EXHIBIT 10.3
EXECUTION COPY
$250,000,000
AMENDED AND RESTATED SHORT-TERM CREDIT AGREEMENT
dated as of
June 23, 2004
among
The Chubb Corporation
The Banks Listed Herein
Deutsche Bank AG
and
Citigroup Global Markets Inc.
as Joint Lead Arrangers and Joint Book Runners
and
Deutsche Bank AG,
as Administrative Agent
ARTICLE I
Definitions
SECTION 1.01 Definitions........................................................................ 1
SECTION 1.02. Accounting Terms and Determinations................................................ 12
SECTION 1.03. Types of Borrowings................................................................ 12
ARTICLE II
The Credits
SECTION 2.01. Commitments to Lend................................................................ 13
SECTION 2.02. Notice of Committed Borrowings..................................................... 13
SECTION 2.03. Money Market Borrowings............................................................ 13
SECTION 2.04. Swingline Loans.................................................................... 18
SECTION 2.05. Notice to Banks; Funding of Loans.................................................. 19
SECTION 2.06. Evidence of Debt................................................................... 20
SECTION 2.07. Maturity of Loans.................................................................. 21
SECTION 2.08. Interest Rates..................................................................... 21
SECTION 2.09. Fees............................................................................... 24
SECTION 2.10. Optional Termination or Reduction of Commitments................................... 25
SECTION 2.11. Mandatory Termination of Commitments............................................... 25
SECTION 2.12. Optional Prepayments............................................................... 25
SECTION 2.13. General Provisions as to Payments.................................................. 26
SECTION 2.14. Funding Losses..................................................................... 27
SECTION 2.15. Computation of Interest and Fees................................................... 27
SECTION 2.16. Method of Electing Interest Rates.................................................. 27
SECTION 2.17. Regulation D Compensation.......................................................... 29
SECTION 2.18. Judgment Currency.................................................................. 29
SECTION 2.19. Extension of Termination Date...................................................... 29
ARTICLE III
Conditions
SECTION 3.01. Effectiveness...................................................................... 31
SECTION 3.02. Borrowings......................................................................... 32
ARTICLE IV
Representations and Warranties
SECTION 4.01. Corporate Existence and Power...................................................... 32
SECTION 4.02. Corporate and Governmental Authorization; No Contravention......................... 32
SECTION 4.03. Binding Effect..................................................................... 33
SECTION 4.04. Financial Information.............................................................. 33
SECTION 4.05. Litigation......................................................................... 33
SECTION 4.06. Compliance with ERISA.............................................................. 33
SECTION 4.07. Not an Investment Company.......................................................... 34
SECTION 4.08. Compliance with Laws............................................................... 34
ARTICLE V
Covenants
SECTION 5.01. Information........................................................................ 34
SECTION 5.02. Payment of Obligations............................................................. 36
SECTION 5.03. Maintenance of Property............................................................ 36
SECTION 5.04. Conduct of Business and Maintenance of Existence................................... 36
SECTION 5.05. Compliance with Laws............................................................... 36
SECTION 5.06. Inspection of Property, Books and Records.......................................... 37
SECTION 5.07. Adjusted Consolidated Net Worth.................................................... 37
SECTION 5.08. Negative Pledge.................................................................... 37
SECTION 5.09. Consolidations, Mergers and Sales of Assets........................................ 38
SECTION 5.10. Use of Proceeds.................................................................... 38
ARTICLE VI
Defaults
SECTION 6.02. Notice of Default.................................................................. 40
ARTICLE VII
The Agent
SECTION 7.01. Appointment and Authorization...................................................... 40
SECTION 7.02. Agent and Affiliates............................................................... 40
SECTION 7.03. Action by Agent.................................................................... 40
SECTION 7.04. Consultation with Experts.......................................................... 40
SECTION 7.05. Liability of Agent................................................................. 41
SECTION 7.06. Indemnification.................................................................... 41
SECTION 7.07. Credit Decision.................................................................... 41
SECTION 7.08. Successor Agent.................................................................... 41
SECTION 7.09. Agent's Fee........................................................................ 42
SECTION 7.10. Arrangers; Swingline Lenders....................................................... 42
ARTICLE VIII
Change in Circumstances
SECTION 8.01. Basis for Determining Interest Rate Inadequate or Unfair........................... 42
SECTION 8.02. Illegality......................................................................... 43
SECTION 8.03. Increased Cost and Reduced Return.................................................. 43
SECTION 8.04. Taxes.............................................................................. 44
SECTION 8.05. Base Rate Loans Substituted for Affected Fixed Rate Loans.......................... 46
SECTION 8.06. Substitution of Bank............................................................... 46
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices............................................................................ 47
SECTION 9.02. No Waivers......................................................................... 47
SECTION 9.03. Expenses; Indemnification.......................................................... 47
SECTION 9.04. Sharing of Set-Offs................................................................ 48
SECTION 9.05. Amendments and Waivers............................................................. 48
SECTION 9.06. Successors and Assigns............................................................. 49
SECTION 9.07. Collateral......................................................................... 50
SECTION 9.08. Governing Law; Submission to Jurisdiction.......................................... 50
SECTION 9.09. Counterparts; Integration.......................................................... 51
SECTION 9.10. Confidentiality.................................................................... 51
SECTION 9.11. Restatement of Existing Credit Agreement........................................... 51
SECTION 9.12. USA PATRIOT Act.................................................................... 52
SECTION 9.13. WAIVER OF JURY TRIAL............................................................... 52
Exhibit A - Note
Exhibit B - Money Market Quote Request
Exhibit C - Invitation for Money Market Quotes
Exhibit D - Money Market Quote
Exhibit E-1 - Opinion of Counsel for the Borrower
Exhibit E-2 - Opinion of Counsel for the Agent
Exhibit F - Assignment and Assumption Agreement
AMENDED AND RESTATED SHORT-TERM CREDIT AGREEMENT
AGREEMENT dated as of June 23, 2004, among THE CHUBB CORPORATION,
the BANKS listed on the signature pages hereof, DEUTSCHE BANK SECURITIES INC.,
and CITIGROUP GLOBAL MARKETS INC., as Arrangers, DEUTSCHE BANK AG NEW YORK
BRANCH and CITICORP USA, INC. as Swingline Lenders, DEUTSCHE BANK AG NEW YORK
BRANCH, as Administrative Agent and CITICORP USA, INC., as Syndication Agent.
The parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Definitions. The following terms, as used herein, have
the following meanings:
"Absolute Rate Auction" means a solicitation of Money Market Quotes
setting forth Money Market Absolute Rates pursuant to Section 2.03.
"Adjusted CD Rate" has the meaning set forth in Section 2.08(b).
"Adjusted Consolidated Net Worth" means at any date the
shareholders' equity of the Borrower and its Consolidated Subsidiaries
determined as of such date, adjusted to exclude the effect of Statement of
Financial Accounting Standards No. 115 (by excluding any unrealized appreciation
or depreciation of fixed maturity investments, net of any related adjustments
and any related deferred income taxes).
"Administrative Questionnaire" means, with respect to each Bank, an
administrative questionnaire in the form prepared by the Agent and submitted to
the Agent (with a copy to the Borrower) duly completed by such Bank.
"Agent" means Deutsche Bank AG New York Branch, in its capacity as
administrative agent for the Banks hereunder, and its successors in such
capacity.
"Alternative Currency" means any currency other than Dollars which
is freely transferable and convertible into Dollars.
"Applicable Lending Office" means, with respect to any Bank, (i) in
the case of its Domestic Loans, its Domestic Lending Office, (ii) in the case of
its Euro-Dollar Loans, its Euro-Dollar Lending Office and (iii) in the case of
its Money Market Loans, its Money Market Lending Office.
"Applicable Percentage" of any Bank means the percentage of the
aggregate Commitments represented by such Bank's Commitment.
"Arrangers" means Deutsche Bank Securities Inc. and Citigroup Global
Markets Inc. in their capacities as joint lead arrangers and joint lead
bookrunners for the Banks hereunder, and their successors in such capacities.
"Assessment Rate" has the meaning set forth in Section 2.08(b).
"Assignee" has the meaning set forth in Section 9.06(c).
"Bank" means each bank listed on the signature pages hereof, each
Assignee which becomes a Bank pursuant to Section 9.06(c), and their respective
successors.
"Base Rate" means, for any day, a rate per annum equal to the higher
of (i) the Prime Rate for such day and (ii) the sum of 1% plus the Federal Funds
Rate for such day.
"Base Rate Loan" means (i) a Committed Loan which bears interest at
the Base Rate pursuant to the applicable Notice of Committed Borrowing or Notice
of Interest Rate Election or the provisions of Article VIII or (ii) an overdue
amount which was a Base Rate Loan immediately before it became overdue.
"Benefit Arrangement" means at any time an employee benefit plan
within the meaning of Section 3(3) of ERISA which is not a Plan or a Multi
employer Plan and which is maintained or otherwise contributed to by any member
of the ERISA Group.
"Borrower" means The Chubb Corporation, a New Jersey corporation,
and its successors.
"Borrower's 2003 Form 10-K" means the Borrower's annual report on
Form 10K for 2003, as filed with the Securities and Exchange Commission pursuant
to the Securities Exchange Act of 1934.
"Borrowing" has the meaning set forth in Section 1.03.
"CD Base Rate" has the meaning set forth in Section 2.08(b).
"CD Loan" means (i) a Committed Loan which bears interest at a CD
Rate pursuant to the applicable Notice of Committed Borrowing or Notice of
Interest Rate Election or (ii) an overdue amount which was a CD Loan immediately
before it became overdue.
"CD Margin" has the meaning set forth in Section 2.08(b).
"CD Rate" means a rate of interest determined pursuant to Section
2.08(b) on the basis of an Adjusted CD Rate.
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"CD Reference Banks" means Citicorp USA, Inc. and Deutsche Bank AG
New York Branch.
"Commitment" means, with respect to each Bank, the amount set forth
opposite the name of such Bank on the signature pages hereof, as such amount may
be reduced from time to time pursuant to Sections 2.10, 2.11, 6.01 and 9.06.
"Committed Exposure" means, with respect to any Bank at any time,
the sum of the aggregate principal amount of such Bank's Committed Loans
outstanding at such time and its Swingline Exposure at such time.
"Committed Loan" means a loan made by a Bank pursuant to Section
2.01; provided that, if any such loan or loans (or portions thereof) are
combined or subdivided pursuant to a Notice of Interest Rate Election, the term
"Committed Loan" shall refer to the combined principal amount resulting from
such combination or to each of the separate principal amounts resulting from
such subdivision, as the case may be.
"Consolidated Subsidiary" means at any date any Subsidiary or other
entity the accounts of which would be consolidated with those of the Borrower in
its consolidated financial statements if such statements were prepared as of
such date.
"Debt" of any Person means at any date, without duplication, (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person to pay the deferred purchase price of property or
services, except trade accounts payable arising in the ordinary course of
business, (iv) all obligations of such Person as lessee which are capitalized in
accordance with generally accepted accounting principles, (v) all Debt of others
secured by a Lien on any asset of such Person, whether or not such Debt is
assumed by such Person, and (vi) all Debt of others Guaranteed by such Person.
"Default" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"Dollar Amount" means, in relation to any Money Market Borrowing
denominated in an Alternative Currency, the amount designated by the Borrower as
the Dollar amount of such Money Market Borrowing in the related Notice of Money
Market Borrowing, subject to Section 2.03(h).
"Dollars" and the sign "$" mean lawful money of the United States of
America.
"Domestic Business Day" means any day except a Saturday, Sunday or
other day on which commercial banks in New York City are authorized by law to
close.
"Domestic Lending Office", means as to each Bank, its office located
at its address set forth in its Administrative Questionnaire (or identified in
its
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Administrative Questionnaire as its Domestic Lending Office) or such other
office as such Bank may hereafter designate as its Domestic Lending Office by
notice to the Borrower and the Agent; provided that any Bank may so designate
separate Domestic Lending Offices for its Base Rate Loans, on the one hand, and
its CD Loans, on the other hand, in which case all references herein to the
Domestic Lending Office of such Bank shall be deemed to refer to either or both
of such offices, as the context may require.
"Domestic Loans" means CD Loans or Base Rate Loans or both.
"Domestic Reserve Percentage" has the meaning set forth in Section
2.08(b).
"Effective Date" means the date this Agreement becomes effective in
accordance with Section 3.01.
"Equivalent Amount" means, in connection with the determination of
the amount of a Money Market Loan to be made or theretofore made in any
Alternative Currency in relation to the Dollar Amount of such Loan, the amount
of such Alternative Currency converted from such Dollar Amount at the spot
buying rate of the Bank that is to make or has made such Loan (based on the
London interbank market rate then prevailing) for Dollars against such
Alternative Currency as of approximately 9:00 A.M. (New York City time) three
Euro-Dollar Business Days before the date on which such Loan is to be made or
the date on which the Equivalent Amount thereof is to be determined, as the case
may be.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended, or any successor statute.
"ERISA Group" means the Borrower and all members of a controlled
group of corporations and all trades or businesses (whether or not incorporated)
under common control which, together with the Borrower, are treated as a single
employer under Section 414 of the Internal Revenue Code.
"Euro-Dollar Business Day" means any Domestic Business Day on which
commercial banks are open for international business (including dealings in
Dollar deposits) in London, and, where funds are to be paid or made available in
an Alternative Currency, on which commercial banks are open for domestic and
international business (including dealings in deposits in such Alternative
Currency) in both London and the place where such funds are paid or made
available.
"Euro-Dollar Lending Office" means, as to each Bank, its office,
branch or affiliate located at its address set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire as its
Euro-Dollar Lending Office) or such other office, branch or affiliate of such
Bank as it may hereafter designate as its Euro-Dollar Lending Office by notice
to the Borrower and the Agent.
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"Euro-Dollar Loan" means (i) a Committed Loan which bears interest
at a Euro-Dollar Rate pursuant to the applicable Notice of Committed Borrowing
or Notice of Interest Rate Election or (ii) an overdue amount which was a
Euro-Dollar Loan immediately before it became overdue.
"Euro-Dollar Margin" has the meaning set forth in Section 2.08(c).
"Euro-Dollar Rate" means a rate of interest determined pursuant to
Section 2.08(c) on the basis of a London Interbank Offered Rate.
"Euro-Dollar Reference Banks" means Citicorp USA, Inc. and Deutsche
Bank AG.
"Euro-Dollar Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for a member bank of the Federal
Reserve System in New York City with deposits exceeding five billion Dollars in
respect of "Euro-currency liabilities" (or in respect of any other category of
liabilities which includes deposits by reference to which the interest rate on
Euro-Dollar Loans is determined or any category of extensions of credit or other
assets which includes loans by a non-United States office of any Bank to United
States residents).
"Event of Default" has the meaning set forth in Section 6.01.
"Existing Credit Agreement" means the Amended and Restated
Short-Term Credit Agreement dated as of June 26, 2003 among the Borrower,
certain banks and Deutsche Bank AG and Citibank, N.A., as co-agents and
Swingline Lenders, and Deutsche Bank AG, as Administrative Agent.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upward, if necessary, to the nearest 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Domestic Business Day
next succeeding such day, provided that (i) if such day is not a Domestic
Business Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Domestic Business Day as so published on the
next succeeding Domestic Business Day, and (ii) if no such rate is so published
on such next succeeding Domestic Business Day, the Federal Funds Rate for such
day shall be the average rate quoted to Deutsche Bank AG New York Branch on such
day on such transactions as determined by the Agent.
"Fixed Rate Loans" means CD Loans or Euro-Dollar Loans or Money
Market Loans (excluding Money Market LIBOR Loans bearing interest at the Prime
Rate pursuant to Section 8.01 (a)) or any combination of the foregoing.
"Group of Loans" means at any time a group of Loans consisting of
(i) all Committed Loans which are Base Rate Loans at such time or (ii) all
Committed Loans
5
which are Fixed Rate Loans of the same type having the same Interest Period at
such time; provided that, if a Committed Loan of any particular Bank is
converted to or made as a Base Rate Loan pursuant to Section 8.02 or 8.04, such
Loan shall be included in the same Group or Groups of Loans from time to time as
it would have been in if it had not been so converted or made.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt of any
other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such
Debt (whether arising by virtue of partnership arrangements, by agreement to
keep-well, to purchase assets, goods, securities or services, to take-or-pay, or
to maintain financial statement conditions or otherwise) or (ii) entered into
for the purpose of assuring in any other manner the obligee of such Debt of the
payment thereof or to protect such obligee against loss in respect thereof (in
whole or in part), provided that the term Guarantee shall not include
endorsements for collection or deposit in the ordinary course of business. The
term "Guarantee" used as a verb has a corresponding meaning.
"Interest Period" means: (1) with respect to each Euro-Dollar Loan,
a period commencing on the date of borrowing specified in the applicable Notice
of Borrowing or on the date specified in the applicable Notice of Interest Rate
Election and ending one, two, three or six months thereafter, as the Borrower
may elect in the applicable notice; provided that:
(a) with the consent of all Lenders (and otherwise in accordance
with Section 9.05), the Interest Period may be extended for up to one year
from the date of borrowing specified in the applicable Notice of Borrowing
or the date specified in the applicable Notice of Interest Rate Election;
(b) any Interest Period which would otherwise end on a day which is
not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in
another calendar month, in which case such Interest Period shall end on
the next preceding Euro-Dollar Business Day;
(c) any Interest Period which begins on the last Euro-Dollar
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period) shall, subject to clause (d) below, end on the last
Euro-Dollar Business Day of a calendar month; and
(d) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date;
(2) with respect to each CD Loan, a period commencing on the date of
borrowing specified in the applicable Notice of Borrowing or on the date
specified in the
6
applicable Notice of Interest Rate Election and ending 30, 60, 90 or 180 days
thereafter, as the Borrower may elect in the applicable notice; provided that:
(a) with the consent of all Lenders (and otherwise in accordance
with Section 9.05), the Interest Period may be extended for up to one year
from the date of borrowing specified in the applicable Notice of Borrowing
or the date specified in the applicable Notice of Interest Rate Election;
(b) any Interest Period which would otherwise end on a day which is
not a Euro-Dollar Business Day shall, subject to clause (c) below, be
extended to the next succeeding Euro-Dollar Business Day; and
(c) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date;
(3) with respect to each Base Rate Loan, a period commencing on the
date of borrowing specified in the applicable Notice of Borrowing or on the date
specified in the applicable Notice of Interest Rate Election and ending 30 days
thereafter; provided that:
(a) any Interest Period which would otherwise end on a day which is
not a Euro-Dollar Business Day shall, subject to clause (b) below, be
extended to the next succeeding Euro-Dollar Business Day; and
(b) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date;
(4) with respect to each Money Market LIBOR Loan, the period
commencing on the date of borrowing specified in the applicable Notice of
Borrowing and ending such whole number of months thereafter as the Borrower may
elect in accordance with Section 2.03; provided that:
(a) any Interest Period which would otherwise end on a day which is
not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in
another calendar month, in which case such Interest Period shall end on
the next preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period) shall, subject to clause (c) below, end on the last
Euro-Dollar Business Day of a calendar month; and
(c) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date;
7
(5) with respect to each Money Market Absolute Rate Loan, a period
commencing on the date of borrowing specified in the applicable Notice of
Borrowing and ending such number of days thereafter (but not less than 7 days)
as the Borrower may elect in accordance with Section 2.03; provided that:
(a) any Interest Period which would otherwise end on a day which is
not a Euro-Dollar Business Day shall, subject to clause (b) below, be
extended to the next succeeding Euro-Dollar Business Day; and
(b) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date.
