EXHIBIT 10.16
EXECUTION COPY
U.S. $100,000,000
364-DAY CREDIT AGREEMENT
Dated as of June 21, 2002
Among
PLATINUM UNDERWRITERS HOLDINGS, LTD.
as Borrower
and
THE INITIAL LENDERS NAMED HEREIN
as Initial Lenders
and
CITIBANK, N.A.
as Agent
and
JPMORGAN CHASE BANK
and
BANK OF AMERICA, N.A.
as Syndication Agents
and
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
as Agent
TABLE OF CONTENTS
ARTICLE I
SECTION 1.01. Certain Defined Terms 1
SECTION 1.02. Computation of Time Periods 9
SECTION 1.03. Accounting Terms 9
ARTICLE II
SECTION 2.01. The Advances 10
SECTION 2.02. Making the Advances 10
SECTION 2.03. Fees 11
SECTION 2.04. Optional Termination or Reduction of the Commitments 11
SECTION 2.05. Repayment of Advances 11
SECTION 2.06. Interest on Advances 11
SECTION 2.07. Interest Rate Determination 11
SECTION 2.08. Optional Conversion of Advances 12
SECTION 2.09. Prepayments of Advances 13
SECTION 2.10. Increased Costs 13
SECTION 2.11. Illegality 13
SECTION 2.12. Payments and Computations 13
SECTION 2.13. Taxes 14
SECTION 2.14. Sharing of Payments, Etc. 15
SECTION 2.15. Evidence of Debt 15
SECTION 2.16. Use of Proceeds 16
SECTION 2.17. Increase in the Aggregate Commitments 16
SECTION 2.18. Extension of Termination Date 17
ARTICLE III
SECTION 3.01. Conditions Precedent to Effectiveness of Section 2.01 18
SECTION 3.02. Conditions Precedent to Each Borrowing, Commitment Increase and Extension Date. 20
SECTION 3.03. Determinations Under Section 3.01 20
ARTICLE IV
SECTION 4.01. Representations and Warranties of the Borrower 20
ARTICLE V
SECTION 5.01. Affirmative Covenants 22
SECTION 5.02. Negative Covenants 24
SECTION 5.03. Financial Covenants 26
ARTICLE VI
SECTION 6.01. Events of Default 26
ARTICLE VII
SECTION 7.01. Authorization and Action 28
SECTION 7.02. Agent's Reliance, Etc. 28
SECTION 7.03. Citibank and Affiliates 28
SECTION 7.04. Lender Credit Decision 29
SECTION 7.05. Indemnification 29
SECTION 7.06. Successor Agent 29
SECTION 7.07. Other Agents. 29
ARTICLE VIII
SECTION 8.01. Amendments, Etc. 29
SECTION 8.02. Notices, Etc. 30
SECTION 8.03. No Waiver; Remedies 30
SECTION 8.04. Costs and Expenses 30
SECTION 8.05. Right of Set-off 31
ii
SECTION 8.06. Binding Effect 31
SECTION 8.07. Assignments and Participations 32
SECTION 8.08. Confidentiality 33
SECTION 8.09. Governing Law 33
SECTION 8.10. Execution in Counterparts 34
SECTION 8.11. Judgment 34
SECTION 8.12. Jurisdiction, Etc. 34
SECTION 8.13. Waiver of Jury Trial 35
iii
Schedules
Schedule I - List of Applicable Lending Offices
Exhibits
Exhibit A - Form of Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D-1 - Form of Opinion of Bermuda Counsel for the Borrower
Exhibit D-2 - Form of Opinion of New York Counsel for the Borrower
iv
364-DAY CREDIT AGREEMENT
Dated as of June 21, 2002
PLATINUM UNDERWRITERS HOLDINGS, LTD., a company organized
under the laws of Bermuda (the "Borrower"), the banks, financial institutions
and other institutional lenders (the "Initial Lenders") listed on the signature
pages hereof, JPMORGAN CHASE BANK and BANK OF AMERICA, N.A., as syndication
agents, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC., as lead arranger, and CITIBANK, N.A.
("Citibank"), as agent (the "Agent") for the Lenders (as hereinafter defined),
agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this
Agreement, the following terms shall have the following meanings (such meanings
to be equally applicable to both the singular and plural forms of the terms
defined):
"Advance" means an advance by a Lender to the Borrower as part
of a Borrowing and refers to a Base Rate Advance or a Eurodollar Rate
Advance (each of which shall be a "Type" of Advance).
"Affiliate" means, as to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common
control with such Person or is a director or officer of such Person.
For purposes of this definition, the term "control" (including the
terms "controlling", "controlled by" and "under common control with")
of a Person means the possession, direct or indirect, of the power to
vote 5% or more of the Voting Stock of such Person or to direct or
cause the direction of the management and policies of such Person,
whether through the ownership of Voting Stock, by contract or
otherwise.
"Agent's Account" means the account of the Agent maintained by
the Agent at Citibank at its office at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Account No. ▇▇▇▇▇▇▇▇, Attention: Bank Loan
Syndications, or such other account as the Agent may from time to time
specify as the "Agent's Account".
"Annual Statement" means the annual financial statement of an
Insurance Subsidiary as required to be filed with the Authority (or
similar governmental authority) of such Subsidiary's domicile, together
with all exhibits or schedules filed therewith, prepared in conformity
with SAP.
"Applicable Lending Office" means, with respect to each
Lender, such Lender's Domestic Lending Office in the case of a Base
Rate Advance and such Lender's Eurodollar Lending Office in the case of
a Eurodollar Rate Advance.
"Applicable Margin" means (a) for Base Rate Advances, 0% per
annum and (b) for Eurodollar Rate Advances, as of any date prior to
which the Borrower first has a Public Debt Rating, 0.500% per annum
and, as of any date thereafter, a percentage per annum determined by
reference to the Public Debt Rating in effect on such date as set forth
below:
------------------------------------------------------
Public Debt Rating Applicable Margin for
S&P/▇▇▇▇▇'▇ Eurodollar Rate Advances
------------------------------------------------------
Level 1
A or A2 or above 0.445%
------------------------------------------------------
Level 2
A- or A3 0.475%
------------------------------------------------------
------------------------------------------------------
▇▇▇▇▇ ▇
BBB+ or Baa1 0.500%
------------------------------------------------------
Level 4
BBB or Baa2 0.550%
------------------------------------------------------
▇▇▇▇▇ ▇
▇▇▇- ▇▇▇ ▇▇▇▇ 0.675%
------------------------------------------------------
▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇ 0.750%
------------------------------------------------------
"Applicable Percentage" means, as of any date prior to which
the Borrower first has a Public Debt Rating, 0.125% per annum and, as
of any date thereafter, a percentage per annum determined by reference
to the Public Debt Rating in effect on such date as set forth below:
-----------------------------------------------
Public Debt Rating Applicable
S&P/▇▇▇▇▇'▇ Percentage
-----------------------------------------------
Level 1
A or A2 or above 0.080%
-----------------------------------------------
Level 2
A- or A3 0.100%
-----------------------------------------------
▇▇▇▇▇ ▇
BBB+ or Baa1 0.125%
-----------------------------------------------
Level 4
BBB or Baa2 0.150%
-----------------------------------------------
▇▇▇▇▇ ▇
▇▇▇- ▇▇▇ ▇▇▇▇ 0.200%
-----------------------------------------------
▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇ 0.250%
-----------------------------------------------
"Applicable Utilization Fee" means, as of any date that the
aggregate Advances exceed 50% of the Commitments, (a) prior to which
the Borrower first has a Public Debt Rating, 0.125% per annum and (b)
as of any date thereafter, a percentage per annum determined by
reference to the Public Debt Rating in effect on such date as set forth
below:
--------------------------------------------------
Public Debt Rating Applicable
S&P/▇▇▇▇▇'▇ Utilization Fee
--------------------------------------------------
Level 1
A or A2 or above 0.125%
--------------------------------------------------
Level 2
A- or A3 0.125%
--------------------------------------------------
▇▇▇▇▇ ▇
BBB+ or Baa1 0.125%
--------------------------------------------------
Level 4
BBB or Baa2 0.125%
--------------------------------------------------
▇▇▇▇▇ ▇
▇▇▇- ▇▇▇ ▇▇▇▇ 0.125%
--------------------------------------------------
▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇ 0.250%
--------------------------------------------------
2
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by the
Agent, in substantially the form of Exhibit C hereto.
