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EXHIBIT 10 (x)
EXECUTION COPY
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$437,500,000
THREE YEAR CREDIT AGREEMENT
AMONG
AON CORPORATION,
AS BORROWER,
THE LENDERS,
BANK ONE, NA,
AS AGENT,
AND
CITIBANK, N.A.,
ABN AMRO BANK N.V.
AND
FIRST UNION NATIONAL BANK,
AS SYNDICATION AGENTS
DATED AS OF
FEBRUARY 8, 2002
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BANC ONE CAPITAL MARKETS, INC.
SOLE LEAD ARRANGER AND SOLE BOOK MANAGER
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TABLE OF CONTENTS
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ARTICLE I DEFINITIONS.............................................................1
ARTICLE II THE CREDITS...........................................................12
2.1. Commitment...............................................................12
2.2. Required Payments; Termination...........................................12
2.3. Ratable Loans............................................................12
2.4. Types of Advances........................................................12
2.5. Facility Fee; Utilization Fee; Reductions in Aggregate Commitment........12
2.6. Minimum Amount of Each Advance...........................................13
2.7. Optional Principal Payments..............................................13
2.8. Method of Selecting Types and Interest Periods for New Advances..........13
2.9. Conversion and Continuation of Outstanding Advances......................14
2.10. Changes in Interest Rate, etc............................................14
2.11. Rates Applicable After Default...........................................15
2.12. Method of Payment........................................................15
2.13. Noteless Agreement; Evidence of Indebtedness.............................15
2.14. Telephonic Notices.......................................................16
2.15. Interest Payment Dates; Interest and Fee Basis...........................16
2.16. Notification of Advances, Interest Rates, Prepayments and Commitment
Reductions...............................................................17
2.17. Lending Installations....................................................17
2.18. Non-Receipt of Funds by the Agent........................................17
2.19. Replacement of Lender....................................................17
ARTICLE III YIELD PROTECTION; TAXES..............................................18
3.1. Yield Protection.........................................................18
3.2. Changes in Capital Adequacy Regulations..................................18
3.3. Availability of Types of Advances........................................19
3.4. Funding Indemnification..................................................19
3.5. Taxes....................................................................19
3.6. Lender Statements; Survival of Indemnity.................................21
ARTICLE IV CONDITIONS PRECEDENT..................................................22
4.1. Effectiveness............................................................22
4.2. Each Advance.............................................................23
ARTICLE V REPRESENTATIONS AND WARRANTIES.........................................23
5.1. Corporate Existence and Standing.........................................23
5.2. Authorization and Validity...............................................24
5.3. Compliance with Laws and Contracts.......................................24
5.4. Governmental Consents....................................................24
5.5. Financial Statements.....................................................24
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5.6. Material Adverse Change..................................................25
5.7. Taxes....................................................................25
5.8. Litigation and Contingent Obligations....................................25
5.9. ERISA....................................................................25
5.10. Defaults.................................................................26
5.11. Regulation U.............................................................26
5.12. Investment Company; Public Utility Holding Company.......................26
5.13. Ownership of Properties..................................................26
5.14. Material Agreements......................................................26
5.15. Environmental Laws.......................................................27
5.16. Insurance................................................................27
5.17. Insurance Licenses.......................................................27
5.18. Solvency.................................................................27
5.19. Disclosure...............................................................28
ARTICLE VI COVENANTS.............................................................28
6.1. Financial Reporting......................................................28
6.2. Use of Proceeds..........................................................29
6.3. Notice of Default........................................................29
6.4. Conduct of Business......................................................30
6.5. Taxes....................................................................30
6.6. Insurance................................................................30
6.7. Compliance with Laws.....................................................30
6.8. Maintenance of Properties................................................30
6.9. Inspection...............................................................30
6.10. Capital Stock and Dividends..............................................30
6.11. Merger...................................................................31
6.12. Liens....................................................................31
6.13. Affiliates...............................................................32
6.14. Change in Fiscal Year....................................................32
6.15. Inconsistent Agreements..................................................32
6.16. Sale of Assets...........................................................33
6.17. Financial Covenants......................................................33
6.18. ERISA....................................................................33
ARTICLE VII DEFAULTS.............................................................33
ARTICLE VIII ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES......................35
8.1. Acceleration.............................................................35
8.2. Amendments...............................................................35
8.3. Preservation of Rights...................................................36
ARTICLE IX GENERAL PROVISIONS....................................................36
9.1. Survival of Representations..............................................36
9.2. Governmental Regulation..................................................36
9.3. Headings.................................................................37
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9.4. Entire Agreement.........................................................37
9.5. Several Obligations; Benefits of this Agreement..........................37
9.6. Expenses; Indemnification................................................37
9.7. Numbers of Documents.....................................................37
9.8. Accounting...............................................................38
9.9. Severability of Provisions...............................................38
9.10. Nonliability of Lenders..................................................38
9.11. Confidentiality..........................................................38
9.12. Disclosure...............................................................38
ARTICLE X THE AGENT..............................................................38
10.1. Appointment..............................................................38
10.2. Powers...................................................................39
10.3. General Immunity.........................................................39
10.4. No Responsibility for Loans, Recitals, etc...............................39
10.5. Action on Instructions of Lenders........................................39
10.6. Employment of Agents and Counsel.........................................40
10.7. Reliance on Documents; Counsel...........................................40
10.8. Agent's Reimbursement and Indemnification................................40
10.9. Notice of Default........................................................41
10.10. Rights as a Lender.......................................................41
10.11. Lender Credit Decision...................................................41
10.12. Successor Agent..........................................................41
10.13. Agent and Arranger Fees..................................................42
10.14. Delegation to Affiliates.................................................42
10.15. Syndication Agents; Senior Managing Agents; Managing Agents..............42
ARTICLE XI SETOFF; RATABLE PAYMENTS..............................................42
11.1. Setoff...................................................................42
11.2. Ratable Payments.........................................................42
ARTICLE XII BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS....................43
12.1. Successors and Assigns...................................................43
12.2. Participations...........................................................43
12.3. Assignments..............................................................44
12.4. Dissemination of Information.............................................45
12.5. Tax Treatment............................................................45
ARTICLE XIII NOTICES.............................................................45
13.1. Giving Notice............................................................45
13.2. Change of Address........................................................46
ARTICLE XIV COUNTERPARTS.........................................................46
ARTICLE XV CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY
TRIAL............................................................................46
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15.1. CHOICE OF LAW............................................................46
15.2. CONSENT TO JURISDICTION..................................................46
15.3. WAIVER OF JURY TRIAL.....................................................47
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EXHIBITS
Exhibit A Note
Exhibit B Compliance Certificate
Exhibit C Assignment Agreement
SCHEDULES
Pricing Schedule
Schedule 1 Commitments
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THREE YEAR CREDIT AGREEMENT
This Three Year Credit Agreement, dated as of February 8, 2002, is among
Aon Corporation, a Delaware corporation, the Lenders and Bank One, NA, a
national banking association having its principal office in Chicago, Illinois,
as Agent.
RECITALS:
A. The Borrower has requested the Lenders to make financial
accommodations to it in the aggregate principal amount of $437,500,000; and
B. The Lenders are willing to extend such financial accommodations on
the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements made herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Borrower, the
Lenders and the Agent hereby agree as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement:
"Advance" means a borrowing of Loans, (a) advanced by the Lenders on the
same Borrowing Date, or (b) converted or continued by the Lenders on the same
date of conversion or continuation, consisting, in either case, of the aggregate
amount of the several Loans of the same Type and, in the case of Eurodollar
Loans, for the same Interest Period.
"Affiliate" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person owns 10% or
more of any class of voting securities (or other ownership interests) of the
controlled Person or possesses, directly or indirectly, the power to direct or
cause the direction of the management or policies of the controlled Person,
whether through ownership of stock, by contract or otherwise.
"Agent" means Bank One in its capacity as contractual representative of the
Lenders pursuant to ARTICLE X, and not in its individual capacity as a Lender,
and any successor Agent appointed pursuant to ARTICLE X.
"Aggregate Commitment" means the aggregate of the Commitments of all the
Lenders, as reduced from time to time pursuant to the terms hereof. The initial
Aggregate Commitment is $437,500,000.
"Agreement" means this Three Year Credit Agreement, as it may be amended or
modified and in effect from time to time.
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"Agreement Accounting Principles" means generally accepted accounting
principles as in effect from time to time, applied in a manner consistent with
those used in preparing the financial statements referred to in SECTION 5.5.
"Alternate Base Rate" means, for any day, a rate of interest per annum
equal to the higher of (a) the Prime Rate for such day, and (b) the sum of the
Federal Funds Effective Rate for such day plus 1/2% per annum.
"Alternate Base Rate Advance" means an Advance which, except as otherwise
provided in SECTION 2.11, bears interest at the Alternate Base Rate.
"Alternate Base Rate Loan" means a Loan which, except as otherwise provided
in SECTION 2.11, bears interest at the Alternate Base Rate.
"Applicable Facility Fee Rate" means, at any time, the percentage
determined in accordance with the Pricing Schedule at such time. The Applicable
Facility Fee Rate shall change as and when the Borrower Debt Rating changes. The
initial Applicable Facility Fee Rate shall be .09%.
"Applicable Margin" means, with respect to Advances of any Type at any
time, the percentage rate per annum which is applicable at such time with
respect to Advances of such Type as set forth in the Pricing Schedule.
"Applicable Utilization Fee Rate" means, at any time, the percentage
determined in accordance with the Pricing Schedule at such time. The Applicable
Utilization Fee Rate shall change as and when the Borrower Debt Rating changes.
"Approved Fund" means any Fund that is administered or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers or manages a Lender.
"Arranger" means Banc One Capital Markets, Inc., a Delaware corporation,
and its successors, in its capacity as "Sole Lead Arranger" and "Sole Book
Manager".
"Article" means an article of this Agreement unless another document is
specifically referenced.
"Authorized Officer" means any of the president, chief financial officer,
treasurer or vice-president and controller of the Borrower, acting singly.
"Bank One" means Bank One, NA, a national banking association having its
principal office in Chicago, Illinois, in its individual capacity, and its
successors.
"Borrower" means Aon Corporation, a Delaware corporation, and its
successors and assigns.
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"Borrower Debt Rating" means the senior unsecured long term debt (without
third party credit enhancement) rating of the Borrower as determined by a rating
agency identified on the Pricing Schedule.
"Borrowing Date" means a date on which an Advance is made hereunder.
"Borrowing Notice" is defined in SECTION 2.8.
"Business Day" means (a) with respect to any borrowing, payment or rate
selection of Eurodollar Advances, a day (other than a Saturday or Sunday) on
which banks generally are open in Chicago and New York for the conduct of
substantially all of their commercial lending activities, interbank wire
transfers can be made on the Fedwire system and dealings in United States
dollars are carried on in the London interbank market and (b) for all other
purposes, a day (other than a Saturday or Sunday) on which banks generally are
open in Chicago and New York for the conduct of substantially all of their
commercial lending activities and interbank wire transfers can be made on the
Fedwire system.
"Capitalized Lease" of a Person means any lease of Property by such Person
as lessee which would be capitalized on a balance sheet of such Person prepared
in accordance with Agreement Accounting Principles.
"Capitalized Lease Obligations" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be shown as a
liability on a balance sheet of such Person prepared in accordance with
Agreement Accounting Principles.
"Change" is defined in SECTION 3.2.
"Change in Control" means (a) the acquisition by any Person, or two or more
Persons acting in concert, including without limitation any acquisition effected
by means of any transaction contemplated by SECTION 6.11, of beneficial
ownership (within the meaning of Rule 13d-3 of the Securities and Exchange
Commission under the Securities Exchange Act of 1934) of 20% or more of the
outstanding shares of voting stock of the Borrower, or (b) during any period of
25 consecutive calendar months, commencing on the date of this Agreement, the
ceasing of those individuals (the "CONTINUING DIRECTORS") who (i) were directors
of the Borrower on the first day of each such period or (ii) subsequently became
directors of the Borrower and whose initial election or initial nomination for
election subsequent to that date was approved by a majority of the Continuing
Directors then on the board of directors of the Borrower, to constitute a
majority of the board of directors of the Borrower.
"Code" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"Commitment" means, for each Lender, the obligation of such Lender to make
Loans not exceeding the amount set forth opposite its name on SCHEDULE 1 hereto,
as it may be modified as a result of any assignment that has become effective
pursuant to SECTION 12.3.2 or as otherwise modified from time to time pursuant
to the terms hereof.
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"Condemnation" is defined in SECTION 7.8.
"Consolidated" or "consolidated", when used in connection with any
calculation, means a calculation to be determined on a consolidated basis for
the Borrower and its Subsidiaries in accordance with Agreement Accounting
Principles.
"Consolidated EBITDA" means Consolidated Net Income PLUS, to the extent
deducted from revenues in determining Consolidated Net Income, (i) Consolidated
Interest Expense, (ii) expense for taxes paid or accrued, (iii) depreciation,
(iv) amortization and (v) extraordinary losses incurred other than in the
ordinary course of business, MINUS, to the extent included in Consolidated Net
Income, extraordinary gains realized other than in the ordinary course of
business, all calculated for the Borrower and its Subsidiaries on a consolidated
basis.
"Consolidated Interest Expense" means, with reference to any period, the
interest expense of the Borrower and its Subsidiaries calculated on a
consolidated basis for such period.
"Consolidated Net Income" means, with reference to any period, the net
income (or loss) of the Borrower and its Subsidiaries calculated on a
consolidated basis for such period.
"Consolidated Net Worth" means, at any date of determination, the
consolidated common stockholders' equity of the Borrower and its consolidated
Subsidiaries determined in accordance with Agreement Accounting Principles.
"Consolidated Person" means, for the taxable year of reference, each Person
which is a member of the affiliated group of the Borrower if Consolidated
returns are or shall be filed for such affiliated group for federal income tax
purposes or any combined or unitary group of which the Borrower is a member for
state income tax purposes.
"Contingent Obligation" of a Person means any agreement, undertaking or
arrangement by which such Person assumes, guarantees, endorses, contingently
agrees to purchase or provide funds for the payment of, or otherwise becomes or
is contingently liable upon, the obligation or liability of any other Person, or
agrees to maintain the net worth or working capital or other financial condition
of any other Person, or otherwise assures any creditor of such other Person
against loss, including, without limitation, any comfort letter, operating
agreement or take-or-pay contract or application for a Letter of Credit.
"Controlled Group" means all members of a controlled group of corporations
or other business entities and all trades or businesses (whether or not
incorporated) under common control which, together with the Borrower or any of
its Subsidiaries, are treated as a single employer under Section 414 of the
Code.
"Conversion/Continuation Notice" is defined in SECTION 2.9.
"CSC" means Combined Specialty Corporation, a Wholly-Owned Subsidiary of
the Borrower, that will, immediately prior to the CSC Spin-Off, hold only the
general insurance underwriting business of the Borrower.
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"CSC Distribution Agreement" means the distribution agreement to be filed
with the U.S. Securities and Exchange Commission and entered into between the
Borrower and CSC to effect the CSC Spin-Off in material conformity with the
description of the CSC Spin-Off and pro-forma financial information relating to
the CSC Spin-Off which was included in the Form 8-K filed with the U.S.
Securities and Exchange Commission on December 3, 2001 by the Borrower under the
Securities Act of 1934.
"CSC Group" means CSC and each of CSC's Subsidiaries.
"CSC Spin-Off" means the distribution, as a tax-free dividend by the
Borrower to the current holders of the Borrower's common stock, of the
outstanding shares of common stock of CSC to be effected pursuant to the terms
of the CSC Distribution Agreement, together with the related transactions
expressly contemplated by the terms of the CSC Distribution Agreement.
"Default" means an event described in ARTICLE VII.
"Environmental Laws" is defined in SECTION 5.15.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any rule or regulation issued thereunder.
"Eurodollar Advance" means an Advance which, except as otherwise provided
in SECTION 2.11, bears interest at the applicable Eurodollar Rate.
"Eurodollar Base Rate" means, with respect to a Eurodollar Advance: (a) for
any one, two, three or six month Interest Period applicable to such Eurodollar
Advance, the applicable British Bankers' Association Interest Settlement Rate
for deposits in U.S. dollars appearing on Reuters Screen FRBD as of 11:00 a.m.
(London time) two (2) Business Days prior to the first day of such Interest
Period, and having a maturity equal to such Interest Period, PROVIDED that, (i)
if Reuters Screen FRBD is not available to the Agent for any reason, the
applicable Eurodollar Base Rate for the relevant Interest Period shall instead
be the applicable British Bankers' Association Interest Settlement Rate for
deposits in U.S. dollars as reported by any other generally recognized financial
information service as of 11:00 a.m. (London time) two (2) Business Days prior
to the first day of such Interest Period, and having a maturity equal to such
Interest Period, and (ii) if no such British Bankers' Association Interest
Settlement Rate is available to the Agent, the applicable Eurodollar Base Rate
for the relevant Interest Period shall instead be the rate determined by the
Agent to be the rate at which Bank One or one of its Affiliate banks offers to
place deposits in U.S. dollars with first-class banks in the London interbank
market at approximately 11:00 a.m. (London time) two (2) Business Days prior to
the first day of such Interest Period, in the approximate amount of Bank One's
relevant Eurodollar Loan and having a maturity equal to such Interest Period; or
(b) for any fourteen (14) day Interest Period applicable to such Eurodollar
Advance, the rate determined by the Agent to be the rate at which Bank One or
one of its Affiliate banks offers to place deposits in U.S. dollars with
first-class banks in the interbank market at approximately 10:00 a.m. (Chicago
time) two (2) Business Days prior to the first day of such Interest Period, in
the approximate amount of Bank One's relevant Eurodollar Loan and having a
maturity equal to such Interest Period.
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"Eurodollar Loan" means a Loan which, except as otherwise provided in
SECTION 2.11, bears interest at the applicable Eurodollar Rate.
"Eurodollar Rate" means, with respect to a Eurodollar Advance for the
relevant Interest Period, the sum of (a) the quotient of (i) the Eurodollar Base
Rate applicable to such Interest Period, divided by (ii) one minus the Reserve
Requirement (expressed as a decimal) applicable to such Interest Period, plus
(b) the Applicable Margin for Eurodollar Advances.
"Excluded Taxes" means, in the case of each Lender or applicable Lending
Installation and the Agent, taxes imposed on its overall net income, and
franchise taxes imposed on it, by (i) the jurisdiction under the laws of which
such Lender or the Agent is incorporated or organized or (ii) the jurisdiction
in which the Agent's or such Lender's principal executive office or such
Lender's applicable Lending Installation is located.
"Exhibit" refers to an exhibit to this Agreement, unless another document
is specifically referenced.
"Existing Credit Agreements" means that certain $600,000,000 364-Day
Amended and Restated Credit Agreement dated as of October 8, 1998 among the
Borrower, Bank One, as agent, and the lenders named therein, and that certain
$600,000,000 Five Year Credit Agreement dated as of January 14, 1997 among the
Borrower, Bank One, as agent, and the lenders named therein, in each case as
amended, restated, supplemented or otherwise modified from time to time.
"Facility Termination Date" means February 8, 2005 or any earlier date on
which the Aggregate Commitment is reduced to zero or otherwise terminated
pursuant to the terms hereof.