(6) with respect to each Swingline Loan, the period commencing on
the date of such Loan and ending such number of days thereafter (but not
exceeding three Domestic Business Days) as the Borrower may elect in accordance
with Section 2.04; provided that:
(a) any Interest Period which would otherwise end on a day which is
not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day; and
(b) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended, or any successor statute.
"LIBOR Auction" means a solicitation of Money Market Quotes setting
forth Money Market Margins based on the London Interbank Offered Rate pursuant
to Section 2.03.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset.
For the purposes of this Agreement, the Borrower or any Subsidiary shall be
deemed to own subject to a Lien any asset which it has acquired or holds subject
to the interest of a vendor or lessor under any conditional sale agreement,
capital lease or other title retention agreement relating to such asset.
"Loan" means a Domestic Loan, a Euro-Dollar Loan, a Swingline Loan
or a Money Market Loan and "Loans" means Domestic Loans, Euro-Dollar Loans,
Swingline Loans or Money Market Loans or any combination of the foregoing.
"London Interbank Offered Rate" has the meaning set forth in Section
2.08(c).
"Material Debt" means Debt (other than the Notes) of the Borrower
and/or one or more of its Significant Subsidiaries (other than a Real Estate
Subsidiary), arising
8
in one or more related or unrelated transactions, in an aggregate principal
amount exceeding $50,000,000.
"Material Plan" means at any time a Plan or Plans having aggregate
Unfunded Liabilities in excess of $50,000,000.
"Money Market Absolute Rate" has the meaning set forth in Section
2.03(d).
"Money Market Absolute Rate Loan" means a loan to be made by a Bank
pursuant to an Absolute Rate Auction.
"Money Market Lending Office" means, as to each Bank, its Domestic
Lending Office or such other office, branch or affiliate of such Bank as it may
hereafter designate as its Money Market Lending office by notice to the Borrower
and the Agent; provided that any Bank may from time to time by notice to the
Borrower and the Agent designate separate Money Market Lending Offices for its
Money Market LIBOR Loans, on the one hand, and its Money Market Absolute Rate
Loans, on the other hand, in which case all references herein to the Money
Market Lending Office of such Bank shall be deemed to refer to either or both of
such offices, as the context may require.
"Money Market LIBOR Loan" means a loan to be made by a Bank pursuant
to a LIBOR Auction (including such a loan bearing interest at the Prime Rate
pursuant to Section 8.01 (a)).
"Money Market Loan" means a Money Market LIBOR Loan or a Money
Market Absolute Rate Loan.
"Money Market Margin" has the meaning set forth in Section 2.03(d).
"Money Market Quote" means an offer by a Bank to make a Money Market
Loan in accordance with Section 2.03.
"Multiemployer Plan" means at any time an employee pension benefit
plan within the meaning of Section 4001(a)(3) of ERISA to which any member of
the ERISA Group is then making or accruing an obligation to make contributions
or has within the preceding five plan years made contributions, including for
these purposes any Person which ceased to be a member of the ERISA Group during
such five year period.
"Notes" means promissory notes of the Borrower, substantially in the
form of Exhibit A hereto, evidencing the obligation of the Borrower to repay the
Loans, and "Note" means any one of such promissory notes issued hereunder.
"Notice of Borrowing" means a Notice of Committed Borrowing (as
defined in Section 2.02) or a Notice of Money Market Borrowing (as defined in
Section 2.03(f)).
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"Notice of Interest Rate Election" has the meaning set forth in
Section 2.16.
"Other Credit Agreement" means the Medium-Term Credit Agreement
dated as of the date hereof among the parties hereto as amended from time to
time.
"Parent" means, with respect to any Bank, any Person controlling
such Bank.
"Participant" has the meaning set forth in Section 9.06(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Person" means an individual, a corporation, a partnership, an
association, a trust or any other entity or organization, including a government
or political subdivision or an agency or instrumentality thereof.
"Plan" means at any time an employee pension benefit plan (other
than a Multiemployer Plan) which is covered by Title IV of ERISA or subject to
the minimum funding standards under Section 412 of the Internal Revenue Code and
either (i) is maintained, or contributed to, by any member of the ERISA Group
for employees of any member of the ERISA Group or (ii) has at any time within
the preceding five years been maintained, or contributed to, by any Person which
was at such time a member of the ERISA Group for employees of any Person which
was at such time a member of the ERISA Group.
"Prime Rate" means the rate of interest publicly announced by
Deutsche Bank AG New York Branch in New York City from time to time as its Prime
Rate.
"Real Estate Subsidiaries" means (i) Bellemead Development
Corporation and its current Subsidiaries and (ii) each other Subsidiary that is
principally engaged in the real estate business.
"Reference Banks" means the CD Reference Banks or the Euro-Dollar
Reference Banks, as the context may require, and "Reference Bank" means any one
of such Reference Banks.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Required Banks" means at any time Banks having more than 50% of the
aggregate amount of the Commitments or, if the Commitments shall have been
terminated, holding loans representing more than 50% of the aggregate unpaid
principal amount of the Loans.
"Revolving Credit Period" means the period from and including the
Effective Date to and including the Termination Date.
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"Significant Subsidiary" means at any time a "significant
subsidiary" of the Borrower, within the meaning of Regulation S-X promulgated by
the Securities and Exchange Commission, as such Regulation is in effect from
time to time; provided that, if the Borrower notifies the Agent that the
Borrower wishes to amend this Agreement to eliminate the effect of any change of
such Regulation (or if the Agent notifies the Borrower that the Required Banks
wish to amend this Agreement for such purpose), then, for purposes of
determining the Borrower's compliance with this Agreement, "Significant
Subsidiaries" of the Borrower shall be determined on the basis of such
Regulation as in effect immediately before the relevant change thereto, until
either such notice is withdrawn or this Agreement is amended in a manner
satisfactory to the Borrower and the Required Banks.
"Subsidiary" means any corporation or other entity of which
securities or other ownership interests having ordinary voting power to elect a
majority of the board of directors or other persons performing similar functions
are at the time directly or indirectly owned by the Borrower.
"Swingline Commitment" means, with respect to each Swingline Lender,
the amount of such Swingline Lender's commitment to make Swingline Loans
hereunder. The initial Swingline Commitment of each Swingline Lender, subject to
reduction from time to time pursuant to Sections 2.10, 2.11 and 6.01, is
$25,000,000.
"Swingline Exposure" means at any time the aggregate principal
amount of all Swingline Loans outstanding at such time. The Swingline Exposure
of any Bank at any time shall mean its Applicable Percentage of the Swingline
Exposure at such time.
"Swingline Lender" means Deutsche Bank AG New York Branch and
Citicorp USA, Inc., in their capacities as lenders of Swingline Loans hereunder.
"Swingline Loan" means a loan made by a Swingline Lender pursuant to
Section 2.04.
"Termination Date" means June 22, 2005 (subject to extension
pursuant to Section 2.19), or, if such day is not a Euro-Dollar Business Day,
the next succeeding Euro-Dollar Business Day unless such Euro-Dollar Business
Day falls in another calendar month or would be more than 364 days after the
date of the most recent extension pursuant to Section 2.19, in which case the
Termination Date shall be the next preceding Euro-Dollar Business Day.
"Total Commitments" means at any time the sum of the Banks'
Commitments at such time.
"Unfunded Liabilities" means, with respect to any Plan at any time,
the amount (if any) by which (i) the present value of all benefits under such
Plan exceeds (ii) the fair market value of all Plan assets allocable to such
benefits (excluding any accrued but unpaid contributions), all determined as of
the then most recent valuation date for such Plan, but only to the extent that
such excess represents a potential liability
11
of a member of the ERISA Group to the PBGC or any other Person under Title IV of
ERISA.
"Utilization Percentage" means, with respect to any calendar
quarter, a fraction, expressed as a percentage, of which (i) the numerator is
the daily average aggregate principal amount of Loans outstanding under this
Agreement and "Loans" (as defined in the Other Credit Agreement) outstanding
under the Other Credit Agreement, in each case during such calendar quarter and
(ii) the denominator is the daily average aggregate amount of Commitments in
effect under this Agreement and "Commitments" (as defined in the Other Credit
Agreement) in effect under the Other Credit Agreement, in each case during such
calendar quarter; provided that if it is necessary to determine the Utilization
Percentage with respect to a calendar quarter prior to the end of such calendar
quarter, then the Utilization Percentage shall be determined based upon the
daily average aggregate principal amount of Loans outstanding and Commitments in
effect during the elapsed portion of such calendar quarter, in each case under
this Agreement and the Other Credit Agreement.
"Wholly Owned Consolidated Subsidiary" means any Consolidated
Subsidiary all of the shares of capital stock or other ownership interests of
which (except directors' qualifying shares) are at the time directly or
indirectly owned by the Borrower.
SECTION 1.02. Accounting Terms and Determinations. Unless otherwise
specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements
required to be delivered hereunder shall be prepared in accordance with
generally accepted accounting principles as in effect from time to time, applied
on a basis consistent (except for changes concurred in by the Borrower's
independent public accountants) with the most recent audited consolidated
financial statements of the Borrower and its Consolidated Subsidiaries delivered
to the Banks; provided that, if the Borrower notifies the Agent that the
Borrower wishes to amend any covenant in Article V to eliminate the effect of
any change in generally accepted accounting principles on the operation of such
covenant (or if the Agent notifies the Borrower that the Required Banks wish to
amend Article V for such purpose), then the Borrower's compliance with such
covenant shall be determined on the basis of generally accepted accounting
principles in effect immediately before the relevant change in generally
accepted accounting principles became effective, until either such notice is
withdrawn or such covenant is amended in a manner satisfactory to the Borrower
and the Required Banks.
SECTION 1.03. Types of Borrowings. The term "Borrowing" denotes the
aggregation of Loans of one or more Banks to be made to the Borrower pursuant to
Article II on the same date, all of which Loans are of the same type (subject to
Article VIII) and, except in the case of Base Rate Loans, have the same Interest
Period or initial Interest Period. Borrowings are classified for purposes of
this Agreement either by reference to the pricing of Loans comprising such
Borrowing (e.g., a "Euro-Dollar Borrowing" is a Borrowing comprised of
Euro-Dollar Loans) or by reference to the provisions of Article II under which
participation therein is determined (i.e., a
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"Committed Borrowing" is a Borrowing under Section 2.01 in which all Banks
participate in proportion to their Commitments, a "Money Market Borrowing" is a
Borrowing under Section 2.03 in which the Bank participants are determined on
the basis of their bids in accordance therewith and a "Swingline Borrowing" is a
Borrowing of Swingline Loans).
ARTICLE II
The Credits
SECTION 2.01. Commitments to Lend. During the Revolving Credit
Period each Bank severally agrees, on the terms and conditions set forth in this
Agreement, to make loans to the Borrower pursuant to this Section from time to
time in amounts such that the aggregate Committed Exposure of such Bank at any
one time outstanding shall not exceed the amount of its Commitment. Each
Borrowing under this Section shall be in an aggregate principal amount of
$10,000,000 or any larger amount that is a multiple of $1,000,000; provided,
that any Borrowing under this Section may be in the aggregate amount available
in accordance with Section 3.02(b). Each Borrowing under this Section shall be
made from the several Banks ratably in proportion to their respective
Commitments. Within the foregoing limits, the Borrower may borrow under this
Section, repay, or to the extent permitted by Section 2.12, prepay Loans and
reborrow at any time during the Revolving Credit Period under this Section.
SECTION 2.02. Notice of Committed Borrowings. The Borrower shall
give the Agent notice (a "Notice of Committed Borrowing") not later than 10:00
A.M. (New York City time) on (x) the date of each Base Rate Borrowing, (y) the
second Domestic Business Day before each CD Borrowing and (z) the third
Euro-Dollar Business Day before each Euro-Dollar Borrowing, specifying:
(a) the date of such Borrowing, which shall be a Domestic Business
Day in the case of a Domestic Borrowing or a Euro-Dollar Business Day in the
case of a Euro-Dollar Borrowing,
(b) the aggregate amount of such Borrowing,
(c) whether the Loans comprising such Borrowing are to be CD Loans,
Base Rate Loans or Euro-Dollar Loans, and
(d) in the case of a Fixed Rate Borrowing, the duration of the
Interest Period applicable thereto, subject to the provisions of the definition
of Interest Period.
SECTION 2.03. Money Market Borrowings. (a) The Money Market Option.
In addition to Committed Borrowings pursuant to Section 2.01, the Borrower may,
as set forth in this Section, request the Banks during the Revolving Credit
Period to make offers to make Money Market Loans to the Borrower. The Banks may,
but shall have no obligation to, make such offers and the Borrower may, but
shall have no obligation to, accept any such offers in the manner set forth in
this Section.
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(b) Money Market Quote Request. When the Borrower wishes to request
offers to make Money Market Loans under this Section, it shall transmit to the
Agent by telex or facsimile transmission a Money Market Quote Request
substantially in the form of Exhibit B hereto so as to be received no later than
10:00 A.M. (New York City time) on (x) the fifth Euro-Dollar Business Day prior
to the date of Borrowing proposed therein, in the case of a LIBOR Auction for
Money Market Loans to be made in Dollars, or (y) the Domestic Business Day next
preceding the date of Borrowing proposed therein, in the case of an Absolute
Rate Auction for Money Market Loans to be made in Dollars or (z) the sixth
Euro-Dollar Business Day prior to the date of Borrowing proposed therein, in the
case of a LIBOR Auction or Absolute Rate Auction for Money Market Loans to be
made in an Alternative Currency in accordance with subsection (h) of this
Section (or, in any case, such other time or date as the Borrower and the Agent
shall have mutually agreed and shall have notified to the Banks not later than
the date of the Money Market Quote Request for the first LIBOR Auction or
Absolute Rate Auction for which such change is to be effective) specifying:
(i) the proposed date of Borrowing, which shall be a Euro-Dollar
Business Day in the case of a LIBOR Auction or a Domestic Business Day in
the case of an Absolute Rate Auction (unless such Absolute Rate Auction
relates to Money Market Loans to be made in an Alternative Currency, in
which case a Euro-Dollar Business Day),
(ii) the aggregate amount of such Borrowing (expressed in Dollars),
which shall be $10,000,000 or a larger multiple of $1,000,000,
(iii) the currency in which the proposed Borrowing is to be made,
which shall be Dollars or, subject to subsection (h) of this Section, an
Alternative Currency,
(iv) the duration of the Interest Period applicable thereto, subject
to the provisions of the definition of Interest Period, and
(v) whether the Money Market Quotes requested are to set forth a
Money Market Margin or a Money Market Absolute Rate.
The Borrower may request offers to make Money Market Loans for more than one
Interest Period in a single Money Market Quote Request. No Money Market Quote
Request shall be given within five Euro-Dollar Business Days (or such other
number of days as the Borrower and the Agent may agree) of any other Money
Market Quote Request.
(c) Invitation for Money Market Quotes. Promptly upon receipt of a
Money Market Quote Request, the Agent shall send to the Banks by telex or
facsimile transmission an Invitation for Money Market Quotes substantially in
the form of Exhibit C hereto, which shall constitute an invitation by the
Borrower to each Bank to submit Money Market Quotes offering to make the Money
Market Loans to which such Money Market Quote Request relates in accordance with
this Section.
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(d) Submission and Contents of Money Market Quotes. (i) Each Bank
may submit a Money Market Quote containing an offer or offers to make Money
Market Loans in response to any Invitation for Money Market Quotes. Each Money
Market Quote must comply with the requirements of this subsection (d) and must
be submitted to the Agent by telex or facsimile transmission at its offices
specified in or pursuant to Section 9.01 not later than (x) 2:00 p.m. (New York
City time) on the fourth Euro-Dollar Business Day prior to the proposed date of
Borrowing, in the case of a LIBOR Auction for Money Market Loans to be made in
Dollars, (y) 9:00 A.M. (New York City time) on the proposed date of Borrowing,
in the case of an Absolute Rate Auction for Money Market Loans to be made in
Dollars or (z) 2:00 p.m. (New York City time) on the sixth Euro-Dollar Business
Day prior to the proposed date of Borrowing, in the case of a LIBOR Auction or
Absolute Rate Auction for Money Market Loans to be made in an Alternative
Currency (or, in any case, such other time or date as the Borrower and the Agent
shall have mutually agreed and shall have notified to the Banks not later than
the date of the Money Market Quote Request for the first LIBOR Auction or
Absolute Rate Auction for which such change is to be effective); provided that
Money Market Quotes submitted by the Agent (or any affiliate of the Agent) in
the capacity of a Bank may be submitted, and may only be submitted, if the Agent
or such affiliate notifies the Borrower of the terms of the offer or offers
contained therein not later than (x) one hour prior to the deadline for the
other Banks, in the case of a LIBOR Auction or (y) 15 minutes prior to the
deadline for the other Banks, in the case of an Absolute Rate Auction. Subject
to Articles III and VI, any Money Market Quote so made shall be irrevocable
except with the written consent of the Agent given on the instructions of the
Borrower.
(ii) Each Money Market Quote shall be in substantially the form of
Exhibit D hereto and shall in any case specify:
(A) the proposed date of Borrowing,
(B) the principal amount of the Money Market Loan for which each
such offer is being made (expressed in Dollars), which principal amount
(w) may be greater than or less than the Commitment of the quoting Bank,
(x) must be $1,000,000 or a larger multiple of $1,000,000, (y) may not
exceed the principal amount of Money Market Loans for which offers were
requested and (z) may be subject to an aggregate limitation as to the
principal amount of Money Market Loans for which offers being made by such
quoting Bank may be accepted,
(C) the currency of the Money Market Loan for which each such offer
is being made,
(D) in the case of a LIBOR Auction, the margin above or below the
applicable London Interbank Offered Rate (the "Money Market Margin")
offered for each such Money Market Loan, expressed as a percentage
(specified to the nearest 1/10,000th of 1%) to be added to or subtracted
from such base rate,
15
(E) in the case of an Absolute Rate Auction, the rate of interest
per annum (specified to the nearest 1/10,000th of 1%) (the "Money Market
Absolute Rate") offered for each such Money Market Loan, and
(F) the identity of the quoting Bank. A Money Market Quote may set
forth up to five separate offers by the quoting Bank with respect to each
Interest Period specified in the related Invitation for Money Market
Quotes.