"Assuming Lender" has the meaning specified in Section
2.17(d).
"Assumption Agreement" has the meaning specified in Section
2.17(d)(ii).
"Authority" means the Bermuda Monetary Authority or similar
governmental authority in the applicable jurisdiction.
"Base Rate" means a fluctuating interest rate per annum in
effect from time to time, which rate per annum shall at all times be
equal to the highest of:
(a) the rate of interest announced publicly by
Citibank in New York, New York, from time to time, as
Citibank's base rate; and
(b) 1/2 of one percent per annum above the
Federal Funds Rate.
"Base Rate Advance" means an Advance that bears interest as
provided in Section 2.06(a)(i).
"Borrowing" means a borrowing consisting of simultaneous
Advances of the same Type made by each of the Lenders pursuant to
Section 2.01.
"Business Day" means a day of the year on which banks are not
required or authorized by law to close in New York City and, if the
applicable Business Day relates to any Eurodollar Rate Advances, on
which dealings are carried on in the London interbank market.
"Citibank" means Citibank, N.A.
"Commitment" means as to any Lender (a) the amount set forth
opposite such Lender's name on Schedule I hereto, (b) if such Lender
has become a Lender hereunder pursuant to an Assumption Agreement, the
amount set forth in such Assumption Agreement or (c) if such Lender has
entered into any Assignment and Acceptance, the amount set forth for
such Lender in the Register maintained by the Agent pursuant to Section
8.07(d), as such amount may be reduced pursuant to Section 2.04 or
increased pursuant to Section 2.17.
"Commitment Date" has the meaning specified in Section
2.17(b).
"Commitment Increase" has the meaning specified in Section
2.17(a).
"Confidential Information" means information that the Borrower
furnishes to the Agent or any Lender in a writing designated as
confidential, but does not include any such information that is or
becomes generally available to the public or that is or becomes
available to the Agent or such Lender from a source other than the
Borrower.
"Consenting Lender" has the meaning specified in Section
2.18(b).
"Consolidated" refers to the consolidation of accounts in
accordance with GAAP.
"Convert", "Conversion" and "Converted" each refers to a
conversion of Advances of one Type into Advances of the other Type
pursuant to Section 2.07 or 2.08.
"Debt" of any Person means, without duplication, (a) all
indebtedness of such Person for borrowed money, (b) all obligations of
such Person for the deferred purchase price of property or services
(other than
3
trade payables not overdue by more than 60 days incurred in the
ordinary course of such Person's business), (c) all obligations of such
Person evidenced by notes, bonds, debentures or other similar
instruments, (d) all obligations of such Person created or arising
under any conditional sale or other title retention agreement with
respect to property acquired by such Person (even though the rights and
remedies of the seller or lender under such agreement in the event of
default are limited to repossession or sale of such property), (e) all
obligations of such Person as lessee under leases that have been or
should be, in accordance with GAAP, recorded as capital leases, (f) all
obligations, contingent or otherwise, of such Person in respect of
acceptances, letters of credit or similar extensions of credit, (g) all
obligations of such Person in respect of Hedge Agreements, (h) all Debt
of others referred to in clauses (a) through (g) above or clause (i)
below and other payment obligations guaranteed directly or indirectly
in any manner by such Person, or in effect guaranteed directly or
indirectly by such Person through an agreement (1) to pay or purchase
such Debt or to advance or supply funds for the payment or purchase of
such Debt, (2) to purchase, sell or lease (as lessee or lessor)
property, or to purchase or sell services, primarily for the purpose of
enabling the debtor to make payment of such Debt or to assure the
holder of such Debt against loss, (3) to supply funds to or in any
other manner invest in the debtor (including any agreement to pay for
property or services irrespective of whether such property is received
or such services are rendered) or (4) otherwise to assure a creditor
against loss, and (i) all Debt referred to in clauses (a) through (h)
above secured by (or for which the holder of such Debt has an existing
right, contingent or otherwise, to be secured by) any Lien on property
(including, without limitation, accounts and contract rights) owned by
such Person, even though such Person has not assumed or become liable
for the payment of such Debt; provided, that obligations under
Reinsurance Agreements and Primary Policies and guarantees of such
obligations shall not constitute "Debt".
"Debt for Borrowed Money" of any Person means all items that,
in accordance with GAAP, would be classified as indebtedness on a
consolidated balance sheet of such Person.
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
"Domestic Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Domestic Lending Office"
opposite its name on Schedule I hereto or in the Assumption Agreement
or the Assignment and Acceptance pursuant to which it became a Lender,
or such other office of such Lender as such Lender may from time to
time specify to the Borrower and the Agent.
"Effective Date" has the meaning specified in Section 3.01.
"Eligible Assignee" means (i) a Lender; (ii) an Affiliate of a
Lender; and (iii) any other Person approved by the Agent and, unless an
Event of Default has occurred and is continuing at the time any
assignment is effected in accordance with Section 8.07, the Borrower,
such approval not to be unreasonably withheld or delayed; provided,
however, that neither the Borrower nor an Affiliate of the Borrower
shall qualify as an Eligible Assignee.
"Environmental Law" means any federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, judgment,
decree or judicial or agency interpretation, policy or guidance
relating to pollution or protection of the environment, health, safety
or natural resources, including, without limitation, those relating to
the use, handling, transportation, treatment, storage, disposal,
release or discharge of hazardous materials.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"ERISA Affiliate" means any Person that for purposes of Title
IV of ERISA is a member of the Borrower's controlled group, or under
common control with the Borrower, within the meaning of Section 414 of
the Internal Revenue Code.
4
"ERISA Event" means (a) (i) the occurrence of a reportable
event, within the meaning of Section 4043 of ERISA, with respect to any
Plan unless the 30-day notice requirement with respect to such event
has been waived by the PBGC, or (ii) the requirements of subsection (1)
of Section 4043(b) of ERISA (without regard to subsection (2) of such
Section) are met with respect to a contributing sponsor, as defined in
Section 4001(a)(13) of ERISA, of a Plan, and an event described in
paragraph (9), (10), (11), (12) or (13) of Section 4043(c) of ERISA is
reasonably expected to occur with respect to such Plan within the
following 30 days; (b) the application for a minimum funding waiver
with respect to a Plan; (c) the provision by the administrator of any
Plan of a notice of intent to terminate such Plan pursuant to Section
4041(a)(2) of ERISA (including any such notice with respect to a plan
amendment referred to in Section 4041(e) of ERISA); (d) the cessation
of operations at a facility of the Borrower or any ERISA Affiliate in
the circumstances described in Section 4062(e) of ERISA; (e) the
withdrawal by the Borrower or any ERISA Affiliate from a Multiple
Employer Plan during a plan year for which it was a substantial
employer, as defined in Section 4001(a)(2) of ERISA; (f) the conditions
for the imposition of a lien under Section 302(f) of ERISA shall have
been met with respect to any Plan; (g) the adoption of an amendment to
a Plan requiring the provision of security to such Plan pursuant to
Section 307 of ERISA; or (h) the institution by the PBGC of proceedings
to terminate a Plan pursuant to Section 4042 of ERISA, or the
occurrence of any event or condition described in Section 4042 of ERISA
that constitutes grounds for the termination of, or the appointment of
a trustee to administer, a Plan.
"Eurocurrency Liabilities" has the meaning assigned to that
term in Regulation D of the Board of Governors of the Federal Reserve
System, as in effect from time to time.
"Eurodollar Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Eurodollar Lending Office"
opposite its name on Schedule I hereto or in the Assumption Agreement
or the Assignment and Acceptance pursuant to which it became a Lender
(or, if no such office is specified, its Domestic Lending Office), or
such other office of such Lender as such Lender may from time to time
specify to the Borrower and the Agent.