"Federal Funds Effective Rate" means, for any day, an interest rate per
annum 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 for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations at approximately 10:00 a.m. (Chicago
time) on such day on such transactions received by the Agent from three Federal
funds brokers of recognized standing selected by the Agent in its sole
discretion.
"Financial Statements" is defined in SECTION 5.5.
"Fiscal Quarter" means each of the four three-month accounting periods
comprising a Fiscal Year.
"Fiscal Year" means the twelve-month accounting period ending December 31
of each year.
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"Fund" means any Person (other than a natural person) that is (or will be)
engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its business.
"Governmental Authority" means any government (foreign or domestic) or any
state or other political subdivision thereof or any governmental body, agency,
authority, department or commission (including without limitation any taxing
authority or political subdivision) or any instrumentality or officer thereof
(including, without limitation, any court or tribunal and any board of
insurance, insurance department or insurance commissioner) exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government and any corporation, partnership or other entity directly or
indirectly owned or controlled by or subject to the control of any of the
foregoing.
"Hazardous Materials" is defined in SECTION 5.15.
"Indebtedness" of a Person means such Person's (a) obligations for borrowed
money, (b) obligations representing the deferred purchase price of Property or
services (other than accounts payable arising in the ordinary course of such
Person's business payable on terms customary in the trade), (c) obligations,
whether or not assumed, secured by Liens or payable out of the proceeds or
production from Property now or hereafter owned or acquired by such Person, (d)
obligations which are evidenced by notes, acceptances, or similar instruments,
(e) Capitalized Lease Obligations, (f) Contingent Obligations, (g) obligations
for which such Person is obligated pursuant to or in respect of a Letter of
Credit and (h) repurchase obligations or liabilities of such Person with respect
to accounts or notes receivable sold by such Person.
"Interest Period" means, with respect to a Eurodollar Advance, a period of
fourteen (14) days or one, two, three or six months commencing on a Business Day
selected by the Borrower pursuant to this Agreement. An Interest Period of one,
two, three or six months shall end on (but exclude) the day which corresponds
numerically to such date one, two, three or six months thereafter; PROVIDED,
HOWEVER, that if there is no such numerically corresponding day in such next,
second, third or sixth succeeding month, such Interest Period shall end on the
last Business Day of such next, second, third or sixth succeeding month. If an
Interest Period would otherwise end on a day which is not a Business Day, such
Interest Period shall end on the next succeeding Business Day; PROVIDED,
HOWEVER, that if said next succeeding Business Day falls in a new calendar
month, such Interest Period shall end on the immediately preceding Business Day.
"Lenders" means the lending institutions listed on the signature pages of
this Agreement and their respective successors and assigns.
"Lending Installation" means, with respect to a Lender or the Agent, the
office, branch, subsidiary or affiliate of such Lender or the Agent listed on
the signature pages hereof or on a Schedule or otherwise selected by such Lender
or the Agent pursuant to SECTION 2.17.
"Letter of Credit" of a Person means a letter of credit or similar
instrument which is issued upon the application of such Person or upon which
such Person is an account party or for which such Person is in any way liable.
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"Lien" means any security interest, lien (statutory or other), mortgage,
pledge, hypothecation, assignment, deposit arrangement, encumbrance or
preference, priority or other security agreement or preferential arrangement of
any kind or nature whatsoever (including, without limitation, the interest of a
vendor or lessor under any conditional sale, Capitalized Lease or other title
retention agreement).
"Loan" means, with respect to a Lender, such Lender's loan made pursuant to
ARTICLE II (or any conversion or continuation thereof).
"Loan Documents" means this Agreement, any Notes issued pursuant to SECTION
2.13 and the other documents and agreements contemplated hereby and executed by
the Borrower in favor of the Agent or any Lender.
"Margin Stock" has the meaning assigned to that term under Regulation U.
"Material Adverse Effect" means a material adverse effect on (a) the
business, Property, condition (financial or otherwise), performance, results of
operations, or prospects of the Post-Spin-Off Group taken as a whole or, if the
Borrower has confirmed or it has notified the holders of the Borrower's common
stock or the US Securities and Exchange Commission that the CSC Spin-Off is not
to take place, the Borrower and its Subsidiaries taken as a whole, (b) the
ability of the Borrower to perform its obligations under the Loan Documents, or
(c) the validity or enforceability of any of the Loan Documents or the rights or
remedies of the Agent or the Lenders thereunder.
"Modified Required Lenders" means Lenders in the aggregate having at least
66 2/3% of the Aggregate Commitment or, if the Aggregate Commitment has been
terminated, Lenders in the aggregate holding at least 66 2/3% of the aggregate
unpaid principal amount of the outstanding Loans.
"Moody's" means Moody's Investors Service, Inc., or any successor thereto.
"Multiemployer Plan" means a Plan maintained pursuant to a collective
bargaining agreement or any other arrangement to which the Borrower or any
member of the Controlled Group is a party to which more than one employer is
obligated to make contributions.
"Non-U.S. Lender" is defined in SECTION 3.5(d).
"Note" is defined in SECTION 2.13.
"Obligations" means all unpaid principal of and accrued and unpaid interest
on the Loans, all accrued and unpaid fees and all expenses, reimbursements,
indemnities and other obligations of the Borrower to the Lenders or to any
Lender, the Agent or any indemnified party arising under the Loan Documents.
"Other Taxes" is defined in SECTION 3.5(b).
"Participants" is defined in SECTION 12.2.1.
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"Payment Date" means the last day of each March, June, September and
December.
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereto.
"Person" means any natural person, corporation, firm, joint venture,
partnership, association, enterprise, limited liability company, trust or other
entity or organization, or any government or political subdivision or any
agency, department or instrumentality thereof.
"Plan" means an employee pension benefit plan which is covered by Title IV
of ERISA or subject to the minimum funding standards under Section 412 of the
Code as defined in Section 3(2) of ERISA, as to which the Borrower or any member
of the Controlled Group may have any liability.
"Post-Spin-Off Group" means the Borrower and each of its Subsidiaries but
excluding any member of the CSC Group.
"Pricing Schedule" means the Schedule attached hereto identified as such.
"Prime Rate" means a rate per annum equal to the prime rate of interest
announced from time to time by Bank One or its parent (which is not necessarily
the lowest rate charged to any customer), changing when and as said prime rate
changes.
"Property" of a Person means any and all property, whether real, personal,
tangible, intangible, or mixed, of such Person, or other assets owned, leased or
operated by such Person.
"pro-rata" means, when used with respect to a Lender, and any described
aggregate or total amount, an amount equal to such Lender's pro-rata share or
portion based on its percentage of the Aggregate Commitment or if the Aggregate
Commitment has been terminated, its percentage of the aggregate principal amount
of outstanding Advances.
"Purchasers" is defined in SECTION 12.3.1.
"Regulation D" means Regulation D of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor thereto or other
regulation or official interpretation of said Board of Governors relating to
reserve requirements applicable to depositary institutions.
"Regulation U" means Regulation U of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by banks and certain other Persons for the purpose of
purchasing or carrying margin stocks applicable to member banks of the Federal
Reserve System and certain other Persons.
"Release" is defined in the Comprehensive Environmental Response,
Compensation and Liability Act, as amended, 42 U.S.C. 39601 ET SEQ.
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"Reportable Event" means a reportable event as defined in Section 4043 of
ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC has by regulation waived
the requirement of Section 4043(a) of ERISA that it be notified within thirty
(30) days of the occurrence of such event; PROVIDED, that a failure to meet the
minimum funding standard of Section 412 of the Code and of Section 302 of ERISA
shall be a Reportable Event regardless of the issuance of any such waiver of the
notice requirement in accordance with either Section 4043(a) of ERISA or Section
412(d) of the Code.
"Required Lenders" means Lenders in the aggregate having at least 51% of
the Aggregate Commitment or, if the Aggregate Commitment has been terminated,
Lenders in the aggregate holding at least 51% of the aggregate unpaid principal
amount of the outstanding Loans.
"Reserve Requirement" means, with respect to an Interest Period, the
maximum aggregate reserve requirement (including all basic, supplemental,
marginal and other reserves) which is imposed under Regulation D on Eurocurrency
liabilities.
"Risk-Based Capital Guidelines" is defined in SECTION 3.2.
"S&P" means Standard and Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc., or any successor thereto.
"Schedule" refers to a specific schedule to this Agreement, unless another
document is specifically referenced.
"Section" means a numbered section of this Agreement, unless another
document is specifically referenced.
"Single Employer Plan" means a Plan maintained by the Borrower or any
member of the Controlled Group for employees of the Borrower or any member of
the Controlled Group.
"Subsidiary" of a Person means (a) any corporation more than 50% of the
outstanding securities having ordinary voting power of which shall at the time
be owned or controlled, directly or indirectly, by such Person or by one or more
of its Subsidiaries or by such Person and one or more of its Subsidiaries, or
(b) any partnership, association, joint venture, limited liability company or
similar business organization more than 50% of the ownership interests having
ordinary voting power of which shall at the time be so owned or controlled.
Unless otherwise expressly provided, all references herein to a "Subsidiary"
shall mean a Subsidiary of the Borrower.
"Substantial Portion" means, with respect to the Property of the Borrower
and its Subsidiaries, Property which (a) represents more than 10% of the
consolidated assets of the Borrower and its Subsidiaries, as would be shown in
the consolidated financial statements of the Borrower and its Subsidiaries as at
the end of the quarter next preceding the date on which such determination is
made, or (b) is responsible for more than 10% of the consolidated net sales or
of
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the consolidated net income of the Borrower and its Subsidiaries for the
12-month period ending as of the end of the quarter next preceding the date of
determination.
"Taxes" means any and all present or future taxes, duties, levies, imposts,
deductions, charges or withholdings, and any and all liabilities with respect to
the foregoing, but EXCLUDING Excluded Taxes and Other Taxes.
"Termination Event" means, with respect to a Plan which is subject to Title
IV of ERISA, (a) a Reportable Event, (b) the withdrawal of the Borrower or any
other member of the Controlled Group from such Plan during a plan year in which
the Borrower or any other member of the Controlled Group was a "substantial
employer" as defined in Section 4001(a)(2) of ERISA or was deemed such under
Section 4068(f) of ERISA, (c) the termination of such Plan, the filing of a
notice of intent to terminate such Plan or the treatment of an amendment of such
Plan as a termination under Section 4041 of ERISA, (d) the institution by the
PBGC of proceedings to terminate such Plan or (e) any event or condition which
might constitute grounds under Section 4042 of ERISA for the termination of, or
appointment of a trustee to administer, such Plan.
"364-Day Agreement" means that certain 364-Day Credit Agreement dated as of
the date hereof among the Borrower, Bank One, as agent, and the lenders party
thereto, as from time to time amended, restated or otherwise modified.
"Total Plan Liability" means, at any time, the present value of all vested
and unvested accrued benefits under all Single Employer Plans, determined as of
the then most recent valuation date for such Plans using PBGC actuarial
assumptions for single employer plan terminations.
"Transferee" is defined in SECTION 12.4.
"Transitional Services" means the services to be provided by the
Post-Spin-Off Group to the CSC Group, including but not limited to human
resource administration services, IT and telecommunications support and
services, payroll, salary and employee benefits services, tax, audit and
accounting services, legal services, treasury services (cash investment, foreign
exchange, derivatives and hedging), intellectual property licensing, premium
financing services, claims administration services and benefits/brokerage
consultancy and risk management services.
"Type" means, with respect to any Advance, its nature as an Alternate Base
Rate Advance or a Eurodollar Advance.
"Unfunded Liabilities" means the amount (if any) by which the present value
of all vested and unvested accrued benefits under all Single Employer Plans
exceeds the fair market value of all such Plan assets allocable to such
benefits, all determined as of the then most recent valuation date for such
Plans using PBGC actuarial assumptions for single employer plan terminations.
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"Unmatured Default" means an event which but for the lapse of time or the
giving of notice, or both, would constitute a Default.
"Wholly-Owned Subsidiary" of a Person means (a) any Subsidiary all of the
outstanding voting securities of which shall at the time be owned or controlled,
directly or indirectly, by such Person or one or more Wholly-Owned Subsidiaries
of such Person, or by such Person and one or more Wholly-Owned Subsidiaries of
such Person, or (b) any partnership, association, joint venture, limited
liability company or similar business organization 100% of the ownership
interests having ordinary voting power of which shall at the time be so owned or
controlled. Unless otherwise provided, all references herein to a "Wholly-Owned
Subsidiary" shall mean a Wholly-Owned Subsidiary of the Borrower.
The foregoing definitions shall be equally applicable to both the singular
and plural forms of the defined terms.
ARTICLE II
THE CREDITS
2.1. COMMITMENT. From and including the date of this Agreement to the
Facility Termination Date, each Lender severally agrees, on the terms and
conditions set forth in this Agreement, to make Loans to the Borrower from time
to time in amounts not to exceed in the aggregate at any one time outstanding
the amount of its Commitment. Subject to the terms of this Agreement, the
Borrower may borrow, repay and reborrow at any time prior to the Facility
Termination Date.
2.2. REQUIRED PAYMENTS; TERMINATION. Any outstanding Advances and all
other unpaid Obligations shall be paid in full by the Borrower on the Facility
Termination Date.
2.3. RATABLE LOANS. Each Advance hereunder shall consist of Loans made
from the several Lenders ratably in proportion to the ratio that their
respective Commitments bear to the Aggregate Commitment.
2.4. TYPES OF ADVANCES. The Advances may be Alternate Base Rate Advances
or Eurodollar Advances, or a combination thereof, selected by the Borrower in
accordance with SECTIONS 2.8 and 2.9.
2.5. FACILITY FEE; UTILIZATION FEE; REDUCTIONS IN AGGREGATE COMMITMENT.
The Borrower agrees to pay to the Agent for the account of each Lender a
facility fee at a per annum rate equal to the Applicable Facility Fee Rate on
such Lender's Commitment from the date hereof to and including the Facility
Termination Date, payable on each Payment Date hereafter and on the Facility
Termination Date. The Borrower also agrees to pay to the Agent for the ratable
(based on Commitment amounts) account of the Lenders a utilization fee for each
day from the date hereof to and including the later of the Facility Termination
Date and the date all Loans are paid in full and all Commitments are terminated,
such utilization fee to be equal to the Applicable Utilization Fee Rate for such
day multiplied by the outstanding principal amount of the Loans on such day,
payable on each Payment Date and on the Facility Termination Date.
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The Borrower may permanently reduce the Aggregate Commitment in whole, or in
part ratably among the Lenders in a minimum aggregate amount of $25,000,000 or
any integral multiple of $5,000,000 in excess thereof, upon at least two (2)
Business Days' written notice to the Agent, which notice shall specify the
amount of any such reduction, PROVIDED, HOWEVER, that the amount of the
Aggregate Commitment may not be reduced below the aggregate principal amount of
the outstanding Advances. All accrued facility and utilization fees shall be
payable on the effective date of any termination of the obligations of the
Lenders to make Loans hereunder.
2.6. MINIMUM AMOUNT OF EACH ADVANCE. Each Advance shall be in the
minimum amount of $25,000,000 (and in multiples of $5,000,000 if in excess
thereof); PROVIDED, HOWEVER, that (a) any Alternate Base Rate Advance may be in
the amount of the unused Aggregate Commitment and (b) in no event shall more
than six (6) Eurodollar Advances be permitted to be outstanding at any time.
2.7. OPTIONAL PRINCIPAL PAYMENTS. The Borrower may from time to time
pay, without penalty or premium, all outstanding Alternate Base Rate Advances,
or, in a minimum aggregate amount of $10,000,000 or any integral multiple of
$1,000,000 in excess thereof, any portion of the outstanding Alternate Base Rate
Advances upon notice to the Agent by 10:00 a.m. on the Business Day of the
proposed prepayment. The Borrower may from time to time pay, subject to the
payment of any funding indemnification amounts required by SECTION 3.4 but
without penalty or premium, all outstanding Eurodollar Advances, or, in a
minimum aggregate amount of $10,000,000 or any integral multiple of $1,000,000
in excess thereof, any portion of an outstanding Eurodollar Advance, upon two
(2) Business Days' prior notice to the Agent.
2.8. METHOD OF SELECTING TYPES AND INTEREST PERIODS FOR NEW ADVANCES.
The Borrower shall select the Type of Advance and, in the case of each
Eurodollar Advance, the Interest Period applicable thereto from time to time;
PROVIDED, HOWEVER, that in the event Loans are incurred on the date of this
Agreement, all Loans incurred on such date shall be Alternate Base Rate
Advances. The Borrower shall give the Agent irrevocable notice (a "BORROWING
NOTICE") not later than 10:00 a.m. (Chicago time) on the Borrowing Date of each
Alternate Base Rate Advance and at least three (3) Business Days before the
Borrowing Date for each Eurodollar Advance, specifying:
(a) the Borrowing Date of such Advance, which shall be a
Business Day;
(b) the aggregate amount of such Advance;
(c) the Type of Advance selected; and
(d) in the case of each Eurodollar Advance, the Interest
Period applicable thereto, which shall end on or prior to the Facility
Termination Date.
Not later than noon (Chicago time) on each Borrowing Date, each Lender shall
make available its Loan or Loans, in funds immediately available in Chicago, to
the Agent at its address specified pursuant to ARTICLE XIII. The Agent will make
the funds so received from the Lenders available to the Borrower at the Agent's
aforesaid address.
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2.9. CONVERSION AND CONTINUATION OF OUTSTANDING ADVANCES. Each Alternate
Base Rate Advance shall continue as an Alternate Base Rate Advance unless and
until such Alternate Base Rate Advance is converted into a Eurodollar Advance
pursuant to this SECTION 2.9 or is repaid in accordance with SECTION 2.7. Each
Eurodollar Advance shall continue as a Eurodollar Advance until the end of the
then applicable Interest Period therefor, at which time such Eurodollar Advance
shall be automatically converted into an Alternate Base Rate Advance unless (x)
such Eurodollar Advance is or was repaid in accordance with SECTION 2.7 or (y)
the Borrower shall have given the Agent a Conversion/Continuation Notice (as
defined below) requesting that, at the end of such Interest Period, such
Eurodollar Advance continue as a Eurodollar Advance for the same or another
Interest Period. Subject to the terms of SECTION 2.6, the Borrower may elect
from time to time to convert all or any part of an Alternate Base Rate Advance
into a Eurodollar Advance. The Borrower shall give the Agent irrevocable notice
(a "CONVERSION/CONTINUATION NOTICE") of each conversion of an Alternate Base
Rate Advance into a Eurodollar Advance or of continuation of a Eurodollar
Advance not later than 10:00 a.m. (Chicago time) on the date of a conversion
into an Alternate Base Rate Advance, or at least three (3) Business Days, in the
case of a conversion into or continuation of a Eurodollar Advance, prior to the
date of the requested conversion or continuation, specifying:
(a) the requested date of such conversion or continuation,
which shall be a Business Day;
(b) the aggregate amount and Type of the Advance which is to be
converted or continued; and
(c) the amount and Type(s) of Advance(s) into which such
Advance is to be converted or continued and, in the case of a conversion into or
continuation of a Eurodollar Advance, the duration of the Interest Period
applicable thereto, which shall end on or prior to the Facility Termination
Date.