(iii) Any Money Market Quote shall be disregarded if it:
(A) is not substantially in conformity with Exhibit D hereto or does
not specify all of the information required by subsection (d)(ii);
(B) contains qualifying, conditional or similar language;
(C) proposes terms other than or in addition to those set forth in
the applicable Invitation for Money Market Quotes; or
(D) arrives after the time set forth in subsection (d)(i).
(e) Notice to Borrower. The Agent shall promptly notify the Borrower
of the terms (x) of any Money Market Quote submitted by a Bank that is in
accordance with subsection (d) and (y) of any Money Market Quote that amends,
modifies or is otherwise inconsistent with a previous Money Market Quote
submitted by such Bank with respect to the same Money Market Quote Request. Any
such subsequent Money Market Quote shall be disregarded by the Agent unless such
subsequent Money Market Quote is submitted solely to correct a manifest error in
such former Money Market Quote. The Agent's notice to the Borrower shall specify
(A) the aggregate principal amount of Money Market Loans for which offers have
been received for each Interest Period specified in the related Money Market
Quote Request, (B) the respective principal amounts and Money Market Margins or
Money Market Absolute Rates, as the case may be, so offered and (C) if
applicable, limitations on the aggregate principal amount of Money Market Loans
for which offers in any single Money Market Quote may be accepted.
(f) Acceptance and Notice by Borrower. Not later than 10:00 A.M.
(New York City time) on (x) the third Euro-Dollar Business Day prior to the
proposed date of Borrowing, in the case of a LIBOR Auction for Money Market
Loans to be made in Dollars, (y) the proposed date of Borrowing, in the case of
an Absolute Rate Auction for Money Market Loans to be made in Dollars or (z) the
fifth Euro-Dollar Business Day prior to the proposed date of Borrowing, in the
case of a LIBOR Auction or Absolute Rate Auction for Money Market Loans to be
made in an Alternative Currency (or, in any case, such other time or date as the
Borrower and the Agent shall have mutually agreed and shall have notified to the
Banks not later than the date of the Money Market Quote Request for the first
LIBOR Auction or Absolute Rate Auction for which such change is to be
effective), the Borrower shall notify the Agent of its acceptance or
non-acceptance of the offers so notified to it pursuant to subsection (e). In
the case of acceptance, such notice (a "Notice of Money Market Borrowing") shall
specify the aggregate principal
16
amount of offers for each Interest Period that are accepted, expressed in
Dollars. The Borrower may accept any Money Market Quote in whole or in part;
provided that:
(i) the aggregate principal amount of each Money Market Borrowing
may not exceed the applicable amount set forth in, and the currency
thereof must be the currency set forth in, the related Money Market Quote
Request,
(ii) the principal amount of each Money Market Borrowing must be
$10,000,000 or a larger multiple of $1,000,000,
(iii) acceptance of offers may only be made on the basis of
ascending Money Market Margins or Money Market Absolute Rates, as the case
may be, and
(iv) the Borrower may not accept any offer that is described in
subsection (d)(iii) or that otherwise fails to comply with the
requirements of this Agreement.
(g) Allocation by Agent. If offers are made by two or more Banks
with the same Money Market Margins or Money Market Absolute Rates, as the case
may be, for a greater aggregate principal amount than the amount in respect of
which such offers are accepted for the related Interest Period, the principal
amount of Money Market Loans in respect of which such offers are accepted shall
be allocated by the Agent among such Banks as nearly as possible (in multiples
of $1,000,000, as the Agent may deem appropriate) in proportion to the aggregate
principal amounts of such offers. Determinations by the Agent of the pro rata
amounts of Money Market Loans shall be conclusive in the absence of manifest
error.
(h) Money Market Loans in an Alternative Currency. The Borrower may
request Money Market Loans in an Alternative Currency subject to the terms and
conditions of this subsection (h), in addition to the other conditions
applicable to such Loans hereunder. Any request for Money Market Loans in an
Alternative Currency shall be subject to the condition that if there shall occur
at or prior to 10:00 A.M. (New York City time) on the date of any Money Market
Borrowing to be denominated in an Alternative Currency any change in national or
international financial, political or economic conditions or currency exchange
rates or exchange controls which would, in the reasonable opinion of any Bank
that shall have offered to make any Money Market Loan in connection with such
Borrowing, make it impracticable for such Bank's Loan to be denominated in such
Alternative Currency, then such Bank may by notice to the Borrower and the Agent
withdraw its offer to make such Loan.
Any Money Market Loan which is to be made in an Alternative Currency
in accordance with this subsection (h) shall be advanced in the Equivalent
Amount of the Dollar Amount thereof and shall be repaid or prepaid in such
Alternative Currency in the amount borrowed. Interest payable on any Loan
denominated in an Alternative Currency shall be paid in such Alternative
Currency.
17
For purposes of determining whether the aggregate principal amount
of Loans outstanding hereunder exceeds any applicable limitation expressed in
Dollars, each Money Market Loan denominated in an Alternative Currency shall be
deemed to be in a principal amount equal to the Dollar Amount thereof. The
Dollar Amount of any Money Market Loan with an Interest Period exceeding six
months in duration shall be adjusted on each date that would have been the last
day of an Interest Period for such Loan if such Loan had successive Interest
Periods of six months duration. Each such adjustment shall be made by the Bank
holding such Loan by determining the amount in Dollars that would be required in
order to result in an Equivalent Amount in the applicable Alternative Currency
equal to the principal amount of the applicable Loan outstanding on the date of
the adjustment, and the amount in Dollars so determined shall be the Dollar
Amount of such Loan unless and until another adjustment is required hereby. Each
Bank that makes a Money Market Loan denominated in an Alternative Currency
agrees to determine any such adjustments if and when required to be made
pursuant to this paragraph and to notify the Borrower and the Agent of each such
adjustment promptly upon making such determination.
SECTION 2.04. Swingline Loans. (a) During the Revolving Credit
Period each Swingline Lender severally agrees, on the terms and conditions set
forth in this Agreement, to make Loans to the Borrower pursuant to this Section
from time to time amounts such that (i) the aggregate principal amount of
Swingline Loans of such Swingline Lender at any time outstanding shall not
exceed the amount of its Swingline Commitment and (ii) the aggregate Committed
Exposure of all the Banks at any time shall not exceed the Total Commitments.
All Swingline Loans shall be made in Dollars. Each Swingline Loan shall be made
as part of a Borrowing consisting of Swingline Loans made by the Swingline
Lenders ratably in accordance with their respective Swingline Commitments.
(b) In order to request a Swingline Borrowing, the Borrower shall
notify the Agent of such request not later than 2:00 P.M. (New York City time)
on the day of a proposed Swingline Borrowing, specifying the proposed date
(which shall be a Domestic Business Day) and amount of the requested Swingline
Borrowing (which shall be $5,000,000 or a larger multiple of $1,000,000) and the
duration of the Interest Period applicable thereto, subject to the provisions of
the definition of Interest Period. The Agent will promptly advise the Swingline
Lenders of any such notice received from the Borrower. Each Swingline Lender
shall make each Swingline Loan available to the Agent in the same manner as for
other Domestic Loans as provided in Section 2.05 (except that each Swingline
Lender shall make each Swingline Loan available to the Agent by 5:00 P.M. (New
York City time) on the requested date of such Swingline Loan), unless such
Swingline Lender and the Borrower agree otherwise.
(c) Each Swingline Lender may by written notice given to the Banks
not later than 10:00 A.M. (New York City time) on any Domestic Business Day
require the Banks to acquire participations on such Domestic Business Day in all
or a portion of the Swingline Loans of such Swingline Lender outstanding. Such
notice shall specify the aggregate amount of Swingline Loans in which the Banks
will acquire participations. In furtherance of the foregoing, each Bank hereby
absolutely and unconditionally agrees,
18
upon receipt of notice as provided above, to pay to the Agent, for the account
of the relevant Swingline Lender, such Bank's Applicable Percentage of such
Swingline Loan or Loans. Each Bank acknowledges and agrees that its obligation
to acquire participations in Swingline Loans pursuant to this paragraph is
absolute and unconditional and shall not be affected by any circumstance
whatsoever, including the occurrence and continuance of a Default or reduction
or termination of the Commitments, and that each such payment shall be made
without any offset, abatement, withholding or reduction whatsoever. Each Bank
shall comply with its obligation under this paragraph by wire transfer of
immediately available funds, in the same manner as provided in Section 2.05 with
respect to Loans made by such Bank (and Section 2.05 shall apply, mutatis
mutandis, to the payment obligations of the Banks). The Agent shall notify the
Borrower of any participations in any Swingline Loan acquired pursuant to this
paragraph. Any amounts received by a Swingline Lender from the Borrower (or
other party on behalf of the Borrower) in respect of a Swingline Loan after
receipt by such Swingline Lender of the proceeds of a sale of participations
therein shall be promptly remitted to the Agent; any such amounts received by
the Agent shall be promptly remitted by the Agent to the Banks that shall have
made their payments pursuant to this paragraph and to the relevant Swingline
Lender, as their interests may appear. The purchase of participations in a
Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any
default in the payment thereof.
SECTION 2.05. Notice to Banks; Funding of Loans.(a) Upon receipt of
a Notice of Borrowing, the Agent shall promptly notify each Bank of the contents
thereof and of such Bank's share (if any) of such Borrowing and such Notice of
Borrowing shall not thereafter be revocable by the Borrower.
(b) Not later than 12:00 Noon (New York City time) on the date of
each Borrowing, each Bank participating therein shall (except as provided in
Section 2.04 and subsection (c) of this Section) make available its share of
such Borrowing, in Federal or other funds immediately available in New York
City, to the Agent at its address specified in or pursuant to Section 9.01 or,
subject to the provisions of Section 2.03(h), if such Borrowing is to be made in
an Alternative Currency, make available the Equivalent Amount of such
Alternative Currency on that day (in such funds as may then be customary for the
settlement of international transactions in the Alternative Currency) to the
account of the Agent at such place as shall have been notified by the Agent to
the Banks by not less than five Domestic Business Days' notice. Unless the Agent
determines that any applicable condition specified in Article III has not been
satisfied, the Agent will make the funds so received from the Banks available to
the Borrower at the Agent's aforesaid address.
(c) If any Bank (including a Swingline Lender) makes a new Loan
hereunder on a day on which the Borrower is to repay all or any part of an
outstanding Loan denominated in the same currency from such Bank, such Bank
shall apply the proceeds of its new Loan to make such repayment and only an
amount equal to the difference (if any) between the amount being borrowed and
the amount being repaid shall be made available by such Bank to the Agent as
provided in subsection (b), or remitted by the Borrower to the Agent as provided
in Section 2.13, as the case may be.
19
(d) Unless the Agent shall have received notice from a Bank prior to
the date of any Borrowing that such Bank will not make available to the Agent
such Bank's share of such Borrowing, the Agent may assume that such Bank has
made such share available to the Agent on the date of such Borrowing in
accordance with subsections (b) and (c) of this Section 2.05 and the Agent may,
in reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Bank shall not have so made
such share available to the Agent, such Bank and the Borrower severally agree to
repay to the Agent forthwith on demand such corresponding amount together with
interest thereon, for each day from the date such amount is made available to
the Borrower until the date such amount is repaid to the Agent, at (i) in the
case of the Borrower, a rate per annum equal to the higher of the Federal Funds
Rate and the interest rate applicable thereto pursuant to Section 2.08 and (ii)
in the case of such Bank, the Federal Funds Rate. If such Bank shall repay to
the Agent such corresponding amount, such amount so repaid shall constitute such
Bank's Loan included in such Borrowing for purposes of this Agreement.
SECTION 2.06. Evidence of Debt. (a) Each Bank shall maintain in
accordance with its usual practice an account or accounts evidencing the
indebtedness of the Borrower to such Bank resulting from each Loan made by such
Bank, including the amounts of principal and interest payable and paid to such
Bank from time to time hereunder.
(b) The Agent shall maintain accounts in which it shall record (i)
the amount of each Loan made hereunder, the type thereof and the Interest Period
applicable thereto, (ii) the amount of any principal or interest due and payable
or to become due and payable from the Borrower to each Bank hereunder and (iii)
the amount of any sum received by the Agent hereunder for the account of the
Banks and each Bank's share thereof.
(c) The entries made in the accounts maintained pursuant to
paragraph (a) or (b) of this Section shall be prima facie evidence of the
existence and amounts of the obligations recorded therein; provided that the
failure of any Bank or the Agent to maintain such accounts or any error therein
shall not in any manner affect the obligation of the Borrower to repay the Loans
in accordance with the terms of this Agreement.
(d) Any Bank may request that Loans made by it be evidenced by a
Note, In such event, the Borrower shall prepare, execute and deliver to such
Lender a Note payable to the order of such Lender (or, if requested by such
Lender, to such Lender and its registered assigns). Thereafter, the Loans
evidenced by such Note and interest thereon shall at all times (including after
assignment pursuant to Section 9.06) be represented by one or more Notes payable
to the order of the payee named therein (or, if such Note is a registered note,
to such payee and its registered assigns).
(e) Each Bank may, by notice to the Borrower and the Agent, request
that its Loans of a particular type be evidenced by a separate Note in an amount
equal to the aggregate unpaid principal amount of such Loans. Each such Note
shall be in
20
substantially the form of Exhibit A hereto with appropriate modifications to
reflect the fact that it evidences solely Loans of the relevant type. Each
reference in this Agreement to the "Note" of such Bank shall be deemed to refer
to and include any or all of such Notes, as the context may require.
(f) Upon receipt of a Bank's Note pursuant to Section 3.01(b), the
Agent shall forward such Note to such Bank. Each Bank shall record the date,
amount, type and maturity of each Loan made by it and the date and amount of
each payment of principal made by the Borrower with respect thereto and, in the
case of Money Market Loans denominated in an Alternative Currency, the currency,
amount and Dollar Amount of such Loans, and prior to any transfer of its Note
shall endorse on the schedule forming a part thereof appropriate notations to
evidence the foregoing information with respect to each such Loan then
outstanding; provided that the failure of any Bank to make any such recordation
or endorsement shall not affect the obligations of the Borrower hereunder or
under the Notes. Each Bank is hereby irrevocably authorized by the Borrower so
to endorse its Note and to attach to and make a part of its Note a continuation
of any such schedule as and when required.
SECTION 2.07. Maturity of Loans. (a) All Committed Loans of each
Bank shall mature, and the principal amount thereof shall be due and payable,
together with accrued interest thereon, on the Termination Date.
(b) Each Money Market Loan and Swingline Loan shall mature, and the
principal amount thereof shall be due and payable, together with accrued
interest thereon, on the last day of the Interest Period applicable to such
Loan.
SECTION 2.08. Interest Rates. (a) Each Base Rate Loan shall bear
interest on the outstanding principal amount thereof, for each day from the date
such Loan is made until it becomes due, (i) at a rate per annum equal to the
Base Rate for such day, if such day falls within any calendar quarter with
respect to which the Utilization Percentage is less than or equal to 50% or (ii)
at a rate per annum equal to the sum of the Base Rate for such day and 0.10%, if
such day falls within a calendar quarter with respect to which the Utilization
Percentage is greater than 50%. Such interest shall be payable for each Interest
Period on the last day thereof, and, with respect to the principal amount of any
Base Rate Loan converted to a CD Loan or a Euro-Dollar Loan, on each date a Base
Rate Loan is so converted. Any overdue principal of or interest on any Base Rate
Loan shall bear interest, payable on demand, for each day until paid at a rate
per annum equal to the sum of 2% plus the Base Rate.
(b) Each CD Loan shall bear interest on the outstanding principal
amount thereof, for the Interest Period applicable thereto, at a rate per annum
equal to the sum of the CD Margin plus the applicable Adjusted CD Rate; provided
that if any CD Loan or any portion thereof shall, as a result of clause (2)(b)
of the definition of Interest Period, have an Interest Period of less than 30
days, such portion shall bear interest during such Interest Period at the rate
applicable to Base Rate Loans during such period. Such interest shall be payable
for each Interest Period on the last day thereof and, if such Interest Period is
longer than 90 days, at intervals of 90 days after the first day
21
thereof. In addition, with respect to the principal amount of any CD Loan
converted to a Base Rate Loan or a Euro-Dollar Loan, such interest shall be
payable on each date a CD Loan is so converted. Any overdue principal of or
interest on any CD Loan shall bear interest, payable on demand, for each day
until paid at a rate per annum equal to the sum of 2% plus the higher of (i) the
sum of the CD Margin plus the Adjusted CD Rate applicable to such Loan and (ii)
the rate applicable to Base Rate Loans for such day.
"CD Margin" applicable to any CD Loan outstanding on any day means
(i) 0.280%, if such day falls within any calendar quarter with respect to which
the Utilization Percentage is less than or equal to 50% or (ii) 0.380%, if such
day falls within a calendar quarter with respect to which the Utilization
Percentage is greater than 50%.
The "Adjusted CD Rate" applicable to any Interest Period means a rate per annum
determined pursuant to the following formula:
[CDBR ]*
ACDR = [---------] + AR
[1.00-DRP]
ACDR = Adjusted CD Rate
CDBR = CD Base Rate
DRP = Domestic Reserve Percentage
Ar = Assessment Rate
- --------------
* The amount in brackets being rounded upward, if necessary, to the next
higher 1/100 of 1%
The "CD Base Rate" applicable to any Interest Period is the rate of
interest determined by the Agent to be the average (rounded upward, if
necessary, to the next higher 1/100 of 1%) of the prevailing rates per annum bid
at 10:00 A.M. (New York City time) (or as soon thereafter as practicable) on the
first day of such Interest Period by two or more New York certificate of deposit
dealers of recognized standing for the purchase at face value from each CD
Reference Bank of its certificates of deposit in an amount comparable to the
principal amount of the CD Loan of such CD Reference Bank to which such Interest
Period applies and having a maturity comparable to such Interest Period.
"Domestic Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including without limitation any
basic, supplemental or emergency reserves) for a member bank of the Federal
Reserve System in New York City with deposits exceeding five billion Dollars in
respect of new non-personal time deposits in Dollars in New York City having a
maturity comparable to the related Interest Period and in an amount of $100,000
or more. The Adjusted CD Rate shall be adjusted
22
automatically on and as of the effective date of any change in the Domestic
Reserve Percentage.
"Assessment Rate" means for any Interest Period the net annual
assessment rate (rounded upward, if necessary, to the next higher 1/100 of 1%)
actually incurred by Deutsche Bank Trust Company Americas to the Federal Deposit
Insurance Corporation (or any successor) for such Corporation's (or such
successor's) insuring time deposits at offices of Deutsche Bank Trust Company
Americas in the United States during the most recent period for which such rate
has been determined prior to the commencement of such Interest Period.
(c) Each Euro-Dollar Loan shall bear interest on the outstanding
principal amount thereof, for the Interest Period applicable thereto, at a rate
per annum equal to the sum of the Euro-Dollar Margin plus the applicable London
Interbank Offered Rate. Such interest shall be payable for each Interest Period
on the last day thereof and, if such Interest Period is longer than three
months, at intervals of three months after the first day thereof. In addition,
with respect to the principal amount of any Euro-Dollar Loan converted to a Base
Rate Loan or a CD Loan, such interest shall be payable on each date a
Euro-Dollar Loan is so converted.