"Eurodollar Rate" means, for any Interest Period for each
Eurodollar Rate Advance comprising part of the same Borrowing, an
interest rate per annum equal to the rate per annum obtained by
dividing (a) the rate per annum (rounded upward to the nearest whole
multiple of 1/16 of 1% per annum) appearing on Telerate Markets Page
3750 (or any successor page) as the London interbank offered rate for
deposits in U.S. dollars at approximately 11:00 A.M. (London time) two
Business Days prior to the first day of such Interest Period for a term
comparable to such Interest Period or, if for any reason such rate is
not available, the average (rounded upward to the nearest whole
multiple of 1/16 of 1% per annum, if such average is not such a
multiple) of the rate per annum at which deposits in U.S. dollars are
offered by the principal office of each of the Reference Banks in
London, England to prime banks in the London interbank market at 11:00
A.M. (London time) two Business Days before the first day of such
Interest Period in an amount substantially equal to such Reference
Bank's Eurodollar Rate Advance comprising part of such Borrowing to be
outstanding during such Interest Period and for a period equal to such
Interest Period by (b) a percentage equal to 100% minus the Eurodollar
Rate Reserve Percentage for such Interest Period. If the Telerate
Markets Page 3750 (or any successor page) is unavailable, the
Eurodollar Rate for any Interest Period for each Eurodollar Rate
Advance comprising part of the same Borrowing shall be determined by
the Agent on the basis of applicable rates furnished to and received by
the Agent from the Reference Banks two Business Days before the first
day of such Interest Period, subject, however, to the provisions of
Section 2.07.
"Eurodollar Rate Advance" means an Advance that bears interest
as provided in Section 2.06(a)(ii).
"Eurodollar Rate Reserve Percentage" for any Interest Period
for all Eurodollar Rate Advances comprising part of the same Borrowing
means the reserve percentage applicable two Business Days before the
first day of such Interest Period under regulations issued from time to
time by the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement
5
(including, without limitation, any emergency, supplemental or other
marginal reserve requirement) for a member bank of the Federal Reserve
System in New York City with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities (or with respect to
any other category of liabilities that includes deposits by reference
to which the interest rate on Eurodollar Rate Advances is determined)
having a term equal to such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Extension Date" has the meaning specified in Section 2.18(b).
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the
weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds
brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day that is a
Business Day, the average of the quotations for such day on such
transactions received by the Agent from three Federal funds brokers of
recognized standing selected by it.
"GAAP" has the meaning specified in Section 1.03.
"Hedge Agreements" means interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contracts and other similar
agreements.
"Increase Date" has the meaning specified in Section 2.17(a).
"Increasing Lender" has the meaning specified in Section
2.17(b).
"Information Memorandum" means the information memorandum
dated May 31, 2002 used by the Agent in connection with the syndication
of the Commitments.
"Insurance Code" means, with respect to any Insurance
Subsidiary, the statute of such Insurance Subsidiary's domicile that
governs the formation and operation of entities engaged in the business
of insurance and any successor statute of similar import, together with
the regulations thereunder, as amended or otherwise modified and in
effect from time to time.
"Insurance Subsidiary" means any Subsidiary of the Borrower
which is licensed by any governmental authority to engage in the
insurance business by issuing Primary Policies or entering into
Reinsurance Agreements.
"Interest Period" means, for each Eurodollar Rate Advance
comprising part of the same Borrowing, the period commencing on the
date of such Eurodollar Rate Advance or the date of the Conversion of
any Base Rate Advance into such Eurodollar Rate Advance and ending on
the last day of the period selected by the Borrower pursuant to the
provisions below and, thereafter, with respect to Eurodollar Rate
Advances, each subsequent period commencing on the last day of the
immediately preceding Interest Period and ending on the last day of the
period selected by the Borrower pursuant to the provisions below. The
duration of each such Interest Period shall be one, two, three or six
months, as the Borrower may, upon notice received by the Agent not
later than 11:00 A.M. (New York City time) on the third Business Day
prior to the first day of such Interest Period, select; provided,
however, that:
(a) the Borrower may not select any Interest
Period that ends after the Termination Date;
6
(b) Interest Periods commencing on the same date
for Eurodollar Rate Advances comprising part of the same
Borrowing shall be of the same duration;
(c) whenever the last day of any Interest Period
would otherwise occur on a day other than a Business Day, the
last day of such Interest Period shall be extended to occur on
the next succeeding Business Day, provided, however, that, if
such extension would cause the last day of such Interest
Period to occur in the next following calendar month, the last
day of such Interest Period shall occur on the next preceding
Business Day; and
(d) whenever the first day of any Interest
Period occurs on a day of an initial calendar month for which
there is no numerically corresponding day in the calendar
month that succeeds such initial calendar month by the number
of months equal to the number of months in such Interest
Period, such Interest Period shall end on the last Business
Day of such succeeding calendar month.
"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"Invested Assets" means cash, cash equivalents, short term
investments, investments held for sale and any other assets which are
treated as investments under GAAP.
"Lenders" means the Initial Lenders, each Assuming Lender that
shall become a party hereto pursuant to Section 2.17 or 2.18 and each
Person that shall become a party hereto pursuant to Section 8.07.
"Licenses" means hold licenses (including, without limitation,
licenses or certificates of authority from applicable insurance
departments), permits or authorizations to transact insurance and
reinsurance business.
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor and any easement, right of way or other encumbrance
on title to real property.
"Material Adverse Change" means any material adverse change in
the business, condition (financial or otherwise), operations,
performance, properties or prospects of the Borrower or the Borrower
and its Subsidiaries taken as a whole.
"Material Adverse Effect" means a material adverse effect on
(a) the business, condition (financial or otherwise), operations,
performance, properties or prospects of the Borrower or the Borrower
and its Subsidiaries taken as a whole, (b) the rights and remedies of
the Agent or any Lender under this Agreement or any Note or (c) the
ability of the Borrower to perform its obligations under this Agreement
or any Note.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA
Affiliate is making or accruing an obligation to make contributions, or
has within any of the preceding five plan years made or accrued an
obligation to make contributions.
"Multiple Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of the Borrower or any ERISA Affiliate and at least one
Person other than the Borrower and the ERISA Affiliates or (b) was so
maintained and in respect of which the Borrower or any ERISA Affiliate
could have liability under Section 4064 or 4069 of ERISA in the event
such plan has been or were to be terminated.
"Non-Consenting Lender" has the meaning specified in Section
2.18(b).
7
"Note" means a promissory note of the Borrower payable to the
order of any Lender, delivered pursuant to a request made under Section
2.15 in substantially the form of Exhibit A hereto, evidencing the
aggregate indebtedness of the Borrower to such Lender resulting from
the Advances made by such Lender.
"Notice of Borrowing" has the meaning specified in Section
2.02(a).
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"Permitted Liens" means such of the following as to which no
enforcement, collection, execution, levy or foreclosure proceeding
shall have been commenced: (a) Liens for taxes, assessments and
governmental charges or levies to the extent not required to be paid
under Section 5.01(b) hereof; (b) Liens imposed by law, such as
materialmen's, mechanics', carriers', workmen's and repairmen's Liens
and other similar Liens arising in the ordinary course of business
securing obligations that are not overdue for a period of more than 60
days; (c) pledges or deposits to secure obligations under workers'
compensation laws or similar legislation or to secure public or
statutory obligations; and (d) easements, rights of way and other
encumbrances on title to real property that do not render title to the
property encumbered thereby unmarketable or materially adversely affect
the use of such property for its present purposes.
"Person" means an individual, partnership, corporation
(including a business trust), joint stock company, trust,
unincorporated association, joint venture, limited liability company or
other entity, or a government or any political subdivision or agency
thereof.
"Plan" means a Single Employer Plan or a Multiple Employer
Plan.
"Primary Policies" means any insurance policies issued by an
Insurance Subsidiary.