2.10. CHANGES IN INTEREST RATE, ETC. Each Alternate Base Rate Advance
shall bear interest on the outstanding principal amount thereof, for each day
from and including the date such Advance is made or is converted from a
Eurodollar Advance into an Alternate Base Rate Advance pursuant to SECTION 2.9,
to but excluding the date it is paid or is converted into a Eurodollar Advance
pursuant to SECTION 2.9 hereof, at a rate per annum equal to the Alternate Base
Rate for such day. Changes in the rate of interest on that portion of any
Advance maintained as an Alternate Base Rate Advance will take effect
simultaneously with each change in the Alternate Base Rate. Each Eurodollar
Advance shall bear interest on the outstanding principal amount thereof from and
including the first day of the Interest Period applicable thereto to (but not
including) the last day of such Interest Period at the Eurodollar Rate
determined by the Agent as applicable to such Eurodollar Advance based upon the
Borrower's selections under SECTIONS 2.8 and 2.9 and otherwise in accordance
with the terms hereof. No Interest Period may end after the Facility Termination
Date. The Borrower shall select Interest Periods so that it is not necessary to
repay any portion of a Eurodollar Advance prior to the last day of the
applicable Interest Period in order to make a mandatory repayment required
pursuant to SECTION 2.2.
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2.11. RATES APPLICABLE AFTER DEFAULT. Notwithstanding anything to the
contrary contained in SECTION 2.8 or 2.9, no Advance may be made as, converted
into or continued as a Eurodollar Advance (except with the consent of the Agent
and the Required Lenders) when any Default or Unmatured Default has occurred and
is continuing. During the continuance of a Default the Required Lenders may, at
their option, by notice to the Borrower (which notice may be revoked at the
option of the Required Lenders notwithstanding any provision of SECTION 8.2
requiring unanimous consent of the Lenders to changes in interest rates),
declare that (a) each Eurodollar Advance shall bear interest for the remainder
of the applicable Interest Period at the Eurodollar Rate otherwise applicable to
such Interest Period plus 1% per annum and (b) each Alternate Base Rate Advance
shall bear interest at a rate per annum equal to the Alternate Base Rate in
effect from time to time plus 1% per annum, PROVIDED that, during the
continuance of a Default under SECTION 7.6 or 7.7, the interest rates set forth
in clauses (a) and (b) above shall be applicable to all Advances without any
election or action on the part of the Agent or any Lender.
2.12. METHOD OF PAYMENT. All payments of the Obligations hereunder shall
be made, without setoff, deduction or counterclaim, in immediately available
funds to the Agent at the Agent's address specified pursuant to ARTICLE XIII, or
at any other Lending Installation of the Agent specified in writing by the Agent
to the Borrower, by noon (Chicago time) on the date when due and shall be
applied ratably by the Agent among the Lenders. Each payment delivered to the
Agent for the account of any Lender shall be delivered promptly by the Agent to
such Lender in the same type of funds that the Agent received at its address
specified pursuant to ARTICLE XIII or at any Lending Installation specified in a
notice received by the Agent from such Lender. The Agent is hereby authorized to
charge the account of the Borrower maintained with Bank One for each payment of
principal, interest and fees as it becomes due hereunder.
2.13. NOTELESS AGREEMENT; EVIDENCE OF INDEBTEDNESS. (a) Each Lender shall
maintain in accordance with its usual practice an account or accounts evidencing
the indebtedness of the Borrower to such Lender resulting from each Loan made by
such Lender from time to time, including the amounts of principal and interest
payable and paid to such Lender from time to time hereunder.
(b) The Agent shall also maintain accounts in which it will
record (i) the amount of each Loan made hereunder, the Type thereof and the
Interest Period with respect thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to
each Lender hereunder and (iii) the amount of any sum received by the Agent
hereunder from the Borrower and each Lender's share thereof.
(c) The entries maintained in the accounts maintained pursuant
to PARAGRAPHS (a) and (b) above shall be PRIMA FACIE evidence of the
existence and amounts of the Obligations therein recorded; PROVIDED,
HOWEVER, that the failure of the Agent or any Lender to maintain such
accounts or any error therein shall not in any manner affect the obligation
of the Borrower to repay the Obligations in accordance with their terms.
(d) Any Lender may request that its Loans be evidenced by a
promissory note in substantially the form of EXHIBIT A (including any
amendment, modification, renewal or replacement thereof, a "NOTE"). In such
event, the Borrower shall prepare, execute and
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deliver to such Lender such Note payable to the order of such Lender.
Thereafter, the Loans evidenced by such Note and interest thereon shall at
all times (including after any assignment pursuant to SECTION 12.3) be
represented by one or more Notes payable to the order of the payee named
therein or any assignee pursuant to SECTION 12.3, except to the extent that
any such Lender or assignee subsequently returns any such Note for
cancellation and requests that such Loans once again be evidenced as
described in PARAGRAPHS (a) and (b) above. Upon receipt of an affidavit of
an officer of any Lender as to the loss, theft, destruction or mutilation
of such Lender's Note, and, in the case of any such loss, theft destruction
or mutilation, upon cancellation of such Note, the Borrower will issue, in
lieu thereof, a replacement Note in the same principal amount thereof and
otherwise of like tenor.
2.14. TELEPHONIC NOTICES. The Borrower hereby authorizes the Lenders and
the Agent to extend, convert or continue Advances, effect selections of Types of
Advances and to transfer funds based on telephonic notices made by any person or
persons the Agent or any Lender in good faith believes to be acting on behalf of
the Borrower, it being understood that the foregoing authorization is
specifically intended to allow Borrowing Notices and Conversion/Continuation
Notices to be given telephonically. The Borrower agrees to deliver promptly to
the Agent a written confirmation, if such confirmation is requested by the Agent
or any Lender, of each telephonic notice signed by an Authorized Officer. If the
written confirmation differs in any material respect from the action taken by
the Agent and the Lenders, the records of the Agent and the Lenders shall govern
absent manifest error.
2.15. INTEREST PAYMENT DATES; INTEREST AND FEE BASIS. Interest accrued on
each Alternate Base Rate Advance shall be payable on each Payment Date,
commencing with the first such date to occur after the date hereof, on any date
on which an Alternate Base Rate Advance is prepaid, whether due to acceleration
or otherwise, and at maturity. Interest accrued on that portion of the
outstanding principal amount of any Alternate Base Rate Advance converted into a
Eurodollar Advance on a day other than a Payment Date shall be payable on the
date of conversion. Interest accrued on each Eurodollar Advance shall be payable
on the last day of its applicable Interest Period, on any date on which the
Eurodollar Advance is prepaid, whether by acceleration or otherwise, and at
maturity. Interest accrued on each Eurodollar Advance having an Interest Period
longer than three (3) months shall also be payable on the last day of each
three-month interval during such Interest Period. Interest with respect to
Eurodollar Loans, facility fees and utilization fees shall be calculated for
actual days elapsed on the basis of a 360-day year. Interest with respect to
Alternate Base Rate Loans shall be calculated for the actual days elapsed on the
basis of a 365 or 366-day year, as applicable. Interest shall be payable for the
day an Advance is made but not for the day of any payment on the amount paid if
payment is made in full and received prior to noon (Chicago time) at the place
of payment. If any payment of principal of or interest on an Advance shall
become due on a day which is not a Business Day, such payment shall be made on
the next succeeding Business Day and, in the case of a principal payment, such
extension of time shall be included in computing interest in connection with
such payment.
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2.16. NOTIFICATION OF ADVANCES, INTEREST RATES, PREPAYMENTS AND
COMMITMENT REDUCTIONS. Promptly after receipt thereof, the Agent will notify
each Lender of the contents of each Aggregate Commitment reduction notice,
Borrowing Notice, Conversion/Continuation Notice, and repayment notice received
by it hereunder. The Agent will notify each Lender of the Eurodollar Rate
applicable to each Eurodollar Advance promptly upon determination of such
interest rate and will give each Lender prompt notice of each change in the
Alternate Base Rate.
2.17. LENDING INSTALLATIONS. Each Lender may book its Loans at any
Lending Installation selected by such Lender and may change its Lending
Installation from time to time. All terms of this Agreement shall apply to any
such Lending Installation and the Loans and any Notes issued hereunder shall be
deemed held by each Lender for the benefit of any such Lending Installation.
Each Lender may, by written notice to the Agent and the Borrower in accordance
with ARTICLE XIII, designate replacement or additional Lending Installations
through which Loans will be made by it and for whose account Loan payments are
to be made.
2.18. NON-RECEIPT OF FUNDS BY THE AGENT. Unless the Borrower or a Lender,
as the case may be, notifies the Agent prior to the date on which it is
scheduled to make payment to the Agent of (a) in the case of a Lender, the
proceeds of a Loan, or (b) in the case of the Borrower, a payment of principal,
interest or fees to the Agent for the account of the Lenders, that it does not
intend to make such payment, the Agent may assume that such payment has been
made. The Agent may, but shall not be obligated to, make the amount of such
payment available to the intended recipient in reliance upon such assumption. If
such Lender or the Borrower, as the case may be, has not in fact made such
payment to the Agent, the recipient of such payment shall, on demand by the
Agent, repay to the Agent the amount so made available together with interest
thereon in respect of each day during the period commencing on the date such
amount was so made available by the Agent until the date the Agent recovers such
amount at a rate per annum equal to (x) in the case of payment by a Lender, the
Federal Funds Effective Rate for such day for the first three (3) days and,
thereafter, the interest rate applicable to the relevant Loan or (y) in the case
of payment by the Borrower, the interest rate applicable to the relevant Loan.
2.19. REPLACEMENT OF LENDER. If the Borrower is required pursuant to
SECTION 3.1, 3.2 or 3.5 to make any additional payment to any Lender or if any
Lender's obligation to make or continue, or to convert Alternate Base Rate
Advances into, Eurodollar Advances shall be suspended pursuant to SECTION 3.3
(any Lender so affected an "AFFECTED LENDER"), the Borrower may elect, if such
amounts continue to be charged or such suspension is still effective, to replace
such Affected Lender as a Lender party to this Agreement, PROVIDED that no
Default or Unmatured Default shall have occurred and be continuing at the time
of such replacement, and PROVIDED FURTHER that, concurrently with such
replacement, (i) another bank or other entity which is reasonably satisfactory
to the Borrower and the Agent shall agree, as of such date, to purchase for cash
the Advances and other Obligations due to the Affected Lender pursuant to an
assignment substantially in the form of EXHIBIT C and to become a Lender for all
purposes under this Agreement and to assume all obligations of the Affected
Lender to be terminated as of such date and to comply with the requirements of
SECTION 12.3 applicable to assignments, and (ii) the Borrower shall pay to such
Affected Lender in same day funds on the day of such replacement (A) all
interest, fees and other amounts then accrued but unpaid to such Affected Lender
by the
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Borrower hereunder to and including the date of termination, including without
limitation payments due to such Affected Lender under SECTIONS 3.1, 3.2 and 3.5,
and (B) an amount, if any, equal to the payment which would have been due to
such Lender on the day of such replacement under SECTION 3.4 had the Loans of
such Affected Lender been prepaid on such date rather than sold to the
replacement Lender.
ARTICLE III
YIELD PROTECTION; TAXES
3.1. YIELD PROTECTION. If, on or after the date of this Agreement, the
adoption of any law or any governmental or quasi-governmental rule, regulation,
policy, guideline or directive (whether or not having the force of law), or any
change in the interpretation or administration thereof by any governmental or
quasi-governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender or
applicable Lending Installation with any request or directive (whether or not
having the force of law) of any such authority, central bank or comparable
agency:
(a) subjects any Lender or any applicable Lending Installation
to any Taxes, or changes the basis of taxation of payments (other than with
respect to Excluded Taxes) to any Lender in respect of its Eurodollar
Loans, or
(b) imposes or increases or deems applicable any reserve,
assessment, insurance charge, special deposit or similar requirement
against assets of, deposits with or for the account of, or credit extended
by, any Lender or any applicable Lending Installation (other than reserves
and assessments taken into account in determining the interest rate
applicable to Eurodollar Advances), or
(c) imposes any other condition the result of which is to
increase the cost to any Lender or any applicable Lending Installation of
making, funding or maintaining its Eurodollar Loans or reduces any amount
receivable by any Lender or any applicable Lending Installation in
connection with its Eurodollar Loans, or requires any Lender or any
applicable Lending Installation to make any payment calculated by reference
to the amount of Eurodollar Loans held or interest received by it, by an
amount deemed material by such Lender,
and the result of any of the foregoing is to increase the cost to such Lender or
applicable Lending Installation of making or maintaining its Eurodollar Loans or
Commitment or to reduce the return received by such Lender or applicable Lending
Installation in connection with such Eurodollar Loans or Commitment, then,
within fifteen (15) days of demand by such Lender, the Borrower shall pay such
Lender such additional amount or amounts as will compensate such Lender for such
increased cost or reduction in amount received.
3.2. CHANGES IN CAPITAL ADEQUACY REGULATIONS. If a Lender determines the
amount of capital required or expected to be maintained by such Lender, any
Lending Installation of such Lender or any corporation controlling such Lender
is increased as a result of a Change, then, within fifteen (15) days of demand
by such Lender, the Borrower shall pay such Lender the
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amount necessary to compensate for any shortfall in the rate of return on the
portion of such increased capital which such Lender determines is attributable
to this Agreement, its Loans or its Commitment to make Loans hereunder (after
taking into account such Lender's policies as to capital adequacy). "CHANGE"
means (a) any change after the date of this Agreement in the Risk-Based Capital
Guidelines or (b) any adoption of or change in any other law, governmental or
quasi-governmental rule, regulation, policy, guideline, interpretation, or
directive (whether or not having the force of law) after the date of this
Agreement which affects the amount of capital required or expected to be
maintained by any Lender or any Lending Installation or any Person controlling
any Lender. "RISK-BASED CAPITAL GUIDELINES" means (a) the risk-based capital
guidelines in effect in the United States on the date of this Agreement,
including transition rules, and (b) the corresponding capital regulations
promulgated by regulatory authorities outside the United States implementing the
July 1988 report of the Basle Committee on Banking Regulation and Supervisory
Practices entitled "International Convergence of Capital Measurements and
Capital Standards," including transition rules, and any amendments to such
regulations adopted prior to the date of this Agreement.
3.3. AVAILABILITY OF TYPES OF ADVANCES. If any Lender determines that
maintenance of its Eurodollar Loans at a suitable Lending Installation would
violate any applicable law, rule, regulation, interpretation or directive,
whether or not having the force of law, or if the Required Lenders determine
that (a) deposits of a type and maturity appropriate to match fund Eurodollar
Advances are not available or (b) the interest rate applicable to Eurodollar
Advances does not accurately or fairly reflect the cost of making or maintaining
Eurodollar Advances, then the Agent shall suspend the availability of Eurodollar
Advances and require any affected Eurodollar Advances to be repaid or converted
to Alternate Base Rate Advances, subject to the payment of any funding
indemnification amounts required by SECTION 3.4.
3.4. FUNDING INDEMNIFICATION. If any payment of a Eurodollar Advance
occurs on a date prior to the last day of the applicable Interest Period,
whether because of acceleration, prepayment or otherwise, or a Eurodollar
Advance is not made on the date specified by the Borrower for any reason other
than default by the Lenders, the Borrower will indemnify each Lender for any
loss or cost incurred by it resulting therefrom, including, without limitation,
any loss or cost in liquidating or employing deposits acquired to fund or
maintain such Eurodollar Advance.
3.5. TAXES. (a) All payments by the Borrower to or for the account of
any Lender or the Agent hereunder or under any Note shall be made free and clear
of and without deduction for any and all Taxes. If the Borrower shall be
required by law to deduct any Taxes from or in respect of any sum payable
hereunder to any Lender or the Agent, (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 3.5) such Lender 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 authority in accordance with applicable law and (iv) the Borrower shall
furnish to the Agent the original copy of a receipt evidencing payment thereof
within thirty (30) days after such payment is made.
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(b) In addition, the Borrower hereby agrees to pay any present
or future stamp or documentary taxes and any other excise or property
taxes, charges or similar levies which arise from any payment made
hereunder or under any Note or from the execution or delivery of, or
otherwise with respect to, this Agreement or any Note ("OTHER TAXES").
(c) The Borrower hereby agrees to indemnify the Agent and each
Lender for the full amount of Taxes or Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed on amounts payable under this
SECTION 3.5) paid by the Agent or such Lender and any liability (including
penalties, interest and expenses) arising therefrom or with respect
thereto. Payments due under this indemnification shall be made within
thirty (30) days of the date the Agent or such Lender makes demand therefor
pursuant to SECTION 3.6.
(d) Each Lender that is not incorporated under the laws of the
United States of America or a state thereof (each a "NON-U.S. LENDER")
agrees that it will, not more than ten (10) Business Days after the date of
this Agreement, (i) deliver to each of the Borrower and the Agent two duly
completed copies of United States Internal Revenue Service Form W-8BEN or
W-8ECI, certifying in either case that such Lender is entitled to receive
payments under this Agreement without deduction or withholding of any
United States federal income taxes, and (ii) deliver to each of the
Borrower and the Agent a United States Internal Revenue Form W-8 or W-9, as
the case may be, and certify that it is entitled to an exemption from
United States backup withholding tax. Each Non-U.S. Lender further
undertakes, to the extent lawful at such time, to deliver to each of the
Borrower and the Agent (x) renewals or additional copies of such form (or
any successor form) on or before the date that such form expires or becomes
obsolete, and (y) after the occurrence of any event requiring a change in
the most recent forms so delivered by it, such additional forms or
amendments thereto as may be reasonably requested by the Borrower or the
Agent. All forms or amendments described in the preceding sentence shall
certify that such Lender is entitled to receive payments under this
Agreement without deduction or withholding of any United States federal
income taxes, UNLESS an event (including without limitation any change in
treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms
inapplicable or which would prevent such Lender from duly completing and
delivering any such form or amendment with respect to it and such Lender
advises the Borrower and the Agent that it is not capable of receiving
payments without any deduction or withholding of United States federal
income tax.
(e) For any period during which a Non-U.S. Lender has failed to
provide the Borrower with an appropriate form pursuant to CLAUSE (d), above
(unless such failure is due to a change in treaty, law or regulation, or
any change in the interpretation or administration thereof by any
governmental authority, occurring subsequent to the date on which a form
originally was required to be provided), such Non-U.S. Lender shall not be
entitled to indemnification under this SECTION 3.5 with respect to Taxes
imposed by the United States; PROVIDED that, should a Non-U.S. Lender which
is otherwise exempt from or subject to a reduced rate of withholding tax
become subject to Taxes because of its
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failure to deliver a form required under CLAUSE (d), above, the Borrower
shall take such steps as such Non-U.S. Lender shall reasonably request to
assist such Non-U.S. Lender to recover such Taxes.
(f) Any Lender that is entitled to an exemption from or
reduction of withholding tax with respect to payments under this Agreement
or any Note pursuant to the law of any relevant jurisdiction or any treaty
shall deliver to the Borrower (with a copy to the Agent), at the time or
times prescribed by applicable law, such properly completed and executed
documentation prescribed by applicable law as will permit such payments to
be made without withholding or at a reduced rate.