"Euro-Dollar Margin" applicable to any Euro-Dollar Loan outstanding
on any day means (i) 0.155%, if such day falls within any calendar quarter with
respect to which the Utilization Percentage is less than or equal to 50% or (ii)
0.255%, if such day falls within a calendar quarter with respect to which the
Utilization Percentage is greater than 50%.
The "London Interbank Offered Rate", applicable to any Interest
Period means the average (rounded upward, if necessary, to the next higher 1/32
of 1%) of the respective rates per annum at which deposits in Dollars or, in the
case of any Money Market LIBOR Loan denominated in an Alternative Currency, the
relevant Alternative Currency are offered to each of the Euro-Dollar Reference
Banks in the London interbank market at approximately 11:00 A.M. (London time)
two Euro-Dollar Business Days before the first day of such Interest Period in an
amount approximately equal to the principal amount of the Euro-Dollar Loan of
such Euro-Dollar Reference Bank to which such Interest Period is to apply and
for a period of time comparable to such Interest Period.
(d) Any overdue principal of or interest on any Euro-Dollar Loan
shall bear interest, payable on demand, for each day from and including the date
payment thereof was due to but excluding the date of actual payment, at a rate
per annum equal to the sum of 2% plus the higher of (i) the sum of the
Euro-Dollar Margin plus the London Interbank Offered Rate applicable to such
Loan and (ii) the Euro-Dollar Margin plus the average (rounded upward, if
necessary, to the next higher 1/32 of 1%) of the respective rates per annum at
which one day (or, if such amount due remains unpaid more than three Euro-Dollar
Business Days, then for such other period of time not longer than one month as
the Agent may select) deposits in Dollars in an amount approximately equal to
such overdue payment due to each of the Euro-Dollar Reference Banks are offered
to such
23
Euro-Dollar Reference Bank in the London interbank market for the applicable
period determined as provided above (or, if the circumstances described in
clause (a) or (b) of Section 8.01 shall exist, at a rate per annum equal to the
sum of 2% plus the rate applicable to Base Rate Loans for such day).
(e) Subject to Section 8.01 (a), each Money Market LIBOR Loan shall
bear interest on the outstanding principal amount thereof, for the Interest
Period applicable thereto, at a rate per annum equal to the sum of the London
Interbank Offered Rate for such Interest Period (determined in accordance with
Section 2.08(c) as if the related Money Market LIBOR Borrowing were a Committed
Euro-Dollar Borrowing) plus (or minus) the Money Market Margin quoted by the
Bank making such Loan in accordance with Section 2.03. Each Money Market
Absolute Rate Loan shall bear interest on the outstanding principal amount
thereof, for the Interest Period applicable thereto, at a rate per annum equal
to the Money Market Absolute Rate quoted by the Bank making such Loan in
accordance with Section 2.03. Such interest shall be payable for each Interest
Period on the last day thereof and, if such Interest Period is longer than three
months, at intervals of three months after the first day thereof. Any overdue
principal of or interest on any Money Market Loan shall bear interest, payable
on demand, for each day until paid at a rate per annum equal to the sum of 2%
plus the Prime Rate for such day.
(f) Each Swingline Loan shall bear interest on the outstanding
principal amount thereof, for each day during the Interest Period applicable
thereto, at such rate per annum as shall be agreed to in writing by the Borrower
and the applicable Swingline Lender with respect to such Swingline Loan or, if
no such agreement shall be made, at a rate per annum equal to the Base Rate for
such date. Such interest shall be payable for each Interest Period on the last
day thereof. Any overdue principal of or interest on any Swingline Loan shall
bear interest, payable on demand, for each day until paid at a rate per annum
equal to the sum of 2% plus the Base Rate for such day.
(g) The Agent shall determine each interest rate applicable to the
Loans hereunder in accordance with the provisions hereof. The Agent shall give
prompt notice to the Borrower and the participating Banks by telex, cable or
telecopy of each rate of interest so determined, and its determination thereof
shall be conclusive in the absence of manifest error.
(h) Each Reference Bank agrees to use its best efforts to furnish
quotations to the Agent as contemplated by this Section. If any Reference Bank
does not furnish a timely quotation, the Agent shall determine the relevant
interest rate on the basis of the quotation or quotations furnished by the
remaining Reference Bank or Banks or, if none of such quotations is available on
a timely basis, the provisions of Section 8.01 shall apply.
SECTION 2.09. Fees. (a) Facility Fee. The Borrower shall pay to the
Agent for the account of the Banks ratably a facility fee at the rate of 0.070%
per annum. Such facility fee shall accrue from and including the Effective Date
to but excluding the Termination Date, on the daily average aggregate amount of
the
24
Commitments (whether used or unused). If any Loans are outstanding and are not
repaid on the Termination Date, such facility fee will continue to accrue from
and including the Termination Date to but excluding the date all Loans are
repaid, on the outstanding principal amount of the Loans.
(b) Payments. Accrued fees under subsection (a) of this Section
shall be payable quarterly on the last day of February, May, August and November
in each year (commencing August 2004) and upon the date of termination of the
Commitments in their entirety (and, if later, the date the Loans shall be repaid
in their entirety).
SECTION 2.10. Optional Termination or Reduction of Commitments. (a)
The Borrower may, upon at least three Domestic Business Days' prior irrevocable
written notice to the Agent, (i) terminate the Commitments at any time, if no
Loans are outstanding at such time or (ii) ratably reduce from time to time by
an aggregate amount of $10,000,000 or any larger multiple of $1,000,000, the
aggregate amount of the Commitments in excess of the aggregate outstanding
principal amount of the Loans; provided that the Swingline Commitments must be
terminated if the Commitments are terminated and, if the Commitments are
reduced, the Swingline Commitments also must be reduced, if necessary, so that
after giving effect to such reduction the aggregate amount of the Swingline
Commitments shall not exceed the Total Commitments.
(b) The Borrower may, upon at least three Domestic Business Days'
notice to the Agent, (i) terminate the Swingline Commitments at any time, if no
Swingline Loans are outstanding at such time or (ii) ratably reduce from time to
time by an aggregate amount of $5,000,000 or any larger multiple of $1,000,000,
the aggregate amount of the Swingline Commitments in excess of the aggregate
outstanding principal amount of the Swingline Loans.
SECTION 2.11. Mandatory Termination of Commitments. The Commitments
and the Swingline Commitments shall terminate on the Termination Date and any
Loans then outstanding (together with accrued interest thereon) shall be due and
payable on such date.
SECTION 2.12. Optional Prepayments. (a) Subject to Section 2.14 in
the case of Fixed Rate Loans, the Borrower may, upon at least one Domestic
Business Day's notice to the Agent, prepay any Group of Loans (other than
Swingline Loans, as to which subsection (b) below shall apply), or any Money
Market Borrowing bearing interest at the Base Rate pursuant to Section 8.01, in
whole at any time, or from time to time in part in amounts aggregating
$10,000,000 or any larger multiple of $1,000,000 (based on the Dollar Amount
thereof, in the case of a Borrowing denominated in an Alternative Currency), by
paying the principal amount to be prepaid together with accrued interest thereon
to the date of prepayment; provided that, except as expressly provided above,
the Borrower may not prepay all or any portion of the principal amount of any
Money Market Loan prior to the maturity thereof. Each such optional prepayment
shall be applied to prepay ratably the Loans of the several Banks included in
such Group or Borrowing.
25
(b) The Borrower may, upon notice to the Agent prior to 12:00 Noon
(New York City time) on the date of prepayment (which shall be a Domestic
Business Day), prepay any Swingline Borrowing in whole at any time, or from time
to time in part in amounts aggregating $5,000,000 or any larger multiple of
$1,000,000, by paying the principal amount to be prepaid together with accrued
interest thereon to the date of prepayment. Each optional prepayment shall be
applied to prepay ratably the Swingline Loans of the Swingline Lenders included
in such Swingline Borrowing.
(c) Upon receipt of a notice of prepayment pursuant to this Section,
the Agent shall promptly notify each Bank (or, in the case of a Swingline Loan,
each Swingline Lender) of the contents thereof and of such Bank's ratable share
(if any) of such prepayment and such notice shall not thereafter be revocable by
the Borrower.
SECTION 2.13. General Provisions as to Payments. (a) Except as
expressly provided in subsection (b) of this Section, the Borrower shall make
each payment of principal of, and interest on, the Loans and of fees hereunder,
in Dollars, not later than 12:00 Noon (New York City time) on the date when due,
in Federal or other funds immediately available in New York City, to the Agent
at its address referred to in Section 9.01. The Agent will promptly distribute
to each Bank (or Swingline Lender, as applicable) its ratable share of each such
payment received by the Agent for the account of the Banks (or Swingline
Lenders, as applicable).
(b) All payments to be made by the Borrower hereunder or under the
Loans in an Alternative Currency pursuant to Section 2.03(h) shall be made in
such Alternative Currency in such funds as may then be customary for the
settlement of international transactions in such Alternative Currency for the
account of the Agent, at such time and at such place as shall have been notified
by the Agent to such Borrower and the applicable Banks by not less than four
Euro-Dollar Business Days' notice. The Agent will promptly cause any such
payments for the account of any Bank to be distributed to the Bank entitled
thereto in like funds.
(c) Whenever any payment of principal of, or interest on, the
Domestic Loans, Swingline Loans or of fees shall be due on a day which is not a
Domestic Business Day, the date for payment thereof shall be extended to the
next succeeding Domestic Business Day. Whenever any payment of principal of, or
interest on, the Euro- Dollar Loans shall be due on a day which is not a
Euro-Dollar Business Day, the date for payment thereof shall be extended to the
next succeeding Euro-Dollar Business Day unless such Euro-Dollar Business Day
falls in another calendar month, in which case the date for payment thereof
shall be the next preceding Euro-Dollar Business Day. Whenever any payment of
principal of, or interest on, any Money Market Loans shall be due on a day which
is not a Euro-Dollar Business Day, the date for payment thereof shall be
extended to the next succeeding Euro-Dollar Business Day. If the date for any
payment of principal is extended by operation of law or otherwise, interest
thereon shall be payable for such extended time.
(d) Unless the Agent shall have received notice from the Borrower
prior to the date on which any payment is due to the Banks or Swingline Lenders
hereunder
26
that the Borrower will not make such payment in full, the Agent may assume that
the Borrower has made such payment in full to the Agent on such date and the
Agent may, in reliance upon such assumption, cause to be distributed to each
Bank or Swingline Lender, as applicable, on such due date an amount equal to the
amount then due such Bank or Swingline Lender. If and to the extent that the
Borrower shall not have so made such payment, each Bank or Swingline Lender, as
applicable, shall repay to the Agent forthwith on demand such amount distributed
to such Bank or Swingline Lender together with interest thereon, for each day
from the date such amount is distributed to such Bank or Swingline Lender until
the date such Bank or Swingline Lender repays such amount to the Agent, at the
Federal Funds Rate.
SECTION 2.14. Funding Losses. If the Borrower makes any payment of
principal with respect to any Fixed Rate Loan or any Fixed Rate Loan is
converted (pursuant to Article II, VI or VIII or otherwise) on any day other
than the last day of the Interest Period applicable thereto, or the end of an
applicable period fixed pursuant to Section 2.08(d), or if the Borrower fails to
borrow any Fixed Rate Loans (excluding a failure to borrow in a specified
Alternative Currency due to the occurrence of any change in conditions described
in Section 2.03(h)) after notice has been given to any Bank in accordance with
Section 2.05(a), the Borrower shall reimburse each Bank within 15 days after
demand for any resulting loss or expense incurred by it (or by an existing or
prospective Participant in the related Loan), including (without limitation) any
loss incurred in obtaining, liquidating or employing deposits from third
parties, but excluding loss of margin for the period after any such payment or
failure to borrow, provided that such Bank shall have delivered to the Borrower
a certificate as to the amount of such loss or expense, which certificate shall
be conclusive in the absence of manifest error. For purposes of this Section,
any Swingline Loan bearing interest at a fixed rate shall be deemed to be a
Fixed Rate Loan.
SECTION 2.15. Computation of Interest and Fees. Interest based on
the Prime Rate hereunder shall be computed on the basis of a year of 365 days
(or 366 days in a leap year) and paid for the actual number of days elapsed
(including the first day but excluding the last day). All other interest and
fees shall be computed on the basis of a year of 360 days and paid for the
actual number of days elapsed (including the first day but excluding the last
day).
SECTION 2.16. Method of Electing Interest Rates, (a) The Loans
included in each Committed Borrowing shall bear interest initially at the type
of rate specified by the Borrower in the applicable Notice of Committed
Borrowing. Thereafter, the Borrower may from time to time elect to change or
continue the type of interest rate borne by each Group of Loans (subject in each
case to the provisions of Article VIII), as follows:
(i) if such Loans are Base Rate Loans, the Borrower may elect to
convert such Loans to CD Loans as of any Domestic Business Day or to
Euro-Dollar Loans as of any Euro-Dollar Business Day;
27
(ii) if such Loans are CD Loans, the Borrower may elect to convert
such Loans to Base Rate Loans or Euro-Dollar Loans or elect to convert or
continue such Loans as CD Loans for a different or additional Interest
Period, in each case effective on any Euro-Dollar Business Day;
(iii) if such Loans are Euro-Dollar Loans, the Borrower may elect to
convert such Loans to Base Rate Loans or CD Loans or elect to convert or
continue such Loans as Euro-Dollar Loans for a different or additional
Interest Period, in each case effective on any Euro-Dollar Business Day.
Each such election shall be made by delivering a notice (a "Notice of Interest
Rate Election") to the Agent at least three Euro-Dollar Business Days before the
conversion or continuation selected in such notice is to be effective (unless
the relevant Loans are to be converted from Domestic Loans to Domestic Loans of
the other type or continued as Domestic Loans of the same type for an additional
Interest Period, in which case such notice shall be delivered to the Agent at
least two Domestic Business Days before such conversion or continuation is to be
effective). A Notice of Interest Rate Election may, if it so specifies, apply to
only a portion of the aggregate principal amount of the relevant Group of Loans;
provided that (i) such portion is allocated ratably among the Loans comprising
such Group and (ii) the portion to which such Notice applies, and the remaining
portion to which it does not apply, are each $10,000,000 or any larger multiple
of $1,000,000.
(b) Each Notice of Interest Rate Election shall specify:
(i) The Group of Loans (or portion thereof) to which such notice
applies;
(ii) the date on which the conversion or continuation selected in
such notice is to be effective, which shall comply with the applicable
clause of subsection (a) above;
(iii) if the Loans comprising such Group are to be converted, the
new type of Loans and, if such new Loans are Fixed Rate Loans, the
duration of the initial Interest Period applicable thereto; and
(iv) if such Loans are to be continued as CD Loans or Euro-Dollar
Loans for an additional Interest Period, the duration of such additional
Interest Period.
Each Interest Period specified in a Notice of Interest Rate Election shall
comply with the provisions of the definition of Interest Period.
(c) Upon receipt of a Notice of Interest Rate Election from the
Borrower pursuant to subsection (a) above, the Agent shall promptly notify each
Bank of the contents thereof and such notice shall not thereafter be revocable
by the Borrower. If the Borrower fails to deliver a timely Notice of Interest
Rate Election to the Agent for any
28
Group of Fixed Rate Loans, such Loans shall be converted into Base Rate Loans on
the last day of the then current Interest Period applicable thereto.
SECTION 2.17. Regulation D Compensation. If and for so long as any
Bank maintains reserves against "Eurocurrency liabilities" (or any other
category of liabilities which includes deposits by reference to which the
interest rate on Euro-Dollar Loans is determined or any category of extensions
of credit or other assets which includes loans by a non-United States office of
such Bank to United States residents), then such Bank may require the Borrower
to pay, contemporaneously with each payment of interest on EuroDollar Loans,
additional interest on the related Euro-Dollar Loan of such Bank at a rate per
annum determined by such Bank up to but not exceeding the excess of (i)(A) the
applicable London Interbank Offered Rate divided by (B) one minus the
Euro-Dollar Reserve Percentage over (ii) the applicable London Interbank Offered
Rate. Any Bank wishing to require payment of such additional interest (x) shall
so notify the Borrower and the Agent, in which case such additional interest on
the Euro-Dollar Loans of such Bank shall be payable to such Bank at the place
indicated in such notice with respect to each Interest Period commencing at
least four Euro-Dollar Business Days after the giving of such notice and (y)
shall notify the Borrower at least five Euro-Dollar Business Days prior to each
date on which interest is payable on the Euro-Dollar Loans of the amount then
due it under this Section.
SECTION 2.18. Judgment Currency. If for the purposes of obtaining
judgment in any court it is necessary to convert a sum due from the Borrower
hereunder or under any of the Loans in the currency expressed to be payable
herein or under the Loans (the "specified currency") into another currency, the
parties hereto agree, to the fullest extent that they may effectively do so,
that the rate of exchange used shall be that at which in accordance with normal
banking procedures the Agent could purchase the specified currency with such
other currency at the Agent's New York office on the Euro-Dollar Business Day
preceding that on which final judgment is given. The obligations of the Borrower
in respect of any sum due to any Bank or the Agent hereunder or under any Loan
shall, notwithstanding any judgment in a currency other than the specified
currency, be discharged only to the extent that on the Euro-Dollar Business Day
following receipt by such Bank or the Agent (as the case may be) of any sum
adjudged to be so due in such other currency such Bank or the Agent (as the case
may be) may in accordance with normal banking procedures purchase the specified
currency with such other currency; if the amount of the specified currency so
purchased is less than the sum originally due to such Bank or the Agent, as the
case may be, in the specified currency, the Borrower agrees, to the fullest
extent that it may effectively do so, as a separate obligation and
notwithstanding any such judgment, to indemnify such Bank or the Agent, as the
case may be, against such loss, and if the amount of the specified currency so
purchased exceeds (a) the sum originally due to any Bank or the Agent, as the
case may be, in the specified currency and (b) any amounts shared with other
Banks as a result of allocations of such excess as a disproportionate payment to
such Bank under Section 9.04, such Bank or the Agent, as the case may be, agrees
to remit such excess to the Borrower.
SECTION 2.19. Extension of Termination Date. (a) The Borrower may,
by notice to the Agent (which shall promptly deliver a copy to each of the
Banks)
29
given not less than 30 days and not more than 45 days prior to the Termination
Date then in effect, request that the Banks extend the Termination Date for an
additional 364-day period from the Termination Date then in effect (the
"Existing Termination Date"). Each Lender shall, by notice to the Borrower and
the Administrative Agent given not earlier that the 30th day and not later than
the 20th day prior to the Existing Termination Date (the "Extension Acceptance
Date"), advise the Borrower whether or not such Bank agrees to such extension
and any Bank that does not so advise the Borrower on or before such day shall be
deemed to have advised the Borrower that it will not agree to such extension.