"Public Debt Rating" means, as of any date, the rating that
has been most recently announced by either S&P or Moody's, as the case
may be, for any class of non-credit enhanced long-term senior unsecured
debt issued by the Borrower. For purposes of the foregoing, (a) if only
one of S&P and Moody's shall have in effect a Public Debt Rating, the
Applicable Margin, the Applicable Percentage and the Applicable
Utilization Fee shall be determined by reference to the available
rating; (b) if at any time after the Borrower first has a Public Debt
Rating issued by either S&P or Moody's, neither S&P nor Moody's shall
have in effect a Public Debt Rating, the Applicable Margin, the
Applicable Percentage and the Applicable Utilization Fee will be set in
accordance with Level 6 under the definition of "Applicable Margin",
"Applicable Percentage" or "Applicable Utilization Fee", as the case
may be; (c) if the ratings established by S&P and Moody's shall fall
within different levels, the Applicable Margin, the Applicable
Percentage and the Applicable Utilization Fee shall be based upon the
higher rating unless such ratings differ by two or more levels, in
which case the applicable level will be one level above the lower of
such levels; (d) if any rating established by S&P or Moody's shall be
changed, such change shall be effective as of the date on which such
change is first announced publicly by the rating agency making such
change; and (e) if S&P or Moody's shall change the basis on which
ratings are established, each reference to the Public Debt Rating
announced by S&P or Moody's, as the case may be, shall refer to the
then equivalent rating by S&P or Moody's, as the case may be.
"Reference Banks" means Citibank, JPMorgan Chase Bank and Bank
of America, N.A.
"Register" has the meaning specified in Section 8.07(d).
"Registration Statement" means the Form S-1 Registration
Statement under the Securities Act of 1933, filed with the Securities
and Exchange Commission on June 14, 2002, as such Form S-1 may be
amended, modified or otherwise supplemented from time to time and
distributed to the Lenders prior to June 21, 2002, or as further
amended, modified or supplemented from time to time as is acceptable to
the Required Lenders.
8
"Reinsurance Agreements" means any agreement, contract,
treaty, certificate or other arrangement whereby the Borrower or any
Subsidiary agrees to assume from or reinsure an insurer or reinsurer
all or part of the liability of such insurer or reinsurer under a
policy or policies of insurance issued by such insurer or reinsurer.
"Required Lenders" means at any time Lenders owed at least
66-2/3% of the then aggregate unpaid principal amount of the Advances
owing to Lenders, or, if no such principal amount is then outstanding,
Lenders having at least 66-2/3% of the Commitments.
"S&P" means Standard & Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc.
"SAP" means, as to each Insurance Subsidiary, the statutory
accounting practices prescribed or permitted by the Authority (or other
similar authority) in such Insurance Subsidiary's domicile for the
preparation of Annual Statements and other financial reports by
insurance corporations of the same type as such Insurance Subsidiary.
"Single Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of the Borrower or any ERISA Affiliate and no Person other
than the Borrower and the ERISA Affiliates or (b) was so maintained and
in respect of which the Borrower or any ERISA Affiliate could have
liability under Section 4069 of ERISA in the event such plan has been
or were to be terminated.
"St. ▇▇▇▇" means The St. ▇▇▇▇ Companies, Inc., a Minnesota
corporation.
"Subsidiary" of any Person means any corporation, partnership,
joint venture, limited liability company, trust or estate of which (or
in which) more than 50% of (a) the issued and outstanding capital stock
having ordinary voting power to elect a majority of the Board of
Directors of such corporation (irrespective of whether at the time
capital stock of any other class or classes of such corporation shall
or might have voting power upon the occurrence of any contingency), (b)
the interest in the capital or profits of such limited liability
company, partnership or joint venture or (c) the beneficial interest in
such trust or estate is at the time directly or indirectly owned or
controlled by such Person, by such Person and one or more of its other
Subsidiaries or by one or more of such Person's other Subsidiaries.
"Termination Date" means the earlier of (a) June 20, 2003,
subject to the extension thereof pursuant to Section 2.18 and (b) the
date of termination in whole of the Commitments pursuant to Section
2.04 or 6.01; provided, however, that the Termination Date of any
Lender that is a Non-Consenting Lender to any requested extension
pursuant to Section 2.18 shall be the Termination Date in effect
immediately prior to the applicable Extension Date for all purposes of
this Agreement.
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such
Person, even if the right so to vote has been suspended by the
happening of such a contingency.
SECTION 1.02. Computation of Time Periods. In this
Agreement in the computation of periods of time from a specified date to a later
specified date, the word "from" means "from and including" and the words "to"
and "until" each mean "to but excluding".
SECTION 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles consistent with those applied in the preparation
of the financial statements referred to in Section 4.01(e) ("GAAP").
ARTICLE II
9
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Advances. Each Lender severally agrees,
on the terms and conditions hereinafter set forth, to make Advances to the
Borrower from time to time on any Business Day during the period from the
Effective Date until the Termination Date in an aggregate amount not to exceed
at any time outstanding such Lender's Commitment. Each Borrowing shall be in an
aggregate amount of $5,000,000 or an integral multiple of $1,000,000 in excess
thereof and shall consist of Advances of the same Type made on the same day by
the Lenders ratably according to their respective Commitments. Within the limits
of each Lender's Commitment, the Borrower may borrow under this Section 2.01,
prepay pursuant to Section 2.09 and reborrow under this Section 2.01.
SECTION 2.02. Making the Advances. (a) Each Borrowing
shall be made on notice, given not later than (x) 11:00 A.M. (New York City
time) on the third Business Day prior to the date of the proposed Borrowing in
the case of a Borrowing consisting of Eurodollar Rate Advances or (y) 11:00 A.M.
(New York City time) on the first Business Day prior to the date of the proposed
Borrowing in the case of a Borrowing consisting of Base Rate Advances, by the
Borrower to the Agent, which shall give to each Lender prompt notice thereof by
telecopier or telex. Each such notice of a Borrowing (a "Notice of Borrowing")
shall be by telephone, confirmed immediately in writing, or telecopier or telex
in substantially the form of Exhibit B hereto, specifying therein the requested
(i) date of such Borrowing, (ii) Type of Advances comprising such Borrowing,
(iii) aggregate amount of such Borrowing, and (iv) in the case of a Borrowing
consisting of Eurodollar Rate Advances, initial Interest Period for each such
Advance. Each Lender shall, before 11:00 A.M. (New York City time) on the date
of such Borrowing make available for the account of its Applicable Lending
Office to the Agent at the Agent's Account, in same day funds, such Lender's
ratable portion of such Borrowing. After the Agent's receipt of such funds and
upon fulfillment of the applicable conditions set forth in Article III, the
Agent will make such funds available to the Borrower at the Agent's address
referred to in Section 8.02.
(b) Anything in subsection (a) above to the contrary
notwithstanding, (i) the Borrower may not select Eurodollar Rate Advances for
any Borrowing if the aggregate amount of such Borrowing is less than $5,000,000
or if the obligation of the Lenders to make Eurodollar Rate Advances shall then
be suspended pursuant to Section 2.07 or 2.11 and (ii) the Eurodollar Rate
Advances may not be outstanding as part of more than six separate Borrowings.
(c) Each Notice of Borrowing shall be irrevocable and
binding on the Borrower. In the case of any Borrowing that the related Notice of
Borrowing specifies is to be comprised of Eurodollar Rate Advances, the Borrower
shall indemnify each Lender against any loss, cost or expense incurred by such
Lender as a result of any failure to fulfill on or before the date specified in
such Notice of Borrowing for such Borrowing the applicable conditions set forth
in Article III, including, without limitation, any loss (including loss of
anticipated profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Lender to fund the
Advance to be made by such Lender as part of such Borrowing when such Advance,
as a result of such failure, is not made on such date.
(d) Unless the Agent shall have received notice from a
Lender prior to the date of any Borrowing that such Lender will not make
available to the Agent such Lender's ratable portion of such Borrowing, the
Agent may assume that such Lender has made such portion available to the Agent
on the date of such Borrowing in accordance with subsection (a) of this Section
2.02 and the Agent may, in reliance upon such assumption, make available to the
Borrower on such date a corresponding amount. If and to the extent that such
Lender shall not have so made such ratable portion available to the Agent, such
Lender and the Borrower severally agree to repay to the Agent forthwith on
demand such corresponding amount together with interest thereon, for each day
from the date such amount is made available to the Borrower until the date such
amount is repaid to the Agent, at (i) in the case of the Borrower, the interest
rate applicable at the time to Advances comprising such Borrowing and (ii) in
the case of such Lender, the Federal Funds Rate. If such Lender shall repay to
the Agent such corresponding amount, such amount so repaid shall constitute such
Lender's Advance as part of such Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the Advance to be
made by it as part of any Borrowing shall not relieve any other Lender of its
obligation, if any, hereunder to make its Advance on the date of such
10
Borrowing, but no Lender shall be responsible for the failure of any other
Lender to make the Advance to be made by such other Lender on the date of any
Borrowing.