(g) If the U.S. Internal Revenue Service or any other
governmental authority of the United States or any other country or any
political subdivision thereof asserts a claim that the Agent did not
properly withhold tax from amounts paid to or for the account of any Lender
(because the appropriate form was not delivered or properly completed,
because such Lender failed to notify the Agent of a change in circumstances
which rendered its exemption from withholding ineffective, or for any other
reason not caused by or constituting gross negligence or willful misconduct
of the Agent), such Lender shall indemnify the Agent fully for all amounts
paid, directly or indirectly, by the Agent as tax, withholding therefor, or
otherwise, including penalties and interest, and including taxes imposed by
any jurisdiction on amounts payable to the Agent under this subsection,
together with all reasonable costs and expenses related thereto (including
reasonable attorneys fees and reasonable time charges of attorneys for the
Agent, which attorneys may be employees of the Agent). The obligations of
the Lenders under this SECTION 3.5(g) shall survive the payment of the
Obligations and termination of this Agreement.
3.6. LENDER STATEMENTS; SURVIVAL OF INDEMNITY. To the extent reasonably
possible, each Lender shall designate an alternate Lending Installation with
respect to its Eurodollar Loans to reduce any liability of the Borrower to such
Lender under SECTIONS 3.1, 3.2 and 3.5 or to avoid the unavailability of
Eurodollar Advances under SECTION 3.3, so long as such designation is not, in
the judgment of such Lender, disadvantageous to such Lender. Each Lender shall
deliver a written statement of such Lender to the Borrower (with a copy to the
Agent) as to the amount due, if any, under SECTION 3.1, 3.2, 3.4 or 3.5. Such
written statement shall set forth in reasonable detail the calculations upon
which such Lender determined such amount and shall be final, conclusive and
binding on the Borrower in the absence of manifest error. The Borrower shall
have no obligation to reimburse, compensate or indemnify any Lender with respect
to a claim under this ARTICLE III if the Lender fails to deliver such written
statement within 180 days after the date on which the Lender becomes aware of
the event or occurrence giving rise to such claim. Determination of amounts
payable under such Sections in connection with a Eurodollar Loan shall be
calculated as though each Lender funded its Eurodollar Loan through the purchase
of a deposit of the type and maturity corresponding to the deposit used as a
reference in determining the Eurodollar Rate applicable to such Loan, whether in
fact that is the case or not. Unless otherwise provided herein, the amount
specified in the written statement of any Lender shall be payable on demand
after receipt by the Borrower of such written statement. The
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obligations of the Borrower under SECTIONS 3.1, 3.2, 3.4 and 3.5 shall survive
payment of the Obligations and termination of this Agreement.
ARTICLE IV
CONDITIONS PRECEDENT
4.1. EFFECTIVENESS. This Agreement shall not become effective unless and
until the Borrower has furnished the following to the Agent with sufficient
copies for the Lenders and the other conditions set forth below have been
satisfied:
(a) CHARTER DOCUMENTS; GOOD STANDING CERTIFICATES. Copies of
the certificate of incorporation of the Borrower, together with all amendments
thereto, both certified by the appropriate governmental officer in its
jurisdiction of incorporation, together with a good standing certificate issued
by the Secretary of State of the jurisdiction of its incorporation and such
other jurisdictions as shall be requested by the Agent.
(b) BY-LAWS AND RESOLUTIONS. Copies, certified by the Secretary
or Assistant Secretary of the Borrower, of its by-laws and of its Board of
Directors' resolutions authorizing the execution, delivery and performance of
the Loan Documents by the Borrower.
(c) SECRETARY'S CERTIFICATE. An incumbency certificate,
executed by the Secretary or Assistant Secretary of the Borrower, which shall
identify by name and title and bear the signature of the officers of the
Borrower authorized to sign the Loan Documents and to make borrowings hereunder,
upon which certificate the Agent and the Lenders shall be entitled to rely until
informed of any change in writing by the Borrower.
(d) OFFICER'S CERTIFICATE. A certificate, dated the date of
this Agreement, signed by an Authorized Officer of the Borrower, in form and
substance satisfactory to the Agent, to the effect that: (i) on such date (both
before and after giving effect to the making of any Loans hereunder on such
date) no Default or Unmatured Default has occurred and is continuing; (ii) each
of the representations and warranties set forth in ARTICLE V of this Agreement
is true and correct on and as of such date; and (iii) since December 31, 2000 no
event or change has occurred that has caused or evidences a Material Adverse
Effect.
(e) LEGAL OPINIONS. Written opinions of internal counsel to the
Borrower and of Sidley Austin Brown & Wood, special counsel to the Borrower,
addressed to the Agent and the Lenders in form and substance acceptable to the
Agent and its counsel.
(f) NOTES. Any Notes requested by a Lender pursuant to SECTION
2.13 payable to the order of each such requesting Lender.
(g) LOAN DOCUMENTS. Executed originals of this Agreement and
each of the Loan Documents, which shall be in full force and effect, together
with all schedules, exhibits, certificates, instruments, opinions, documents and
financial statements required to be delivered pursuant hereto and thereto.
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(h) LETTERS OF DIRECTION. Written money transfer instructions
in form and substance acceptable to the Agent and its counsel addressed to the
Agent and signed by an Authorized Officer, together with such other related
money transfer authorizations as the Agent may have reasonably requested.
(i) PAYMENT OF FEES. The Borrower shall have paid all fees due
to Bank One under the fee letter dated November 28, 2001.
(j) EXISTING CREDIT AGREEMENTS. The Existing Credit Agreements
shall have expired or been terminated and all amounts owing thereunder
(including all principal, interest and accrued fees) shall have been paid (or
shall contemporaneously be paid) in full.
(k) OTHER. Such other documents as the Agent, any Lender or
their counsel may have reasonably requested.
4.2. EACH ADVANCE. The Lenders shall not be required to make any Advance
unless on the applicable Borrowing Date:
(a) There exists no Default or Unmatured Default and none would
result from such Advance;
(b) The representations and warranties contained in ARTICLE V
(other than SECTION 5.6) are true and correct as of such Borrowing Date;
(c) A Borrowing Notice shall have been properly submitted; and
(d) All legal matters incident to the making of such Advance
shall be satisfactory to the Lenders and their counsel.
Each Borrowing Notice with respect to each such Advance shall constitute a
representation and warranty by the Borrower that the conditions contained in
SECTION 4.2 have been satisfied. Any Lender may require a duly completed
compliance certificate in substantially the form of EXHIBIT B hereto as a
condition to making an Advance.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders that:
5.1. CORPORATE EXISTENCE AND STANDING. Each of the Borrower and its
Subsidiaries is a corporation duly and properly incorporated, validly existing
and in good standing under the laws of its jurisdiction of incorporation and is
duly qualified and in good standing as a foreign corporation and is duly
authorized to conduct its business in each jurisdiction in which its business is
conducted or proposed to be conducted except where failure to be so qualified or
authorized could not reasonably be expected to have a Material Adverse Effect.
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5.2. AUTHORIZATION AND VALIDITY. The Borrower has all requisite power
and authority (corporate and otherwise) and legal right to execute and deliver
each of the Loan Documents and to perform its obligations thereunder. The
execution and delivery by the Borrower of the Loan Documents and the performance
of its obligations thereunder have been duly authorized by proper corporate
proceedings and the Loan Documents constitute legal, valid and binding
obligations of the Borrower enforceable against the Borrower, in accordance with
their terms, except as enforceability may be limited by bankruptcy, insolvency
or similar laws affecting the enforcement of creditors' rights generally.
5.3. COMPLIANCE WITH LAWS AND CONTRACTS. The Borrower and its
Subsidiaries have complied in all material respects with all applicable
statutes, rules, regulations, orders and restrictions of any domestic or foreign
government or any instrumentality or agency thereof, having jurisdiction over
the conduct of their respective businesses or the ownership of their respective
properties, except where the failure to so comply could not reasonably be
expected to have a Material Adverse Effect. Neither the execution and delivery
by the Borrower of the Loan Documents, the application of the proceeds of the
Loans, or any other transaction contemplated in the Loan Documents, nor
compliance with the provisions of the Loan Documents will, or at the relevant
time did, (a) violate any law, rule, regulation (including Regulation U), order,
writ, judgment, injunction, decree or award binding on the Borrower or any
Subsidiary or the Borrower's or any Subsidiary's charter, articles or
certificate of incorporation or by-laws, (b) violate the provisions of or
require the approval or consent of any party to any indenture, instrument or
agreement to which the Borrower or any Subsidiary is a party or is subject, or
by which it, or its property, is bound, or conflict with or constitute a default
thereunder, or result in the creation or imposition of any Lien (other than
Liens permitted by the Loan Documents) in, of or on the property of the Borrower
or any Subsidiary pursuant to the terms of any such indenture, instrument or
agreement, or (c) require any consent of the stockholders of any Person, except
for any violation of, or failure to obtain an approval or consent required
under, any such indenture, instrument or agreement that could not reasonably be
expected to have a Material Adverse Effect.
5.4. GOVERNMENTAL CONSENTS. No order, consent, approval, qualification,
license, authorization, or validation of, or filing, recording or registration
with, or exemption by, or other action in respect of, any court, governmental or
public body or authority, or any subdivision thereof, any securities exchange or
other Person is or at the relevant time was required to authorize, or is or at
the relevant time was required in connection with the execution, delivery,
consummation or performance of, or the legality, validity, binding effect or
enforceability of, any of the Loan Documents, the application of the proceeds of
the Loans or any other transactions contemplated in the Loan Documents. Neither
the Borrower nor any Subsidiary is in default under or in violation of any
foreign, federal, state or local law, rule, regulation, order, writ, judgment,
injunction, decree or award binding upon or applicable to the Borrower or such
Subsidiary, in each case the consequence of which default or violation could
reasonably be expected to have a Material Adverse Effect.
5.5. FINANCIAL STATEMENTS. The Borrower has heretofore furnished to each
of the Lenders (a) the December 31, 2000 audited consolidated financial
statements of the Borrower
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and its Subsidiaries, and (b) the unaudited consolidated financial statements of
the Borrower and its Subsidiaries through September 30, 2001 (collectively, the
"FINANCIAL STATEMENTS"). Each of the Financial Statements was prepared in
accordance with Agreement Accounting Principles and fairly presents the
consolidated financial condition and operations of the Borrower and its
Subsidiaries at such dates and the consolidated results of their operations for
the respective periods then ended (except, in the case of such unaudited
statements, for normal year-end audit adjustments).
5.6. MATERIAL ADVERSE CHANGE. Since December 31, 2000, there has been no
change in the business, Property, condition (financial or otherwise),
performance, prospects or results of operations of the Borrower and its
Subsidiaries taken as a whole which could reasonably be expected to have a
Material Adverse Effect.
5.7. TAXES. The Borrower and its Subsidiaries have filed or caused to be
filed on a timely basis and in correct form all United States federal, state and
other material tax returns which are required to be filed and have paid all
taxes due pursuant to said returns or pursuant to any assessment received by the
Borrower or any Subsidiary, except such taxes, if any, as are being contested in
good faith and as to which adequate reserves have been provided in accordance
with Agreement Accounting Principles and as to which no Lien exists. As of the
date hereof, the United States income tax returns of the Borrower on a
consolidated basis have been audited by the Internal Revenue Service through its
Fiscal Year ending December 31, 1989. No tax liens have been filed and no claims
are being asserted with respect to any such taxes which could reasonably be
expected to have a Material Adverse Effect. The charges, accruals and reserves
on the books of the Borrower and its Subsidiaries in respect of any taxes or
other governmental charges are in accordance with Agreement Accounting
Principles.
5.8. LITIGATION AND CONTINGENT OBLIGATIONS. There is no litigation,
arbitration, proceeding, inquiry or governmental investigation (including,
without limitation, by the Federal Trade Commission) pending or, to the
knowledge of any of their officers, threatened against or affecting the Borrower
or any Subsidiary or any of their respective Properties that could reasonably be
expected to have a Material Adverse Effect or to prevent, enjoin or unduly delay
the making of the Loans under this Agreement.
5.9. ERISA. The Unfunded Liability of all Single Employer Plans does not
in the aggregate exceed twenty percent (20%) of the Total Plan Liability for all
Single Employer Plans. Neither the Borrower nor any other member of the
Controlled Group maintains, or is obligated to contribute to, any Multiemployer
Plan or has incurred, or is reasonably expected to incur, any withdrawal
liability to any Multiemployer Plan. Each Plan complies in all material respects
with all applicable requirements of law and regulations. Neither the Borrower
nor any member of the Controlled Group has, with respect to any Plan, failed to
make any contribution or pay any amount required under Section 412 of the Code
or Section 302 of ERISA or the terms of such Plan which could reasonably be
expected to have a Material Adverse Effect. There are no pending or, to the
knowledge of the Borrower, threatened claims, actions, investigations or
lawsuits against any Plan, any fiduciary thereof, or the Borrower or any member
of the Controlled Group with respect to a Plan which could reasonably be
expected to have a Material Adverse Effect. Neither the Borrower nor any member
of the Controlled Group has engaged in
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any prohibited transaction (as defined in Section 4975 of the Code or Section
406 of ERISA) in connection with any Plan which would subject such Person to any
material liability. Within the last five (5) years neither the Borrower nor any
member of the Controlled Group has engaged in a transaction which resulted in a
Single Employer Plan with an Unfunded Liability being transferred out of the
Controlled Group which could reasonably be expected to have a Material Adverse
Effect. No Termination Event has occurred or is reasonably expected to occur
with respect to any Plan which is subject to Title IV of ERISA which could
reasonably be expected to have a Material Adverse Effect.
5.10. DEFAULTS. No Default or Unmatured Default has occurred and is
continuing.
5.11. REGULATION U. Margin Stock constitutes less than 25% of those
assets of the Borrower and its Subsidiaries which are subject to any limitation
on sale, pledge or other restriction hereunder. Neither the Borrower nor any
Subsidiary is engaged, directly or indirectly, principally, or as one of its
important activities, in the business of extending, or arranging for the
extension of, credit for the purpose of purchasing or carrying Margin Stock. No
part of the proceeds of any Loan will be used in a manner which would violate,
or result in a violation of, Regulation U. Neither the making of any Advance
hereunder nor the use of the proceeds thereof will violate or be inconsistent
with the provisions of Regulation U.
5.12. INVESTMENT COMPANY; PUBLIC UTILITY HOLDING COMPANY. Neither the
Borrower nor any Subsidiary is, or after giving effect to any Advance will be,
an "investment company" or a company "controlled" by an "investment company"
within the meaning of the Investment Company Act of 1940, as amended. Neither
the Borrower nor any Subsidiary is a "holding company", or an "affiliate" of a
"holding company" or of a "subsidiary company" of a "holding company", within
the meaning of the Public Utility Holding Company Act of 1935, as amended.
5.13. OWNERSHIP OF PROPERTIES. As of the date of this Agreement, the
Borrower and its Subsidiaries have a subsisting leasehold interest in, or good
and marketable title, free of all Liens, other than those permitted by SECTION
6.12 or by any of the other Loan Documents, to all of the properties and assets
reflected in the Financial Statements as being owned by it, except for assets
sold, transferred or otherwise disposed of in the ordinary course of business or
as required by or in connection with the CSC Spin-Off (provided that such sale,
transfer or other disposal in connection with the CSC Spin-Off could not
reasonably be expected to have a Material Adverse Effect) since the date
thereof. The Borrower and its Subsidiaries own or possess rights to use all
licenses, patents, patent applications, copyrights, service marks, trademarks
and trade names necessary to continue to conduct their business as heretofore
conducted, and no such license, patent or trademark has been declared invalid,
been limited by order of any court or by agreement or is the subject of any
infringement, interference or similar proceeding or challenge, except for
proceedings and challenges which could not reasonably be expected to have a
Material Adverse Effect.
5.14. MATERIAL AGREEMENTS. Neither the Borrower nor any Subsidiary is a
party to any agreement or instrument or subject to any charter or other
corporate restriction which could reasonably be expected to have a Material
Adverse Effect or which restricts or imposes conditions upon the ability of any
Subsidiary to (a) pay dividends or make other distributions on
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its capital stock, (b) make loans or advances to the Borrower or (c) repay loans
or advances from the Borrower. Neither the Borrower nor any Subsidiary is in
default in the performance, observance or fulfillment of any of the obligations,
covenants or conditions contained in any agreement to which it is a party, which
default could reasonably be expected to have a Material Adverse Effect.
5.15. ENVIRONMENTAL LAWS. There are no claims, investigations,
litigation, administrative proceedings, notices, requests for information (each
a "PROCEEDING"), whether pending or threatened, or judgments or orders asserting
violations of applicable federal, state and local environmental, health and
safety statutes, regulations, ordinances, codes, rules, orders, decrees,
directives and standards ("ENVIRONMENTAL LAWS") or relating to any toxic or
hazardous waste, substance or chemical or any pollutant, contaminant, chemical
or other substance defined or regulated pursuant to any Environmental Law,
including, without limitation, asbestos, petroleum, crude oil or any fraction
thereof ("HAZARDOUS MATERIALS") asserted against the Borrower or any of its
Subsidiaries which, in any case, could reasonably be expected to have a Material
Adverse Effect. Neither the Borrower nor any Subsidiary has caused or permitted
any Hazardous Materials to be released, either on or under real property,
currently or formerly, legally or beneficially owned or operated by the Borrower
or any Subsidiary or on or under real property to which the Borrower or any of
its Subsidiaries transported, arranged for the transport or disposal of, or
disposed of Hazardous Materials, which release could reasonably be expected to
have a Material Adverse Effect.
5.16. INSURANCE. The Borrower and its Subsidiaries maintain, with
financially sound and reputable insurance companies, insurance on their Property
in such amounts and covering such risks as is consistent with sound business
practice.
5.17. INSURANCE LICENSES. No material license, permit or authorization of
the Borrower or any Subsidiary to engage in the business of insurance or
insurance-related activities is the subject of a proceeding for suspension or
revocation, except where such suspension or revocation would not individually or
in the aggregate have a Material Adverse Effect.
5.18. SOLVENCY. Immediately after the consummation of the CSC Spin-Off
and the making of any Loans related thereto, (a) the fair value of the assets of
the Post-Spin-Off Group on a consolidated basis, at a fair valuation, will
exceed the debts and liabilities, subordinated, contingent or otherwise, of the
Post-Spin-Off Group on a consolidated basis; (b) the present fair saleable value
of the Property of the Post-Spin-Off Group on a consolidated basis will be
greater than the amount that will be required to pay the probable liability of
the Post-Spin-Off Group on a consolidated basis on their debts and other
liabilities, subordinated, contingent or otherwise, as such debts and other
liabilities become absolute and matured; (c) the Post-Spin-Off Group on a
consolidated basis will be able to pay their debts and liabilities,
subordinated, contingent or otherwise, as such debts and liabilities become
absolute and matured; and (d) the Post-Spin-Off Group on a consolidated basis
will not have unreasonably small capital with which to conduct the businesses in
which they are engaged as such businesses are now conducted and as proposed to
be conducted taking into account the CSC Spin-Off.
