
request an itemization (with reasonable detail) of all costs and
expenses from all third parties for which it seeks reimbursement
hereunder and shall provide a copy thereof to the Borrower upon
receipt. Further, the Agent and the Banks shall not be entitled
to reimbursement for costs and expenses of third party
consultants (other than their regular inside and outside legal
counsel) unless an Event of Default has occurred and is
continuing or a bona fide dispute exists hereunder.
SECTION 10.04. Notices. All notices and other
communications provided for herein (including, without
limitation, any modifications of, or waivers or consents under,
this Agreement) shall (unless otherwise indicated) be given or
made by telecopy or in writing and telecopied, mailed or
delivered to the intended recipient at the address of such party
as follows:
(a) The Borrower:
4235 Innslake Drive
P.O. Box 1220
Glen Allen, Virginia 23060-1220
Attention: Timothy J. Korman, Senior Vice President
and Treasurer
Telecopier Number: (804)747-6046
And with a copy of such notice to:
Walter L. Smith, Esquire
Vice President and General Counsel
Hilb, Rogal, and Hamilton Company
4235 Innslake Drive
P.O. Box 1220
Glen Allen, Virginia 23060-1220
Telecopier Number: (804)747-6046
(b) The Agent or any Bank at its address shown below its
name on the signature pages hereof.
With a copy of such notice to:
Hunton & Williams
Riverfront Plaza, East Tower
951 East Byrd Street
Richmond, Virginia 23219-4074
Attention: Douglas S. Granger, Esq.
Telecopier Number: (804) 788-8218
Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given when
transmitted by telecopier, personally delivered or, in the case
of a mailed notice, upon receipt, in each case given or addressed
as aforesaid. Any such notice or communication that is delivered
by mail shall be presumed to have been received three Business
Days after the day it is mailed. Unless otherwise indicated,
notices received after 5:00 p.m. Richmond time on any day shall
be deemed to have been given by the sender on the next succeeding
Business Day. Any party may change its address for purposes of
this Agreement by giving notice of such change to the other
parties pursuant to this Section 10.04.
SECTION 10.05. Governing Law. This Agreement has been
prepared, is being executed and delivered, and is intended to be
performed in the Commonwealth of Virginia, and the substantive
laws of such state (without regard to choice of law provisions
thereof) shall govern the validity, construction, enforcement and
interpretation of this Agreement and all of the other Loan
Documents.
SECTION 10.06. Invalid Provisions. If any provision of any
Loan Document is held to be illegal, invalid or unenforceable
under present or future laws during the term of this Agreement,
such provision shall be fully severable; such Loan Document shall
be construed and enforced as if such illegal, invalid or
unenforceable provision had never comprised a part of such Loan
Document; and the remaining provisions of such Loan Document
shall remain in full force and effect and shall not be affected
by the illegal, invalid or unenforceable provision or by its
severance from such Loan Document. Furthermore, in lieu of each
such illegal, invalid or unenforceable provision shall be added
as part of such Loan Document a provision mutually agreeable to
the Borrower, the Agent and the Majority Banks as similar in
terms to such illegal, invalid or unenforceable provision as may
be possible and be legal, valid and enforceable. In the event
the Borrower, the Agent, and the Majority Banks are unable to
agree, after good faith negotiations, upon a provision to be
added to the Loan Document within a period of ten (10) Business
Days after a provision of the Loan Document is held to be
illegal, invalid or unenforceable, then a provision acceptable to
the Agent and the Majority Banks as similar in terms to the
illegal, invalid or unenforceable provision as is possible and be
legal, valid and enforceable shall be added automatically to such
Loan Document. In either case, the effective date of the added
provision shall be the date upon which the prior provision was
held to be illegal, invalid or unenforceable.
SECTION 10.07. Nonliability of Banks. The relationship
between the Borrower and the Banks is, and shall at all times
remain, solely that of borrower and lenders, and the Banks and
the Agent neither undertake nor assume any responsibility or duty
to the Borrower to review, inspect, supervise, pass judgment
upon, or inform the Borrower of any matter in connection with any
phase of the Borrower's business, operations, or condition,
financial or otherwise. The Borrower shall rely entirely upon
its own judgment with respect to such matters, and any review,
inspection, supervision, exercise of judgment, or information
supplied to the Borrower by any Bank or the Agent in connection
with any such matter is for the protection of the Banks and the
Agent, and neither the Borrower nor any third party is entitled
to rely thereon.
SECTION 10.08. Binding Effect and Assignability. The Loan
Documents shall be binding upon and inure to the benefit of the
Borrower, the Agent and the Banks and their respective
successors, assigns and legal representatives; provided, however,
that the Borrower may not, without the prior written consent of
the Agent and the Banks, assign any rights, powers, duties or
obligations thereunder.
SECTION 10.09. Entirety; Conflicts. The Loan Documents
embody the entire agreement between the parties and supersede all
prior agreements and understandings, if any, relating to the
subject matter hereof and thereof. In the event of any conflict
in the provisions of this Agreement with the provisions of any
other Loan Document, the provisions of this Agreement shall
govern.
SECTION 10.10. Headings, etc. Article and Section headings
and captions and the table of contents hereto are for convenience
of reference only and shall in no way affect the interpretation
of this Agreement.
SECTION 10.11. Survival. All representations and
warranties made by the Borrower herein shall survive delivery of
the Notes and the making of the Loans.
SECTION 10.12. Sale and Transfers etc. of Commitments and
Notes; Participations in Commitments and Notes.
(a) Each Bank shall have the right at any time to sell,
assign, transfer or negotiate all or part (but not less than
$5,000,000 in principal amount) of its Commitments, Loans, Notes,
and other rights and obligations under this Agreement and each
other Loan Document, upon payment to the Agent of an assignment
fee of $2,500 for each such transaction.
(b) Each Bank may grant participations in all or any part
of its Commitment, Loans and its Notes; provided, however, no
holder of any such participation, other than an Affiliate of such
Bank, shall be entitled to require such Bank to take or omit to
take any action hereunder and no Bank shall, as among the
Borrower and such Bank, be relieved of any of its obligations
hereunder as a result of any such granting of a participation,
but the participating Bank shall be entitled to rely on, and
possess all rights under, any opinions, certificates, or other
instruments delivered under or in connection with this Agreement
or any other Loan Document.
(c) The Borrower authorizes each Bank to disclose to any
participant, assignee or Purchasing Bank (each, a "Transferee")
and any prospective Transferee any and all financial and other
information in such Bank's possession concerning the Borrower and
the Subsidiaries, if any, that has been delivered to such Bank by
the Borrower pursuant to this Agreement or that has been
delivered to such Bank by the Borrower.
(d) If, pursuant to this Section 10.12, any interest in
this Agreement or any Commitment, Loan or Note is transferred to
any Transferee that is organized under the laws of any
jurisdiction other than the United States or any state thereof,
the transferor Bank shall cause such Transferee (other than any
participant), and shall cause any participant, concurrently with
the effectiveness of such transfer, (i) to represent to the
transferor Bank (for the benefit of the transferor Bank, the
Agent, and the Borrower) that under applicable law and treaties
no taxes will be required to be withheld by the Agent, and the
Borrower or the transferor Bank with respect to any payments to
be made to such Transferee in respect of the Loans, (ii) to
furnish to the transferor Bank, the Agent and the Borrower either
U.S. Internal Revenue Service Form 4224 or U.S. Internal Revenue
Service Form 1001 (wherein such Transferee claims entitlement to
complete exemption from U.S. federal withholding tax on all
interest payments hereunder) and (iii) to agree (for the benefit
of the transferor Bank, the Agent and the Borrower) to provide
the transferor Bank, the Agent and the Borrower a new Form 4224
or Form 1001 upon the obsolescence of any previously delivered
form and comparable statements in accordance with applicable U.S.
laws and regulations and amendments duly executed and completed
by such Transferee, and to comply from time to time with all
applicable U.S. laws and regulations with regard to such
withholding tax exemption.