SECTION 2.03. Fees. (a) Facility Fee. The Borrower agrees
to pay to the Agent for the account of each Lender a facility fee on the
aggregate amount of such Lender's Commitment from the Effective Date in the case
of each Initial Lender and from the effective date specified in the Assumption
Agreement or in the Assignment and Acceptance pursuant to which it became a
Lender in the case of each other Lender until the Termination Date at a rate per
annum equal to the Applicable Percentage in effect from time to time, payable in
arrears quarterly on the last day of each March, June, September and December,
commencing September 30, 2002, and on the Termination Date.
(b) Agent's Fees. The Borrower shall pay to the Agent for
its own account such fees as may from time to time be agreed between the
Borrower and the Agent.
SECTION 2.04. Optional Termination or Reduction of the
Commitments. The Borrower shall have the right, upon at least three Business
Days' notice to the Agent, to terminate in whole or permanently reduce ratably
in part the unused portions of the respective Commitments of the Lenders,
provided that each partial reduction shall be in the aggregate amount of
$5,000,000 or an integral multiple of $1,000,000 in excess thereof.
SECTION 2.05. Repayment of Advances. The Borrower shall
repay to the Agent for the ratable account of the Lenders on the Termination
Date the aggregate principal amount of the Advances then outstanding.
SECTION 2.06. Interest on Advances. (a) Scheduled
Interest. The Borrower shall pay interest on the unpaid principal amount of each
Advance owing to each Lender from the date of such Advance until such principal
amount shall be paid in full, at the following rates per annum:
(i) Base Rate Advances. During such periods as such
Advance is a Base Rate Advance, a rate per annum equal at all times to
the sum of (x) the Base Rate in effect from time to time plus (y) the
Applicable Margin in effect from time to time plus (z) the Applicable
Utilization Fee in effect from time to time, payable in arrears
quarterly on the last day of each March, June, September and December
during such periods and on the date such Base Rate Advance shall be
Converted or paid in full.
(ii) Eurodollar Rate Advances. During such periods as such
Advance is a Eurodollar Rate Advance, a rate per annum equal at all
times during each Interest Period for such Advance to the sum of (x)
the Eurodollar Rate for such Interest Period for such Advance plus (y)
the Applicable Margin in effect from time to time plus (z) the
Applicable Utilization Fee in effect from time to time, payable in
arrears on the last day of such Interest Period and, if such Interest
Period has a duration of more than three months, on each day that
occurs during such Interest Period every three months from the first
day of such Interest Period and on the date such Eurodollar Rate
Advance shall be Converted or paid in full.
(b) Default Interest. Upon the occurrence and during the
continuance of an Event of Default, the Agent may, and upon the request of the
Required Lenders shall, require the Borrower to pay interest ("Default
Interest") on (i) the unpaid principal amount of each Advance owing to each
Lender, payable in arrears on the dates referred to in clause (a)(i) or (a)(ii)
above, at a rate per annum equal at all times to 2% per annum above the rate per
annum required to be paid on such Advance pursuant to clause (a)(i) or (a)(ii)
above and (ii) to the fullest extent permitted by law, the amount of any
interest, fee or other amount payable hereunder that is not paid when due, from
the date such amount shall be due until such amount shall be paid in full,
payable in arrears on the date such amount shall be paid in full and on demand,
at a rate per annum equal at all times to 2% per annum above the rate per annum
required to be paid on Base Rate Advances pursuant to clause (a)(i) above,
provided, however, that following acceleration of the Advances pursuant to
Section 6.01, Default Interest shall accrue and be payable hereunder whether or
not previously required by the Agent.
SECTION 2.07. Interest Rate Determination. (a) Each
Reference Bank agrees to furnish to the Agent timely information for the purpose
of determining each Eurodollar Rate. If any one or more of the Reference Banks
shall not furnish such timely information to the Agent for the purpose of
determining any such interest rate,
11
the Agent shall determine such interest rate on the basis of timely information
furnished by the remaining Reference Banks. The Agent shall give prompt notice
to the Borrower and the Lenders of the applicable interest rate determined by
the Agent for purposes of Section 2.06(a)(i) or (ii), and the rate, if any,
furnished by each Reference Bank for the purpose of determining the interest
rate under Section 2.06(a)(ii).
(b) If, with respect to any Eurodollar Rate Advances, the
Required Lenders notify the Agent that the Eurodollar Rate for any Interest
Period for such Advances will not adequately reflect the cost to such Required
Lenders of making, funding or maintaining their respective Eurodollar Rate
Advances for such Interest Period, the Agent shall forthwith so notify the
Borrower and the Lenders, whereupon (i) each Eurodollar Rate Advance will
automatically, on the last day of the then existing Interest Period therefor,
Convert into a Base Rate Advance, and (ii) the obligation of the Lenders to
make, or to Convert Advances into, Eurodollar Rate Advances shall be suspended
until the Agent shall notify the Borrower and the Lenders that the circumstances
causing such suspension no longer exist.
(c) If the Borrower shall fail to select the duration of
any Interest Period for any Eurodollar Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.01, the
Agent will forthwith so notify the Borrower and the Lenders and such Advances
will automatically, on the last day of the then existing Interest Period
therefor, Convert into Base Rate Advances.
(d) On the date on which the aggregate unpaid principal
amount of Eurodollar Rate Advances comprising any Borrowing shall be reduced, by
payment or prepayment or otherwise, to less than $5,000,000, such Advances shall
automatically Convert into Base Rate Advances.
(e) Upon the occurrence and during the continuance of any
Event of Default, (i) each Eurodollar Rate Advance will automatically, on the
last day of the then existing Interest Period therefor, Convert into a Base Rate
Advance and (ii) the obligation of the Lenders to make, or to Convert Advances
into, Eurodollar Rate Advances shall be suspended.
(f) If Telerate Markets Page 3750 is unavailable and
fewer than two Reference Banks furnish timely information to the Agent for
determining the Eurodollar Rate for any Eurodollar Rate Advances,
(i) the Agent shall forthwith notify the Borrower and the
Lenders that the interest rate cannot be determined for such Eurodollar
Rate Advances,
(ii) with respect to Eurodollar Rate Advances, each such
Advance will automatically, on the last day of the then existing
Interest Period therefor, Convert into a Base Rate Advance (or if such
Advance is then a Base Rate Advance, will continue as a Base Rate
Advance), and
(iii) the obligation of the Lenders to make Eurodollar Rate
Advances or to Convert Advances into Eurodollar Rate Advances shall be
suspended until the Agent shall notify the Borrower and the Lenders
that the circumstances causing such suspension no longer exist.
SECTION 2.08. Optional Conversion of Advances. The
Borrower may on any Business Day, upon notice given to the Agent not later than
11:00 A.M. (New York City time) on the third Business Day prior to the date of
the proposed Conversion and subject to the provisions of Sections 2.07 and 2.11,
Convert all Advances of one Type comprising the same Borrowing into Advances of
the other Type; provided, however, that any Conversion of Eurodollar Rate
Advances into Base Rate Advances shall be made only on the last day of an
Interest Period for such Eurodollar Rate Advances, any Conversion of Base Rate
Advances into Eurodollar Rate Advances shall be in an amount not less than the
minimum amount specified in Section 2.02(b) and no Conversion of any Advances
shall result in more separate Borrowings than permitted under Section 2.02(b).
Each such notice of a Conversion shall, within the restrictions specified above,
specify (i) the date of such Conversion, (ii) the Advances to be Converted, and
(iii) if such Conversion is into Eurodollar Rate Advances, the duration of the
initial Interest Period for each such Advance. Each notice of Conversion shall
be irrevocable and binding on the Borrower.