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5.19. DISCLOSURE. None of the (a) information, exhibits or reports
furnished or to be furnished by the Borrower or any Subsidiary to the Agent or
to any Lender in connection with the negotiation of the Loan Documents, or (b)
representations or warranties of the Borrower or any Subsidiary contained in
this Agreement, the other Loan Documents, or any other document, certificate or
written statement furnished to the Agent or the Lenders by or on behalf of the
Borrower or any Subsidiary for use in connection with the transactions
contemplated by this Agreement, as the case may be, contained, contains or will
contain any untrue statement of a material fact or omitted, omits or will omit
to state a material fact necessary in order to make the statements contained
herein or therein not misleading in light of the circumstances in which the same
were made. As of the date hereof, there is no fact known to the Borrower (other
than matters of a general economic nature) that has had or could reasonably be
expected to have a Material Adverse Effect and that has not been disclosed
herein or in such other documents, certificates and statements furnished to the
Lenders for use in connection with the transactions contemplated by this
Agreement.
ARTICLE VI
COVENANTS
During the term of this Agreement, unless the Required Lenders shall
otherwise consent in writing:
6.1. FINANCIAL REPORTING. The Borrower will maintain, for itself and
each Subsidiary, a system of accounting established and administered in
accordance with generally accepted accounting principles, consistently applied,
and will furnish to the Lenders:
(a) As soon as practicable and in any event within ninety (90)
days after the close of each of its Fiscal Years, an unqualified audit report
certified by independent certified public accountants, acceptable to the
Lenders, prepared in accordance with Agreement Accounting Principles on a
consolidated basis for itself and its Subsidiaries, including balance sheets as
of the end of such period and related statements of income, retained earnings
and cash flows accompanied by (i) any management letter prepared by said
accountants and (ii) a certificate of said accountants that, in the course of
their examination necessary for their certification of the foregoing, they have
obtained no knowledge of any Default or Unmatured Default, or if, in the opinion
of such accountants, any Default or Unmatured Default shall exist, stating the
nature and status thereof.
(b) As soon as practicable and in any event within 45 days
after the close of the first three Fiscal Quarters of each of its Fiscal Years,
for itself and its Subsidiaries, consolidated unaudited balance sheets as at the
close of each such period and consolidated statements of income, retained
earnings and cash flows for the period from the beginning of such Fiscal Year to
the end of such quarter, all certified by its chief financial officer.
(c) Together with the financial statements required by CLAUSES
(a) and (b) above, a compliance certificate in substantially the form of EXHIBIT
B hereto signed by its chief financial officer showing the calculations
necessary to determine compliance with this
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Agreement and stating that no Default or Unmatured Default exists, or if any
Default or Unmatured Default exists, stating the nature and status thereof.
(d) Within 270 days after the close of each Fiscal Year, a
statement of the Unfunded Liabilities of each Single Employer Plan, certified as
correct by an actuary enrolled under ERISA.
(e) As soon as possible and in any event within ten (10) days
after the Borrower knows that any Termination Event has occurred with respect to
any Plan, a statement, signed by the chief financial officer of the Borrower,
describing said Termination Event and the action which the Borrower proposes to
take with respect thereto.
(f) As soon as possible and in any event within ten (10) days
after the Borrower learns thereof, notice of the assertion or commencement of
any claims, action, suit or proceeding against or affecting the Company or any
Subsidiary which may reasonably be expected to have a Material Adverse Effect.
(g) Promptly upon learning thereof, notice of any change in the
credit rating of the Borrower's senior unsecured long term debt by S&P or
Moody's.
(h) Promptly upon the furnishing thereof to the shareholders of
the Borrower, copies of all financial statements, reports and proxy statements
so furnished.
(i) Promptly upon the filing thereof, copies of all
registration statements and annual, quarterly, monthly or other regular reports
which the Borrower or any of its Subsidiaries files with the Securities and
Exchange Commission.
(j) Promptly upon learning thereof, notice of the completion of
the CSC Spin-Off.
(k) Such other information (including, without limitation,
non-financial information) as the Agent or any Lender may from time to time
reasonably request.
6.2. USE OF PROCEEDS. The Borrower will, and will cause each Subsidiary
to, use the proceeds of the Advances to meet the general corporate needs of the
Borrower and its Subsidiaries, including commercial paper support. The Borrower
will not, nor will it permit any Subsidiary to, use any of the proceeds of the
Advances to purchase or carry any "margin stock" (as defined in Regulation U) or
to finance the acquisition of any Person which has not been approved and
recommended by the board of directors (or functional equivalent thereof) of such
Person.
6.3. NOTICE OF DEFAULT. The Borrower will give prompt notice in writing
to the Lenders of the occurrence of (a) any Default or Unmatured Default and (b)
of any other event or development, financial or other, relating specifically to
the Borrower or any of its Subsidiaries (and not of a general economic or
political nature) which could reasonably be expected to have a Material Adverse
Effect.
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6.4. CONDUCT OF BUSINESS. The Borrower will, and will cause each
Subsidiary to, carry on and conduct its business in substantially the same
manner and in substantially the same fields of enterprise as it is presently
conducted and to do all things necessary to remain duly incorporated, validly
existing and in good standing as a domestic corporation in its jurisdiction of
incorporation and maintain all requisite authority to conduct its business in
each jurisdiction in which its business is conducted; PROVIDED, HOWEVER, that
nothing in this SECTION 6.4 shall prohibit (a) the dissolution or sale, transfer
or other disposition of any Subsidiary that is not otherwise prohibited by this
Agreement or (b) the occurrence of the CSC Spin-Off and the provision of the
Transitional Services.
6.5. TAXES. The Borrower will, and will cause each Subsidiary to, timely
file complete and correct United States federal and applicable foreign, state
and local tax returns required by applicable law and pay when due all taxes,
assessments and governmental charges and levies upon it or its income, profits
or Property, except those which are being contested in good faith by appropriate
proceedings and with respect to which adequate reserves have been set aside.
6.6. INSURANCE. The Borrower will, and will cause each Subsidiary to,
maintain with financially sound and reputable insurance companies insurance on
all their Property in such amounts and covering such risks as is consistent with
sound business practice, and the Borrower will furnish to the Agent and any
Lender upon request full information as to the insurance carried.
6.7. COMPLIANCE WITH LAWS. The Borrower will, and will cause each
Subsidiary to, comply with all laws, rules, regulations, orders, writs,
judgments, injunctions, decrees or awards to which it may be subject, the
failure to comply with which could reasonably be expected to have a Material
Adverse Effect.
6.8. MAINTENANCE OF PROPERTIES. The Borrower will, and will cause each
Subsidiary to, do all things necessary to maintain, preserve, protect and keep
its Property in good repair, working order and condition, and make all necessary
and proper repairs, renewals and replacements so that its business carried on in
connection therewith may be properly conducted at all times.
6.9. INSPECTION. The Borrower will, and will cause each Subsidiary to,
permit the Agent and the Lenders, by their respective representatives and
agents, to inspect any of the Property, corporate books and financial records of
the Borrower and each Subsidiary, to examine and make copies of the books of
accounts and other financial records of the Borrower and each Subsidiary, and to
discuss the affairs, finances and accounts of the Borrower and each Subsidiary
with, and to be advised as to the same by, their respective officers at such
reasonable times and intervals as the Lenders may designate. The Borrower will
keep or cause to be kept, and cause each Subsidiary to keep or cause to be kept,
appropriate records and books of account in which complete entries are to be
made reflecting its and their business and financial transactions, such entries
to be made in accordance with Agreement Accounting Principles consistently
applied.
6.10. CAPITAL STOCK AND DIVIDENDS. So long as any Default or Unmatured
Default has occurred and is continuing, the Borrower will not declare or pay any
dividends or make any
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distributions on its capital stock (other than dividends payable in its own
capital stock) or redeem, repurchase or otherwise acquire or retire any of its
capital stock or any options or other rights in respect thereof at any time
outstanding, other than any such dividend or distribution required in connection
with the CSC Spin-Off; PROVIDED that no such dividend or distribution could
reasonably be expected to have a Material Adverse Effect.
6.11. MERGER. Except with respect to any transaction or step required in
connection with the CSC Spin-Off (provided that no such transaction or step
could reasonably be expected to have a Material Adverse Effect), the Borrower
will not, nor will it permit any Subsidiary to, merge or consolidate with or
into any other Person, except that (a) a Wholly-Owned Subsidiary may merge into
the Borrower or any Wholly-Owned Subsidiary of the Borrower, (b) the Borrower or
any Subsidiary may merge or consolidate with any other Person so long as the
Borrower or such Subsidiary is the continuing or surviving corporation and,
prior to and after giving effect to such merger or consolidation, no Default or
Unmatured Default shall exist, and (c) any Subsidiary may enter into a merger or
consolidation as a means of effecting a disposition or acquisition which would
not result in a Default or Unmatured Default.
6.12. LIENS. The Borrower will not, nor will it permit any Subsidiary to,
create, incur, or suffer to exist any Lien in, of or on the Property of the
Borrower or any of its Subsidiaries, except:
(a) Liens for taxes, assessments or governmental charges or
levies on its Property if the same shall not at the time be delinquent or
thereafter can be paid without penalty, or are being contested in good faith and
by appropriate proceedings and for which adequate reserves in accordance with
generally accepted principles of accounting shall have been set aside on its
books;
(b) Liens imposed by law, such as carriers', warehousemen's and
mechanics' liens and other similar liens arising in the ordinary course of
business which secure the payment of obligations not more than sixty (60) days
past due or which are being contested in good faith by appropriate proceedings
and for which adequate reserves shall have been set aside on its books;
(c) Liens arising out of pledges or deposits under worker's
compensation laws, unemployment insurance, old age pensions, or other social
security or retirement benefits, or similar legislation;
(d) Utility easements, building restrictions and such other
encumbrances or charges against real property as are of a nature generally
existing with respect to properties of a similar character and which do not in
any material way affect the marketability of the same or interfere with the use
thereof in the business of the Borrower or the Subsidiaries;
(e) Encumbrances over and limited to the balance of credit
balances on bank accounts of the Borrower and its Subsidiaries created in order
to facilitate the operation of such bank accounts and other bank accounts of the
Borrower and its Subsidiaries on a net balance
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basis with credit balances and debit balances on the various accounts being
netted off for interest purposes;
(f) Any Lien arising by operation of law in the ordinary course
of trading in respect of any obligation which is less than sixty (60) days
overdue or which is being contested in good faith and by appropriate means and
for which adequate reserves have been made;
(g) Encumbrances created by any of the Borrower or its
Subsidiaries over deposits and investments in the ordinary course of such
Person's insurance and reinsurance trade to comply with the requirements of any
regulatory body of insurance or insurance broking business; and
(h) Other Liens securing an aggregate principal amount of
obligations at no time exceeding an amount equal to ten percent (10%) of
Consolidated Net Worth at such time; PROVIDED, HOWEVER that during any period
when the sum of (i) the aggregate principal amount of all obligations secured
pursuant to this SECTION 6.12(h) plus (ii) the aggregate Unfunded Liability of
all Single Employer Plans exceeds ten percent (10%) of Consolidated Net Worth,
the creation of additional Liens otherwise allowed hereunder shall be permitted
by this SECTION 6.12(h) only to the extent they secure an aggregate principal
amount of obligations not in excess of one percent (1%) of Consolidated Net
Worth.
6.13. AFFILIATES. The Borrower will not, and will not permit any
Subsidiary to, enter into any transaction (including, without limitation, the
purchase or sale of any Property or service) with, or make any payment or
transfer to, any Affiliate except (a) for transactions between the Borrower and
any Wholly-Owned Subsidiary of the Borrower or between Wholly-Owned Subsidiaries
of the Borrower, (b) in the ordinary course of business and pursuant to the
reasonable requirements of the Borrower's or such Subsidiary's business and upon
fair and reasonable terms no less favorable to the Borrower or such Subsidiary
than the Borrower or such Subsidiary would obtain in a comparable arms-length
transaction and (c) as required in connection with the CSC Spin-Off; PROVIDED
that no such transaction, payment or transfer could reasonably be expected to
have a Material Adverse Effect.
6.14. CHANGE IN FISCAL YEAR. The Borrower shall not change its Fiscal
Year to end on any date other than December 31 of each year.
6.15. INCONSISTENT AGREEMENTS. The Borrower shall not, nor shall it
permit any Subsidiary to, enter into any indenture, agreement, instrument or
other arrangement which, (a) directly or indirectly prohibits or restrains, or
has the effect of prohibiting or restraining, or imposes materially adverse
conditions upon, the incurrence of the Obligations, the amending of the Loan
Documents or the ability of any Subsidiary to (i) pay dividends or make other
distributions on its capital stock, (ii) make loans or advances to the Borrower
or (iii) repay loans or advances from the Borrower or (b) contains any provision
which would be violated or breached by the making of Advances or by the
performance by the Borrower of any of its obligations under any Loan Document.
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6.16. SALE OF ASSETS. Except with respect to any transaction or step
required in connection with the CSC Spin-Off (provided that no such transaction
or step could reasonably be expected to have a Material Adverse Effect), the
Borrower will not, nor will it permit any Subsidiary to, lease, sell or
otherwise dispose of Property which represents more than 25% of the consolidated
assets of the Borrower and its Subsidiaries, as would be shown in the
consolidated financial statements of the Borrower and its Subsidiaries as at the
end of the quarter immediately preceding the date on which such determination is
made, to any other Person(s) in any Fiscal Year.
6.17. FINANCIAL COVENANTS.
6.17.1. MINIMUM CONSOLIDATED NET WORTH. The Borrower shall at all
times prior to the CSC Spin-Off maintain a minimum Consolidated Net Worth
of at least $2,500,000,000 and shall at all times from and after the CSC
Spin-Off maintain a minimum Consolidated Net Worth of at least
$2,000,000,000.
6.17.2. CONSOLIDATED EBITDA TO CONSOLIDATED INTEREST EXPENSE. The
Borrower will maintain, as at the last day of each of its fiscal quarters,
a ratio of (a) Consolidated EBITDA to (b) Consolidated Interest Expense, in
each case calculated for the four fiscal quarters then ending, of not less
than 4.0 to 1.0.
6.18. ERISA. The Borrower will (a) fulfill, and cause each member of the
Controlled Group to fulfill, its obligations under the minimum funding standards
of ERISA and the Code with respect to each Plan, except where a failure to
fulfill such obligations individually or in the aggregate could not reasonably
be expected to have a Material Adverse Effect, (b) comply, and cause each member
of the Controlled Group to comply, with all applicable provisions of ERISA and
the Code with respect to each Plan, except where such failure or noncompliance
individually or in the aggregate would not have a Material Adverse Effect and
(c) not, and not permit any member of the Controlled Group to, (i) seek a waiver
of the minimum funding standards under ERISA, (ii) terminate or withdraw from
any Plan or (iii) take any other action with respect to any Plan which would
reasonably be expected to entitle the PBGC to terminate, impose liability in
respect of, or cause a trustee to be appointed to administer, any Plan, unless
the actions or events described in the foregoing clauses (i), (ii) or (iii)
individually or in the aggregate would not have a Material Adverse Effect.
ARTICLE VII
DEFAULTS
The occurrence of any one or more of the following events shall constitute
a Default:
7.1. Any representation or warranty made or deemed made by or on behalf
of the Borrower or any of its Subsidiaries to the Lenders or the Agent under or
in connection with this Agreement, any other Loan Document, any Loan, or any
certificate or information delivered in connection with this Agreement or any
other Loan Document shall be false in any material respect on the date as of
which made or deemed made.
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7.2. Nonpayment of (a) any principal of any Loan when due, or (b) any
interest upon any Loan or any facility fee, utilization fee or other fee or
obligations under any of the Loan Documents within five (5) days after the same
becomes due.
7.3. The breach by the Borrower of any of the terms or provisions of
SECTION 6.2, SECTION 6.3(a) or SECTIONS 6.10 through 6.18.
7.4. The breach by the Borrower (other than a breach which constitutes a
Default under SECTION 7.1, 7.2 or 7.3) of any of the terms or provisions of this
Agreement which is not remedied within twenty (20) days after written notice
from the Agent or any Lender.
7.5. Failure of the Borrower or any of its Subsidiaries to pay any
Indebtedness aggregating in excess of $25,000,000 when due; or the default by
the Borrower or any of its Subsidiaries in the performance of any term,
provision or condition contained in any agreement or agreements under which any
such Indebtedness was created or is governed, or the occurrence of any other
event or existence of any other condition, the effect of any of which is to
cause, or to permit the holder or holders of such Indebtedness to cause, such
Indebtedness to become due prior to its stated maturity; or any such
Indebtedness of the Borrower or any of its Subsidiaries shall be declared to be
due and payable or required to be prepaid (other than by a regularly scheduled
payment) prior to the stated maturity thereof.
7.6. The Borrower or any of its Subsidiaries shall (a) have an order for
relief entered with respect to it under the Federal bankruptcy laws as now or
hereafter in effect, (b) make an assignment for the benefit of creditors, (c)
apply for, seek, consent to, or acquiesce in, the appointment of a receiver,
custodian, trustee, examiner, liquidator or similar official for it or any
Substantial Portion of its Property, (d) institute any proceeding seeking an
order for relief under the Federal bankruptcy laws as now or hereafter in effect
or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution,
winding up, liquidation, reorganization, arrangement, adjustment or composition
of it or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors or fail to file an answer or other pleading
denying the material allegations of any such proceeding filed against it, (e)
take any corporate action to authorize or effect any of the foregoing actions
set forth in this SECTION 7.6, (f) fail to contest in good faith any appointment
or proceeding described in SECTION 7.7 or (g) become unable to pay, not pay, or
admit in writing its inability to pay, its debts generally as they become due.
7.7. Without the application, approval or consent of the Borrower or any
of its Subsidiaries, a receiver, trustee, examiner, liquidator or similar
official shall be appointed for the Borrower or any of its Subsidiaries or any
Substantial Portion of its Property, or a proceeding described in SECTION 7.6(d)
shall be instituted against the Borrower or any of its Subsidiaries and such
appointment continues undischarged or such proceeding continues undismissed or
unstayed for a period of sixty (60) consecutive days.
7.8. Any court, government or governmental agency shall condemn, seize
or otherwise appropriate, or take custody or control of (each a "CONDEMNATION"),
all or any portion of the Property of the Borrower and its Subsidiaries which,
when taken together with all other Property of the Borrower and its Subsidiaries
so condemned, seized, appropriated, or taken custody or
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control of, during the twelve-month period ending with the month in which any
such Condemnation occurs, constitutes a Substantial Portion.
7.9. The Borrower or any of its Subsidiaries shall fail within thirty
(30) days to pay, bond or otherwise discharge any judgment or order for the
payment of money in excess of $25,000,000 (or multiple judgments or orders for
the payment of an aggregate amount in excess of $50,000,000), which is not
stayed on appeal or otherwise being appropriately contested in good faith and as
to which no enforcement actions have been commenced.
7.10. Any Change in Control shall occur.
7.11. The Unfunded Liabilities of all Single Employer Plans shall exceed
in the aggregate twenty percent (20%) of the Total Plan Liability for all Single
Employer Plans or any Termination Event shall occur in connection with any Plan
which could reasonably be expected to have a Material Adverse Effect.
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1. ACCELERATION. If any Default described in SECTION 7.6 or 7.7 occurs
with respect to the Borrower, the obligations of the Lenders to make Loans
hereunder shall automatically terminate and the Obligations shall immediately
become due and payable without any election or action on the part of the Agent
or any Lender. If any other Default occurs, the Required Lenders (or the Agent
with the consent or upon the instruction of the Required Lenders) may terminate
or suspend the obligations of the Lenders to make Loans hereunder, or declare
the Obligations to be due and payable, or both, whereupon the Obligations shall
become immediately due and payable, without presentment, demand, protest or
notice of any kind, all of which the Borrower hereby expressly waives.