SECTION 10.13. No Third Party Beneficiary. Without
limiting the effect of Sections 10.08, 10.12 and 10.18, the
parties do not intend the benefits of this Agreement to inure to
any third party, nor shall this Agreement be construed to make or
render the Agent or the Banks liable to any materialman,
supplier, contractor, subcontractor, purchaser or lessee of any
property owned by the Borrower, or for debts or claims accruing
to any such persons against the Borrower. Notwithstanding
anything contained herein or in the Notes, or in any other Loan
Document, or any conduct or course of conduct by any or all of
the parties hereto, before or after signing this Agreement nor
any other Loan Document shall be construed as creating any right,
claim or cause of action against the Agent or the Banks, or any
of their officers, directors, agents or employees, in favor of
any materialman, supplier, contractor, subcontractor, purchaser
or lessee of any property owned by the Borrower, nor to any other
person or entity other than the Borrower.
SECTION 10.14. Waiver of Jury Trial. TO THE FULLEST EXTENT
PERMITTED BY LAW, THE AGENT, THE BANKS AND THE BORROWER HEREBY
KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE ANY RIGHTS THEY
MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED
HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
AGREEMENT, THE NOTES OR ANY LOAN DOCUMENT, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (VERBAL OR WRITTEN), OR
ACTIONS OF THE AGENT, THE BANKS, OR THE BORROWER. THIS PROVISION
IS A MATERIAL INDUCEMENT FOR THE AGENT AND THE BANKS ENTERING
INTO THIS AGREEMENT.
SECTION 10.15. Consent to Jurisdiction. (a) The Borrower,
in respect of itself and its properties, represents that it is
subject to (and hereby irrevocably submits to) the nonexclusive
jurisdiction of any United States federal or Virginia state court
sitting in Richmond, Virginia in respect of any suit, action or
proceeding arising out of or relating to this Agreement or the
Notes, and irrevocably agrees that all claims in respect of any
such suit, action or proceeding may be heard and determined in
any such court. The Borrower irrevocably waives, to the fullest
extent it may effectively do so under applicable law, any
objection to the laying of the venue of any such suit, action or
proceeding brought in any such court and any claim that any such
suit, action or proceeding brought in any such court has been
brought in an inconvenient forum.
(b) The Borrower hereby irrevocably appoints Walter L.
Smith, Esq. with an office on the date hereof at 4235 Innslake
Drive, Richmond, Virginia 23060, as its agent to receive and
acknowledge on behalf of itself and its properties and assets
service of any and all process that may be served in any suit,
action or proceeding of the nature referred to in the preceding
paragraph in any United States federal or Virginia state court
sitting in Richmond, Virginia. Said designation and appointment
shall, to the fullest extent permitted by law, be irrevocable
until the Repayment Date. If (i) such agent (or any agent
appointed pursuant to this sentence) shall cease so to act or
(ii) the appointment of such agent (or any agent appointed
pursuant to this sentence) shall prove to be ineffective for any
reason, then the Borrower shall without delay appoint another
such agent satisfactory to the Majority Banks and shall promptly
deliver to the Agent evidence in writing of such other agent's
acceptance of such appointment.
(c) If service cannot promptly and conveniently be made
upon the Borrower's statutory agent for service of process, the
Borrower irrevocably consents to process being served in any
suit, action or proceeding of the nature referred to in clause
(a) of this Section:
(i) by serving a copy of thereof upon the agent for service
of process referred to herein (whether or not the
appointment of such agent shall for any reason prove to be
ineffective or such agent shall accept or acknowledge such
service) or, in the absence of said agent from its office
referred to, or specified in the most recent notice provided
for in, clause (b) of this Section, by delivering a copy of
the same to such office; provided that, to the extent lawful
and possible, written notice of said service shall be mailed
by registered or certified mail, postage prepaid, return
receipt requested, to the Borrower at its address specified
in or designated pursuant to Section 10.04; or
(ii) if service pursuant to clause (i) of this clause (c)
shall prove in the good faith judgment of the Agent or any
Bank to be illegal or impracticable, by mailing a copy
thereof by registered or certified air mail, postage
prepaid, return receipt requested, to the address of the
Borrower specified in or designated pursuant to Section
10.04.
To the fullest extent it may effectively do so under applicable
law, the Borrower irrevocably waives all claim of error by reason
of any such service and agrees that said service (A) shall be
deemed in every respect effective service of process upon the
Borrower in any such suit, action or proceeding and (B) shall be
taken and held to be valid personal service upon and personal
delivery to such Borrower.
(d) The foregoing provisions shall not limit the right of
any Bank, the Agent or any other party hereto to serve process in
any other manner permitted by law or limit the right of any Bank
or the Agent or other party hereto to bring any suit, action or
proceeding or to obtain execution on any judgment rendered in any
suit, action or proceeding in any other appropriate jurisdiction
or in any other manner.
SECTION 10.16. Multiple Counterparts. This Agreement may
be executed in any number of counterparts, all of which taken
together shall constitute one and the same agreement, and any of
the parties hereto may execute this Agreement by signing any such
counterpart.
SECTION 10.17. Disclosures. The Agent and each Bank may
disclose to, and exchange and discuss with, any other Person (the
Agent, each Bank and each such other Person being hereby
irrevocably authorized to do so) any information concerning the
Borrower or any Subsidiary (whether received by the Agent, the
Bank or such Person in connection with or pursuant to this
Agreement or otherwise) solely as may be determined by the
disclosing party to be required by applicable law or necessary or
desirable for the purpose of protecting, preserving, exercising
or enforcing any rights hereunder or under the Notes, or
consulting with respect to any such rights or any rights of the
Borrower.
SECTION 10.18. Sharing of Setoffs. Upon the occurrence and
during the continuance of an Event of Default, the holder of any
Note shall have the right, in addition to and not in limitation
of any right that any such holder may have under applicable law
or otherwise, to setoff against the unpaid balance of any Note or
Notes or participations therein held by it any debt owing to the
Borrower by such holder, including, without limitation, any funds
in any deposit account maintained by the Borrower with such
holder, and nothing in this Agreement shall be deemed any waiver
or prohibition of any Bank's right of banker's lien or setoff.
Each holder of a Note agrees that if it shall, through the
exercise of a right of banker's lien, setoff, counterclaim or
otherwise, obtain payment of a proportion of any Notes held by it
in excess of the proportion of the Notes of the other holders of
the Notes being paid simultaneously or required hereby to be paid
proportionately, it shall be deemed to have simultaneously
purchased from such other holders a participation in the Notes
held by such other holders so that the aggregate unpaid principal
amount of all Notes then outstanding as the principal amount of
such note held by it prior to such exercise of banker's lien,
setoff or counterclaim or receipt of other payment was to the
principal amount of all Notes outstanding prior to such exercise
of banker's lien, setoff or counterclaim or receipt of other
payment, and it shall promptly remit to each such holder the
amount of the participation thus deemed to have been purchased.
The Borrower expressly consents to the foregoing arrangement and
agrees that any holder of a participation in a Note so acquired
may exercise any and all rights of banker's lien, setoff,
counterclaim or otherwise with respect to any and all moneys
owing by such holder to the Borrower as fully as if such holder
were a holder of a Note in the amount of such participation. If
all or any portion of any such excess payment is thereafter
recovered from the holder that received the same, the purchase
provided for herein shall be deemed to have been rescinded to the
extent of such recovery, without interest. Each holder of a Note
agrees to give prompt written notice to the Borrower of any
setoff made pursuant to this Section 10.18.
SECTION 10.19. Repayments in Bankruptcy. In the event any
amount of the Indebtedness of the Borrower to the Banks hereunder
is paid by the Borrower and because of bankruptcy or other laws
relating to creditors' rights the Banks repay any such amounts to
the Borrower or to any trustee, receiver or otherwise, then the
amounts so repaid shall again become part of the Loans payable by
the Borrower.
ARTICLE XI
DEFINITIONS
SECTION 11.01. Definitions. For purposes of this
Agreement, unless the context otherwise requires, capitalized
terms shall have the respective meanings assigned to them in
Exhibit A hereto.