(b) If (and only if) Banks having Commitments that represent at
least 51% of the Total Commitments shall have agreed to extend the Existing
Termination Date (such Banks that agree to such extension being called the
"Continuing Banks"), then (i) the Termination Date shall be extended to the date
that is 364 days after the Existing Termination Date (provided, that if such
date is not a Domestic Business Day, then the Termination Date as so extended
shall be the next preceding Domestic Business Day), (ii) the Commitment of each
Bank that is not a Continuing Bank shall terminate (with the result that the
Total Commitments will decrease by the amount of such Commitment), and all Loans
of each such Bank shall become due and payable, together with all interest
accrued thereon and all other amounts owed to such Bank hereunder, on the
Existing Termination Date, and such Bank's obligations under paragraph (c) of
Section 2.04 shall terminate on the Existing Termination Date.
Notwithstanding the foregoing, no extension of the Termination Date
shall be effective with respect to any Bank unless, on and as of the Existing
Termination Date, the conditions set forth in paragraphs (c) and (d) of Section
3.02 shall be satisfied (with all references to a Borrowing being deemed to be
references to such extension) and the Agent shall have received a certificate to
that effect dated the Existing Termination Date and executed by a financial
officer of the Borrower.
(c) If a Bank that is also a Swingline Lender agrees to extend its
Commitment pursuant to subsection (b) above, then such Bank also agrees to
extend its Swingline Commitment for the same time period as its Commitment;
provided that after giving effect to such extension the aggregate amount of the
Swingline Commitments may not exceed the Total Commitments as a result of such
extension.
(d) The Borrower shall have the right after the Extension Acceptance
Date and prior to the Existing Termination Date to require any Bank that is not
a Continuing Bank to transfer without recourse as of the Existing Termination
Date (in accordance with and subject to the restrictions contained in Section
9.06, except that the $2,000 processing fee set forth in Section 9.06(c) shall
be paid by the Borrower) all its interests, rights and obligations under this
Agreement to one or more other banks or other financial institutions (any such
bank or other financial institution being called an "Additional Commitment
Bank"), which may include any Bank; provided that (i) such Additional Commitment
Bank, if not already a Bank hereunder, shall be subject to the approval of the
Borrower and the Agent and each Swingline Lender that is a Continuing Bank
(which approvals shall not be unreasonably withheld) and shall execute all such
30
documentation as the Agent shall specify to evidence its status as a Bank
hereunder, (ii) such assignment shall become effective as of the Existing
Termination Date and (iii) the Borrower shall pay to such Bank that is not a
Continuing Bank in immediately available funds on the effective date of such
assignment the principal of and interest accrued to the date of payment on the
Loans made by it hereunder and all other amounts accrued for its account or owed
to it hereunder.
ARTICLE III
Conditions
SECTION 3.01. Effectiveness. This Agreement shall become effective
on the date that each of the following conditions shall have been satisfied (or
waived in accordance with Section 9.05):
(a) receipt by the Agent of counterparts hereof signed by each of
the parties hereto (or, in the case of any party as to which an executed
counterpart shall not have been received, receipt by the Agent in form
satisfactory to it of telegraphic, telex or other written confirmation from such
party of execution of a counterpart hereof by such party);
(b) if requested pursuant to Section 2.06(d), receipt by the Agent
for the account of each applicable Bank of a duly executed Note dated on or
before the Effective Date complying with the provisions of Section 2.06;
(c) receipt by the Agent of an opinion of W. Andrew Macan, Esq.,
Assistant Vice President and Associate Counsel of the Borrower, substantially in
the form of Exhibit E-1 hereto and an opinion of Cravath, Swaine & Moore LLP,
Counsel of the Agent, substantially in the form of Exhibit E-2 hereto;
(d) receipt by the Agent of written confirmation from the Borrower
that the Borrower has (i) terminated all lending commitments under the Existing
Credit Agreement (other than those continuing hereunder as provided in Section
9.11) and (ii) repaid all loans and other amounts, if any, outstanding or
accrued thereunder;
(e) receipt by the Agent of all documents it may reasonably request
relating to the existence of the Borrower, the corporate authority for and the
validity of this Agreement and the Notes, and any other matters relevant hereto,
all in form and substance satisfactory to the Agent; and
(f) receipt by the Arrangers of all fees that are to be received by
the Arrangers upon execution of this Agreement in the amounts previously agreed
upon between the Borrower and the Agent;
provided that this Agreement shall not become effective or be binding on any
party hereto unless all of the foregoing conditions are satisfied not later than
June 24, 2004. The Agent shall promptly notify the Borrower and the Banks of the
Effective Date, and such notice shall be conclusive and binding on all parties
hereto.
31
SECTION 3.02. Borrowings. The obligation of any Bank to make a Loan
on the occasion of any Borrowing is subject to the satisfaction of the following
conditions:
(a) receipt by the Agent of a Notice of Borrowing as required by
Section 2.02 or 2.03 or receipt of a notice requesting a Swingline Borrowing as
required by Section 2.04, as the case may be;
(b) the fact that, immediately after such Borrowing, (i) the
aggregate outstanding principal amount of the Loans will not exceed the
aggregate amount of the Commitments and (ii) the aggregate outstanding principal
amount of the Swingline Loans will not exceed the aggregate amount of the
Swingline Commitments;
(c) the fact that, immediately before and after such Borrowing, no
Default shall have occurred and be continuing; and
(d) the fact that the representations and warranties of the Borrower
contained in this Agreement shall be true on and as of the date of such
Borrowing, except that the condition set forth in this clause (d) shall exclude
the representation and warranty set forth in Section 4.04(c) for any Loans made
after the Effective Date.
Each Borrowing hereunder shall be deemed to be a representation and warranty by
the Borrower on the date of such Borrowing as to the facts specified in clauses
(b), (c) and (d) of this Section.
ARTICLE IV
Representations and Warranties
The Borrower represents and warrants that:
SECTION 4.01. Corporate Existence and Power. The Borrower is a
corporation duly incorporated, validly existing and in good standing under the
laws of New Jersey, and has all corporate powers and all material governmental
licenses, authorizations, consents and approvals required to carry on its
business as now conducted.
SECTION 4.02. Corporate and Governmental Authorization; No
Contravention. The execution, delivery and performance by the Borrower of this
Agreement and the Notes are within the Borrower's corporate powers, have been
duly authorized by all necessary corporate action, require no action by or in
respect of, or filing with, any governmental body, agency or official and do not
contravene, or constitute a default under, any provision of applicable law or
regulation or of the certificate of incorporation or by-laws of the Borrower or
of any agreement, judgment, injunction, order, decree or other instrument
binding upon the Borrower or result in the creation or imposition of any Lien on
any asset of the Borrower or any of its Significant Subsidiaries.
32
SECTION 4.03. Binding Effect. This Agreement constitutes a valid and
binding agreement of the Borrower and the Loans, when executed and delivered in
accordance with this Agreement, will constitute valid and binding obligations of
the Borrower, in each case enforceable in accordance with its terms (subject to
applicable bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium or other laws affecting creditor's rights generally from time to time
in effect and subject to general principles of equity, regardless of whether
considered in a proceeding in equity or at law).
SECTION 4.04. Financial Information. (a) The consolidated balance
sheet of the Borrower and its Consolidated Subsidiaries as of December 31, 2003,
and the related consolidated statements of income, shareholders' equity and cash
flow for the fiscal year then ended, reported on by Ernst & Young and set forth
in the Borrower's 2003 Form 10-K, a copy of which has been delivered to each of
the Banks, fairly present, in conformity with generally accepted accounting
principles, the consolidated financial position of the Borrower and its
Consolidated Subsidiaries as of such date and their consolidated results of
operations and cash flows for such fiscal year.
(b) The unaudited consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as of March 31, 2004, and the related unaudited
consolidated statements of income and cash flow for the three months then ended,
set forth in the Borrower's quarterly report for the fiscal quarter ended March
31, 2004, as filed with the Securities and Exchange Commission on Form 10-Q, a
copy of which has been delivered to each of the Banks, fairly present, in
conformity with generally accepted accounting principles applied on a basis
consistent with the financial statements referred to in subsection (a) of this
Section, the consolidated financial position of the Borrower and its
Consolidated Subsidiaries as of such date and their consolidated results of
operations and cash flows for such three month period (subject to normal
year-end adjustments).
(c) Since December 31, 2003, there has been no material adverse
change in the financial position of the Borrower and its Consolidated
Subsidiaries, considered as a whole, or in the ability of the Borrower to comply
with its payment obligations in respect of the Loans.
SECTION 4.05. Litigation. There is no action, suit or proceeding
pending against, or to the knowledge of the Borrower threatened in writing
against the Borrower or any of its Significant Subsidiaries before any court or
arbitrator or any governmental body, agency or official in which there is a
reasonable possibility of an adverse decision which could materially adversely
affect the financial position of the Borrower and its Consolidated Subsidiaries,
considered as a whole, or the ability of the Borrower to comply with its payment
obligations under the Loans, or which in any manner draws into question the
validity of this Agreement or the Loans.
SECTION 4.06. Compliance with ERISA. Each member of the ERISA Group
has fulfilled its obligations under the minimum funding standards of ERISA and
the Internal Revenue Code with respect to each Plan and is in compliance in all
material respects with the presently applicable provisions of ERISA and the
Internal Revenue Code with respect to each Plan. No member of the ERISA Group
has (i) sought
33
a waiver of the minimum funding standard under Section 412 of the Internal
Revenue Code in respect of any Plan, (ii) failed to make any contribution or
payment to any Plan or Multiemployer Plan or in respect of any Benefit
Arrangement, or made any amendment to any Plan or Benefit Arrangement, which has
resulted or could result in the imposition of a Lien or the posting of a bond or
other security under ERISA or the Internal Revenue Code to secure obligations
aggregating in excess of $25,000,000 or (iii) incurred any liability under Title
IV of ERISA other than a liability to the PBGC for premiums under Section 4007
of ERISA.
SECTION 4.07. Not an Investment Company. The Borrower is not an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
SECTION 4.08. Compliance with Laws. Each of the Borrower and its
Significant Subsidiaries is in compliance in all material respects with all
applicable laws, ordinances, rules, regulations, and requirements of
governmental authorities (including, without limitation, ERISA and the rules and
regulations thereunder) except where the necessity of compliance therewith is
being contested in good faith by appropriate proceedings.
ARTICLE V
Covenants
The Borrower agrees that, so long as any Bank has any Commitment
hereunder or any amount payable under any Loan remains unpaid:
SECTION 5.01. Information. The Borrower will deliver to each of the
Banks:
(a) as soon as available and in any event within 120 days after the
end of each fiscal year of the Borrower, a consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries as of the end of such fiscal year and
the related consolidated statements of income, shareholders' equity and cash
flow for such fiscal year, setting forth in each case in comparative form the
figures for the previous fiscal year, all reported on in a manner acceptable to
the Securities and Exchange Commission by Ernst & Young or other independent
public accountants of nationally recognized standing;
(b) as soon as available and in any event within 60 days after the
end of each of the first three quarters of each fiscal year of the Borrower, a
consolidated balance sheet of the Borrower and its Consolidated Subsidiaries as
of the end of such quarter and the related consolidated statements of income for
such quarter and of income and cash flow for the portion of the Borrower's
fiscal year ended at the end of such quarter, setting forth in comparative form
the consolidated statements of income for the corresponding quarter of the
Borrower's previous fiscal year and of income and cash flow for the
corresponding portion of the Borrower's previous fiscal year, all certified
(subject to normal year-end adjustments) as to fairness of presentation,
generally accepted
34
accounting principles and consistency by the chief financial officer or the
chief accounting officer or the Treasurer of the Borrower;
(c) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above, a certificate of the chief
financial officer or the chief accounting officer or the Treasurer of the
Borrower stating whether any Default exists on the date of such certificate and,
if any Default then exists, setting forth the details thereof and the action
which the Borrower is taking or proposes to take with respect thereto;
(d) simultaneously with the delivery of each set of financial
statements referred to in clause (a) above, a statement of the firm of
independent public accountants which reported on such statements whether
anything has come to their attention to cause them to believe that any Default
existed on the date of such statements;
(e) within five days after the Chairman, the Vice-Chairman, the
President, the chief financial officer, the chief accounting officer or the
Treasurer of the Borrower obtains knowledge of any Default, if such Default is
then continuing, a certificate of the chief financial officer or the chief
accounting officer or the Treasurer of the Borrower setting forth the details
thereof and the action which the Borrower is taking or proposes to take with
respect thereto;
(f) promptly upon the mailing thereof to the shareholders of the
Borrower generally, copies of all financial statements, reports and proxy
statements so mailed;
(g) promptly upon the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration statements on
Form S-8 or its equivalent) and reports on Forms 10-K, 10-Q and 8-K (or their
equivalents) which the Borrower shall have filed with the Securities and
Exchange Commission;
(h) if and when any member of the ERISA Group gives or is required
to give notice to the PBGC of any "reportable event" (as defined in Section 4043
of ERISA) with respect to any Plan which might constitute grounds for a
termination of such Plan under Title IV of ERISA, or knows that the plan
administrator of any Plan has given or is required to give notice of any such
reportable event, a copy of the notice of such reportable event given or
required to be given to the PBGC; (ii) receives notice of complete or partial
withdrawal liability under Title IV of ERISA or notice that any Multiemployer
Plan is in reorganization, is insolvent or has been terminated, a copy of such
notice; (iii) receives notice from the PBGC under Title IV of ERISA of an intent
to terminate, impose liability (other than for premiums under Section 4007 of
ERISA) in respect of, or appoint a trustee to administer any Plan, a copy of
such notice; (iv) applies for a waiver of the minimum funding standard under
Section 412 of the Internal Revenue Code, a copy of such application; (v) gives
notice of intent to terminate any Plan under Section 4041(c) of ERISA, a copy
of such notice and other information filed with the PBGC; (vi) gives notice of
withdrawal from any Plan pursuant to Section 4063 of ERISA, a copy of such
notice; or (vii) fails to make any payment or contribution to any
35
Plan or Multiemployer Plan or in respect of any Benefit Arrangement, or makes
any amendment to any Plan or Benefit Arrangement, which has resulted or could
result in the imposition of a Lien or the posting of a bond or other security to
secure obligations aggregating in excess of $10,000,000, a certificate of the
chief financial officer or the chief accounting officer or the Treasurer of the
Borrower setting forth details as to such occurrence and action, if any, which
the Borrower or applicable member of the ERISA Group is required or proposes to
take; and
(i) from time to time such additional information regarding the
financial position or business of the Borrower and its Subsidiaries as the
Agent, at the request of any Bank, may reasonably request.
SECTION 5.02. Payment of Obligations. The Borrower will pay and
discharge, and will cause each Significant Subsidiary to pay and discharge, at
or before maturity, all their respective material obligations and liabilities,
including, without limitation, tax liabilities, except where the same may be
contested in good faith by appropriate proceedings, and will maintain, and will
cause each Significant Subsidiary to maintain, in accordance with generally
accepted accounting principles, appropriate reserves for the accrual of any of
the same.
SECTION 5.03. Maintenance of Property. The Borrower will keep, and
will cause each Significant Subsidiary to keep, all property useful and
necessary in its business in good working order and condition, ordinary wear and
tear excepted.
SECTION 5.04. Conduct of Business and Maintenance of Existence. The
Borrower will continue, and will cause each Significant Subsidiary to continue,
to engage in business of the same general type as now conducted by the Borrower
and its Subsidiaries, and will preserve, renew and keep in full force and
effect, and will cause each Significant Subsidiary to preserve, renew and keep
in full force and effect, their respective corporate existence and their
respective rights, privileges and franchises necessary or desirable in the
normal conduct of business; provided that nothing in this Section 5.04 shall
prohibit (i) the merger of a Significant Subsidiary into the Borrower or the
merger or consolidation of a Significant Subsidiary with or into another Person
if the corporation surviving such consolidation or merger is a Subsidiary and
if, in each case, after giving effect thereto, no Default shall have occurred
and be continuing or (ii) the termination of the corporate existence of any
Significant Subsidiary if the Borrower in good faith determines that such
termination is in the best interest of the Borrower and is not materially
disadvantageous to the Banks.
SECTION 5.05. Compliance with Laws. The Borrower will comply, and
cause each Significant Subsidiary to comply, in all material respects with all
applicable laws, ordinances, rules, regulations, and requirements of
governmental authorities (including, without limitation, ERISA and the rules and
regulations thereunder) except where the necessity of compliance therewith is
contested in good faith by appropriate proceedings.
36
SECTION 5.06. Inspection of Property, Books and Records. The
Borrower will keep, and will cause each Significant Subsidiary to keep, proper
books of record and account in which full, true and correct entries shall be
made of all dealings and transactions in relation to its business and
activities; and will permit, and will cause each Significant Subsidiary to
permit, representatives of any Bank at such Bank's expense to visit and inspect
any of their respective properties, to examine and make abstracts from any of
their respective books and records and to discuss their respective affairs,
finances and accounts with their respective officers, employees and independent
public accountants, all at such reasonable times and with reasonable notice and
as often as may reasonably be desired.
SECTION 5.07. Adjusted Consolidated Net Worth. The Borrower will at
no time permit Adjusted Consolidated Net Worth to be less than $2,600,000,000.
SECTION 5.08. Negative Pledge. Neither the Borrower nor any
Significant Subsidiary (other than a Real Estate Subsidiary) will create, assume
or suffer to exist any Lien on any asset now owned or hereafter acquired by it,
except:
(a) Liens existing on the date of this Agreement securing Debt
outstanding on the date of this Agreement;
(b) any Lien existing on any asset of any corporation at the time
such corporation becomes a Significant Subsidiary and not created in
contemplation of such event;
(c) any Lien on any asset securing Debt incurred or assumed for the
purpose of financing all or any part of the cost of acquiring such asset,
provided that such Lien attaches to such asset concurrently with or within 90
days after the acquisition thereof;
(d) any Lien on any asset of any corporation existing at the time
such corporation is merged or consolidated with or into the Borrower or a
Subsidiary and not created in contemplation of such event;
(e) any Lien existing on any asset prior to the acquisition thereof
by the Borrower or a Subsidiary and not created in contemplation of such
acquisition;
(f) any Lien arising out of the refinancing, extension, renewal or
refunding of any Debt secured by any Lien permitted by any of the foregoing
clauses of this Section, provided that such Debt is not increased and is not
secured by any additional assets;
(g) Liens which (i) do not secure Debt, (ii) do not secure any
obligation in an amount exceeding $100,000,000 and (iii) do not in the aggregate
materially detract from the value of its assets or materially impair the use
thereof in the operation of its business; and
37
(h) Liens securing Debt, which Liens are not otherwise permitted by
the foregoing clauses of this Section; provided, that in no event shall the
Liens permitted by this clause (h) secure Debt in an aggregate principal amount
exceeding 15% of Adjusted Consolidated Net Worth.
SECTION 5.09. Consolidations, Mergers and Sales of Assets. The
Borrower will not (i) consolidate or merge with or into any other Person (other
than a Subsidiary of the Borrower) or (ii) sell, lease or otherwise transfer,
directly or indirectly, all or substantially all of the assets of the Borrower
and its Subsidiaries, taken as a whole, to any other Person.