12
SECTION 2.09. Prepayments of Advances. The Borrower may,
upon notice at least two Business Days' prior to the date of such prepayment, in
the case of Eurodollar Rate Advances, and not later than 11:00 A.M. (New York
City time) on the date of such prepayment, in the case of Base Rate Advances, to
the Agent stating the proposed date and aggregate principal amount of the
prepayment, and if such notice is given the Borrower shall, prepay the
outstanding principal amount of the Advances comprising part of the same
Borrowing in whole or ratably in part, together with accrued interest to the
date of such prepayment on the principal amount prepaid; provided, however, that
(x) each partial prepayment shall be in an aggregate principal amount of
$5,000,000 or an integral multiple of $1,000,000 in excess thereof and (y) in
the event of any such prepayment of a Eurodollar Rate Advance, the Borrower
shall be obligated to reimburse the Lenders in respect thereof pursuant to
Section 8.04(c).
SECTION 2.10. Increased Costs. (a) If, due to either (i)
the introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request from any central
bank or other governmental authority (whether or not having the force of law),
there shall be any increase in the cost to any Lender of agreeing to make or
making, funding or maintaining Eurodollar Rate Advances (excluding for purposes
of this Section 2.10 any such increased costs resulting from (i) Taxes or Other
Taxes (as to which Section 2.13 shall govern) and (ii) changes in the basis of
taxation of overall net income or overall gross income by the United States or
by the foreign jurisdiction or state under the laws of which such Lender is
organized or has its Applicable Lending Office or any political subdivision
thereof), then the Borrower shall from time to time, upon demand by such Lender
(with a copy of such demand to the Agent), pay to the Agent for the account of
such Lender additional amounts sufficient to compensate such Lender for such
increased cost; provided, however, that before making any such demand, each
Lender agrees to use reasonable efforts (consistent with its internal policy and
legal and regulatory restrictions) to designate a different Applicable Lending
Office if the making of such a designation would avoid the need for, or reduce
the amount of, such increased cost and would not, in the reasonable judgment of
such Lender, be otherwise disadvantageous to such Lender. A certificate as to
the amount of such increased cost, submitted to the Borrower and the Agent by
such Lender, shall be conclusive and binding for all purposes, absent manifest
error.
(b) If any Lender determines that compliance with any law
or regulation or any guideline or request from any central bank or other
governmental authority (whether or not having the force of law) affects or would
affect the amount of capital required or expected to be maintained by such
Lender or any corporation controlling such Lender and that the amount of such
capital is increased by or based upon the existence of such Lender's commitment
to lend hereunder and other commitments of this type, then, upon demand by such
Lender (with a copy of such demand to the Agent), the Borrower shall pay to the
Agent for the account of such Lender, from time to time as specified by such
Lender, additional amounts sufficient to compensate such Lender or such
corporation in the light of such circumstances, to the extent that such Lender
reasonably determines such increase in capital to be allocable to the existence
of such Lender's commitment to lend hereunder. A certificate as to such amounts
submitted to the Borrower and the Agent by such Lender shall be conclusive and
binding for all purposes, absent manifest error.
SECTION 2.11. Illegality. Notwithstanding any other
provision of this Agreement, if any Lender shall notify the Agent that the
introduction of or any change in or in the interpretation of any law or
regulation makes it unlawful, or any central bank or other governmental
authority asserts that it is unlawful, for any Lender or its Eurodollar Lending
Office to perform its obligations hereunder to make Eurodollar Rate Advances or
to fund or maintain Eurodollar Rate Advances hereunder, (a) each Eurodollar Rate
Advance will automatically, upon such demand, Convert into a Base Rate Advance
and (b) the obligation of the Lenders to make Eurodollar Rate Advances or to
Convert Advances into Eurodollar Rate Advances shall be suspended until the
Agent shall notify the Borrower and the Lenders that the circumstances causing
such suspension no longer exist; provided, however, that before making any such
demand, each Lender agrees to use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions) to designate a different
Eurodollar Lending Office if the making of such a designation would allow such
Lender or its Eurodollar Lending Office to continue to perform its obligations
to make Eurodollar Rate Advances or to continue to fund or maintain Eurodollar
Rate Advances and would not, in the judgment of such Lender, be otherwise
disadvantageous to such Lender.
SECTION 2.12. Payments and Computations. (a) The Borrower
shall make each payment hereunder, irrespective of any right of counterclaim or
set-off, not later than 11:00 A.M. (New York City time) on the day when due in
U.S. dollars to the Agent at the Agent's Account in same day funds. The Agent
will promptly
13
thereafter cause to be distributed like funds relating to the payment of
principal or interest or facility fees ratably (other than amounts payable
pursuant to Section 2.10, 2.13 or 8.04(c)) to the Lenders for the account of
their respective Applicable Lending Offices, and like funds relating to the
payment of any other amount payable to any Lender to such Lender for the account
of its Applicable Lending Office, in each case to be applied in accordance with
the terms of this Agreement. Upon any Assuming Lender becoming a Lender
hereunder as a result of a Commitment Increase pursuant to Section 2.17 or an
extension of the Termination Date pursuant to Section 2.18, and upon the Agent's
receipt of such Lender's Assumption Agreement and recording of the information
contained therein in the Register, from and after the applicable Increase Date
or Extension Date, as the case may be, the Agent shall make all payments
hereunder and under any Notes issued in connection therewith in respect of the
interest assumed thereby to the Assuming Lender. Upon its acceptance of an
Assignment and Acceptance and recording of the information contained therein in
the Register pursuant to Section 8.07(c), from and after the effective date
specified in such Assignment and Acceptance, the Agent shall make all payments
hereunder and under the Notes in respect of the interest assigned thereby to the
Lender assignee thereunder, and the parties to such Assignment and Acceptance
shall make all appropriate adjustments in such payments for periods prior to
such effective date directly between themselves.
(b) The Borrower hereby authorizes each Lender, if and to
the extent payment owed to such Lender is not made when due hereunder or under
the Note held by such Lender, to charge from time to time against any or all of
the Borrower's accounts with such Lender any amount so due.
(c) All computations of interest based on the Base Rate
shall be made by the Agent on the basis of a year of 365 or 366 days, as the
case may be, and all computations of interest based on the Eurodollar Rate or
the Federal Funds Rate and of facility fees shall be made by the Agent on the
basis of a year of 360 days, in each case for the actual number of days
(including the first day but excluding the last day) occurring in the period for
which such interest or facility fees are payable. Each determination by the
Agent of an interest rate hereunder shall be conclusive and binding for all
purposes, absent manifest error.
(d) Whenever any payment hereunder or under the Notes
shall be stated to be due on a day other than a Business Day, such payment shall
be made on the next succeeding Business Day, and such extension of time shall in
such case be included in the computation of payment of interest or facility fee,
as the case may be; provided, however, that, if such extension would cause
payment of interest on or principal of Eurodollar Rate Advances to be made in
the next following calendar month, such payment shall be made on the next
preceding Business Day.
(e) Unless the Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the Lenders hereunder
that the Borrower will not make such payment in full, the Agent may assume that
the Borrower has made such payment in full to the Agent on such date and the
Agent may, in reliance upon such assumption, cause to be distributed to each
Lender on such due date an amount equal to the amount then due such Lender. If
and to the extent the Borrower shall not have so made such payment in full to
the Agent, each Lender shall repay to the Agent forthwith on demand such amount
distributed to such Lender together with interest thereon, for each day from the
date such amount is distributed to such Lender until the date such Lender repays
such amount to the Agent, at the Federal Funds Rate.
SECTION 2.13. Taxes. (a) Any and all payments by the
Borrower to or for the account of any Lender or the Agent hereunder or under the
Notes or any other documents to be delivered hereunder shall be made, in
accordance with Section 2.12 or the applicable provisions of such other
documents, free and clear of and without deduction for any and all present or
future taxes, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding, in the case of each Lender and the
Agent, taxes imposed on its overall net income, and franchise taxes imposed on
it in lieu of net income taxes, by the jurisdiction under the laws of which such
Lender or the Agent (as the case may be) is organized or any political
subdivision thereof and, in the case of each Lender, taxes imposed on its
overall net income, and franchise taxes imposed on it in lieu of net income
taxes, by the jurisdiction of such Lender's Applicable Lending Office or any
political subdivision thereof (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities in respect of payments
hereunder or under the Notes being hereinafter referred to as "Taxes"). If the
Borrower shall be required by law to deduct any Taxes from or in respect of any
sum payable hereunder or under any Note or any other documents to be delivered
hereunder to any Lender or the Agent, (i) the sum payable shall be increased as
may be necessary so that
14
after making all required deductions (including deductions applicable to
additional sums payable under this Section 2.13) 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 and
(iii) the Borrower shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any present or
future stamp or documentary taxes or any other excise or property taxes, charges
or similar levies that arise from any payment made hereunder or under the Notes
or any other documents to be delivered hereunder or from the execution, delivery
or registration of, performing under, or otherwise with respect to, this
Agreement or the Notes or any other documents to be delivered hereunder
(hereinafter referred to as "Other Taxes").