SECTION 11.02. Other Definitional Provisions. (a) Except
as otherwise specified herein, all references herein (i) to any
Person shall be deemed to include such person's, successors,
transferees and assignees, but only, in the case of transferees
and assignees of the Borrower, the Agent and the Banks, to the
extent the applicable transfer or assignment complies with the
provisions of this Agreement, (ii) to any applicable law defined
or referred to herein shall be deemed references to such
applicable law as the same may have been or may be amended or
supplemented from time to time and (iii) to any Contract defined
or referred to herein shall be deemed references to such Contract
(and, in the case of any instrument, any other instrument issued
in substitution therefor) as the terms thereof may have been or
may be amended, supplemented, waived or otherwise modified from
time to time.
(b) When used in this Agreement, the words "herein",
"hereof", and "hereunder" and words of similar import shall refer
to this Agreement as a whole and not to any provision of this
Agreement, and the words "section", "schedule" and "exhibit"
shall refer to Sections of and Schedules and Exhibits to this
Agreement unless otherwise specified.
(c) Whenever the context so requires, the neuter gender
includes the masculine or feminine, and the singular number
includes the plural, and vice versa.
(d) All terms defined in this Agreement shall have the
defined meanings when used in the Notes, and except as otherwise
expressly stated therein, any certificate, opinion or other Loan
Document delivered pursuant hereto or referred to herein.
SECTION 11.03. Accounting Matters. Unless otherwise
specified herein, all accounting determinations hereunder and all
computations utilized by the Borrower in complying with the
covenants contained herein shall be made, all accounting terms
used herein shall be interpreted, and all financial statements
required to be delivered hereunder shall be prepared, in
accordance with Generally Accepted Accounting Principles, except,
in the case of such financial statements, for departures from
Generally Accepted Accounting Principles that may from time to
time be approved in writing by the independent certified
accountants who are at the time in accordance with Section 5.05
reporting on the Borrower's financial statements.
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IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed by their duly authorized
officers as of the day and year first above written.
HILB, ROGAL, AND HAMILTON COMPANY
By__________________________
Title:_______________________
CRESTAR BANK, as Agent
By__________________________
Christopher B. Werner
Vice President
Address: 919 East Main Street
Richmond, Virginia 23219
Fax: (804) 782-5413
Amount of Percentage
Commitment Interest
CRESTAR BANK
$10,000,000 50% By_________________________
Christopher B. Werner
Vice President
Address: 919 East Main Street
Richmond, Virginia 23219
Fax: (804) 782-5413
FIRST UNION NATIONAL BANK OF
VIRGINIA
$10,000,000 50% By_________________________
Title:______________________
Address: 901 East Cary Street
One James Center
Richmond, Virginia 23219
Fax: (804) ____________
EXHIBIT A
DEFINITIONS
This is Exhibit A to that certain Credit Agreement dated as
of February 12, 1996, among Hilb, Rogal, and Hamilton Company,
Crestar Bank, and the Banks listed therein (the "Agreement").
When used in this Exhibit, the words "herein", "hereof", and
"hereunder" and words of similar import shall refer to the
Agreement, and the words "section", "schedule" and "exhibit"
shall refer to Sections of and Schedules and Exhibits to the
Agreement, unless otherwise specified.
"Adjusted Cash Flow" means, for any period, the sum for the
Borrower and its Consolidated Subsidiaries, of (a) Consolidated
Net Income for such period plus (b) to the extent deducted in
determining Consolidated Net Income for such period, (i)
depreciation and amortization, (ii) taxes, (iii) Interest
Expense, (iv) Operating Lease Rentals, (v) extraordinary and
unusual items and (vi) loss attributable to equity in Affiliates.
"Adjusted Eurodollar Rate" means, with respect to any
Eurodollar Loan for any Interest Period, an interest rate per
annum determined by the Agent (rounded upwards, if necessary, to
the next 1/16 of 1%) equal to the product of (a) the Fixed
Eurodollar Rate in effect for the Interest Period applicable to
such Loan and (b) Eurodollar Statutory Reserves, adjusted to
reflect all additional actual costs, including brokers' fees and
other acquisition costs, and Taxes as determined by the Agent,
which are incurred by the Agent in connection with making such
Eurodollar Loan. For purposes hereof, the term "Fixed Eurodollar
Rate" shall mean the arithmetic average of the interest rates at
which deposits of Dollars approximately equal in principal amount
to the Eurodollar Loan and for a maturity comparable to the
applicable Interest Period are offered in immediately available
funds to the Agent by leading banks in the interbank market
selected by the Agent for such deposits at approximately 11:00
a.m. (London time), or as soon thereafter as is practicable, two
Business Days prior to the commencement of the Interest Period.
"Eurodollar Statutory Reserves" shall mean, on any date, a
fraction, the numerator of which is one and the denominator of
which is one minus the maximum reserve percentages (including
without limitation, basic, supplemental, marginal and emergency
reserves) expressed by the Federal Reserve Board and any other
banking authority to which the Agent is subject with respect to
"Eurocurrency liabilities" as currently defined in Regulation D,
or under any similar or successor regulation with respect to
Eurocurrency liabilities or Eurocurrency funding. The Adjusted
Eurodollar Rate shall be adjusted automatically on and as of the
effective date of each change in Eurodollar Statutory Reserves.
Each determination by the Agent of any Adjusted Eurodollar Rate
and of Eurodollar Statutory Reserves and Taxes shall be
conclusive and binding on the Borrower and the Banks absent
manifest error. The Banks and the Borrower acknowledge that the
Agent may from time to time determine the Fixed Eurodollar Rate
from quotations of the Agent's money desk or by reference to
Reuter Screen or similar quotations, in the discretion of the
Agent, on and as of the date of determination.
"Adjusted Funded Debt" means, as of any date of
determination, the sum of (a) all Indebtedness (including the
current portion thereof) of the Borrower and its Consolidated
Subsidiaries on such date and (b) an amount equal to eight times
the total Operating Lease Rentals of the Borrower and its
Consolidated Subsidiaries paid during the twelve months
immediately preceding such date.
"Affiliate" means, with respect to any Person, any other
Person directly or indirectly, through one or more
intermediaries, controlling, controlled by, or under common
control with, such first Person. For the purposes of this
definition, "control" (including the terms "controlled by" and
"under common control with"), as used with respect to any Person,
shall mean the possession, directly or indirectly, of the power
to direct or cause the direction of the management and policies
of such Person, whether through the ownership of Capital
Securities having voting rights or by contract or otherwise.
Unless otherwise specified, "Affiliate" means an Affiliate of the
Borrower.
"Agent" shall have the meaning assigned to such term in the
preamble hereof, and any successor thereto pursuant to Article IX
hereof.
"Agreement" means the Credit Agreement among the Borrower,
the Banks and the Agent, dated as of February 12, 1996, as the
same may be amended, modified, supplemented or restated from time
to time.
"Applicable Margin" means the annual rate of interest to be
added to the Adjusted Eurodollar Rate in calculating interest
payable on Eurodollar Loans Notes and shall be determined based
on the ratio of Adjusted Funded Debt to Adjusted Cash Flow as of
the last day of the fiscal quarter ending one quarter prior to
the first day of the quarter for which such determination is
being made as follows:
Ratio Applicable Margin
2.50 to 1.00 or greater 0.700%
greater than or equal to
2.00 to 1.00 but less
than 2.50 to 1.00 0.575%
greater than or equal to
1.75 to 1.00 but less
than 2.00 to 1.00 0.450%
Less than 1.75 to 1.00 0.375%
The ratio upon which a determination of "Applicable Margin" is
based shall be computed on the basis of the financial statements
delivered by Borrower pursuant to Section 5.06(a). Changes in
the Applicable Margin shall be effective as of the first day of
each fiscal quarter for which such determination is being made.