If, within ten (10) Business Days after acceleration of the maturity of the
Obligations or termination of the obligations of the Lenders to make Loans
hereunder as a result of any Default (other than any Default as described in
SECTION 7.6 or 7.7 with respect to the Borrower) and before any judgment or
decree for the payment of the Obligations due shall have been obtained or
entered, the Required Lenders (or, in the case of an acceleration and/or
termination upon the occurrence of a Default under SECTION 7.10, the Modified
Required Lenders), in their sole discretion, shall so direct, the Agent shall,
by notice to the Borrower, rescind and annul such acceleration and/or
termination.
8.2. AMENDMENTS. Subject to the provisions of this ARTICLE VIII, the
Required Lenders (or the Agent with the consent in writing of the Required
Lenders) and the Borrower may enter into agreements supplemental hereto for the
purpose of adding or modifying any provisions to the Loan Documents or changing
in any manner the rights of the Lenders or the Borrower hereunder or thereunder
or waiving any Default hereunder or thereunder; PROVIDED, HOWEVER, that no such
supplemental agreement shall, without the consent of each Lender:
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(a) Extend the Facility Termination Date, compromise or forgive
the principal amount of any Loan, or reduce the rate of interest or compromise
or forgive payment of interest on any Loan, or reduce the amount of any fee
payable hereunder;
(b) Reduce the percentage specified in the definition of
Required Lenders or Modified Required Lenders;
(c) Increase the amount of the Commitment of any Lender
hereunder;
(d) Amend this SECTION 8.2; or
(e) Permit any assignment by the Borrower of its Obligations or
its rights hereunder.
PROVIDED, FURTHER, that no such supplemental agreement shall, without the
consent of the Modified Required Lenders amend the definition of "Change of
Control" or amend or waive SECTION 7.10.
No amendment of any provision of this Agreement relating to the Agent shall
be effective without the written consent of the Agent. The Agent may waive
payment of the fee required under SECTION 12.3.2 without obtaining the consent
of any other party to this Agreement.
8.3. PRESERVATION OF RIGHTS. No delay or omission of the Lenders or the
Agent to exercise any right under the Loan Documents shall impair such right or
be construed to be a waiver of any Default or an acquiescence therein, and the
making of a Loan notwithstanding the existence of a Default or the inability of
the Borrower to satisfy the conditions precedent to such Loan shall not
constitute any waiver or acquiescence. Any single or partial exercise of any
such right shall not preclude other or further exercise thereof or the exercise
of any other right, and no waiver, amendment or other variation of the terms,
conditions or provisions of the Loan Documents whatsoever shall be valid unless
in writing signed by the Lenders required pursuant to SECTION 8.2, and then only
to the extent in such writing specifically set forth. All remedies contained in
the Loan Documents or by law afforded shall be cumulative and all shall be
available to the Agent and the Lenders until the Obligations have been paid in
full.
ARTICLE IX
GENERAL PROVISIONS
9.1. SURVIVAL OF REPRESENTATIONS. All representations and warranties of
the Borrower contained in this Agreement or of the Borrower or any Subsidiary
contained in any Loan Document shall survive the making of the Loans herein
contemplated.
9.2. GOVERNMENTAL REGULATION. Anything contained in this Agreement to
the contrary notwithstanding, no Lender shall be obligated to extend credit to
the Borrower in violation of any limitation or prohibition provided by any
applicable statute or regulation.
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9.3. HEADINGS. Section headings in the Loan Documents are for
convenience of reference only, and shall not govern the interpretation of any of
the provisions of the Loan Documents.
9.4. ENTIRE AGREEMENT. The Loan Documents embody the entire agreement
and understanding among the Borrower, the Agent and the Lenders and supersede
all prior agreements and understandings among the Borrower, the Agent and the
Lenders relating to the subject matter thereof other than the fee letter
described in SECTION 10.13.
9.5. SEVERAL OBLIGATIONS; BENEFITS OF THIS AGREEMENT. The respective
obligations of the Lenders hereunder are several and not joint and no Lender
shall be the partner or agent of any other (except to the extent to which the
Agent is authorized to act as such). The failure of any Lender to perform any of
its obligations hereunder shall not relieve any other Lender from any of its
obligations hereunder. This Agreement shall not be construed so as to confer any
right or benefit upon any Person other than the parties to this Agreement and
their respective successors and assigns; PROVIDED, HOWEVER, that the parties
hereto expressly agree that the Arranger shall enjoy the benefits of the
provisions of SECTIONS 9.6, 9.10 and 10.11 to the extent specifically set forth
therein and shall have the right to enforce such provisions on its own behalf
and in its own name to the same extent as if it were a party to this Agreement.
9.6. EXPENSES; INDEMNIFICATION. The Borrower shall reimburse the Agent
and the Arranger for any costs, internal charges and out-of-pocket expenses
(including attorneys' fees and time charges of attorneys for the Agent or the
Arranger, which attorneys may be employees of the Agent or the Arranger) paid or
incurred by the Agent or the Arranger in connection with the preparation,
negotiation, execution, delivery, syndication, distribution (including, without
limitation, via the internet), review, amendment, modification, and
administration of the Loan Documents. The Borrower also agrees to reimburse the
Agent, the Arranger and the Lenders for any costs, internal charges and
out-of-pocket expenses (including attorneys' fees and time charges of attorneys
for the Agent, the Arranger and the Lenders, which attorneys may be employees of
the Agent, the Arranger or the Lenders) paid or incurred by the Agent, the
Arranger or any Lender in connection with the collection of the Obligations or
the enforcement of the Loan Documents. The Borrower further agrees to indemnify
the Agent, the Arranger, each Lender, their respective affiliates, and each of
their directors, officers and employees against all losses, claims, damages,
penalties, judgments, liabilities and expenses (including, without limitation,
all expenses of litigation or preparation therefor whether or not the Agent, the
Arranger, any Lender or any affiliate is a party thereto) which any of them may
pay or incur arising out of or relating to this Agreement, the other Loan
Documents, the transactions contemplated hereby, or the direct or indirect
application or proposed application of the proceeds of any Loan hereunder except
to the extent that they are determined in a final non-appealable judgment by a
court of competent jurisdiction to have resulted from the gross negligence or
willful misconduct of the party seeking indemnification. The obligations of the
Borrower under this SECTION 9.6 shall survive the termination of this Agreement.
9.7. NUMBERS OF DOCUMENTS. All statements, notices, closing documents,
and requests hereunder shall be furnished to the Agent with sufficient
counterparts so that the Agent may furnish one to each of the Lenders.
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9.8. ACCOUNTING. Except as provided to the contrary herein, all
accounting terms used herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with Agreement Accounting
Principles.
9.9. SEVERABILITY OF PROVISIONS. Any provision in any Loan Document that
is held to be inoperative, unenforceable, or invalid in any jurisdiction shall,
as to that jurisdiction, be inoperative, unenforceable, or invalid without
affecting the remaining provisions in that jurisdiction or the operation,
enforceability, or validity of that provision in any other jurisdiction, and to
this end the provisions of all Loan Documents are declared to be severable.
9.10. NONLIABILITY OF LENDERS. The relationship between the Borrower on
the one hand and the Lenders and the Agent on the other hand shall be solely
that of borrower and lender. Neither the Agent, the Arranger nor any Lender
shall have any fiduciary responsibilities to the Borrower. Neither the Agent,
the Arranger nor any Lender undertakes any responsibility to the Borrower to
review or inform the Borrower of any matter in connection with any phase of the
Borrower's business or operations. Neither the Agent, the Arranger nor any
Lender shall have any liability with respect to, and the Borrower hereby waives,
releases and agrees not to sue for, any special, indirect, consequential or
punitive damages suffered by the Borrower in connection with, arising out of, or
in any way related to the Loan Documents or the transactions contemplated
thereby.
9.11. CONFIDENTIALITY. Each Lender agrees to hold any confidential
information which it may receive from the Borrower pursuant to this Agreement in
confidence, except for disclosure (i) to its Affiliates and to other Lenders and
their respective Affiliates, (ii) to legal counsel, accountants, and other
professional advisors to such Lender or to a Transferee, (iii) to regulatory
officials, (iv) to any Person as requested pursuant to or as required by law,
regulation, or legal process, (v) to any Person in connection with any legal
proceeding to which such Lender is a party, (vi) to such Lender's direct or
indirect contractual counterparties in swap agreements or to legal counsel,
accountants and other professional advisors to such counterparties, and (vii)
permitted by Section 12.4.
9.12. DISCLOSURE. The Borrower and each Lender hereby acknowledge and
agree that Bank One and/or its Affiliates from time to time may hold investments
in, make other loans to or have other relationships with the Borrower and its
Affiliates.
ARTICLE X
THE AGENT
10.1. APPOINTMENT. Bank One, NA is hereby appointed by each of the
Lenders as its contractual representative (herein referred to as the "Agent")
hereunder and under each other Loan Document, and each of the Lenders
irrevocably (subject to Section 10.12) authorizes the Agent to act as the
contractual representative of such Lender with the rights and duties expressly
set forth herein and in the other Loan Documents. The Agent agrees to act as
such contractual representative upon the express conditions contained in this
ARTICLE X. Notwithstanding the use of the defined term "Agent," it is expressly
understood and agreed that the Agent shall not have any fiduciary
responsibilities to any Lender by reason of this Agreement or any other Loan
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Document and that the Agent is merely acting as the contractual representative
of the Lenders with only those duties as are expressly set forth in this
Agreement and the other Loan Documents. In its capacity as the Lenders'
contractual representative, the Agent (i) does not hereby assume any fiduciary
duties to any of the Lenders, (ii) is a "representative" of the Lenders within
the meaning of Section 1-201 of the Uniform Commercial Code and (iii) is acting
as an independent contractor, the rights and duties of which are limited to
those expressly set forth in this Agreement and the other Loan Documents. Each
of the Lenders hereby agrees to assert no claim against the Agent on any agency
theory or any other theory of liability for breach of fiduciary duty, all of
which claims each Lender hereby waives.
10.2. POWERS. The Agent shall have and may exercise such powers under the
Loan Documents as are specifically delegated to the Agent by the terms of each
thereof, together with such powers as are reasonably incidental thereto. The
Agent shall have no implied duties to the Lenders, or any obligation to the
Lenders to take any action thereunder, except any action specifically provided
by the Loan Documents to be taken by the Agent.
10.3. GENERAL IMMUNITY. Neither the Agent nor any of its directors,
officers, agents or employees shall be liable to the Borrower or any Lender for
any action taken or omitted to be taken by it or them hereunder or under any
other Loan Document or in connection herewith or therewith except to the extent
such action or inaction is determined in a final non-appealable judgment by a
court of competent jurisdiction to have arisen from the gross negligence or
willful misconduct of such Person.
10.4. NO RESPONSIBILITY FOR LOANS, RECITALS, ETC. 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 (a) any statement, warranty
or representation made in connection with any Loan Document or any borrowing
hereunder; (b) the performance or observance of any of the covenants or
agreements of any obligor under any Loan Document, including, without
limitation, any agreement by an obligor to furnish information directly to each
Lender; (c) the satisfaction of any condition specified in ARTICLE IV, except
receipt of items required to be delivered solely to the Agent; (d) the existence
or possible existence of any Default or Unmatured Default; (e) the validity,
enforceability, effectiveness, sufficiency or genuineness of any Loan Document
or any other instrument or writing furnished in connection therewith; (f) the
value, sufficiency, creation, perfection or priority of any Lien in any
collateral security; or (g) the financial condition of the Borrower or any
guarantor of any of the Obligations or of any of the Borrower's or any such
guarantor's respective Subsidiaries. The Agent shall have no duty to disclose to
the Lenders information that is not required to be furnished by the Borrower to
the Agent at such time, but is voluntarily furnished by the Borrower to the
Agent (either in its capacity as Agent or in its individual capacity).
10.5. ACTION ON INSTRUCTIONS OF LENDERS. The Agent shall in all cases be
fully protected in acting, or in refraining from acting, hereunder and under any
other Loan Document in accordance with written instructions signed by the
Required Lenders or, if expressly required hereunder, the Modified Required
Lenders or all the Lenders, and such instructions and any action taken or
failure to act pursuant thereto shall be binding on all of the Lenders. The
Lenders hereby acknowledge that the Agent shall be under no duty to take any
discretionary action
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permitted to be taken by it pursuant to the provisions of this Agreement or any
other Loan Document unless it shall be requested in writing to do so by the
Required Lenders or, if expressly required hereunder, the Modified Required
Lenders or all the Lenders. The Agent shall be fully justified in failing or
refusing to take any action hereunder and under any other Loan Document unless
it shall first be indemnified to its satisfaction by the Lenders pro-rata
against any and all liability, cost and expense that it may incur by reason of
taking or continuing to take any such action.
10.6. EMPLOYMENT OF AGENTS AND COUNSEL. The Agent may execute any of its
duties as Agent hereunder and under any other Loan Document by or through
employees, agents and attorneys-in-fact and shall not be answerable to the
Lenders, except as to money or securities received by it or its authorized
agents, for the default or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care. The Agent shall be entitled to advice of
counsel concerning the contractual arrangement between the Agent and the Lenders
and all matters pertaining to the Agent's duties hereunder and under any other
Loan Document.
10.7. RELIANCE ON DOCUMENTS; COUNSEL. The Agent shall be entitled to rely
upon any Note, notice, consent, certificate, affidavit, letter, telegram,
statement, paper or document believed by it to be genuine and correct and to
have been signed or sent by the proper person or persons, and, in respect to
legal matters, upon the opinion of counsel selected by the Agent, which counsel
may be employees of the Agent.
10.8. AGENT'S REIMBURSEMENT AND INDEMNIFICATION. The Lenders agree to
reimburse and indemnify the Agent ratably in proportion to their respective
Commitments (or, if the Commitments have been terminated, in proportion to their
Commitments immediately prior to such termination) (i) for any amounts not
reimbursed by the Borrower for which the Agent is entitled to reimbursement by
the Borrower under the Loan Documents, (ii) for any other expenses incurred by
the Agent on behalf of the Lenders, in connection with the preparation,
execution, delivery, administration and enforcement of the Loan Documents
(including, without limitation, for any expenses incurred by the Agent in
connection with any dispute between the Agent and any Lender or between two or
more of the Lenders) and (iii) for any liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind and nature whatsoever which may be imposed on, incurred by or
asserted against the Agent in any way relating to or arising out of the Loan
Documents or any other document delivered in connection therewith or the
transactions contemplated thereby (including, without limitation, for any such
amounts incurred by or asserted against the Agent in connection with any dispute
between the Agent and any Lender or between two or more of the Lenders), or the
enforcement of any of the terms of the Loan Documents or of any such other
documents, PROVIDED that (i) no Lender shall be liable for any of the foregoing
to the extent any of the foregoing is found in a final non-appealable judgment
by a court of competent jurisdiction to have resulted from the gross negligence
or willful misconduct of the Agent and (ii) any indemnification required
pursuant to SECTION 3.5(g) shall, notwithstanding the provisions of this SECTION
10.8, be paid by the relevant Lender in accordance with the provisions thereof.
The obligations of the Lenders under this SECTION 10.8 shall survive payment of
the Obligations and termination of this Agreement.
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10.9. NOTICE OF DEFAULT. The Agent shall not be deemed to have knowledge
or notice of the occurrence of any Default or Unmatured Default hereunder unless
the Agent has received written notice from a Lender or the Borrower referring to
this Agreement describing such Default or Unmatured Default and stating that
such notice is a "notice of default". In the event that the Agent receives such
a notice, the Agent shall give prompt notice thereof to the Lenders.
10.10. RIGHTS AS A LENDER. In the event the Agent is a Lender, the Agent
shall have the same rights and powers hereunder and under any other Loan
Document with respect to its Commitment and its Loans as any Lender and may
exercise the same as though it were not the Agent, and the term "Lender" or
"Lenders" shall, at any time when the Agent is a Lender, unless the context
otherwise indicates, include the Agent in its individual capacity. The Agent and
its Affiliates may accept deposits from, lend money to, and generally engage in
any kind of trust, debt, equity or other transaction, in addition to those
contemplated by this Agreement or any other Loan Document, with the Borrower or
any of its Subsidiaries in which the Borrower or such Subsidiary is not
restricted hereby from engaging with any other Person. The Agent, in its
individual capacity, is not obligated to remain a Lender.
10.11. LENDER CREDIT DECISION. Each Lender acknowledges that it has,
independently and without reliance upon the Agent, the Arranger or any other
Lender and based on the financial statements prepared by the Borrower and such
other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement and the other Loan
Documents. Each Lender also acknowledges that it will, independently and without
reliance upon the Agent, the Arranger or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this
Agreement and the other Loan Documents.
10.12. SUCCESSOR AGENT. The Agent may resign at any time by giving written
notice thereof to the Lenders and the Borrower, such resignation to be effective
upon the appointment of a successor Agent or, if no successor Agent has been
appointed, 45 days after the retiring Agent gives notice of its intention to
resign. The Agent may be removed at any time with or without cause by written
notice received by the Agent from the Required Lenders, such removal to be
effective on the date specified by the Required Lenders. Upon any such
resignation or removal, the Required Lenders shall have the right to appoint, on
behalf of the Borrower and the Lenders, a successor Agent. If no successor Agent
shall have been so appointed by the Required Lenders within thirty (30) days
after the resigning Agent's giving notice of its intention to resign, then the
resigning Agent may appoint, on behalf of the Borrower and the Lenders, a
successor Agent. Notwithstanding the previous sentence, the Agent may at any
time without the consent of the Borrower or any Lender, appoint any of its
Affiliates which is a commercial bank as a successor Agent hereunder. If the
Agent has resigned or been removed and no successor Agent has been appointed,
the Lenders may perform all the duties of the Agent hereunder and the Borrower
shall make all payments in respect of the Obligations to the applicable Lender
and for all other purposes shall deal directly with the Lenders; PROVIDED, such
Lenders so performing such duties shall be deemed to be an Agent hereunder with
full benefit of all provisions indemnifying the Agent hereunder. No successor
Agent shall be deemed to be appointed hereunder until such successor Agent has
accepted the appointment. Any such successor Agent
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shall be a commercial bank having capital and retained earnings of at least
$100,000,000. Upon the acceptance of any appointment as Agent hereunder by a
successor Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the resigning or
removed Agent. Upon the effectiveness of the resignation or removal of the
Agent, the resigning or removed Agent shall be discharged from its duties and
obligations hereunder and under the Loan Documents. After the effectiveness of
the resignation or removal of an Agent, the provisions of this ARTICLE X shall
continue in effect for the benefit of such Agent in respect of any actions taken
or omitted to be taken by it while it was acting as the Agent hereunder and
under the other Loan Documents. In the event that there is a successor to the
Agent by merger, or the Agent assigns its duties and obligations to an Affiliate
pursuant to this SECTION 10.12, then the term "Prime Rate" as used in this
Agreement shall mean the prime rate, base rate or other analogous rate of the
new Agent.
10.13. AGENT AND ARRANGER FEES. The Borrower agrees to pay to the Agent
and the Arranger, for their respective accounts, the fees agreed to by the
Borrower, the Agent and the Arranger pursuant to that certain letter agreement
dated November 28, 2001, or as otherwise agreed from time to time.