(c) The Borrower shall indemnify each Lender and the
Agent for and hold it harmless against the full amount of Taxes or Other Taxes
(including, without limitation, taxes of any kind imposed or asserted by any
jurisdiction on amounts payable under this Section 2.13) imposed on or paid by
such Lender or the Agent (as the case may be) and any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto.
This indemnification shall be made within 30 days from the date such Lender or
the Agent (as the case may be) makes written demand therefor.
(d) Within 30 days after the date of any payment of
Taxes, the Borrower shall furnish to the Agent, at its address referred to in
Section 8.02, the original or a certified copy of a receipt evidencing such
payment to the extent such a receipt is issued therefor, or other written proof
of payment thereof that is reasonably satisfactory to the Agent.
(e) Any Lender claiming any additional amounts payable
pursuant to this Section 2.13 agrees to use reasonable efforts (consistent with
its internal policy and legal and regulatory restrictions) to change the
jurisdiction of its Eurodollar Lending Office (or to take such other action) if
the making of such a change (or the taking of such other action) would avoid the
need for, or reduce the amount of, any such additional amounts that may
thereafter accrue and would not, in the reasonable judgment of such Lender, be
otherwise disadvantageous to such Lender.
SECTION 2.14. Sharing of Payments, Etc. If any Lender
shall obtain any payment (whether voluntary, involuntary, through the exercise
of any right of set-off, or otherwise) on account of the Advances owing to it
(other than pursuant to Section 2.10, 2.13 or 8.04(c)) in excess of its ratable
share of payments on account of the Advances obtained by all the Lenders, such
Lender shall forthwith purchase from the other Lenders such participations in
the Advances owing to them as shall be necessary to cause such purchasing Lender
to share the excess payment ratably with each of them; provided, however, that
if all or any portion of such excess payment is thereafter recovered from such
purchasing Lender, such purchase from each Lender shall be rescinded and such
Lender shall repay to the purchasing Lender the purchase price to the extent of
such recovery together with an amount equal to such Lender's ratable share
(according to the proportion of (i) the amount of such Lender's required
repayment to (ii) the total amount so recovered from the purchasing Lender) of
any interest or other amount paid or payable by the purchasing Lender in respect
of the total amount so recovered. The Borrower agrees that any Lender so
purchasing a participation from another Lender pursuant to this Section 2.14
may, to the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off) with respect to such participation as fully as
if such Lender were the direct creditor of the Borrower in the amount of such
participation.
SECTION 2.15. Evidence of Debt. (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 Advance
owing to such Lender from time to time, including the amounts of principal and
interest payable and paid to such Lender from time to time hereunder in respect
of Advances. The Borrower agrees that upon notice by any Lender to the Borrower
(with a copy of such notice to the Agent) to the effect that a Note is required
or appropriate in order for such Lender to evidence (whether for purposes of
pledge, enforcement or otherwise) the Advances owing to, or to be made by, such
Lender, the Borrower shall promptly execute and deliver to such Lender a Note
payable to the order of such Lender in a principal amount up to the Commitment
of such Lender.
15
(b) The Register maintained by the Agent pursuant to
Section 8.07(d) shall include a control account, and a subsidiary account for
each Lender, in which accounts (taken together) shall be recorded (i) the date
and amount of each Borrowing made hereunder, the Type of Advances comprising
such Borrowing and, if appropriate, the Interest Period applicable thereto, (ii)
the terms of each Assumption Agreement and each Assignment and Acceptance
delivered to and accepted by it, (iii) the amount of any principal or interest
due and payable or to become due and payable from the Borrower to each Lender
hereunder and (iv) the amount of any sum received by the Agent from the Borrower
hereunder and each Lender's share thereof.
(c) Entries made in good faith by the Agent in the
Register pursuant to subsection (b) above, and by each Lender in its account or
accounts pursuant to subsection (a) above, shall be prima facie evidence of the
amount of principal and interest due and payable or to become due and payable
from the Borrower to, in the case of the Register, each Lender and, in the case
of such account or accounts, such Lender, under this Agreement, absent manifest
error; provided, however, that the failure of the Agent or such Lender to make
an entry, or any finding that an entry is incorrect, in the Register or such
account or accounts shall not limit or otherwise affect the obligations of the
Borrower under this Agreement.
SECTION 2.16. Use of Proceeds. The proceeds of the
Advances shall be available (and the Borrower agrees that it shall use such
proceeds) solely for general corporate purposes of the Borrower and its
Subsidiaries.
SECTION 2.17. Increase in the Aggregate Commitments. (a)
The Borrower may, at any time but in any event not more than once in any
calendar year prior to the Termination Date, by notice to the Agent, request
that the aggregate amount of the Commitment be increased by an amount of
$10,000,000 or an integral multiple thereof (each a "Commitment Increase") to be
effective as of a date that is at least 90 days prior to the scheduled
Termination Date then in effect (the "Increase Date") as specified in the
related notice to the Agent; provided, however that (i) in no event shall the
aggregate amount of the Commitments at any time exceed $250,000,000 and (ii) on
the date of any request by the Borrower for a Commitment Increase and on the
related Increase Date (x) the applicable conditions set forth in Article III
shall be satisfied and (y) the Public Debt Rating is BBB+ or better from S&P and
Baa1 or better from ▇▇▇▇▇'▇.
(b) The Agent shall promptly notify the Lenders of a
request by the Borrower for a Commitment Increase, which notice shall include
(i) the proposed amount of such requested Commitment Increase, (ii) the proposed
Increase Date and (iii) the date by which Lenders wishing to participate in the
Commitment Increase must commit to an increase in the amount of their respective
Commitments (the "Commitment Date"). Each Lender that is willing to participate
in such requested Commitment Increase (each an "Increasing Lender") shall, in
its sole discretion, give written notice to the Agent on or prior to the
Commitment Date of the amount by which it is willing to increase its Commitment.
If the Lenders notify the Agent that they are willing to increase the amount of
their respective Commitments by an aggregate amount that exceeds the amount of
the requested Commitment Increase, the requested Commitment Increase shall be
allocated among the Lenders willing to participate therein in such amounts as
are agreed between the Borrower and the Agent.
(c) Promptly following each Commitment Date, the Agent
shall notify the Borrower as to the amount, if any, by which the Lenders are
willing to participate in the requested Commitment Increase. If the aggregate
amount by which the Lenders are willing to participate in any requested
Commitment Increase on any such Commitment Date is less than the requested
Commitment Increase, then the Borrower may extend offers to one or more Eligible
Assignees to participate in any portion of the requested Commitment Increase
that has not been committed to by the Lenders as of the applicable Commitment
Date; provided, however, that the Commitment of each such Eligible Assignee
shall be in an amount of not less than $10,000,000.
(d) On each Increase Date, each Eligible Assignee that
accepts an offer to participate in a requested Commitment Increase in accordance
with Section 2.17(b) (each such Eligible Assignee and each Eligible Assignee
that agrees to an extension of the Termination Date in accordance with Section
2.18(c), an "Assuming Lender") shall become a Lender party to this Agreement as
of such Increase Date and the Commitment of each Increasing Lender for such
requested Commitment Increase shall be so increased by such amount (or by the
amount allocated to such Lender pursuant to the last sentence of Section
2.17(b)) as of such Increase Date; provided, however, that the Agent shall have
received on or before such Increase Date the following, each dated such date:
16
(i) (A) certified copies of resolutions of the Board of
Directors of the Borrower or the Executive Committee of such Board
approving the Commitment Increase and the corresponding modifications
to this Agreement and (B) an opinion of counsel for the Borrower (which
may be in-house counsel), in substantially the form of Exhibit E
hereto;
(ii) an assumption agreement from each Assuming Lender, if
any, in form and substance satisfactory to the Borrower and the Agent
(each an "Assumption Agreement"), duly executed by such Eligible
Assignee, the Agent and the Borrower; and
(iii) confirmation from each Increasing Lender of the
increase in the amount of its Commitment in a writing satisfactory to
the Borrower and the Agent.