SECTION 5.10. Use of Proceeds. The proceeds of the Loans made under
this Agreement will be used by the Borrower for general corporate purposes. None
of such proceeds will be used, directly or indirectly, for the purpose, whether
immediate, incidental or ultimate, of buying or carrying any "margin stock"
within the meaning of Regulation U.
ARTICLE VI
Defaults
SECTION 6.01. Events of Default. If one or more of the following
events ("Events of Default") shall have occurred and be continuing:
(a) the Borrower shall fail to pay when due any principal of any
Loan, or shall fail to pay within five Domestic Business Days after the date
when due any interest on any Loan or any fees or any other amount payable
hereunder;
(b) the Borrower shall fail to observe or perform any covenant
contained in Sections 5.07 to 5.10, inclusive;
(c) the Borrower shall fail to observe or perform any covenant or
agreement contained in this Agreement (other than those covered by clause (a) or
(b) above) for 30 days after written notice thereof has been given to the
Borrower by the Agent at the request of Banks having at least 10% in aggregate
amount of the Commitments;
(d) any representation, warranty, certification or statement made by
the Borrower in this Agreement or in any certificate, financial statement or
other document delivered pursuant to this Agreement shall prove to have been
incorrect in any material respect when made (or deemed made);
(e) the Borrower or any Significant Subsidiary shall fail to make
any payment in respect of any Material Debt when due or within any applicable
grace period;
(f) any event or condition shall occur which results in the
acceleration of the maturity of any Material Debt or enables the holder of such
Debt or any Person acting on such holder's behalf to accelerate the maturity
thereof;
38
(g) the Borrower or any Significant Subsidiary shall commence a
voluntary case or other proceeding seeking liquidation, reorganization or other
relief with respect to itself or its debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, or shall consent to any such relief or to the
appointment of or taking possession by any such official in an involuntary case
or other proceeding commenced against it, or shall make a general assignment for
the benefit of creditors, or shall fail generally to pay its debts as they
become due, or shall take any corporate action to authorize any of the
foregoing;
(h) an involuntary case or other proceeding shall be commenced
against the Borrower or any Significant Subsidiary seeking liquidation,
reorganization or other relief with respect to it or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect or
seeking the appointment of a trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its property, and such
involuntary case or other proceeding shall remain undismissed and unstated for a
period of 60 days; or an order for relief shall be entered against the Borrower
or any Significant Subsidiary under the federal bankruptcy laws as now or
hereafter in effect;
(i) any member of the ERISA Group shall fail to pay when due an
amount or amounts aggregating in excess of $75,000,000 which it shall have
become liable to pay under Title IV of ERISA; or notice of intent to terminate a
Material Plan shall be filed under Title IV of ERISA by any member of the ERISA
Group, any plan administrator or any combination of the foregoing; or the PBGC
shall institute proceedings under Title IV of ERISA to terminate, to impose
liability (other than for premiums under Section 4007 of ERISA) in respect of,
or to cause a trustee to be appointed to administer any Material Plan; or a
condition shall exist by reason of which the PBGC would be entitled to obtain a
decree adjudicating that any Material Plan must be terminated; or there shall
occur a complete or partial withdrawal from, or a default, within the meaning of
Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans
which could cause one or more members of the ERISA Group to incur a current
payment obligation in excess of $200,000,000;
(j) a final judgment or order (not subject to appeal) for the
payment of money in excess of $100,000,000 shall be rendered against the
Borrower or any Significant Subsidiary and such judgment or order shall continue
unsatisfied and unstated for a period of 30 days; or
(k) any person or group of persons (within the meaning of Section 13
or 14 of the Securities Exchange Act of 1934, as amended) shall have acquired
beneficial ownership (within the meaning of Rule 13d-3 promulgated by the
Securities and Exchange Commission under said Act) of 50% or more of the
outstanding shares of common stock of the Borrower; or, during any period of 12
consecutive calendar months, individuals who were directors of the Borrower on
the first day of such period (the "incumbent directors"), together with
individuals nominated to serve as directors by a majority of the incumbent
directors and any directors so nominated, shall cease to constitute a majority
of the board of directors of the Borrower; then, and in every such
39
event, the Agent shall (i) if requested by Banks having more than 50% in
aggregate amount of the Commitments, by notice to the Borrower terminate the
Commitments and the Swingline Commitments and they shall thereupon terminate,
and (ii) if requested by Banks having more than 50% in aggregate principal
amount of the total amount of Committed Loans, Money Market Loans and Swingline
Exposure, by notice to the Borrower declare the Loans (together with accrued
interest thereon) to be, and the Loans shall thereupon become, immediately due
and payable without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by the Borrower; provided that in the case of any
of the Events of Default specified in clause (g) or (h) above with respect to
the Borrower, without any notice to the Borrower or any other act by the Agent
or the Banks, the Commitments and the Swingline Commitments shall thereupon
terminate and the Loans (together with accrued interest thereon) shall become
immediately due and payable without presentment, demand, protest or other notice
of any kind, all of which are hereby waived by the Borrower.
SECTION 6.02. Notice of Default. The Agent shall give notice to the
Borrower under Section 6.01 (c) promptly upon being requested to do so by Banks
having at least 10% in aggregate amount of the Commitments and shall thereupon
notify all the Banks thereof.
ARTICLE VII
The Agent
SECTION 7.01. Appointment and Authorization. Each Bank irrevocably
appoints and authorizes the Agent to take such action as administrative agent on
its behalf and to exercise such powers under this Agreement and the Loans as are
delegated to the Agent by the terms hereof or thereof, together with all such
powers as are reasonably incidental thereto.
SECTION 7.02. Agent and Affiliates. Deutsche Bank AG New York Branch
shall have the same rights and powers under this Agreement as any other Bank and
may exercise or refrain from exercising the same as though it were not the
Agent, and Deutsche Bank AG New York Branch and its affiliates may accept
deposits from, lend money to, and generally engage in any kind of business with
the Borrower or any Subsidiary or affiliate of the Borrower as if it were not
the Agent hereunder.
SECTION 7.03. Action by Agent. The obligations of the Agent
hereunder are only those expressly set forth herein. Without limiting the
generality of the foregoing, the Agent shall not be required to take any action
with respect to any Default, except as expressly provided in Article VI.
SECTION 7.04. Consultation with Experts. The Agent may consult with
legal counsel (who may be counsel for the Borrower), independent public
accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken by it in good faith in accordance with the
advice of such counsel, accountants or experts.
40
SECTION 7.05. Liability of Agent. Neither the Agent nor any of its
directors, officers, agents, or employees shall be liable for any action taken
or not taken by it in connection herewith (i) with the consent or at the request
of the Required Banks or (ii) in the absence of its own gross negligence or
willful misconduct. Neither the Agent nor any of its directors, officers, agents
or employees shall be responsible for or have any duty to ascertain, inquire
into or verify (i) any statement, warranty or representation made in connection
with this Agreement or any borrowing hereunder; (ii) the performance or
observance of any of the covenants or agreements of the Borrower; (iii) the
satisfaction of any condition specified in Article III, except receipt of items
required to be delivered to the Agent; or (iv) the validity, effectiveness or
genuineness of this Agreement, the Loans or any other instrument or writing
furnished in connection herewith. The Agent shall not incur any liability by
acting in reliance upon any notice, consent, certificate, statement, or other
writing (which may be a bank wire, telex, facsimile transmission or similar
writing) believed by it to be genuine or to be signed by the proper party or
parties.
SECTION 7.06. Indemnification. Each Bank shall, ratably in
accordance with its Commitment, indemnify the Agent (to the extent not
reimbursed by the Borrower) against any cost, expense (including counsel fees
and disbursements), claim, demand, action, loss or liability (except such as
result from the Agent's gross negligence or willful misconduct) that the Agent
may suffer or incur in connection with this Agreement or any action taken or
omitted by the Agent hereunder.
SECTION 7.07. Credit Decision. Each Bank acknowledges that it has,
independently and without reliance upon the Agent or any other Bank, and based
on such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Bank also
acknowledges that it will, independently and without reliance upon the Agent or
any other Bank, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking any action under this Agreement.
SECTION 7.08. Successor Agent. The Agent may resign at any time by
giving written notice thereof to the Banks and the Borrower. Upon any such
resignation, the Required Banks shall have the right to appoint a successor
Agent, subject to the approval of the Borrower (which approval shall not be
unreasonably withheld and, if an Event of Default shall have occurred and be
continuing, shall not be required). If no successor Agent shall have been so
appointed by the Required Banks, and shall have accepted such appointment,
within 30 days after the retiring Agent gives notice of resignation, then the
retiring Agent may, on behalf of the Banks, appoint a successor Agent, which
shall be a commercial bank organized or licensed under the laws of the United
States of America or of any State thereof and having a combined capital and
surplus of at least $250,000,000 or a commercial bank organized under the laws
of any country which is a member of the Organization for Economic Cooperation
and Development, or a political subdivision of any such country, and having a
combined capital and surplus of at least $250,000,000, provided that such bank
is acting through a branch or agency located in the United States. Upon the
acceptance of its appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to
41
and become vested with all the rights 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 hereunder as Agent, the provisions of
this Article shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was Agent.
SECTION 7.09. Agent's Fee. The Borrower shall pay to the Agent for
its own account fees in the amounts and at the times previously agreed upon
between the Borrower and the Agent.
SECTION 7.10. Arrangers; Swingline Lenders. The Borrower and the
Banks acknowledge and agree that (a) Arrangers do not have any duties or
responsibilities hereunder in their capacities as such and (b) Arrangers and
Swingline Lenders shall be entitled to the benefit of Sections 7.05 and 7.06 to
the same extent as the Agent.
ARTICLE VIII
Change in Circumstances
SECTION 8.01. Basis for Determining Interest Rate Inadequate or
Unfair. If on or prior to the first day of any Interest Period for any CD Loan,
Euro-Dollar Loan or Money Market LIBOR Loan:
(a) the Agent is advised by the Reference Banks that deposits in the
applicable currency (in the applicable amounts) are not being offered to the
Reference Banks in the relevant market for such Interest Period, or
(b) in the case of CD Loans or Euro-Dollar Loans, Banks having 50%
or more of the aggregate principal amount of the affected Loans advise the Agent
that the Adjusted CD Rate or the London Interbank Offered Rate, as the case may
be, as determined by the Agent will not adequately and fairly reflect the cost
to such Banks of funding their CD Loans or Euro-Dollar Loans, as the case may
be, for such Interest Period, the Agent shall forthwith give notice thereof to
the Borrower and the Banks, whereupon until the Agent notifies the Borrower that
the circumstances giving rise to such suspension no longer exist, (i) the
obligations of the Banks to make CD Loans or Euro-Dollar Loans, as the case may
be, or to convert outstanding Loans into or continue outstanding Loans as CD
Loans or Euro-Dollar Loans, as the case may be, shall be suspended and (ii) each
outstanding CD Loan or Euro-Dollar Loan, as the case may be, shall be converted
into a Base Rate Loan on the last day of the then current Interest Period
applicable thereto. Unless the Borrower notifies the Agent at least two Domestic
Business Days before the date of any Fixed Rate Borrowing for which a Notice of
Borrowing has previously been given that it elects not to borrow on such date,
(i) if such Fixed Rate Borrowing is a Committed Borrowing, such Borrowing shall
instead be made as a Base Rate Borrowing and (ii) if such Fixed Rate Borrowing
is a Money Market LIBOR Borrowing, the Money Market LIBOR Loans comprising such
Borrowing shall bear interest for each day from and including the first day to
but excluding the last day of the Interest Period applicable thereto at the Base
Rate for such day.
42
SECTION 8.02. Illegality. If, on or after the date of this
Agreement, the adoption of any applicable law, rule or regulation, or any change
in any applicable law, rule or regulation, or any change in the interpretation
or administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration thereof, or
compliance by any Bank (or its Euro-Dollar Lending Office) with any request or
directive (whether or not having the force of law) of any such authority,
central bank or comparable agency shall make it unlawful or impossible for any
Bank (or its Euro-Dollar Lending Office) to make, maintain or fund its
Euro-Dollar Loans and such Bank shall so notify the Agent, the Agent shall
forthwith give notice thereof to the other Banks and the Borrower, whereupon
until such Bank notifies the Borrower and the Agent that the circumstances
giving rise to such suspension no longer exist, the obligation of such Bank to
make Euro-Dollar Loans, or to convert outstanding Loans into or continue
outstanding Loans as Euro-Dollar Loans, shall be suspended. Before giving any
notice to the Agent pursuant to this Section, such Bank shall designate a
different Euro-Dollar Lending Office if such designation will avoid the need for
giving such notice and will not, in the judgment of such Bank, be otherwise
disadvantageous to such Bank. If such Bank shall determine that it may not
lawfully continue to maintain and fund any of its outstanding Euro-Dollar Loans
to maturity and shall so specify in such notice, the Borrower shall immediately
prepay in full the then outstanding principal amount of each such Euro-Dollar
Loan, together with accrued interest thereon. Concurrently with prepaying each
such Euro-Dollar Loan, the Borrower shall borrow a Base Rate Loan in an equal
principal amount from such Bank (on which interest and principal shall be
payable contemporaneously with the related Euro-Dollar Loans of the other
Banks), and such Bank shall make such a Base Rate Loan.
SECTION 8.03. Increased Cost and Reduced Return. (a) If on or after
(x) the date hereof, in the case of any Committed Loan or any obligation to make
Committed Loans or (y) the date of the related Money Market Quote, in the case
of any Money Market Loan, the adoption of any applicable law, rule or
regulation, or any change in any applicable law, rule or regulation, or any
change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Bank (or its Applicable Lending
Office) with any request or directive (whether or not having the force of law)
of any such authority, central bank or comparable agency shall impose, modify or
deem applicable any reserve (including, without limitation, any such requirement
imposed by the Board of Governors of the Federal Reserve System, but excluding
(A) with respect to any CD Loan any such requirement included in an applicable
Domestic Reserve Percentage and (B) with respect to any Euro-Dollar Loan any
such requirement included in an applicable Euro-Dollar Reserve Percentage),
special deposit, insurance assessment (excluding, with respect to any CD Loan,
any such requirement reflected in an applicable Assessment Rate) or similar
requirement against assets of, deposits with or for the account of, or credit
extended by, any Bank (or its Applicable Lending Office) or shall impose on any
Bank (or its Applicable Lending Office) or on the United States market for
certificates of deposit or the London interbank market any other condition
affecting its Fixed Rate Loans, its Note or its obligation to make Fixed Rate
Loans, and the result of any of the foregoing is to increase the cost to such
Bank (or its Applicable Lending Office) of making or maintaining any Fixed Rate
43
Loan, or to reduce the amount of any sum received or receivable by such Bank (or
its Applicable Lending Office) under this Agreement or under its Note with
respect thereto, by an amount deemed by such Bank to be material, then, within
15 days after demand by such Bank (with a copy to the Agent), the Borrower shall
pay to such Bank such additional amount or amounts as will compensate such Bank
for such increased cost or reduction.
(b) If any Bank shall have determined that, after the date hereof,
the adoption of any applicable law, rule or regulation regarding capital
adequacy, or any change in any such law, rule or regulation, or any change in
the interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or any request or directive regarding capital adequacy
(whether or not having the force of law) of any such authority, central bank or
comparable agency, has or would have the effect of reducing the rate of return
on capital of such Bank (or its Parent) as a consequence of such Bank's
obligations hereunder to a level below that which such Bank (or its Parent)
could have achieved but for such adoption, change, request or directive (taking
into consideration its policies with respect to capital adequacy) by an amount
deemed by such Bank to be material, then from time to time, within 15 days after
demand by such Bank (with a copy to the Agent), the Borrower shall pay to such
Bank such additional amount or amounts as will compensate such Bank (or its
Parent) for such reduction. It is understood that the Banks are entering into
this Agreement on the assumption that they will not be required to maintain
capital in respect of their Commitments, and that the Borrower's obligations
under this paragraph will apply in the event such assumption proves to be
incorrect.
(c) Each Bank will promptly notify the Borrower and the Agent of any
event of which it has knowledge, occurring after the date hereof, which will
entitle such Bank to compensation pursuant to this Section and will designate a
different Applicable Lending Office or attempt to assign its Loans to a
different branch or affiliate of such Bank, as applicable, if such designation
or assignment will avoid the need for, or reduce the amount of, such
compensation and will not, in the judgment of such Bank, be otherwise
disadvantageous to such Bank. A certificate of any Bank claiming compensation
under this Section and setting forth the additional amount or amounts to be paid
to it hereunder shall be conclusive in the absence of manifest error. In
determining such amount, such Bank may use any reasonable averaging and
attribution methods. The Borrower shall not be obligated to compensate any Bank
pursuant to this Section for increased costs or reduced return accruing prior to
the date which is 90 days before such Bank requests compensation (in the case of
a request for compensation pursuant to subsection (a) above) or prior to the
first day of the most recent fiscal year of such Bank ending more than 90 days
before such Bank requests compensation (in the case of a request for
compensation pursuant to subsection (b) above).
SECTION 8.04. Taxes. (a) For purposes of this Section 8.04, the
following terms have the following meanings:
"Taxes" means any and all present or future taxes, duties, levies,
imposts, deductions, charges or withholdings with respect to any payment by the
Borrower
44
pursuant to this Agreement or under any Note, and all liabilities with respect
thereto, excluding (i) in the case of each Bank and the Agent, taxes imposed on
its income, and franchise or similar taxes imposed on it, by a jurisdiction
under the laws of which such Bank or the Agent (as the case may be) is organized
or in which its principal executive office is located or, in the case of each
Bank, in which its Applicable Lending Office is located and (ii) in the case of
each Bank, any United States withholding tax imposed on such payments but only
to the extent that such Bank is subject to United States withholding tax at the
time such Bank first becomes party to this Agreement.
"Other Taxes" means any present or future stamp or documentary taxes
and any other excise or property taxes, or similar charges or levies, which
arise from any payment made pursuant to this Agreement or under any Note or from
the execution or delivery of, or otherwise with respect to, this Agreement or
any Note.
(b) Any and all payments by the Borrower to or for the account of
any Bank or the Agent hereunder or under any Note shall be made without
deduction for any Taxes or Other Taxes; provided that, if the Borrower shall be
required by law to deduct any Taxes or Other Taxes from any such payments, (i)
the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section 8.04) such Bank or the Agent (as the case may be) receives an
amount equal to the sum it would have received had no such deductions been made,
(ii) the Borrower shall make such deductions, (iii) the Borrower shall pay the
full amount deducted to the relevant taxation authority or other authority in
accordance with applicable law and (iv) the Borrower shall furnish to the Agent,
at its address referred to in Section 9.01, the original or a certified copy of
a receipt evidencing payment thereof.