In the event that any financial information provided by Borrower
is subsequently determined to be inaccurate and accurate
information would have resulted in a higher Applicable Margin,
such higher Applicable Margin shall be given effect retroactively
and Borrower shall promptly pay to the Agent for the benefit of
the Banks such amount as is necessary to give effect to such
change.
"Balancing Line" means the uncommitted line of credit from
Crestar Bank to the Borrower pursuant to a letter agreement dated
February 12, 1996, in a maximum principal amount not to exceed
$5,000,000.
"Banks" means the institutions indicated as Banks on the
signature pages hereof, and shall include, at such times as they
shall become parties hereto, Purchasing Banks, if any.
"Base Rate" means the greater of (a) the Federal Funds Rate
plus 1/4 of 1% and (b) the rate of interest announced from time
to time by the Agent as its prime rate of interest (which rate of
interest may not be the lowest rate charged by the Agent or any
Bank on similar loans). Each change in the Base Rate shall
become effective without prior notice to the Borrower
automatically as of the date of such change in the Base Rate.
"Base Rate Loan" shall mean a Loan on which interest accrues
based on the Base Rate in accordance with Article I.
"Borrower" shall have the meaning assigned to such term in
the preamble hereof.
"Business Day" means any day other than Saturday, Sunday or
a day on which banks are required or authorized to be closed for
business in Richmond, Virginia, and, with respect to any
Eurodollar Loan, means any such Business Day on which
transactions are effected in deposits of U.S. Dollars in the
relevant interbank foreign currency deposits market and on which
commercial banks are open for domestic and international business
(including dealings in Dollar deposits) in the jurisdiction in
which such interbank market is located.
"Capital Lease" means, as of any date, any lease of
property, real or personal, that would be capitalized on a
balance sheet of the lessee prepared as of such date in
accordance with Generally Accepted Accounting Principles,
together with any other lease by such lessee that is in substance
a financing lease, including without limitation, any lease under
which (a) such lessee has or will have an option to purchase the
property subject thereto at a nominal amount or an amount less
than a reasonable estimate of the fair market value of such
property as of the date such lease is entered into, or (b) the
term of the lease approximates or exceeds the expected useful
life of the property leased thereunder.
"Capitalized Lease Obligations" means all obligations of the
Borrower and the Subsidiaries under Capital Leases.
"Capital Securities" means with respect to any Person that
is (a) a corporation, any shares of capital stock of such
corporation, (b) a general or limited partnership, any general or
limited partnership interest of such partnership, (c) a limited
liability company, any stock or other membership or ownership
interests in such limited liability company, and also means any
security convertible into, or any option, warrant or other right
to acquire, any of the items described in clause (a), (b) or (c)
above of such Person.
"Closing Date" means February 12, 1996, or such other date
as the Borrower and the Banks may agree.
"Commitment" means, with respect to each Bank, the amount of
the Commitment of such Bank as set forth opposite such Bank's
name on the signature pages hereof, as the same may be reduced
from time to time pursuant to this Agreement.
"Commitment Fee" shall have the meaning assigned to such
term in Section 1.05 hereof.
"Commitment Rate" shall mean the per annum rate to be used
to calculate the payment of Commitment Fees and shall mean the
percentage rate, determined based on the ratio of Adjusted Funded
Debt to Adjusted Cash Flow as of the last day of the fiscal
quarter ending one quarter prior to the first day of the quarter
for which such determination is being made as follows:
Ratio Commitment Rate
2.50 to 1.00 or greater 0.30%
greater than or equal to
2.00 to 1.00 but less
than 2.50 to 1.00 0.25%
greater than or equal to
1.75 to 1.00 but less
than 2.00 to 1.00 0.20%
Less than 1.75 to 1.00 0.175%
The ratio upon which a determination of "Commitment Rate" is
based shall be computed on the basis of the financial statements
delivered by Borrower pursuant to Section 5.06(a). Changes in
the Commitment Rate shall be effective as of the first day of
each fiscal quarter for which such determination is being made.
In the event that any financial information provided by Borrower
is subsequently determined to be inaccurate and accurate
information would have resulted in a higher Commitment Rate, such
higher Commitment Rate shall be given effect retroactively and
Borrower shall promptly pay to the Agent for the benefit of the
Banks such amount as is necessary to give effect to such change.
"Commitment Termination Date" means January 31, 2001, or
such earlier date and time on which the Commitments are
terminated pursuant to Article VIII.
"Commitment Transfer Supplement" means an agreement among
the Agent, a Bank, the Borrower and a Purchasing Bank providing
for the transfer of a portion of the Loans and the Commitment of
such Bank (or any prior Purchasing Bank) to a Purchasing Bank,
which shall be in form and substance satisfactory to the
Borrower, the Agent and such Bank and shall set forth the
reallocations of the Commitment and the outstanding principal
amounts of the Loans by each Bank.
"Compliance Certificate" shall mean a certificate of the
chief financial officer of the Borrower in the form of Exhibit D
hereto setting forth computations in reasonable detail as of the
date thereof of compliance with Article VII.
"Consolidated Net Income" means, for any period, the
consolidated net income of the Borrower and the Consolidated
Subsidiaries for such period (taken as a cumulative whole)
provided that there shall be excluded: (a) any net income of a
Consolidated Subsidiary to the extent that the declaration or
payment of dividends or similar distributions by that
Consolidated Subsidiary is not at the time permitted by operation
of the terms of any contract or applicable law; (b) any net
income (or net loss) of any Person (other than a Consolidated
Subsidiary) in which the Borrower or any Consolidated Subsidiary
has an ownership interest, except to the extent that any such
income has actually been received by the Borrower or such
Subsidiary in the form of cash dividends or similar
distributions; (c) any net gains or losses on the sale or other
disposition, not in the ordinary course of business, of
investments and other capital assets in excess of an aggregate
amount for such period of $7,500,000, provided that there shall
also be excluded any related charges for taxes thereon; (d) any
net gain arising from the collection of the proceeds of any
insurance policy; (e) any write-up of any asset; (f) any net
gains resulting from the defeasance of any Indebtedness; and (g)
any extraordinary gains or losses.
"Consolidated Subsidiaries" means, as of any date, all
Affiliates of the Borrower included as of such date in the
consolidated financial statements of the Borrower.
"Consolidated Net Worth" means, at any date, all amounts
which would be included under shareholder's equity on the
consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries at such time.
"Contract" means an indenture, agreement (other than this
Agreement), other contractual restriction, lease, instrument
(other than the Notes), certificate or Organizational Document.
"Controlled Group" means (a) the controlled group of
corporations as defined in Section 1563 of the Internal Revenue
Code or (b) the group of trades or businesses under common
control as defined in Section 414(c) of the Internal Revenue Code
of which the Borrower is a part or may become a part.
"Controlling Interests" means ownership of a sufficient
interest in a Person to approve mergers, sales of assets,
dissolutions, amendments to Organizational Documents and other
acts requiring a "supermajority" vote under applicable law and
such Person's Organizational Documents.
"Conversion Date" means the date on which any Loan is
converted from a Base Rate Loan or a Eurodollar Loan to a Loan of
a different type pursuant to Section 1.07 hereof.
"Debt Service" means, for any twelve month period, the sum
(determined on a consolidated basis) for the Borrower and its
Consolidated Subsidiaries of (a) Operating Lease Rentals accrued
or paid during such period plus (b) Interest Expense for such
period.
"Default" means an Event of Default or any condition or
event that with the giving of notice or the lapse of time or both
would become an Event of Default.
"Dollars" and the sign "$" shall refer to lawful currency of
the United States of America.
"Environmental Laws" means all laws relating to Hazardous
Waste disposal, Toxic Substances, or environmental conservation.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, together with all regulations and official
rulings and interpretations issued pursuant thereto.
"ERISA Affiliate" means any corporation or trade or
business, whether or not incorporated, which together with the
Borrower would be treated as a single employer under ERISA or the
Internal Revenue Code.
"Eurodollar Loan" means a Loan on which interest accrues
based on the Adjusted Eurodollar Rate in accordance with Article
I.