10.14. DELEGATION TO AFFILIATES. The Borrower and the Lenders agree that
the Agent may delegate any of its duties under this Agreement to any of its
Affiliates. Any such Affiliate (and such Affiliate's directors, officers, agents
and employees) which performs duties in connection with this Agreement shall be
entitled to the same benefits of the indemnification, waiver and other
protective provisions to which the Agent is entitled under ARTICLES IX and X.
10.15. SYNDICATION AGENTS; SENIOR MANAGING AGENTS; MANAGING AGENTS. None
of the Lenders identified in this Agreement as the "Syndication Agents", "Senior
Managing Agents" or "Managing Agents" shall have any right, power, obligation,
liability, responsibility or duty under this Agreement in such identified
capacity other than those applicable to all Lenders as such. Without limiting
the foregoing, none of such Lenders shall have or be deemed to have a fiduciary
relationship with any Lender. Each Lender hereby makes the same acknowledgments
with respect to such Lenders as it makes with respect to the Agent in SECTION
10.11.
ARTICLE XI
SETOFF; RATABLE PAYMENTS
11.1. SETOFF. In addition to, and without limitation of, any rights of
the Lenders under applicable law, if the Borrower becomes insolvent, however
evidenced, or any Default occurs, any and all deposits (including all account
balances, whether provisional or final and whether or not collected or
available) and any other Indebtedness at any time held or owing by any Lender or
any Affiliate of any Lender to or for the credit or account of the Borrower may
be offset and applied toward the payment of the Obligations owing to such
Lender, whether or not the Obligations, or any part thereof, shall then be due.
11.2. RATABLE PAYMENTS. If any Lender, whether by setoff or otherwise,
has payment made to it upon its Loans (other than payments received pursuant to
SECTION 3.1, 3.2, 3.4 or 3.5) in a greater proportion than that received by any
other Lender, such Lender agrees, promptly
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upon demand, to purchase a portion of the Loans held by the other Lenders so
that after such purchase each Lender will hold its ratable proportion of Loans.
If any Lender, whether in connection with setoff or amounts which might be
subject to setoff or otherwise, receives collateral or other protection for its
Obligations or such amounts which may be subject to setoff, such Lender agrees,
promptly upon demand, to take such action necessary such that all Lenders share
in the benefits of such collateral ratably in proportion to their Loans. In case
any such payment is disturbed by legal process, or otherwise, appropriate
further adjustments shall be made. If an amount to be setoff is to be applied to
Indebtedness of the Borrower to a Lender, other than Indebtedness comprised of
Loans made by such Lender, such amount shall be applied ratably to such other
Indebtedness and to the Indebtedness comprised of such Loans.
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1. SUCCESSORS AND ASSIGNS. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Borrower and the
Lenders and their respective successors and assigns, except that (i) the
Borrower shall not have the right to assign its rights or obligations under the
Loan Documents and (ii) any assignment by any Lender must be made in compliance
with SECTION 12.3. The parties to this Agreement acknowledge that clause (ii) of
this SECTION 12.1 relates only to absolute assignments and does not prohibit
assignments creating security interests, including, without limitation, (x) any
pledge or assignment by any Lender of all or any portion of its rights under
this Agreement and any Note to a Federal Reserve Bank or (y) in the case of a
Lender which is a Fund, any pledge or assignment of all or any portion of its
rights under this Agreement and any Note to its trustee in support of its
obligations to its trustee; PROVIDED, HOWEVER, that no such pledge or assignment
creating a security interest shall release the transferor Lender from its
obligations hereunder unless and until the parties thereto have complied with
the provisions of SECTION 12.3. The Agent may treat the Person which made any
Loan or which holds any Note as the owner thereof for all purposes hereof unless
and until such Person complies with SECTION 12.3; PROVIDED, HOWEVER, that the
Agent may in its discretion (but shall not be required to) follow instructions
from the Person which made any Loan or which holds any Note to direct payments
relating to such Loan or Note to another Person. Any assignee of the rights to
any Loan or any Note agrees by acceptance of such assignment to be bound by all
the terms and provisions of the Loan Documents. Any request, authority or
consent of any Person, who at the time of making such request or giving such
authority or consent is the owner of the rights to any Loan (whether or not a
Note has been issued in evidence thereof), shall be conclusive and binding on
any subsequent holder or assignee of the rights to such Loan.
12.2. PARTICIPATIONS.
12.2.1. PERMITTED PARTICIPANTS; EFFECT. Any Lender may, in the
ordinary course of its business and in accordance with applicable law, at
any time sell to one or more banks or other entities ("PARTICIPANTS")
participating interests in any Loan owing to such Lender, any Note held by
such Lender, any Commitment of such Lender or any other interest of such
Lender under the Loan Documents. In the event of any such sale by a Lender
of participating interests to a Participant, such Lender's obligations
under the Loan Documents shall remain unchanged, such Lender shall remain
solely responsible to
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the other parties hereto for the performance of such obligations, such
Lender shall remain the owner of its Loans and the holder of any Note
issued to it in evidence thereof for all purposes under the Loan Documents,
all amounts payable by the Borrower under this Agreement shall be
determined as if such Lender had not sold such participating interests, and
the Borrower and the Agent shall continue to deal solely and directly with
such Lender in connection with such Lender's rights and obligations under
the Loan Documents.
12.2.2. VOTING RIGHTS. Each Lender shall retain the sole right to
approve, without the consent of any Participant, any amendment,
modification or waiver of any provision of the Loan Documents other than
any amendment, modification or waiver with respect to any Loan or
Commitment in which such Participant has an interest which would require
consent of all of the Lenders pursuant to the terms of SECTION 8.2 or of
any other Loan Document.
12.2.3. BENEFIT OF SETOFF. The Borrower agrees that each
Participant which has been identified as such to the Borrower in writing
shall be deemed to have the right of setoff provided in SECTION 11.1 in
respect of its participating interest in amounts owing under the Loan
Documents to the same extent as if the amount of its participating interest
were owing directly to it as a Lender under the Loan Documents; PROVIDED,
that each Lender shall retain the right of setoff provided in SECTION 11.1
with respect to the amount of participating interests sold to each
Participant. The Lenders agree to share with each Participant, and each
Participant, by exercising the right of setoff provided in SECTION 11.1,
agrees to share with each Lender, any amount received pursuant to the
exercise of its right of setoff, such amounts to be shared in accordance
with SECTION 11.2 as if each Participant were a Lender.
12.3. ASSIGNMENTS.
12.3.1. PERMITTED ASSIGNMENTS. Any Lender may, in the ordinary
course of its business and in accordance with applicable law, at any time
assign to one or more banks or other entities ("PURCHASERS") all or any
part of its rights and obligations under the Loan Documents. Such
assignment shall be substantially in the form of EXHIBIT C or in such other
form as may be agreed to by the parties thereto. The consent of the
Borrower and the Agent shall be required prior to an assignment becoming
effective with respect to a Purchaser which is not a Lender, an Affiliate
thereof or an Approved Fund; PROVIDED, HOWEVER, that if a Default has
occurred and is continuing, the consent of the Borrower shall not be
required. Such consent shall not be unreasonably withheld or delayed. Each
such assignment with respect to a Purchaser which is not a Lender or an
Affiliate thereof shall (unless each of the Borrower and the Agent
otherwise consents) be in an amount not less than the lesser of (i)
$5,000,000 or (ii) the remaining amount of the assigning Lender's
Commitment (calculated as at the date of such assignment) or outstanding
Loans (if the applicable Commitment has been terminated).
12.3.2. EFFECT; EFFECTIVE DATE. Upon (i) delivery to the Agent of
an assignment, together with any consents required by SECTION 12.3.1, and
(ii) payment of a $4,000 fee to
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the Agent for processing such assignment, such assignment shall become
effective on the effective date specified in such assignment. The
assignment shall contain a representation by the Purchaser to the effect
that none of the consideration used to make the purchase of the Commitment
and Loans under the applicable assignment agreement constitutes "plan
assets" as defined under ERISA and that the rights and interests of the
Purchaser in and under the Loan Documents will not be "plan assets" under
ERISA. On and after the effective date of such assignment, such Purchaser
shall for all purposes be a Lender party to this Agreement and any other
Loan Document executed by or on behalf of the Lenders and shall have all
the rights and obligations of a Lender under the Loan Documents, to the
same extent as if it were an original party hereto, and no further consent
or action by the Borrower, the Lenders or the Agent shall be required to
release the transferor Lender with respect to the percentage of the
Aggregate Commitment and Loans assigned to such Purchaser. Upon the
consummation of any assignment to a Purchaser pursuant to this SECTION
12.3.2, the transferor Lender, the Agent and the Borrower shall, if the
transferor Lender or the Purchaser desires that its Loans be evidenced by
Notes, make appropriate arrangements so that new Notes or, as appropriate,
replacement Notes are issued to such transferor Lender and new Notes or, as
appropriate, replacement Notes, are issued to such Purchaser, in each case
in principal amounts reflecting their respective Commitments, as adjusted
pursuant to such assignment.
12.4. DISSEMINATION OF INFORMATION. The Borrower authorizes each Lender
to disclose to any Participant or Purchaser or any other Person acquiring an
interest in the Loan Documents by operation of law (each a "TRANSFEREE") and any
prospective Transferee any and all information in such Lender's possession
concerning the creditworthiness of the Borrower and its Subsidiaries; PROVIDED
that each Transferee and prospective Transferee agrees to be bound by Section
9.11 of this Agreement.
12.5. TAX TREATMENT. If any interest in any Loan Document is transferred
to any Transferee which is organized under the laws of any jurisdiction other
than the United States or any State thereof, the transferor Lender shall cause
such Transferee, concurrently with the effectiveness of such transfer, to comply
with the provisions of SECTION 3.5(d).
ARTICLE XIII
NOTICES
13.1. GIVING NOTICE. Except as otherwise permitted by SECTION 2.14 with
respect to borrowing notices, all notices, requests and other communications to
any party hereunder shall be in writing (including electronic transmission,
facsimile transmission or similar writing) and shall be given to such party: (x)
in the case of the Borrower or the Agent, at its address or facsimile number set
forth on the signature pages hereof, (y) in the case of any Lender, at its
address or facsimile number set forth below its signature hereto or (z) in the
case of any party, at such other address or facsimile number as such party may
hereafter specify for the purpose by notice to the Agent and the Borrower in
accordance with the provisions of this SECTION 13.1. Each such notice, request
or other communication shall be effective (i) if given by facsimile
transmission, when transmitted to the facsimile number specified in this Section
and confirmation of receipt is received, (ii) if given by mail, 72 hours after
such communication is
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deposited in the mails with first class postage prepaid, addressed as aforesaid,
or (iii) if given by any other means, when delivered (or, in the case of
electronic transmission, received) at the address specified in this Section;
PROVIDED that notices to the Agent under ARTICLE II shall not be effective until
received.
13.2. CHANGE OF ADDRESS. The Borrower, the Agent and any Lender may each
change the address for service of notice upon it by a notice in writing to the
other parties hereto.
ARTICLE XIV
COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of which
taken together shall constitute one agreement, and any of the parties hereto may
execute this Agreement by signing any such counterpart. This Agreement shall be
effective when it has been executed by the Borrower, the Agent and the Lenders
and each party has notified the Agent by facsimile transmission or telephone
that it has taken such action.
ARTICLE XV
CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL
15.1. CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING A
CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS (INCLUDING, WITHOUT LIMITATION, 735 ILCS SECTION 105/5-1 ET
SEQ, BUT OTHERWISE WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS) OF THE
STATE OF ILLINOIS, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL
BANKS.
15.2. CONSENT TO JURISDICTION. THE BORROWER HEREBY IRREVOCABLY SUBMITS TO
THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR ILLINOIS STATE
COURT SITTING IN CHICAGO, ILLINOIS IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO ANY LOAN DOCUMENTS AND THE BORROWER HEREBY IRREVOCABLY AGREES THAT
ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED
IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER
HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A
COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT
THE RIGHT OF THE AGENT OR ANY LENDER TO BRING PROCEEDINGS AGAINST THE BORROWER
IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY THE BORROWER
AGAINST THE AGENT OR ANY LENDER OR ANY AFFILIATE OF THE AGENT OR ANY LENDER
INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED
TO, OR CONNECTED WITH ANY LOAN DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN
CHICAGO, ILLINOIS.
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15.3. WAIVER OF JURY TRIAL. THE BORROWER, THE AGENT AND EACH LENDER
HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR
INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY
WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT OR THE
RELATIONSHIP ESTABLISHED THEREUNDER.
[signature pages to follow]
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IN WITNESS WHEREOF, the Borrower, the Lenders and the Agent have executed
this Agreement as of the date first above written.
AON CORPORATION
By:
---------------------------------------
Print Name:
-------------------------------
Title:
------------------------------------
Address: Aon Center
200 East Randolph Drive
Chicago, Illinois 60601
Attn: Diane Aigotti
Telecopy: (312) 381-6060
Telephone: (312) 381-3230
BANK ONE, NA,
individually and as Agent
By:
---------------------------------------
Print Name:
-------------------------------
Title:
------------------------------------
Address: 1 Bank One Plaza
Suite IL1-0085, 16th Floor
Chicago, Illinois 60670
Attn: Cindy Priest
Telecopy: (312) 732-4033
Telephone: (312) 732-9565
<Page>
ABN AMRO BANK N.V.,
individually and as Syndication Agent
By:
---------------------------------------
Print Name:
-------------------------------
Title:
------------------------------------
By:
---------------------------------------
Print Name:
-------------------------------
Title:
------------------------------------
Address: 135 S. LaSalle Street,
Suite 625
Chicago, IL 60674
Attn: Andrew Haak
Telecopy: (312) 606-8425
Telephone: (312) 904-2851
<Page>
CITIBANK, N.A.,
individually and as Syndication Agent
By:
---------------------------------------
Print Name:
-------------------------------
Title:
------------------------------------
Address: 388 Greenwich Street
22nd Floor
New York, New York 10013
Attn: Peter C. Bickford
Telecopy: (212) 816-4144
Telephone: (212) 816-4022
<Page>
FIRST UNION NATIONAL BANK,
individually and as Syndication Agent
By:
---------------------------------------
Print Name:
-------------------------------
Title:
------------------------------------
Address: 301 South College Street
DC-5,
NC0169
Charlotte, NC 28288-0169
Attn: Lance P. Black
Telecopy: (704) 383-7611
Telephone: (704) 374-6628
<Page>
JP MORGAN CHASE BANK,
individually and as Senior Managing Agent
By:
---------------------------------------
Print Name:
-------------------------------
Title:
------------------------------------
Address: 270 Park Avenue
15th Floor
New York, NY 10017
Attn: Helen Newcomb
Telecopy: (212) 270-0412
Telephone: (212) 270-6260
<Page>
THE BANK OF NEW YORK,
individually and as Senior Managing Agent
By:
---------------------------------------
Print Name:
-------------------------------
Title:
------------------------------------
Address: One Wall Street
17th Floor
New York, New York 10286
Attn: Evan Glass
Telecopy: (212) 809-9520
Telephone: (212) 635-6466
<Page>
THE NORTHERN TRUST COMPANY,
individually and as Managing Agent
By:
---------------------------------------
Print Name:
-------------------------------
Title:
------------------------------------
Address: 50 S. LaSalle Street
Chicago, Illinois 60675
Attn: Richard W. Berger
Telecopy: (312) 557-2673
Telephone: (312) 444-5918
<Page>
BANK OF MONTREAL,
individually and as Managing Agent
By:
---------------------------------------
Print Name:
-------------------------------
Title:
------------------------------------
Address: 111 West Monroe Street
Suite 12 West
Chicago, Illinois 60603
Attn: Randy J. Goodleaf
Telecopy: (312) 845-2196
Telephone: (312) 845-2035
<Page>
FLEET NATIONAL BANK,
individually and as Managing Agent
By:
---------------------------------------
Print Name:
-------------------------------
Title:
------------------------------------
Address: 100 Federal Street
Mail Code: MA DE 10010H
Boston, MA 02110
Attn: Eugene G. Ardito
Telecopy: (617) 434-1096
Telephone: (617) 434-3311
<Page>
ROYAL BANK OF CANADA,
individually and as Managing Agent
By:
---------------------------------------
Print Name:
-------------------------------
Title:
------------------------------------
Address: New York Branch
One Liberty Plaza
3rd Floor
New York, NY 10006-1404
Attn: Manager, Loans
Administration
Telecopy: (416) 955-6720
Telephone: (416) 955-6679
with a copy to:
Address: New York Branch
One Liberty Plaza
3rd Floor
New York, NY 10006-1404
Attn: Alexander Birr
Telecopy: (212) 428-6201
Telephone: (212) 428-6404
<Page>
THE BANK OF NOVA SCOTIA
By:
---------------------------------------
Print Name:
-------------------------------
Title:
------------------------------------
Address: 181 W. Madison
Suite 3700
Chicago, IL 60602
Attn: Lisa Garling
Telecopy: (312) 201-4108
Telephone: (312) 201-4135
<Page>
WELLS FARGO BANK, N.A.
By:
---------------------------------------
Print Name:
-------------------------------
Title:
------------------------------------
By:
---------------------------------------
Print Name:
-------------------------------
Title:
------------------------------------
Address: 230 W. Monroe Street
Suite 2900
Chicago, IL 60606
Attn: Robert C. Meyer
Telecopy: (312) 845-8606
Telephone: (312) 345-8623
<Page>
FIRSTAR BANK, N.A.
By:
---------------------------------------
Print Name:
-------------------------------
Title:
------------------------------------
Address: 777 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
Attn: James Spredemann
Telecopy: (414) 765-5367
Telephone: (414) 765-6626
<Page>
THE FUJI BANK, LIMITED
By:
---------------------------------------
Print Name:
-------------------------------
Title:
------------------------------------
Address: 227 West Monroe Street
Suite 2600
Chicago, IL 60606
Attn: Peter L. Chinnici
Telecopy: (312) 621-0539
Telephone: (312) 621-0500
<Page>
STATE STREET BANK AND TRUST
COMPANY
By:
---------------------------------------
Print Name:
-------------------------------
Title:
------------------------------------
Address: 2 Avenue de Lafayette
Mail Code: LCC2
Boston, MA 02111
Attn: Lise Anne Boutiette
Telecopy: (617) 662-3778
Telephone: (617) 662-3262
<Page>
PRICING SCHEDULE
<Table>
<Caption>
- -------------------------------------------------------------------------------------------------------------------------------
LEVEL I LEVEL II LEVEL III LEVEL IV LEVEL V LEVEL VI
STATUS STATUS STATUS STATUS STATUS STATUS
- -------------------------------------------------------------------------------------------------------------------------------
BORROWER DEBT AA-/Aa3 A+/A1 A/A2 A-/A3 BBB+/Baa1 LESS THAN BBB+/Baa1
RATING
- -------------------------------------------------------------------------------------------------------------------------------
Applicable .07% .08% .09% .11% .125% .15%
Facility Fee Rate
- -------------------------------------------------------------------------------------------------------------------------------
Applicable
Margin
- -------------------------------------------------------------------------------------------------------------------------------
Eurodollar Rate .13% .17% .21% .265% .375% .475%
- -------------------------------------------------------------------------------------------------------------------------------
Alternate Base 0.0 0.0 0.0 0.0 0.0 0.0
Rate
- -------------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------------
Applicable .10% .10% .10% .125% .125% .125%
Utilization Fee
Rate* (GREATER THAN 33%)
===============================================================================================================================
</Table>
Subject to the following two sentences, a particular Level Status
shall exist on a particular day if on such day the Borrower does not
qualify for a Level Status with more advantageous pricing and either the
Moody's Rating or the S&P Rating is at least equal to the corresponding
rating specified for such Level Status in the table above. In the event of
a difference in the equivalent "rating level" from S&P and Moody's
resulting in a split of only one level, then the Level Status shall be
determined by reference to the higher of the two Ratings. In the event of a
difference in the equivalent "rating level" from S&P and Moody's resulting
in a
- ----------
* The Applicable Utilization Fee Rate shall be payable with respect to
outstanding Advances on days when Utilization is greater than 33%.