(c) The Borrower agrees to indemnify each Bank and the Agent for the
full amount of Taxes or Other Taxes (including, without limitation, any Taxes or
Other Taxes imposed or asserted by any jurisdiction on amounts payable under
this Section 8.04) paid by such Bank or the Agent (as the case may be) and any
liability (including penalties, interest and expenses) arising therefrom or with
respect thereto. This indemnification shall be paid within 15 days after such
Bank or the Agent (as the case may be) makes demand therefor.
(d) Each Bank organized under the laws of a jurisdiction outside the
United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Bank listed on the signature pages hereof and on
or prior to the date on which it becomes a Bank in the case of each other Bank,
and from time to time thereafter if requested in writing by the Borrower (but
only so long as such Bank remains lawfully able to do so), shall provide the
Borrower with Internal Revenue Service Form 1001 or 4224, as appropriate, or any
successor form prescribed by the Internal Revenue Service, certifying that such
Bank is entitled to benefits under an income tax treaty to which the United
States is a party which exempts the Bank from United States withholding tax or
reduces the rate of withholding tax on payments of interest for the account of
such Bank or certifying that the income receivable pursuant to this Agreement is
effectively connected with the conduct of a trade or business in the United
States.
45
(e) For any period with respect to which a Bank has failed to
provide the Borrower with the appropriate form pursuant to Section 8.04(d)
(unless such failure is due to a change in treaty, law or regulation occurring
subsequent to the date on which such form originally was required to be
provided), such Bank shall not be entitled to indemnification under Section
8.04(b) or (c) with respect to Taxes imposed by the United States; provided that
if a Bank, which is otherwise exempt from or subject to a reduced rate of
withholding tax, becomes subject to Taxes because of its failure to deliver a
form required hereunder, the Borrower shall take such steps as such Bank shall
reasonably request to assist such Bank to recover such Taxes.
(f) If the Borrower is required to pay additional amounts to or for
the account of any Bank pursuant to this Section 8.04, then such Bank will
change the jurisdiction of its Applicable Lending Office if, in the judgment of
such Bank, such change (i) will eliminate or reduce any such additional payment
which may thereafter accrue and (ii) is not otherwise disadvantageous to such
Bank. The Borrower will not be obligated to indemnify any Bank pursuant to
Section 8.04(c) for any amounts payable thereunder accruing more than 90 days
prior to the date that such Bank requests compensation therefor.
SECTION 8.05. Base Rate Loans Substituted for Affected Fixed Rate
Loans. If (i) the obligation of any Bank to make or maintain Euro-Dollar Loans
has been suspended pursuant to Section 8.02 or (ii) any Bank has demanded
compensation under Section 8.03 or 8.04 with respect to its CD Loans or
Euro-Dollar Loans and the Borrower shall, by at least five Euro-Dollar Business
Days prior notice to such Bank through the Agent, have elected that the
provisions of this Section shall apply to such Bank, then, unless and until such
Bank notifies the Borrower that the circumstances giving rise to such suspension
or demand for compensation no longer apply:
(a) all Loans which would otherwise be made by such Bank as (or
continued as or converted into) CD Loans or Euro-Dollar Loans, as the case may
be, shall instead be Base Rate Loans (on which interest and principal shall be
payable contemporaneously with the related Fixed Rate Loans of the other Banks),
and
(b) after each of its CD Loans or Euro-Dollar Loans, as the case may
be, has been repaid (or converted to a Base Rate Loan), all payments of
principal which would otherwise be applied to repay such Fixed Rate Loans shall
be applied to repay its Base Rate Loans instead.
SECTION 8.06. Substitution of Bank. (a) If (i) the obligation of any
Bank to make or maintain EuroDollar Loans has been suspended pursuant to Section
8.02 or (ii) any Bank (or any Participant in its Loans) has demanded
compensation under Section 8.03 or 8.04, the Borrower shall have the right to
seek a bank or banks ("Substitute Banks"), which may be one or more of the Banks
or one or more other banks satisfactory to the Agent, to purchase the Loan or
Loans and assume the Commitment of such Bank (the "Affected Bank") and, if the
Borrower locates a Substitute Bank, the Affected Bank shall, upon payment to it
of the purchase price agreed between it and the Substitute Bank (or, failing
such agreement, a purchase price in the amount of the
46
outstanding principal amount of its Loans and accrued interest thereon to the
date of payment) plus any amount (other than principal and interest) then due to
it or accrued for its account hereunder, assign all its rights and obligations
under this Agreement and the Notes, (including its Commitment and its Loans) to
the Substitute Bank, and the Substitute Bank shall assume such rights and
obligations, whereupon the Substitute Bank shall be a Bank party to this
Agreement and shall have all the rights and obligations of a Bank with a
Commitment equal to the Commitment so assigned and assumed.
(b) Notwithstanding the provisions of subsection (a) above, if an
Affected Bank shall have outstanding Money Market Loans at the time it is
required to assign its rights and obligations under this Agreement and any Note
or Notes to a Substitute Bank, such Affected Bank shall not be obligated to so
assign its rights with respect to such Money Market Loans prior to the maturity
date thereof and shall not be obligated to deliver its Note or Notes (if any) to
the Substitute Bank until it shall have received a new Note or Notes from the
Borrower to evidence such Money Market Loans.
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices. All notices, requests and other
communications to any party hereunder shall be in writing (including bank wire,
telex, facsimile transmission or similar writing) and shall be given to such
party: (x) in the case of the Borrower, any Swingline Lender or the Agent, at
its address or telex or telecopy number set forth on the signature pages hereof,
(y) in the case of any Bank, at its address or telex or telecopy number set
forth in its Administrative Questionnaire or (z) in the case of any party, such
other address or telex or telecopy number as such party may hereafter specify
for the purpose by notice to the Agent and the Borrower; provided that notices,
requests and other communications to the Borrower shall not be communicated by
telex. Each such notice, request or other communication shall be effective (i)
if given by telex, when such telex is transmitted to the telex number specified
in this Section and the appropriate answerback is received, (ii) if given by
mail, 72 hours after such communication is deposited in the mails with first
class postage prepaid, addressed as aforesaid or (iii) if given by any other
means, when delivered at the address or received at the telecopy number
specified in this Section; provided that notices to the Agent under Article II
or Article VIII shall not be effective until received.
SECTION 9.02. No Waivers. No failure or delay by the Agent or any
Bank in exercising any right, power or privilege hereunder or under any Loan
shall operate as a waiver thereof nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise of any
other right, power or privilege. The rights and remedies herein provided shall
be cumulative and not exclusive of any rights or remedies provided by law.
SECTION 9.03. Expenses; Indemnification. (a) The Borrower shall pay
(i) all reasonable out-of-pocket expenses of the Agent, including reasonable
fees and disbursements of special counsel for the Agent, in connection with the
preparation of this
47
Agreement, any waiver or consent hereunder or any amendment hereof or any
Default or alleged Default hereunder and (ii) if an Event of Default occurs, all
out-of-pocket expenses incurred by the Agent and each Bank, including fees and
disbursements of counsel, in connection with such Event of Default and
collection, bankruptcy, insolvency and other enforcement proceedings resulting
therefrom.
(b) The Borrower agrees to indemnify each Bank and hold each Bank
harmless from and against any and all liabilities, losses, damages, costs and
expenses of any kind, including, without limitation, the reasonable fees and
disbursements of counsel, which may be incurred by any Bank (or by the Agent in
connection with its actions as Agent hereunder) in connection with any
investigative, administrative or judicial proceeding (whether or not such Bank
shall be designated a party thereto) relating to or arising out of this
Agreement or any actual or proposed use of proceeds of Loans hereunder; provided
that no Bank shall have the right to be indemnified hereunder for its own gross
negligence or willful misconduct as determined by a court of competent
jurisdiction.
SECTION 9.04. Sharing of Set-Offs. Each Bank agrees that if it
shall, by exercising any right of set-off or counterclaim or otherwise, receive
payment of a proportion of the aggregate amount of principal and interest due
with respect to its Loans which are greater than the proportion received by any
other Bank in respect of the aggregate amount of principal and interest due with
respect to the Loans of such other Bank, the Bank receiving such proportionately
greater payment shall purchase such participation in the Loans held by the other
Banks, and such other adjustments shall be made, as may be required so that all
such payments of principal and interest with respect to the Loans held by the
Banks shall be shared by the Banks pro rata; provided that nothing in this
Section shall impair the right of any Bank to exercise any right of set-off or
counterclaim it may have and to apply the amount subject to such exercise to the
payment of indebtedness of the Borrower other than its indebtedness under the
Loans. The Borrower agrees, to the fullest extent it may effectively do so under
applicable law, that any holder of a participation in a Loan acquired pursuant
to the foregoing arrangements may exercise rights of set-off or counterclaim and
other rights with respect to such participation as fully as if such holder of a
participation were a direct creditor of the Borrower in the amount of such
participation.
SECTION 9.05. Amendments and Waivers. Any provision of this
Agreement or the Loans may be amended or waived if, but only if, such amendment
or waiver is in writing and is signed by the Borrower and the Required Banks
(and, if the rights or duties of the Agent or a Swingline Lender are affected
thereby, by the Agent or such Swingline Lender, as the case may be); provided
that:
(a) no such amendment or waiver shall, unless signed by all the
Banks, (i) increase or decrease the Commitment of any Bank (except for a ratable
decrease in the Commitments of all Banks) or subject any Bank to any additional
obligation, (ii) reduce the principal of or rate of interest on any Committed
Loan or Swingline Loan or any fees hereunder, (iii) except as expressly provided
in Section 2.19, postpone the date fixed for any payment of principal of or
interest on any Committed Loan or Swingline Loan or any
48
fees hereunder or for any termination of any Commitment, (iv) change the
percentage of the Commitments or of the aggregate unpaid principal amount of the
Loans or the number of Banks, which shall be required for the Banks or any of
them to take any action under this Section or any other provision of this
Agreement, or (v) amend, waive or modify the provisions of this Section 9.05;
and
(b) no such amendment or waiver shall, unless signed by each
affected Bank, (i) reduce the principal of or rate of interest on any Money
Market Loan, or (ii) postpone the date fixed for any payment of principal of or
interest on any Money Market Loan.
SECTION 9.06. Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, except that the Borrower may not
assign or otherwise transfer any of its rights under this Agreement without the
prior written consent of all Banks.
(b) Any Bank may at any time grant to one or more banks or other
institutions (each a "Participant") participating interests in its Commitment or
any or all of its Loans. In the event of any such grant by a Bank of a
participating interest to a Participant, whether or not upon notice to the
Borrower and the Agent, such Bank shall remain responsible for the performance
of its obligations hereunder, and the Borrower and the Agent shall continue to
deal solely and directly with such Bank in connection with such Bank's rights
and obligations under this Agreement. Any agreement pursuant to which any Bank
may grant such a participating interest shall provide that such Bank shall
retain the sole right and responsibility to enforce the obligations of the
Borrower hereunder including, without limitation, the right to approve any
amendment, modification or waiver of any provision of this Agreement; provided
that such participation agreement may provide that such Bank will not agree to
any modification, amendment or waiver of this Agreement described in clause (i),
(ii) or (iii) of Section 9.05 without the consent of the Participant. The
Borrower agrees that each Participant shall, to the extent provided in its
participation agreement and subject to the provisions of Section 9.06(e), be
entitled to the benefits of Article VIII with respect to its participating
interest. An assignment or other transfer which is not permitted by subsection
(c) or (d) below shall be given effect for purposes of this Agreement only to
the extent of a participating interest granted in accordance with this
subsection (b).
(c) Any Bank may at any time assign to one or more banks or other
institutions (each an "Assignee") all, or a proportionate part of all (but, in
the case of a partial assignment, not less than a part representing a Commitment
of $10,000,000), of its rights and obligations under this Agreement and the
Notes (if any), and such Assignee shall assume such rights and obligations,
pursuant to an Assignment and Assumption Agreement in substantially the form of
Exhibit F hereto executed by such Assignee and such transferor Bank, with (and
subject to) the subscribed consent of the Agent and each Swingline Lender (which
consents shall not be unreasonably withheld) and the Borrower; provided that (i)
such assignment may, but need not, include rights of the transferor Bank in
respect of outstanding Money Market Loans or, in the case of a Bank that is a
49
Swingline Lender, its Swingline Commitment and Swingline Loans and (ii) unless
the Borrower otherwise consents, the transferor Bank shall not assign any of its
rights and obligations under this Agreement while the Other Credit Agreement
remains in effect without assigning the same percentage of its rights and
obligations under the Other Credit Agreement, except that this clause (ii) shall
not apply to any transfer required under paragraph (d) of Section 2.19 of this
Agreement. Upon execution and delivery of such instrument and payment by such
Assignee to such transferor Bank of an amount equal to the purchase price agreed
between such transferor Bank and such Assignee, such Assignee shall be a Bank
party to this Agreement and shall have all the rights and obligations of a Bank
with a Commitment as set forth in such instrument of assumption, and the
transferor Bank shall be released from its obligations hereunder to a
corresponding extent, and no further consent or action by any party shall be
required. Upon the consummation of any assignment pursuant to this subsection
(c), the transferor Bank, the Agent and the Borrower shall make appropriate
arrangements so that, if required, a new Note is issued to the Assignee. In
connection with any such assignment, the transferor Bank shall pay to the Agent
an administrative fee for processing such assignment in the amount of $2,000. If
the Assignee is not incorporated under the laws of the United States of America
or a state thereof, it shall, prior to the first date on which interest or fees
are payable hereunder for its account, deliver to the Borrower and the Agent
certification as to exemption from deduction or withholding of any United States
federal income taxes in accordance with Section 8.04.
(d) Any Bank may at any time assign all or any portion of its rights
under this Agreement and its Note to a Federal Reserve Bank. No such assignment
shall release the transferor Bank from its obligations hereunder.
(e) No Assignee, Participant or other transferee of any Bank's
rights shall be entitled to receive any greater payment under Section 8.03 than
such Bank would have been entitled to receive with respect to the rights
transferred, unless such transfer is made with the Borrower's prior written
consent or by reason of the provisions of Section 8.02, 8.03 or 8.04 requiring
such Bank to designate a different Applicable Lending Office under certain
circumstances or at a time when the circumstances giving rise to such greater
payment did not exist.
SECTION 9.07. Collateral. Each of the Banks represents to the Agent
and each of the other Banks that it in good faith is not relying upon any
"margin stock" (as defined in Regulation U) as collateral in the extension or
maintenance of the credit provided for in this Agreement.
SECTION 9.08. Governing Law; Submission to Jurisdiction. This
Agreement and each Note shall be governed by and construed in accordance with
the laws of the State of New York. The Borrower hereby submits to the
nonexclusive jurisdiction of the United States District Court for the Southern
District of New York and of any New York State court sitting in New York City
for purposes of all legal proceedings arising out of or relating to this
Agreement or the transactions contemplated hereby. The Borrower irrevocably
waives, to the fullest extent permitted by law, any objection which it may now
or hereafter have to the laying of the venue of any such
50
proceeding brought in such a court and any claim that any such proceeding
brought in such a court has been brought in an inconvenient forum.
SECTION 9.09. Counterparts; Integration. This Agreement may be
signed in any number of counterparts, each of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement constitutes the entire agreement and understanding
among the parties hereto and supersedes any and all prior agreements and
understandings, oral or written, relating to the subject matter hereof.
SECTION 9.10. Confidentiality. Any information disclosed by the
Borrower to the Agent or any of the Banks, which was either (x) so disclosed on
or before the Effective Date or (y) designated proprietary or confidential at
the time of receipt thereof by the Agent or such Bank, if such information is
not otherwise in the public domain, shall not be disclosed by the Agent or such
Bank to any other Person except (i) to its directors, officers, employees and
agents, including its independent accountants and legal counsel (it being
understood that the Persons to whom such disclosure is made will be informed of
the confidential nature of such information and instructed to keep such
information confidential), (ii) pursuant to statutory and regulatory
requirements, (iii) pursuant to any mandatory court order, subpoena or other
legal process, (iv) to the Agent or any other Bank, (v) pursuant to any
agreement heretofore or hereafter made between such Bank and the Borrower which
permits such disclosure, (vi) in connection with the exercise of any remedy
under this Agreement or the Notes or (vii) subject to an agreement containing
provisions substantially the same as those of this Section, to any participant
in or assignee of, or prospective participant in or assignee of, any Loan or
Commitment. The provisions of this Section 9.10 shall be deemed satisfied by
each Bank if and to the extent such Bank shall have used its reasonable best
efforts to maintain the confidentiality of the data or information referred to
above, exercising the same degree of care that such Bank would accord to its own
confidential information or documents.
SECTION 9.11. Restatement of Existing Credit Agreement. With effect
from and including the Effective Date, the Existing Credit Agreement shall be
deemed to be amended and restated in the form of this Agreement, with the effect
that (a) the Commitments of the Banks shall be as set forth herein, (b) each
Bank that has a commitment under the Existing Credit Agreement that is different
then its Commitment hereunder shall be deemed to have continued its Commitment
in the amount set forth herein and (c) each "Bank" with a commitment under the
Existing Credit Agreement that is not a party hereto shall cease to be a Bank
and its commitment under the Existing Credit Agreement shall be deemed
terminated. By its execution hereof, each undersigned Bank that also is a party
to the Existing Credit Agreement hereby waives the provisions of the Existing
Credit Agreement that would require advance notice for the termination of
commitments thereunder or the prepayment of loans thereunder; provided that (a)
the foregoing waiver shall apply only to the termination of commitments under
the Existing Credit Agreement on the Effective Date as contemplated by the
preceding sentence and repayment of all loans outstanding thereunder in
connection with the effectiveness of this Agreement and (b) the Borrower shall,
in lieu of advance notice of any such termination
51
or prepayment, give notice thereof to the Agent (as defined in the Existing
Credit Agreement) on the date of such termination or prepayment.
SECTION 9.12. USA PATRIOT Act. Each Lender hereby notifies the
Borrowers that pursuant to the requirements of the USA PATRIOT Act (Title III of
Pub. L. 107-56 (signed into law October 26, 2001)), such Lender is required to
obtain, verify and record information that identifies the Borrowers, which
information includes the name and address of the Borrowers and other information
that will allow such Lender to identify the Borrowers in accordance with said
Act.
SECTION 9.13. WAIVER OF JURY TRIAL. EACH OF THE BORROWER, THE AGENT
AND THE BANKS HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN
ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
52
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
THE CHUBB CORPORATION,
by /s/ Douglas A. Nordstrom
--------------------------------------
Name: Douglas A. Nordstrom
Title: Vice President & Treasurer
15 Mountain View Road
Warren, New Jersey 07059
Attention: Douglas A. Nordstrom
Commitments
$35,000,000
DEUTSCHE BANK AG, NEW YORK
BRANCH,
by /s/ Clinton M. Johnson
--------------------------------------
Name: Clinton M. Johnson
Title: Managing Director
by /s/ John S. McGill
--------------------------------------
Name: John S. McGill
Title: Director
Postal Fax Note 7671 Date : 6-2204 No of pages 2
To Rachel Cohen From
Co./Dept. Co.