"Event of Default" shall have the meaning assigned to such
term in Article VIII.
"Federal Funds Rate" means for any day, the rate per annum
(rounded upwards, if necessary, to the nearest 1/16th of 1%)
equal to the weighted average of the rates on overnight federal
funds transactions with members of the Federal Reserve System
arranged by federal funds brokers on such day, as published by
the Federal Reserve Bank of New York, on the Business Day next
succeeding such day, provided that (a) if the day for which such
rate is to be determined is not a Business Day, the Federal Funds
Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next
succeeding Business Day, and (b) if such rate is not so published
for any day, the Federal Funds Rate for such day shall be the
average rate charged to the Agent on such day on such
transactions as determined by the Agent.
"Federal Reserve Board" means the Board of Governors of the
Federal Reserve System and any successor agency.
"Generally Accepted Accounting Principles" means those
generally accepted accounting principles and practices that are
recognized as such by the American Institute of Certified Public
Accountants acting through its Accounting Principles Board or by
the Financial Accounting Standards Board or through other
appropriate boards or committees thereof and that are
consistently applied for all periods after the date of the most
recent balance sheet of the Borrower referred to in Section 5.06
so as to properly reflect the financial condition, and the
results of operations and cash flows, of the Borrower and its
Consolidated Subsidiaries, except that any accounting principle
or practice required to be changed by the Accounting Principles
Board or Financial Accounting Standards Board (or other
appropriate board or committee of such Boards) in order to
continue as a generally accepted accounting principle or practice
may so be changed. In the event of a change in Generally
Accepted Accounting Principles, the Banks and the Borrower will
thereafter negotiate in good faith to revise any covenants of
this Agreement affected by such change in order to make such
covenants consistent with Generally Accepted Accounting
Principles then in effect.
"Governmental Authority" means (a) with respect to the
Borrower and the Subsidiaries, any government (or any political
unit thereof), court, bureau, agency or other governmental
authority having or claiming jurisdiction over the Borrower or a
Subsidiary or any of their respective businesses, operations or
properties and (b) with respect to the Agent, the Banks and their
Affiliates, the Federal Reserve Board, the Comptroller of the
Currency, any state banking regulator or any other government (or
any political unit thereof), court, bureau, agency or other
governmental authority having or claiming jurisdiction or
regulatory authority over the Agent, such Bank or their
Affiliates or any of their respective businesses, operations or
properties.
"Guaranty" of any Person means any contract, agreement or
understanding of such Person pursuant to which such Person
provides for the payment of any Indebtedness of any other Person
(the "Primary Obligor") or otherwise protecting, or having the
practical effect of protecting, the holder of such Indebtedness
against loss, in any manner, whether directly or indirectly,
contingent or otherwise, including without limitation agreements:
(a) to purchase such Indebtedness or any property constituting
security therefor, (b) to advance or supply funds (i) for the
purchase or payment of such Indebtedness, or (ii) to maintain net
worth or working capital or other balance sheet conditions, or
otherwise to advance or make available funds for the purchase or
payment of such Indebtedness, (c) to purchase property,
securities or service primarily for the purpose of assuring the
holder of such Indebtedness of the ability of the Primary Obligor
to make payment of the Indebtedness, or (d) otherwise to assure
the holder of the Indebtedness of the Primary Obligor against
loss in respect thereof.
"Hazardous Wastes" means all waste materials subject to
regulation or defined as such under the Comprehensive
Environmental Response, Compensation, and Liability Act as
modified by the Superfund Amendments and Reauthorization Act of
1986, the Resource Conservation and Recovery Act, the Clean Air
Act, the Federal Water Pollution Control Act, the Toxic Substance
Control Act, or any applicable state law and any other applicable
federal, state or local laws and their regulations now in force
or hereafter enacted relating to hazardous waste disposal or
environmental conservation.
"Indebtedness" means, with respect to any Person and without
duplication: (a) all obligations of such Person for borrowed
money or the deferred purchase price of goods or services (except
trade payables in the ordinary course of business); (b) all
obligations of such Person in respect of any Guaranty (other than
endorsements of checks for deposit in the ordinary course of
business), (c) all obligations of such Person in respect of any
Capital Lease, (d) all obligations, indebtedness and liabilities,
including any refinancings thereof, secured by any lien or any
security interest on any property or assets of such Person, and
(e) all Mandatorily Redeemable Securities of such Person valued
in accordance with Generally Accepted Accounting Principles.
"Interest Expense" means, for any period, all interest in
respect of Indebtedness accrued or capitalized during such period
(whether or not actually paid during such period).
"Interest Payment Date" means (a) with respect to each
Eurodollar Loan, the last day of each Interest Period for such
Loan and (b) with respect to each Base Rate Loan, the last day of
each calendar month and the Commitment Termination Date.
"Interest Period" means, as to any Eurodollar Loan, the
period commencing on the date of such Eurodollar Loan or
continuation thereof and ending on the numerically corresponding
day (or, if there is no numerically corresponding day, on the
last day) in the calendar month that is 1, 2 or 3 months
thereafter, as the Borrower may elect; provided, however, that
(y) if any Interest Period would end on a day that is not a
Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless such next succeeding Business Day
would fall in the next calendar month, in which case such
Interest Period shall end on the next preceding Business Day and
(z) no Interest Period with respect to any Loan shall end later
than the Commitment Termination Date.
"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended, and all regulations and official rulings and
interpretations thereunder or thereof.
"Legal Requirement" means any requirement imposed upon the
Agent or any Bank by any law of the United States of America or
any other jurisdiction exercising or claiming authority over the
Agent or such Bank, including without limitation, any regulation,
order, interpretation, ruling or official directive (whether or
not having the force of law) of any Governmental Authority.
"Lien" means any lien, mortgage, security interest, tax
lien, attachment, levy, charge, pledge, encumbrance, conditional
sale or title retention arrangement, or any other interest in
property or assets (or the income or profits therefrom) designed
to secure the repayment of Indebtedness, whether consensual or
nonconsensual and whether arising by agreement or under any
statute or law, or otherwise.
"Loan" means an amount advanced pursuant to Section 1.01 and
a Loan of a "type" means a Loan that bears, or is to bear, as the
context may require, interest based on the Base Rate or Adjusted
Eurodollar Rate.
"Loan Documents" means this Agreement, the Notes and any
other document now or hereafter executed or delivered in
connection with this Agreement or the Obligations, including,
without limitation, any life insurance assignment, pledge
agreement, security agreement, financing statement, deed of
trust, mortgage, promissory note, or subordination agreement
(including any renewals, extensions and refundings thereof and
any modifications, supplements and amendments thereto and
substitutes therefor), each of which shall be in form and
substance satisfactory to the Banks.
"Majority Banks" means, as of any date, Banks holding Notes
representing at least sixty-six percent (66%) of the aggregate
unpaid principal amount of the Loans outstanding on such date,
and in the event no Loans are outstanding on such date, Banks
holding at least sixty-six percent (66%) of the aggregate
Commitments of all Banks ; provided, however, that solely for
purposes of Section 8.02 hereof Majority Banks means Banks
holding Notes representing at least forty percent (40%) of the
aggregate unpaid principal amount of the Loans outstanding on
such date.
"Mandatorily Redeemable Securities" means, as applied to a
Person, any of such Person's Capital Securities or debt to the
extent that it is redeemable, payable or required to be purchased
or otherwise retired or extinguished (a) at a fixed or
determinable date, whether by operation of a sinking fund or
otherwise, (b) at the option of any Person other than such Person
or (c) upon the occurrence of a condition not solely within the
control of such Person, such as a redemption required to be made
out of future earnings.
"Margin Stock" means "margin stock" as defined in Regulation
U or G.
"Material Adverse Effect" means any material adverse effect
upon (a) the validity, performance or enforceability of any Loan
Document, (b) the financial condition or business operations of
the Borrower and the Material Subsidiaries, or (c) the ability of
the Borrower to fulfill its obligations under the Loan Documents.