"Utilization" means, for any day, a percentage equal to the aggregate
principal amount of Loans hereunder and "Loans" (as defined in the
364-Day Agreement) outstanding on such day (and at the close of
business on such day if a Business Day) divided by the sum on such day
of the Aggregate Commitment and the "Aggregate Commitment" under the
364-Day Agreement; PROVIDED that for purposes of computing the
Utilization Fee (a) the Aggregate Commitment shall be deemed to in no
event be less than the aggregate outstanding principal amount of the
Loans, (b) the "Aggregate Commitment" (as defined in the 364-Day
Agreement) shall be deemed to in no event be less than the aggregate
outstanding principal amount of the "Loans" (as defined in the 364-Day
Agreement) and (c) on and after the "Revolving Credit Termination
Date" (as defined in the 364-Day Agreement), the "Aggregate
Commitment" (as defined in the 364-Day Agreement) shall be deemed to
be equal to the aggregate outstanding principal amount of the "Loans"
(as defined in the 364-Day Agreement).
<Page>
split of greater than one level, then the Level Status shall be that Level
Status one below the Level Status determined by reference to the higher of
the two Ratings. The above ratings are in the format of S&P Rating/Moody's
Rating.
For the purposes of this Schedule, the following terms have the
following meanings, subject to the final paragraph of this Schedule:
"Level Status" means either Level I Status, Level II Status, Level
III Status, Level IV Status, Level V Status or Level VI Status.
"Moody's Rating" means, at any time, the Borrower Debt Rating
issued by Moody's and then in effect.
"Rating" means Moody's Rating or S&P Rating.
"S&P Rating" means, at any time, the Borrower Debt Rating issued by
S&P and then in effect.
The Applicable Margin and Applicable Facility Fee Rate shall be
determined in accordance with the foregoing table based on the Borrower's
Level Status as determined from its then-current Moody's and S&P Ratings.
The Rating in effect on any date for the purposes of this Schedule is that
in effect at the close of business on such date. If at any time the
Borrower has no Moody's Rating or no S&P Rating or the Borrower does not
qualify for a Level Status with more advantageous pricing, Level VI Status
shall exist.
-2-
<Page>
SCHEDULE 1
COMMITMENTS
<Table>
<Caption>
LENDER COMMITMENT
------ ----------
Bank One, NA $ 50,000,000
ABN AMRO Bank N.V. 45,000,000
Citibank, N.A. 45,000,000
First Union National Bank 45,000,000
JP Morgan Chase Bank 40,000,000
The Bank of New York 37,500,000
The Northern Trust Company 30,000,000
Bank of Montreal 25,000,000
Fleet National Bank 25,000,000
Royal Bank of Canada 25,000,000
The Bank of Nova Scotia 17,500,000
Wells Fargo Bank, N.A. 15,000,000
Firstar Bank, N.A. 12,500,000
The Fuji Bank, Limited 12,500,000
State Street Bank and Trust Company 12,500,000
TOTAL $ 437,500,000
==============
</Table>
<Page>
EXHIBIT A
NOTE
[$______________] [Date]
Aon Corporation, a Delaware corporation (the "Borrower"), promises to pay
to the order of ____________________________________ (the "Lender") the lesser
of the principal sum of ______________________ Dollars or the aggregate unpaid
principal amount of all Loans made by the Lender to the Borrower pursuant to
Article II of the Agreement (as hereinafter defined), in immediately available
funds at the main office of Bank One, NA in Chicago, Illinois, as Agent,
together with interest on the unpaid principal amount hereof at the rates and on
the dates set forth in the Agreement. The Borrower shall pay the principal of
and accrued and unpaid interest on the Loans in full on the Facility Termination
Date and shall make such mandatory payments as are required to be made under the
terms of Article II of the Agreement.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual practice,
the date and amount of each Loan and the date and amount of each principal
payment hereunder.
This Note is one of the Notes issued pursuant to, and is entitled to the
benefits of, the Three Year Credit Agreement dated as of February 8, 2002
(which, as it may be amended or modified and in effect from time to time, is
herein called the "Agreement"), among the Borrower, the lenders party thereto,
including the Lender, and Bank One, NA, as Agent, to which Agreement reference
is hereby made for a statement of the terms and conditions governing this Note,
including the terms and conditions under which this Note may be prepaid or its
maturity date accelerated. Capitalized terms used herein and not otherwise
defined herein are used with the meanings attributed to them in the Agreement.
AON CORPORATION
By:
-------------------------------------
Print Name:
-----------------------------
Title:
----------------------------------
A-1
<Page>
SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL
TO
NOTE OF AON CORPORATION,
DATED ___________,
<Table>
<Caption>
Principal Maturity Principal
Amount of of Interest Amount Unpaid
Date Loan Period Paid Balance
- ----------------------------------------------------------------------------------------------------------------
</Table>
<Page>
EXHIBIT B
COMPLIANCE CERTIFICATE
To: The Lenders parties to the
Credit Agreement Described Below
This Compliance Certificate is furnished pursuant to that certain
Three Year Credit Agreement dated as of February 8, 2002 (as amended, modified,
renewed or extended from time to time, the "Agreement") among the Borrower, the
lenders party thereto and Bank One, NA, as Agent for the Lenders. Unless
otherwise defined herein, capitalized terms used in this Compliance Certificate
have the meanings ascribed thereto in the Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected ____________________of the Borrower;
2. I have reviewed the terms of the Agreement and I have made,
or have caused to be made under my supervision, a detailed review of the
transactions and conditions of the Borrower and its Subsidiaries during the
accounting period covered by the attached financial statements;
3. The examinations described in paragraph 2 did not disclose,
and I have no knowledge of, the existence of any condition or event which
constitutes a Default or Unmatured Default during or at the end of the
accounting period covered by the attached financial statements or as of the date
of this Certificate, except as set forth below; and
4. Schedule I attached hereto sets forth financial data and
computations evidencing the Borrower's compliance with certain covenants of the
Agreement, all of which data and computations are true, complete and correct.
Described below are the exceptions, if any, to paragraph 3 by
listing, in detail, the nature of the condition or event, the period during
which it has existed and the action which the Borrower has taken, is taking, or
proposes to take with respect to each such condition or event:
-----------------------------------------------------------
-----------------------------------------------------------
The foregoing certifications, together with the computations set forth in
Schedule I hereto and the financial statements delivered with this Certificate
in support hereof, are made and delivered this ___ day of _______, 200_.
B-1
<Page>
SCHEDULE I TO COMPLIANCE CERTIFICATE
Schedule of Compliance as of ______________, 200_ with
Provisions of Section 6.17 of
the Agreement
1. SECTION 6.17.1 - CONSOLIDATED NET WORTH
A. Consolidated Net Worth $___________
B. Must be greater than $2,500,000,000 (or, at all times from and
after the CSC Spin-Off, $2,000,000,000)
Complies ________ Does Not Comply ___
2. SECTION 6.17.2 - CONSOLIDATED EBITDA TO CONSOLIDATED INTEREST EXPENSE
A. Consolidated EBITDA
(for four fiscal quarters ended ___________, 200__)
(i) Consolidated Net Income $________
(ii) Consolidated Interest Expense $________
(iii) taxes $________
(iv) depreciation $________
(v) amortization $________
(vi) extraordinary losses $________
(vii) extraordinary gains $________
(viii) Sum of (i) through (vi) minus (vii) $________
B. Consolidated Interest Expense
(for four fiscal quarters ended ___________, 200__) $________
C. Ratio of A to B ___ to 1.0
D. Permitted Ratio Greater than 4.0 to 1.0
Complies ____ Does Not Comply ___
<Page>
EXHIBIT C
ASSIGNMENT AGREEMENT
This Assignment Agreement (this "Assignment Agreement") between
_________________________ (the "Assignor") and _____________________________
(the "Assignee") is dated as of ________________, 20__. The parties hereto agree
as follows:
1. PRELIMINARY STATEMENT. The Assignor is a party to a Credit Agreement
(which, as it may be amended, modified, renewed or extended from time to time is
herein called the "Credit Agreement") described in Item 1 of Schedule 1 attached
hereto ("Schedule 1"). Capitalized terms used herein and not otherwise defined
herein shall have the meanings attributed to them in the Credit Agreement.
2. ASSIGNMENT AND ASSUMPTION. The Assignor hereby sells and assigns to the
Assignee, and the Assignee hereby purchases and assumes from the Assignor, an
interest in and to the Assignor's rights and obligations under the Credit
Agreement and the other Loan Documents, such that after giving effect to such
assignment the Assignee shall have purchased pursuant to this Assignment
Agreement the percentage interest specified in Item 3 of Schedule 1 of all
outstanding rights and obligations under the Credit Agreement and the other Loan
Documents relating to the facilities listed in Item 3 of Schedule 1. The
aggregate Commitment (or Loans, if the applicable Commitment has been
terminated) purchased by the Assignee hereunder is set forth in Item 4 of
Schedule 1.
3. EFFECTIVE DATE. The effective date of this Assignment Agreement (the
"Effective Date") shall be the later of the date specified in Item 5 of Schedule
1 or two Business Days (or such shorter period agreed to by the Agent) after
this Assignment Agreement, together with any consents required under the Credit
Agreement, are delivered to the Agent. In no event will the Effective Date occur
if the payments required to be made by the Assignee to the Assignor on the
Effective Date are not made on the proposed Effective Date.
4. PAYMENT OBLIGATIONS. In consideration for the sale and assignment of
Loans hereunder, the Assignee shall pay the Assignor, on the Effective Date, the
amount agreed to by the Assignor and the Assignee. On and after the Effective
Date, the Assignee shall be entitled to receive from the Agent all payments of
principal, interest and fees with respect to the interest assigned hereby. The
Assignee will promptly remit to the Assignor any interest on Loans and fees
received from the Agent which relate to the portion of the Commitment or Loans
assigned to the Assignee hereunder for periods prior to the Effective Date and
not previously paid by the Assignee to the Assignor. In the event that either
party hereto receives any payment to which the other party hereto is entitled
under this Assignment Agreement, then the party receiving such amount shall
promptly remit it to the other party hereto.
C-1
<Page>
5. RECORDATION FEE. The Assignor and Assignee each agree to pay one-half of
the recordation fee required to be paid to the Agent in connection with this
Assignment Agreement unless otherwise specified in Item 6 of Schedule 1.
6. REPRESENTATIONS OF THE ASSIGNOR; LIMITATIONS ON THE ASSIGNOR'S
LIABILITY. The Assignor represents and warrants that (i) it is the legal and
beneficial owner of the interest being assigned by it hereunder, (ii) such
interest is free and clear of any adverse claim created by the Assignor and
(iii) the execution and delivery of this Assignment Agreement by the Assignor is
duly authorized. It is understood and agreed that the assignment and assumption
hereunder are made without recourse to the Assignor and that the Assignor makes
no other representation or warranty of any kind to the Assignee. Neither the
Assignor nor any of its officers, directors, employees, agents or attorneys
shall be responsible for (i) the due execution, legality, validity,
enforceability, genuineness, sufficiency or collectability of any Loan Document,
including without limitation, documents granting the Assignor and the other
Lenders a security interest in assets of the Borrower or any guarantor, (ii) any
representation, warranty or statement made in or in connection with any of the
Loan Documents, (iii) the financial condition or creditworthiness of the
Borrower or any guarantor, (iv) the performance of or compliance with any of the
terms or provisions of any of the Loan Documents, (v) inspecting any of the
property, books or records of the Borrower, (vi) the validity, enforceability,
perfection, priority, condition, value or sufficiency of any collateral securing
or purporting to secure the Loans or (vii) any mistake, error of judgment, or
action taken or omitted to be taken in connection with the Loans or the Loan
Documents.
7. REPRESENTATIONS AND UNDERTAKINGS OF THE ASSIGNEE. The Assignee (i)
confirms that it has received a copy of the Credit Agreement, together with
copies of the financial statements requested by the Assignee and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment Agreement, (ii) agrees that
it will, independently and without reliance upon the Agent, the Assignor or any
other Lender and based on such documents and information at it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Loan Documents, (iii) appoints and authorizes the
Agent to take such action as agent on its behalf and to exercise such powers
under the Loan Documents as are delegated to the Agent by the terms thereof,
together with such powers as are reasonably incidental thereto, (iv) confirms
that the execution and delivery of this Assignment Agreement by the Assignee is
duly authorized, (v) agrees that it will perform in accordance with their terms
all of the obligations which by the terms of the Loan Documents are required to
be performed by it as a Lender, (vi) agrees that its payment instructions and
notice instructions are as set forth in the attachment to Schedule 1, (vii)
confirms that none of the funds, monies, assets or other consideration being
used to make the purchase and assumption hereunder are "plan assets" as defined
under ERISA and that its rights, benefits and interests in and under the Loan
Documents will not be "plan assets" under ERISA, (viii) agrees to indemnify and
hold the Assignor harmless against all losses, costs and expenses (including,
without limitation, reasonable attorneys' fees) and liabilities incurred by the
Assignor in connection with or arising in any manner from the Assignee's
non-performance of the obligations assumed under this Assignment Agreement, and
-2-
<Page>
(ix) if applicable, attaches the forms prescribed by the Internal Revenue
Service of the United States certifying that the Assignee is entitled to receive
payments under the Loan Documents without deduction or withholding of any United
States federal income taxes.
8. GOVERNING LAW. This Assignment Agreement shall be governed by the
internal law, and not the law of conflicts, of the State of Illinois.
9. NOTICES. Notices shall be given under this Assignment Agreement in the
manner set forth in the Credit Agreement. For the purpose hereof, the addresses
of the parties hereto (until notice of a change is delivered) shall be the
address set forth in the attachment to Schedule 1.
10. COUNTERPARTS; DELIVERY BY FACSIMILE. This Assignment Agreement may be
executed in counterparts. Transmission by facsimile of an executed counterpart
of this Assignment Agreement shall be deemed to constitute due and sufficient
delivery of such counterpart and such facsimile shall be deemed to be an
original counterpart of this Assignment Agreement.
IN WITNESS WHEREOF, the duly authorized officers of the parties hereto have
executed this Assignment Agreement by executing Schedule 1 hereto as of the date
first above written.
-3-
<Page>
SCHEDULE 1
to Assignment Agreement
1. Description and Date of Credit Agreement: Three Year Credit Agreement dated
as of February 8, 2002 among Aon Corporation, Bank One, NA, as agent, and the
lenders party thereto.
2. Date of Assignment Agreement: _____________, 200__
3. Amounts (As of Date of Item 2 above):
Facility
1*
--------
a. Assignee's percentage
of each Facility purchased
under the Assignment
Agreement ____ %
b. Amount of
each Facility
purchased
under the Assignment
Agreement $_____
4. Assignee's Commitment (or Loans
with respect to terminated
Commitments) purchased
hereunder: $ ___________
5. Proposed Effective Date: ________________
6. Non-standard Recordation Fee
Arrangement (if applicable)
Accepted and Agreed:
[NAME OF ASSIGNOR] [NAME OF ASSIGNEE]
By: By:
--------------------------------- ---------------------------------
Title: Title:
------------------------------ ------------------------------
-1-
<Page>
CONSENTED TO BY CONSENTED TO BY
AON CORPORATION BANK ONE, NA
By: By:
--------------------------------- ---------------------------------
Title: Title:
------------------------------ ------------------------------
* Insert specific facility names per Credit Agreement
** Percentage taken to 10 decimal places
*** If fee is split 50-50, pick N/A as option
**** Delete if not required by Credit Agreement
-2-
<Page>
Attachment to SCHEDULE 1 to ASSIGNMENT AGREEMENT
ADMINISTRATIVE INFORMATION SHEET
Attach Assignor's Administrative Information Sheet,
which must include notice addresses for the Assignor
and the Assignee
(Sample form shown below)
ASSIGNOR INFORMATION
CONTACT:
Name: Telephone No.:
----------------------------- ---------------------------
Fax No.: Telex No.:
-------------------------- -------------------------------
Answerback:
------------------------------
PAYMENT INFORMATION:
Name & ABA # of Destination Bank:
----------------------------------------------
- --------------------------------------------------------------------------------
Account Name & Number for Wire Transfer:
---------------------------------------
---------------------------------------
Other Instructions:
------------------------------------------------------------
- --------------------------------------------------------------------------------
ADDRESS FOR NOTICES FOR ASSIGNOR:
----------------------------------------------
----------------------------------------------
----------------------------------------------
ASSIGNEE INFORMATION
CREDIT CONTACT:
Name: Telephone No.:
----------------------------- ---------------------------
Fax No.: Telex No.:
-------------------------- -------------------------------
Answerback:
------------------------------
KEY OPERATIONS CONTACTS:
Booking Installation: Booking Installation:
------------- --------------------
Name: Name:
----------------------------- ------------------------------------
Telephone No.: Telephone No.:
-------------------- ---------------------------
Fax No.: Fax No.:
-------------------------- ---------------------------------
Telex No.: Telex No.:
------------------------ -------------------------------
Answerback: Answerback:
----------------------- ------------------------------
-1-
<Page>
PAYMENT INFORMATION:
Name & ABA # of Destination Bank:
----------------------------------------------
- --------------------------------------------------------------------------------
Account Name & Number for Wire Transfer:
----------------------------------------
----------------------------------------
Other Instructions:
-------------------------------------------------------------
- --------------------------------------------------------------------------------
ADDRESS FOR NOTICES FOR ASSIGNEE:
----------------------------------------------
----------------------------------------------
----------------------------------------------
BANK ONE INFORMATION
Assignee will be called promptly upon receipt of the signed agreement.
INITIAL FUNDING CONTACT: SUBSEQUENT OPERATIONS CONTACT:
Name: Name:
----------------------- ------------------------------------
Telephone No.: (312) Telephone No.: (312)
-------------- ---------------------------
Fax No.: (312) Fax No.: (312)
-------------------- --------------------------------
Bank One Telex No.: 190201 (Answerback: FNBC UT)
--------------------------------
INITIAL FUNDING STANDARDS:
Libor - Fund 2 days after rates are set.
BANK ONE WIRE INSTRUCTIONS: Bank One, NA, ABA # 071000013
LS2 Incoming Account # 481152860000
Ref:________________
ADDRESS FOR NOTICES FOR BANK ONE: 1 Bank One Plaza, Chicago, IL 60670
Attn: Agency Compliance Division,
Suite IL1-0353
Fax No. (312) 732-2038 or (312) 732-4339
-2-