Phone # Phone #
Fax # 212 474-3700 Fax # 212 797-0270
$35,000,000
CITICORP USA, INC.,
By /s/ Maria Hackley
--------------------------------------------
Name: Maria Hackley
Title: Managing Director
$30,000,000
THE BANK OF NEW YORK,
by /s/ Scott Schaffer
-----------------------------------------
Name: Scott Schaffer
Title: Vice President
$20,000,000
ABN AMRO BANK N.V.,
by /s/ Neil R. Stein
--------------------------------------
Name: Neil R. Stein
Title: Director
by /s/ Michael DeMarco
--------------------------------------
Name: Michael DeMarco
Title: Assistant Vice President
$20,000,000
HSBC BANK USA,
by /s/ Kennath J. Johnson
--------------------------------------
Name: Kennath J. Johnson
Title: Senior Vice President
$20,000,000
MELLON BANK, N.A.,
by /s/ Maria E. Totin
--------------------------------------
Name: Maria E. Totin
Title: Assistant Vice President
$20,000,000
WACHOVIA BANK, NATIONAL
ASSOCIATION.,
by /s/ Kimberly Shaffer
--------------------------------------
Name: Kimberly Shaffer
Title: Director
$20,000,000
JPMORGAN CHASE BANK,
by /s/ Lawrence Palumbo
--------------------------------------
Name: Lawrence Palumbo
Title: Vice President
$15,000,000
BANK OF AMERICA, N.A.,
by /s/ Leslie Nannen
--------------------------------------
Name: Leslie Nannen
Title: Principal
$15,000,000
STATE STREET BANK AND TRUST
COMPANY,
by /s/ Edward M. Anderson
--------------------------------------
Name: Edward M. Anderson
Title: Vice President
$20,000,000
THE BANK OF NOVA SCOTIA,
by /s/ Todd S. Meller
--------------------------------------
Name: Todd S. Meller
Title: Managing Director
Total Commitments
$250,000,000
DEUTSCHE BANK AG, NEW YORK
BRANCH,
as Agent,
by /s/ Clinton M. Johnson
--------------------------------------
Name: Clinton M. Johnson
Title: Managing Director
by /s/ John S. McGill
--------------------------------------
Name: John S. McGill
Title: Director
EXHIBIT A
NOTE
New York, New York
June [], 2004
For value received, The Chubb Corporation, a New Jersey corporation
(the "Borrower"), promises to pay to the order of_____________________________
(the "Bank"), for the account of its Applicable Lending Office, the unpaid
principal amount of each Loan made by the Bank to the Borrower pursuant to the
Amended and Restated Credit Agreement referred to below on the last day of the
Interest Period relating to such Loan. The Borrower promises to pay interest on
the unpaid principal amount of each such Loan on the dates and at the rate or
rates provided for in the Amended and Restated Credit Agreement. All such
payments of principal and interest shall be made in lawful money of the United
States in Federal or other immediately available funds at the office of Deutsche
Bank AG, 31 West 52nd Street, New York, NY 10019.
All Loans made by the Bank, the respective types and maturities
thereof and all repayments of the principal thereof shall be recorded by the
Bank and, prior to any transfer hereof, appropriate notations to evidence the
foregoing information with respect to each such Loan then outstanding shall be
endorsed by the Bank on the schedule attached hereto, or on a continuation of
such schedule attached to and made a part hereof; provided that the failure of
the Bank to make any such recordation or endorsement shall not affect the
obligations of the Borrower hereunder or under the Amended and Restated Credit
Agreement.
This note is one of the Notes referred to in the Amended and
Restated Short-Term Credit Agreement dated as of June 23, 2004, among the
Borrower, the banks listed on the signature pages thereof, Deutsche Bank AG and
Citigroup Global Markets Inc., as Joint Lead Arrangers and Joint Book Runners,
Deutsche Bank AG, as Administrative Agent and Citicorp USA, Inc., as Syndication
Agent (as the same may be amended from time to time, the "Credit Agreement").
Terms defined in the Credit Agreement are used herein with the same meanings.
Reference is made to the Credit Agreement for provisions for the prepayment
hereof and the acceleration of the maturity hereof.
THE CHUBB CORPORATION,
by
______________________________________
Note (Cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
If Alternative
Type, Currency Currency, Amount of
and Dollar Principal Maturity Notation
Date Amount of Loan Amount Repaid Date Made By
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2
EXHIBIT B
Form of Money Market Quote Request
[Date]
To: Deutsche Bank AG (the "Agent")
From: The Chubb Corporation
Re: Amended and Restated Short-Term Credit Agreement (the "Credit
Agreement") dated as of June 23, 2004, among the Borrower, the Banks
listed on the signature pages thereof, Deutsche Bank AG and
Citigroup Global Markets Inc., as Joint Lead Arrangers and Joint
Book Runners, Deutsche Bank AG, as Administrative Agent and Citicorp
USA, Inc., as Syndication Agent
We hereby give notice pursuant to Section 2.03 of the Credit
Agreement that we request Money Market Quotes for the following proposed Money
Market Borrowing(s):
Date of Borrowing: __________________
Principal Amount(l) Currency(2) Interest Period(3)
$
Such Money Market Quotes should offer a Money Market [Margin]
[Absolute Rate]. [The applicable base rate is the London Interbank Offered
Rate.]
Terms used herein have the meanings assigned to them in the Credit
Agreement.
THE CHUBB CORPORATION,
by
______________________________________
Name:
Title:
- -------------------
(1) Amount must be $10,000,000 or a larger multiple of $1,000,000
(2) Dollars or an Alternative Currency
(3) Not less than one month (LIBOR Auction) or not less than 7 days
(Absolute Rate Auction), subject to the provisions of the definition of Interest
Period.
EXHIBIT C
Form of Invitation for Money Market Quotes
To: [Name of Bank]
Re: Invitation for Money Market Quotes to The Chubb Corporation (the
"Borrower")
Pursuant to Section 2.03 of the Amended and Restated Short-Term
Credit Agreement dated as of June 23, 2004, among the Borrower, the Banks
parties thereto and the undersigned, as Agent, we are pleased on behalf of the
Borrower to invite you to submit Money Market Quotes to the Borrower for the
following proposed Money Market Borrowing(s):
Date of Borrowing:________________________
Principal Amount Currency Interest Period
- ---------------- -------- ---------------
$
Such Money Market Quotes should offer a Money Market [Margin]
[Absolute Rate]. [The applicable base rate is the London Interbank Offered
Rate.]
Please respond to this invitation by no later than [2:00 P.M.] [9:00
A.M.] (New York City time) on [date].
DEUTSCHE BANK AG,
by
______________________________________
Authorized Officer
EXHIBIT D
Form of Money Market Quote
DEUTSCHE BANK AG, as Administrative Agent
31 West 52nd Street
New York, NY 10019
Attention:
Re: Money Market Quote to
The Chubb Corporation (the "Borrower")
In response to your invitation on behalf of the Borrower
dated_______, 20_, we hereby make the following Money Market Quote on the
following terms:
1. Quoting Bank: _________________________________________
2. Person to contact at Quoting Bank: _____________
3. Date of Borrowing: __________________(1)
4. Currency: ___________________________(2)
- -------------------
(1) As specified in the related invitation.
(2) Principal amount bid for each Interest Period may not exceed principal
amount requested. Specify aggregate limitation if the sum of the individual
offers exceeds the amount the Bank is willing to lend. Bids must be made for
$1,000,000 or a larger multiple of $1,000,000 and must be expressed in Dollars.
5. We hereby offer to make Money Market Loan(s) in the following principal
amounts, for the following Interest Periods and at the following rates:
Money Market
Principal Amount(2) Interest Period(3) [Margin(4)] [Absolute Rate(5)]
$
$
[Provided, that the aggregate principal amount of Money Market Loans for which
the above offers may be accepted shall not exceed $_______](2)
We understand and agree that the offer(s) set forth above, subject
to the satisfaction of the applicable conditions set forth in the Amended and
Restated Short-Term Credit Agreement dated as of June 23, 2004, among the
Borrower, the Banks listed on the signature pages thereof and yourselves, as
Agent, irrevocably obligates us to make the Money Market Loan(s) for which any
offer(s) are accepted, in whole or in part.
Very truly yours,
[NAME OF BANK]
Dated:__________________ By:_________________________________________
Authorized Officer
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(3) Not less than one month or not less than seven days, as
specified in the related invitation. No more than five bids are permitted for
each Interest Period.
(4) Margin over or under the London Interbank Offered Rate
determined for the applicable Interest Period. Specify percentage (to the
nearest 1/10,000 of 1%) and specify whether "PLUS" or "MINUS".
(5) Specify rate of interest per annum (to the nearest 1/10,000th of
1%).
2
EXHIBIT E-l
OPINION OF
COUNSEL FOR THE BORROWER
[Effective Date]
To the Banks and the Agent
Referred to Below
c/o Deutsche Bank AG, as Administrative Agent
31 West 52nd Street
New York, NY 10019
Re: Amended and Restated Short Term Credit Agreement (the "Credit Agreement"),
dated as of June 23, 2004, among the Borrower, the banks listed on the
signature pages thereof, Deutsche Bank Securities Inc. and Citigroup
Global Markets Inc., as Arrangers, Deutsche Bank AG New York Branch and
Citicorp USA, Inc. as Swingline Lenders, Deutsche Bank AG New York Branch,
as Administrative Agent and Citicorp USA, Inc., as Syndication Agent
Ladies and Gentlemen:
I am providing you with this opinion solely in my capacity as
Assistant Vice President and Associate Counsel of The Chubb Corporation (the
"Borrower"), and not in any individual or other capacity, in connection with the
execution, delivery and performance of the Credit Agreement by the Borrower.
I have examined and relied upon originals or copies of corporate
documents and records of the Borrower, certificates of public officials and
officers of the Borrower and such other documents and instruments as I have
deemed necessary or appropriate for purposes of rendering the opinions expressed
below. In addition, I have made such other investigations of law and inquiries
of officers of the Borrower as I have deemed necessary or appropriate. I have
assumed, without verifying, the authenticity of all documents submitted to me as
originals and the conformity to authentic original documents of all documents
submitted to me as certified, conformed or photostatic copies and the
authenticity of the originals of such documents. As to matters material to my
opinions, I have relied upon representations of the Borrower, including those
set forth in the Credit Agreement.
Based upon the foregoing, it is my opinion that the execution,
delivery and performance by the Borrower of the Credit Agreement and the Notes
(i) are within the Borrower's corporate powers, (ii) have been duly authorized
by the requisite corporate action, and (iii) do not contravene the certificate
of incorporation or by-laws of the Borrower.
I am a member of the bar of the State of New Jersey. I express no
opinion with respect to any matters governed by any law other than the corporate
laws of the State of New Jersey.
The foregoing opinions are rendered to you solely in connection with
the matter described in the initial paragraph of this letter. The opinions
expressed herein may not be relied upon by you for any other purpose or relied
upon by or furnished to any other person without my prior written consent. The
foregoing opinions speak only as of the date hereof and I undertake no
obligation to update the matters discussed herein.
Very truly yours,
W. Andrew Macan
Assistant Vice President
and Associate Counsel
2
EXHIBIT E-2
[Letterhead of]
CRAVATH, SWAINE & MOORE LLP
[NEW YORK Office]
June 23, 2004
The Chubb Corporation
Amended and Restated Short-Term Credit Agreement
Dated as of June 23, 2004
Ladies and Gentlemen:
We have acted as special counsel for the Administrative Agent under
and as defined in the Amended and Restated Short-Term Credit Agreement dated as
of June 23, 2004 (the "Credit Agreement"), among The Chubb Corporation (the
"Borrower"), the banks parties thereto (the "Banks"), Deutsche Bank Securities
Inc. and Citigroup Global Markets Inc., as Arrangers, Deutsche Bank AG New York
Branch and Citicorp USA, Inc. as Swingline Lenders, Deutsche Bank AG New York
Branch, as Administrative Agent and Citicorp USA, Inc., as Syndication Agent. In
that connection, we have examined originals, or copies certified or otherwise
identified to our satisfaction, of such documents, corporate records and other
instruments as we have deemed necessary or appropriate for purposes of this
opinion.
For purposes of giving the opinions set forth herein, we have
assumed without independent investigation that (i) the Credit Agreement has been
duly authorized, exercised and delivered by all parties thereto, including the
Borrower, and (ii) the execution, delivery and performance by the Borrower of
the Credit Agreement are within its powers and do not contravene or constitute a
default under its organizational documents or any agreement, judgment,
injunction, order, decree or other instrument binding upon it or any of its
assets.
Based on the foregoing and subject to the qualifications hereinafter
set forth, we are of opinion that:
1. Based solely on a Certificate of Good Standing from the Secretary
of State of the State of New Jersey, the Borrower is a corporation validly
existing under the laws of the State of New Jersey.
2. The Credit Agreement constitutes a legal, valid and binding
obligation of the Borrower, enforceable against the Borrower in accordance with
its terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer and other similar laws relating to or affecting
creditors' rights generally from time to time in effect and to general
principles of equity (including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing),
regardless of whether considered in a proceeding in equity or at law. With
respect to the foregoing opinion, (i) insofar as provisions contained in the
Credit Agreement provide for indemnification, the enforceability thereof may be
limited by public policy considerations, (ii) the availability of a decree for
specific performance or an injunction is subject to the discretion of the court
requested to issue any such decree or injunction and (iii) we express no opinion
as to the effect (if any) of any law of any jurisdiction (other than the State
of New York) in which any Bank is located which limits the rate of interest that
such Bank may charge or collect. We express no opinion as to Section 9.13 of the
Credit Agreement insofar as such Section relates to the subject matter
jurisdiction of the United States District Court for the Southern District of
New York to adjudicate any controversy related to the Credit Agreement or
provides for the waiver of an inconvenient forum.
3. The execution and delivery by the Borrower of the Credit
Agreement and the performance of its obligations thereunder do not violate any
applicable law, rule or regulation of the United States of America or the State
of New York.
We are members of the Bar of the State of New York and the foregoing
opinion is limited to the law of the State of New York and the Federal laws of
the United States of America.
This opinion is rendered solely to you in connection with the above
matter. This opinion may not be relied upon for any other purpose or relied upon
by any other person without our prior written consent.
Very truly yours,
To the Banks and the Administrative Agent referred to above
c/o Deutsche Bank AG, as Administrative Agent,
31 West 52nd Street
New York, NY 10019
2
EXHIBIT F
ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of , 20___ among [ASSIGNOR]
(the "Assignor"), [ASSIGNEE] (the "Assignee"), THE CHUBB
CORPORATION (the "Borrower") and DEUTSCHE BANK AG, as
Administrative Agent (the "Agent").
WITNESSETH
WHEREAS this Assignment and Assumption Agreement (the "Agreement")
relates to the Amended and Restated Short-Term Credit Agreement dated as of June
23, 2004, among the Borrower, the Assignor, the other Banks party thereto, as
Banks, Deutsche Bank AG and Citigroup Global Markets Inc., as Joint Lead
Arrangers and Joint Book Runners, Deutsche Bank AG, as Administrative Agent and
Citicorp USA, Inc., as Syndication Agent (the "Credit Agreement");
WHEREAS, as provided under the Credit Agreement, the Assignor has a
Commitment to make Loans to the Borrower in an aggregate principal amount at any
time outstanding not to exceed $_____________;
WHEREAS, Committed Loans made to the Borrower by the Assignor under
the Credit Agreement in the aggregate principal amount of $___________are
outstanding at the date hereof; and
WHEREAS, the Assignor proposes to assign to the Assignee all of the
rights of the Assignor under the Credit Agreement in respect of a portion of its
Commitment thereunder in an amount equal to $ (the "Assigned Amount"),
together with a corresponding portion of its outstanding Committed Loans, and
the Assignee proposes to accept assignment of such rights and assume the
corresponding obligations from the Assignor on such terms;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
SECTION 1. Definitions. All capitalized terms not otherwise defined
herein shall have the respective meanings set forth in the Credit Agreement.
SECTION 2. Assignment. The Assignor hereby assigns and sells to the
Assignee all of the rights of the Assignor under the Credit Agreement to the
extent of the Assigned Amount, and the Assignee hereby accepts such assignment
from the Assignor and assumes all of the obligations of the Assignor under the
Credit Agreement to the extent of the Assigned Amount, including the purchase
from the Assignor of the corresponding portion of the principal amount of the
Committed Loans made by the Assignor outstanding at the date hereof. Upon the
execution and delivery hereof by the Assignor, the Assignee, the Borrower and
the Agent and the payment of the amounts specified in Section 3 required to be
paid on the date hereof (i) the Assignee shall, as of the date hereof, succeed
to the rights and be obligated to perform the obligations of a
Bank under the Credit Agreement with a Commitment in an amount equal to the
Assigned Amount, and (ii) the Commitment of the Assignor shall, as of the date
hereof, be reduced by a like amount and the Assignor released from its
obligations under the Credit Agreement to the extent such obligations have been
assumed by the Assignee. The assignment provided for herein shall be without
recourse to the Assignor.
SECTION 3. Payments. As consideration for the assignment and sale
contemplated in Section 2 hereof, the Assignee shall pay to the Assignor on the
date hereof in Federal funds an amount equal to $ (9). It is understood that
facility fees accrued to the date hereof are for the account of the Assignor and
such fees accruing from and including the date hereof are for the account of the
Assignee. Each of the Assignor and the Assignee hereby agrees that if it
receives any amount under the Credit Agreement which is for the account of the
other party hereto, it shall receive the same for the account of such other
party to the extent of such other party's interest therein and shall promptly
pay the same to such other party.
SECTION 4. Consent of the Borrower and the Agent. This Agreement is
conditioned upon the consent of the Borrower and the Agent pursuant to Section
9.06(c) of the Credit Agreement. The execution of this Agreement by the Borrower
and the Agent is evidence of this consent. Pursuant to Section 9.06(c) the
Borrower agrees, if requested, to execute and deliver a Note payable to the
order of the Assignee to evidence the assignment and assumption provided for
herein.
SECTION 5. Nonreliance on Assignor. The Assignor makes no
representation or warranty in connection with, and shall have no responsibility
with respect to, the solvency, financial condition, or statements of the
Borrower, or the validity and enforceability of the obligations of the Borrower
in respect of the Credit Agreement or any Note. The Assignee acknowledges that
it has, independently and without reliance on the Assignor, and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement and will continue to be
responsible for making its own independent appraisal of the business, affairs
and financial condition of the Borrower.
SECTION 6. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 7. Counterparts. This Agreement may be signed in any number
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
- -------------------
(9) Amount should combine principal together with accrued interest
and breakage compensation, if any, to be paid by the Assignee, net of any
portion of any upfront fee to be paid by the Assignor to the Assignee. It may be
preferable in an appropriate case to specify these amounts generically or by
formula rather than as a fixed sum.
2
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date first
above written.
[ASSIGNOR],
by
______________________________________
Name:
Title:
[ASSIGNEE],
by
______________________________________
Name:
Title:
THE CHUBB CORPORATION,
by
______________________________________
Name:
Title:
DEUTSCHE BANK AG,
by
______________________________________
Name:
Title:
3