"Material Subsidiary" means any of the Subsidiaries listed
on Schedule 4.06(a) and any other domestic Subsidiary now or in
the future that has annual revenues (either historically or on a
pro forma basis) exceeding 2.25% of total consolidated revenues
of the Borrower and the Consolidated Subsidiaries, provided that
the sum of all revenues of all Material Subsidiaries shall not be
less than 75% of total consolidated revenues of the Borrower and
the Consolidated Subsidiaries, and if less, additional
Subsidiaries (in descending order of total revenues) shall become
Material Subsidiaries until the sum of all revenues exceeds 75%.
"Maximum Permitted Rate" means, with respect to interest
payable on any amount, the rate of interest on such amount that,
if exceeded could, under applicable law, result in (a) civil or
criminal penalties being imposed on any Bank or (b) any Bank's
being unable to enforce payment of (or if collected, to retain)
all or part of such amount or the interest payable thereon.
"Notes" means the promissory notes executed by the Borrower
and delivered to the Banks pursuant to Section 1.03 of this
Agreement, together with any renewals, extensions, replacements
or modifications thereof.
"Obligations" means all indebtedness, liabilities and
obligations, whether now existing or hereafter arising, direct or
indirect, fixed or contingent, secured or unsecured, matured or
unmatured, joint, several or joint and several, arising out of or
in connection with this Agreement, the Notes, the Loans or any
other Loan Document or other document executed or delivered in
connection with this Agreement or the Loans.
"Operating Lease Rentals" of any Person means, as of any
date, the aggregate amount of the obligations and liabilities
(including future obligations and liabilities not yet due and
payable) of such Person to make payments under all leases,
subleases and similar arrangements for the use of real, personal
or mixed property, other than leases that are Capital Leases.
"Organizational Documents" means the fundamental
organizational and governing documents of a Person and includes,
without limitation, (a) in the case of a corporation, its
articles of incorporation and other charter documents, bylaws and
agreements among shareholders, (b) in the case of a partnership,
its certificate of partnership, partnership agreement and other
agreements among partners and (c) in the case of a limited
liability company, its articles of organization, operating
agreement and other agreements among members.
"Percentage" means, with respect to each Bank, the
percentage set forth opposite the name of such Bank on the
signature pages hereof.
"Permitted Liens" shall mean the Liens permitted pursuant to
the provisions of Section 6.01.
"Person" shall include an individual, a sole proprietorship,
a corporation, a joint venture, a general or limited partnership,
a trust, an unincorporated organization, a mutual company, a
joint stock company, an estate, a union, an employee organization
or a Governmental Authority.
"Plan" means an employee benefit plan as defined in Section
3(3) of ERISA maintained by the Borrower or any Subsidiary for
employees of the Borrower and/or the Subsidiaries, and every
other employee benefit arrangement not subject to ERISA,
including but not limited to, those arrangements providing
profit-sharing, stock bonus, stock option, executive
compensation, deferred compensation, severance, hospitalization,
medical, dental, disability or life insurance benefits.
"Premises" means any and all of the real property owned,
leased or otherwise used by the Borrower and its Material
Subsidiaries.
"Premium Payment Obligations" means the obligation of the
Borrower or any Subsidiary to insurance companies or brokers for
insurance coverages or risk management services purchased for
clients for whom the Borrower or any Subsidiary acted as an agent
or broker in the purchase of such insurance coverages or risk
management services.
"Purchasing Bank" shall have the meaning assigned to such
term in Section 10.12 hereof.
"Regulations D, G, U and X" means Regulations D, G, U and X
of the Federal Reserve Board, as the same is from time to time in
effect, and all official rulings thereunder or thereof.
"Regulatory Change" means (a) any new, or any change in any
existing, law, regulation, interpretation, directive or request
(whether or not having the force of law) or (b) any change in the
administration or enforcement of any such applicable law,
regulation, interpretation, directive or request that becomes
effective after the date of this Agreement, whether as a result
of an enactment or determination of a Governmental Authority or
otherwise.
"Repayment Date" means the later of (a) the Commitment
Termination Date or the reduction to zero of the Commitments,
whichever first occurs and (b) the date on which the Loans and
all other amounts payable hereunder are paid in full.
"SEC" means the Securities and Exchange Commission of the
United States and any successor agency thereto.
"Solvent" means, with respect to any Person on a particular
date, that on such date (a) the fair value of the property of
such Person is greater than the total amount of liabilities,
including, without limitation, contingent liabilities, of such
Person, (b) the amount that will be required to pay the probable
liabilities of such Person on its debts as they become absolute
and matured will not be greater than the fair salable value of
the assets of such Person at such time, (c) such Person is able
to realize upon its assets and pay its debts and other
liabilities, contingent obligations and other commitments as they
mature in the normal course of business, (d) such Person does not
intend to, and does not believe that it will, incur debts or
liabilities beyond such Person's ability to pay as such debts and
liabilities mature, and (e) such Person is not engaged in
business or a transaction, and is not about to engage in business
or a transaction, for which such Person's property would
constitute unreasonably small capital after giving due
consideration to prevailing practices in the industry in which
such Person is engaged. In computing the amount of any
contingent liability at any time, it is intended that such
liability will be computed at the amount which, in light of all
the facts and circumstances existing at such time, represents the
amount that might reasonably be expected to become an actual or
matured liability.
"State Official" means, with respect to any Person, the
Secretary of State or other appropriate official of the
jurisdiction in which such Person was incorporated or organized
who is authorized to certify official records of such Person on
file in such jurisdiction.
"Subsidiary" means, with respect to any Person, any other
Person fifty percent (50%) or more of the outstanding Capital
Securities of each class of which is owned or controlled,
directly or indirectly, by such first Person and its Affiliates.
"Tax" means, in relation to any Eurodollar Loan and the
applicable Eurodollar, any federal, state, local or foreign tax,
levy, impost, duty, deduction, withholding or other charge of
whatever nature required by any Legal Requirement (a) to be paid
by the Banks or (b) to be withheld or deducted from any payment
otherwise required hereby to be made by the Borrower to the
Banks; provided, however, that the term "Tax" shall not include
any taxes imposed upon the net income of the Banks by the United
States, any political subdivision thereof or any other taxing
authority.
"Toxic Substances" means and includes any materials present
on the Premises which have been shown to have significant adverse
effects on human health or which are subject to regulation under
the Toxic Substances Control Act, applicable state law, or any
other applicable federal, state or local laws now in force or
hereafter enacted relating to toxic substances. "Toxic
Substances" includes, but is not limited to, asbestos,
polychlorinated biphenyls ("PCBs"), petroleum products, and lead-
based paints.
"Wholly Owned Subsidiary" means a Subsidiary all of the
Capital Securities of which are, directly or indirectly, owned or
controlled by the Borrower or one or more Wholly Owned
Subsidiaries or by the Borrower and one or more of such
Subsidiaries.
EXHIBIT B
[Form of Revolving Note]
$________
Richmond, Virginia
February 12, 1996
FOR VALUE RECEIVED, HILB, ROGAL, AND HAMILTON COMPANY, a
Virginia corporation (the "Borrower"), hereby promises to pay to
the order of __________________ (the "Bank"), at the office of
Crestar Bank, as Agent (the "Agent"), at 919 East Main Street,
Richmond, Virginia 23219, on the dates provided in the Credit
Agreement (the "Credit Agreement") dated as of February 12, 1996
among the Borrower, the Agent and the Banks described in the
Credit Agreement, but in no event later than the Commitment
Termination Date as defined in the Credit Agreement, in lawful
money of the United States of America, in immediately available
funds, the principal amount of ___________________________
Dollars ($___________ ) or, if less than such principal amount,
the aggregate unpaid principal amount of the Loans (as defined in
the Credit Agreement) made by the Bank to the Borrower pursuant
to the Credit Agreement, and to pay interest from the date hereof
on the unpaid principal amount hereof, in like money, at said
office, on the dates and at the rates selected in accordance with
Article I of the Credit Agreement.
The Borrower promises to pay interest, payable on demand, on
any overdue principal and, to the extent permitted by law,
overdue interest from their due dates at a rate or rates
determined as set forth in the Credit Agreement.
The Borrower hereby waives diligence, presentment, demand,
protest and notice of any kind whatsoever. The nonexercise by
the holder of any of its rights hereunder in any particular
instance shall not constitute a waiver thereof in that or any
subsequent instance.
All borrowings evidenced by this Note and all payments and
prepayments of the principal hereof and interest hereon and the
respective dates thereof shall be evidenced by the books and
records of the Agent and the Bank.
This Note is one of the Notes referred to in the Credit
Agreement which, among other things, contains provisions for the
acceleration of the maturity hereof upon the happening of certain
events, for optional prepayment of the principal hereof prior to
the maturity thereof and for the amendment or waiver of certain
provisions of the Credit Agreement, all upon the terms and
conditions therein specified. This Note shall be construed in
accordance with and governed by the laws of the Commonwealth of
Virginia.
HILB, ROGAL, AND HAMILTON COMPANY
By__________________________
Title:
EXHIBIT C
CONDITIONS TO INITIAL LOANS
This is Exhibit C to that certain Credit Agreement dated as
of February 12, 1996, among Hilb, Rogal, and Hamilton Company,
Crestar Bank, and the Banks listed therein (the "Agreement").
All capitalized terms used but not defined herein or in the
appendices hereto shall have the meanings given to them in the
Agreement.
1. The Borrower shall have delivered, or caused to be
delivered, to each Bank:
(a) a duplicate original of the Agreement executed on the
Borrower's behalf by its duly authorized officer.
(b) a duly executed Note payable to its order and otherwise
complying with the provisions of Section 1.03 of the Agreement.
(c) the written opinion of Williams, Mullen, Christian &
Dobbins, counsel to the Borrower, substantially in the form
attached as Appendix 1 to this Exhibit, and addressing such other
legal matters as the Banks and their counsel may require.
2. The Borrower shall have delivered, or caused to be
delivered, to the Agent:
(a) A copy of the Borrower's Articles of Incorporation, as
amended, certified as of a recent date by a State Official.
(b) A certificate of a State Official, dated as of a
recent date, as to the good standing and charter documents of the
Borrower on file in the office of such State Official.
(c) A certificate of the Secretary or an Assistant
Secretary of the Borrower dated as of the Closing Date
substantially in the form attached as Appendix 2 to this Exhibit.
(d) A certificate of the Chief Financial Officer of the
Borrower, substantially in the form attached as Appendix 3 to
this Exhibit, certifying that (i) the Borrower is in compliance
with all the terms and provisions of the Agreement and at the
time of and immediately after such borrowing no Default has
occurred or is continuing and (ii) the representations and
warranties contained in Article IV of the Agreement are true and
correct.
(e) Certified copies of all consents and required
governmental approvals, if any, necessary for the execution,
delivery and performance of the Agreement, the Note, and the
other Loan Documents and the transactions contemplated thereby.
(f) Payment in full of all fees required to be paid on the
Closing Date (including the fees, if any, payable pursuant to
Section 1.05 of the Agreement) and all of the Banks' out-of-
pocket costs and expenses (including counsel fees and
disbursements) payable in accordance with Section 10.03 for which
invoices have been submitted on or prior to such date.
(g) A notice of such Loan as required by Section 1.02 of
the Agreement.
(h) Such other documents as the Agent, the Banks and their
counsel may request.
APPENDIX 1
FORM OF OPINION
[Letterhead of Counsel to Borrower]
[Date of First Borrowing]
[Addressed to the Agent and the Banks]
Dear Sirs:
We have acted as counsel to Hilb, Rogal, and Hamilton
Company, a Virginia corporation (the "Borrower"), and its
subsidiaries in connection with the preparation, execution and
delivery of the Credit Agreement dated as of February 12, 1996
(the "Credit Agreement"), among the Borrower and Crestar Bank, as
agent for itself and the banks named therein (the "Banks").
Terms capitalized but not defined herein shall have the
meanings given to them in the Credit Agreement.
In so acting, we have reviewed executed copies of the Credit
Agreement and the Notes. We have relied upon originals or copies
certified or otherwise identified to our satisfaction, of such
records, documents, certificates, and other instruments, and have
made such other investigations, as in our judgment are necessary
or appropriate to enable us to render the opinions expressed
below. Except with respect to the Borrower and the Material
Subsidiaries, we have assumed the genuineness of all signatures
and the authenticity of all documents submitted to us as
originals, the conformity to original documents of all documents
submitted to us as certified copies or photocopies and the
authenticity of the originals of such latter documents.
Based upon and subject to the foregoing and the
qualifications and assumptions set forth below, we are of the
opinion that:
1. The Borrower is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Virginia, and each Material Subsidiary is duly organized, validly
existing and in good standing in each case under the laws of the
jurisdiction of its organization. The Borrower and each of its
Material Subsidiaries has the corporate power and authority to
own its respective properties and to carry on its respective
businesses as now conducted and is duly qualified to do business,
and is in good standing as a foreign entity in all jurisdictions
wherein such qualification is required by reason of the nature of
its business and activities or the location of its property. The
Borrower has the corporate power to execute, deliver and perform
the Credit Agreement, to borrow thereunder and to execute and
deliver the Note.
2. The execution and delivery by the Borrower of, and
performance by the Borrower of the obligations provided for in,
the Loan Documents have been duly authorized by all proper and
necessary corporate action. Each of the Loan Documents to which
the Borrower is a party has been duly executed and delivered by
the Borrower.
3. The Loan Documents constitute the legal, valid and
binding obligations of the Borrower, enforceable against the
Borrower in accordance with their terms, except as may be limited
by (a) bankruptcy, insolvency, reorganization, moratorium and
other similar laws affecting the rights of creditors generally
and (b) general principles of equity (whether considered in a
proceeding in at law or in equity).
4. No action, suit, proceeding, inquiry or investigation
before or by any arbitrator or any court, public body, board,
administrative agency or other Governmental Authority is pending
or, to best of our knowledge, threatened against or affecting the
Borrower or any Material Subsidiary.
5. To the best of our knowledge, neither the Borrower nor
any Material Subsidiary is in default with respect to any
judgment, writ, injunction, decree, rule or regulation of any
governmental instrumentality or other agency where such default
could have a material and adverse affect on the financial
condition of the Borrower or of the Borrower and the Material
Subsidiaries taken as a whole.
6. No approval of, consent from or filing with any
Governmental Authority or any other Person, which approval,
consent or filing has not heretofore been obtained, given or
made, is required in connection with the execution and delivery
by the Borrower of any of the Loan Documents.
7. The execution and delivery of the Loan Documents, the
consummation of the transactions therein contemplated, the
performance of and compliance with the provisions thereof and the
application of the proceeds of the Loans as therein contemplated
do not and will not (A) violate, conflict with, result in the
breach of, or constitute a default under (i) any provision of
law, (ii) the Organizational Documents of the Borrower or any
Material Subsidiary, (iii) any instrument, agreement or contract
to which the Borrower or any Material Subsidiary is a party, or
by or to which the Borrower or any Material Subsidiary or any
properties of the Borrower or any Material Subsidiary may be
affected, bound or subject, or (iv) any order, writ, injunction
or decree of any court, arbitrator or Governmental Authority, or
(B) result in the creation or imposition of any lien, charge or
encumbrance upon any assets of the Borrower or any Material
Subsidiary except in favor of the Agent for the benefit of the
Banks.
8. The execution, delivery and performance of the Credit
Agreement and the use of the proceeds of the Loans thereunder do
not and will not constitute a violation of Regulations G, X or U
of the Board of Governors of the Federal Reserve System.
9. The Agent and the Banks will not be (i) deemed to be
doing business for purposes of any requirement for qualification
as a foreign corporation in _________ [list jurisdictions of the
Borrower] solely by reason of making the Loans or enforcing any
of the Loan Documents, or (ii) denied access to the court system
of such jurisdictions by reason of not having so qualified in
such jurisdiction on the sole basis of having made the Loans or
enforcing the Loan Documents. We express no opinion in this
paragraph with respect to any other loans or activities of the
Agent and the Banks, and the Agent and the Banks shall not, nor
shall they have any right to, rely on such opinion in connection
with any loans or activities except those expressly referred to
in the first sentence of this paragraph.
10. The payment by the Borrower and receipt by the Banks,
as applicable, of interest and other payments required to be paid
pursuant to the terms of Credit Agreement and the Notes will not
constitute unlawful interest or otherwise violate the usury laws
of the Commonwealth of Virginia.
This opinion is being delivered to you at the request of our
clients pursuant to Section [1(c)] of Exhibit C to the Credit
Agreement. This opinion is solely for your benefit and may not
be relied upon by any other person without our prior written
consent.
We are members of the Bar of the Commonwealth of Virginia
and express no opinion with respect to the law of any
jurisdiction other than the laws of the Commonwealth of Virginia
and the federal laws of the United States, in each case as in
effect on the date hereof.
Very truly yours,
APPENDIX 2
FORM OF SECRETARY'S CERTIFICATE
Hilb, Rogal, and Hamilton Company
(the "Company")
Secretary's Certificate Regarding
Incumbency, Resolutions,
Articles of Incorporation and By-Laws
The undersigned, being the duly appointed, qualified and
acting Secretary of the Company, hereby certifies that the
persons named below are, on the date hereof, the duly elected,
qualified and acting officers of the Company and occupy the
offices set opposite their respective names, and the signatures
opposite their names below are their true and correct signatures:
Name Office Signature
__________________
_________________
_
__________________
and hereby further certifies that:
(a) The Board of Directors of the Company adopted, on
______________, at a duly called meeting at which a quorum was
present and voting throughout, the resolutions set forth in
Exhibit "A" attached hereto, none of which has been amended or
repealed in any respect since such date, and all of which remain
in full force and effect as of the date hereof.
(b) Attached hereto as Exhibit "B" is a true, correct and
complete copy of the Articles of Incorporation of the Company,
certified by the appropriate State Official, and no action has
been taken by the Board of Directors of the Company or its
Shareholders to amend or in contemplation of amending the
Articles of Incorporation since such certification date.
(c) Attached hereto as Exhibit "C" is a true, correct and
complete copy of the By-Laws of the Company in effect on the date
hereof.
IN WITNESS WHEREOF, I have hereunto set my hand and the
corporate seal of the Company as of this ___ day of ______, 19__.
__________________________
______________, Secretary
[SEAL]
I, ___________________, _____________________ of the Company
do hereby certify that __________________ is the duly elected,
qualified and acting Secretary of the Company, and that his
signature set forth above is his true signature.
IN WITNESS WHEREOF, I have hereunto set my hand as of this
__ day of ______________, 19__.
__________________________
APPENDIX 3
FORM OF OFFICER'S CERTIFICATE
[Company letterhead]
Hilb, Rogal and Hamilton Company
(the "Company")
The undersigned, who is Chief Financial Officer of the
Company, in connection with a certain Credit Agreement dated as
of February ___, 1996 (the "Credit Agreement"), among the
Company, the banks listed therein (the "Banks") and Crestar Bank,
as the agent (the "Agent") for the Banks, hereby certifies to the
Agent and each of the Banks that, as of the date of this
certificate:
(a) The Company is in compliance with all the terms and
provisions of the Credit Agreement and no Default has occurred or
is continuing; and
(b) Each of the representations and warranties contained in
Article IV of the Credit Agreement are true and correct.
Terms used herein but not defined shall have the meanings
ascribed to them in the Credit Agreement.
IN WITNESS WHEREOF, I have hereunto set my hand and the
corporate seal of the Company as of this ___ day of ______, 19__.
HILB, ROGAL AND HAMILTON COMPANY
By: _____________________________
Chief Financial
Officer
EXHIBIT D
FORM OF COMPLIANCE CERTIFICATE
[company letterhead]
[To the Agent and the Banks]
Hilb, Rogal and Hamilton Company
Ladies and Gentlemen:
This certificate is delivered to you pursuant to Section
5.06(e) of the Credit Agreement, dated as of February 9, 1996
(the "Credit Agreement"), among Hilb, Rogal and Hamilton Company
(the "Borrower"), the banks listed therein as, or that may from
time to time become, parties thereto (collectively, the "Banks"),
and Crestar Bank, as the agent (the "Agent") for the Banks.
Unless otherwise defined, terms used herein (including the
Attachment hereto) have the meanings ascribed to them in the
Credit Agreement.
The undersigned hereby certifies that he is the Chief
Financial Officer of the Borrower and further certifies that as
of ________, 19___ (the "Computation Date"):
(a) the Borrower's (i) Adjusted Funded Debt was $________,
(ii) Adjusted Cash Flow was $______ and (iii) ratio of Adjusted
Funded Debt to Adjusted Cash Flow was _________, as shown in
detail on the Attachment hereto, which [complies][does not
comply] with the requirements of Section 7.01 of the Credit
Agreement, and which results in an Applicable Margin of _______;
(b) the Borrower's Consolidated Net Worth was $__________,
as shown in detail on the Attachment hereto, which
[complies][does not comply] with the requirements of Section 7.02
of the Credit Agreement;
(c) the Borrower's (i) Adjusted Cash Flow was $_________,
(ii) Debt Service was $_____, and (iii) Debt Service Coverage
ratio was ________, as shown in detail on the Attachment hereto,
which [complies][does not comply] with the requirements of
Section 7.03 of the Credit Agreement.
IN WITNESS WHEREOF, I have hereunto set my hand and the
corporate seal of the Borrower as of this ___ day of ______,
19__.
HILB, ROGAL AND HAMILTON COMPANY
By: _____________________________
Chief Financial
Officer
[SEAL]
ATTACHMENT
to
___\ ___\ ___
Compliance Certificate
1. Adjusted Funded Debt:
(a) All Indebtedness (including
the current portion thereof)
of the Borrower and its
Consolidated Subsidiaries, plus _____________
(b) Total Operating Lease Rentals
of the Borrower and its
Consolidated Subsidiaries paid
during the twelve months
immediately preceding the
date hereof, multiplied
by eight (8), equals ______________
ADJUSTED FUNDED DEBT $
2. Adjusted Cash Flow:
(a) Consolidated Net Income of
the Borrower and its
Consolidated Subsidiaries, plus ______________
(b) Depreciation and amortization
(to the extent deducted in
determining Consolidated
Net Income), plus ______________
(c) Taxes (to the extent deducted in
determining Consolidated
Net Income), plus ______________
(d) Interest Expense (to the extent
deducted in determining
Consolidated Net Income), plus ______________
(e) Operating Lease Rentals
(to the extent deducted in
determining Consolidated
Net Income), plus ______________
(f) Extraordinary and unusual
items (to the extent deducted in
determining Consolidated
Net Income), plus ______________
(g) Loss attributable to
equity in Affiliates (to
the extent deducted in
determining Consolidated
Net Income), equals ______________
ADJUSTED CASH FLOW $
3. Consolidated Net Worth:
(a) Base amount, plus $42,500,000
(b) Twenty-five percent (25%)
of positive Consolidated
Net Income for each fiscal
quarter beginning after
December 31, 1995, and ending
on or before the date
hereof, plus _____________
(c) Fifty percent (50%) of the
net proceeds received by
the Borrower or any
Subsidiary after
December 31, 1995, from
the sale of Capital
Securities, equals ______________
CONSOLIDATED NET WORTH $
4. Debt Service:
(a) Operating Lease Rentals
accrued or paid by the
Borrower and its
Consolidated Subsidiaries (on
a consolidated basis) for
the immediately preceding
twelve month period, plus ______________
(b) Interest Expense of the
Borrower and its
Consolidated Subsidiaries (on
a consolidated basis) for
the immediately preceding
twelve month period, equals ______________
DEBT SERVICE $