On each Increase Date, upon fulfillment of the conditions set forth in the
immediately preceding sentence of this Section 2.17(d), the Agent shall notify
the Lenders (including, without limitation, each Assuming Lender) and the
Borrower, on or before 1:00 P.M. (New York City time), by telecopier or telex,
of the occurrence of the Commitment Increase to be effected on such Increase
Date and shall record in the Register the relevant information with respect to
each Increasing Lender and each Assuming Lender on such date.
SECTION 2.18. Extension of Termination Date. (a) At least
30 days but not more than 45 days prior to the Termination Date, the Borrower,
by written notice to the Agent, may request an extension of the Termination Date
in effect at such time by 364 days from its then scheduled expiration. The Agent
shall promptly notify each Lender of such request, and each Lender shall in
turn, in its sole discretion, not later than 20 days prior to the Termination
Date, notify the Borrower and the Agent in writing as to whether such Lender
will consent to such extension. If any Lender shall fail to notify the Agent and
the Borrower in writing of its consent to any such request for extension of the
Termination Date at least 20 days prior to the Termination Date, such Lender
shall be deemed to be a Non-Consenting Lender with respect to such request. The
Agent shall notify the Borrower not later than 15 days prior to the Termination
Date of the decision of the Lenders regarding the Borrower's request for an
extension of the Termination Date.
(b) If all the Lenders consent in writing to any such
request in accordance with subsection (a) of this Section 2.18, the Termination
Date in effect at such time shall, effective as at the Termination Date (the
"Extension Date"), be extended for 364 days; provided that on each Extension
Date the applicable conditions set forth in Article III shall be satisfied. If
less than all of the Lenders consent in writing to any such request in
accordance with subsection (a) of this Section 2.18, the Termination Date in
effect at such time shall, effective as at the applicable Extension Date and
subject to subsection (d) of this Section 2.18, be extended as to those Lenders
that so consented (each a "Consenting Lender") but shall not be extended as to
any other Lender (each a "Non-Consenting Lender"). To the extent that the
Termination Date is not extended as to any Lender pursuant to this Section 2.18
and the Commitment of such Lender is not assumed in accordance with subsection
(c) of this Section 2.18 on or prior to the applicable Extension Date, the
Commitment of such Non-Consenting Lender shall automatically terminate in whole
on such unextended Termination Date without any further notice or other action
by the Borrower, such Lender or any other Person; provided that such
Non-Consenting Lender's rights under Sections 2.10, 2.13 and 8.04, and its
obligations under Section 7.05, shall survive the Termination Date for such
Lender as to matters occurring prior to such date. It is understood and agreed
that no Lender shall have any obligation whatsoever to agree to any request made
by the Borrower for any requested extension of the Termination Date.
(c) If less than all of the Lenders consent to any such
request pursuant to subsection (a) of this Section 2.18, the Agent shall
promptly so notify the Consenting Lenders, and each Consenting Lender may, in
its sole discretion, give written notice to the Agent not later than 10 days
prior to the Termination Date of the amount of the Non-Consenting Lenders'
Commitments for which it is willing to accept an assignment. If the Consenting
Lenders notify the Agent that they are willing to accept assignments of
Commitments in an aggregate amount that exceeds the amount of the Commitments of
the Non-Consenting Lenders, such Commitments shall be allocated among the
Consenting Lenders willing to accept such assignments in such amounts as are
agreed between the Borrower and the Agent. If after giving effect to the
assignments of Commitments described above there remain any Commitments of
Non-Consenting Lenders, the Borrower may arrange for one or more Consenting
Lenders or other Eligible Assignees as Assuming Lenders to assume, effective as
of the Extension Date, any Non-Consenting
17
Lender's Commitment and all of the obligations of such Non-Consenting Lender
under this Agreement thereafter arising, without recourse to or warranty by, or
expense to, such Non-Consenting Lender; provided, however, that the amount of
the Commitment of any such Assuming Lender as a result of such substitution
shall in no event be less than $10,000,000 unless the amount of the Commitment
of such Non-Consenting Lender is less than $10,000,000, in which case such
Assuming Lender shall assume all of such lesser amount; and provided further
that:
(i) any such Consenting Lender or Assuming Lender shall
have paid to such Non-Consenting Lender (A) the aggregate principal
amount of, and any interest accrued and unpaid to the effective date of
the assignment on, the outstanding Advances, if any, of such
Non-Consenting Lender plus (B) any accrued but unpaid facility fees
owing to such Non-Consenting Lender as of the effective date of such
assignment;
(ii) all additional costs reimbursements, expense
reimbursements and indemnities payable to such Non-Consenting Lender,
and all other accrued and unpaid amounts owing to such Non-Consenting
Lender hereunder, as of the effective date of such assignment shall
have been paid to such Non-Consenting Lender; and
(iii) with respect to any such Assuming Lender, the
applicable processing and recordation fee required under Section
8.07(a) for such assignment shall have been paid;
provided further that such Non-Consenting Lender's rights under Sections 2.10,
2.13 and 8.04, and its obligations under Section 7.05, shall survive such
substitution as to matters occurring prior to the date of substitution. At least
three Business Days prior to any Extension Date, (A) each such Assuming Lender,
if any, shall have delivered to the Borrower and the Agent an Assumption
Agreement, duly executed by such Assuming Lender, such Non-Consenting Lender,
the Borrower and the Agent, (B) any such Consenting Lender shall have delivered
confirmation in writing satisfactory to the Borrower and the Agent as to the
increase in the amount of its Commitment and (C) each Non-Consenting Lender
being replaced pursuant to this Section 2.18 shall have delivered to the Agent
any Note or Notes held by such Non-Consenting Lender. Upon the payment or
prepayment of all amounts referred to in clauses (i), (ii) and (iii) of the
immediately preceding sentence, each such Consenting Lender or Assuming Lender,
as of the Extension Date, will be substituted for such Non-Consenting Lender
under this Agreement and shall be a Lender for all purposes of this Agreement,
without any further acknowledgment by or the consent of the other Lenders, and
the obligations of each such Non-Consenting Lender hereunder shall, by the
provisions hereof, be released and discharged.
(d) If (after giving effect to any assignments or
assumptions pursuant to subsection (c) of this Section 2.18) Lenders having
Commitments equal to at least 50% of the Commitments in effect immediately prior
to the Extension Date consent in writing to a requested extension (whether by
execution or delivery of an Assumption Agreement or otherwise) not later than
one Business Day prior to such Extension Date, the Agent shall so notify the
Borrower, and, subject to the satisfaction of the applicable conditions in
Article III, the Termination Date then in effect shall be extended for the
additional 364-day period as described in subsection (a) of this Section 2.18,
and all references in this Agreement, and in the Notes, if any, to the
"Termination Date" shall, with respect to each Consenting Lender and each
Assuming Lender for such Extension Date, refer to the Termination Date as so
extended. Promptly following each Extension Date, the Agent shall notify the
Lenders (including, without limitation, each Assuming Lender) of the extension
of the scheduled Termination Date in effect immediately prior thereto and shall
thereupon record in the Register the relevant information with respect to each
such Consenting Lender and each such Assuming Lender.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of
Section 2.01. Section 2.01 of this Agreement shall become effective on and as of
the first date (the "Effective Date") on which the following conditions
precedent have been satisfied:
18
(a) There shall have occurred no Material Adverse Change
since April 24, 2002.
(b) There shall exist no action, suit, investigation,
litigation or proceeding affecting the Borrower or any of its
Subsidiaries pending or threatened before any court, governmental
agency or arbitrator that (i) could be reasonably likely to have a
Material Adverse Effect or (ii) purports to affect the legality,
validity or enforceability of this Agreement or any Note or the
consummation of the transactions contemplated hereby.
(c) Nothing shall have come to the attention of the
Lenders during the course of their due diligence investigation to lead
them to believe that the Information Memorandum was or has become
misleading, incorrect or incomplete in any material respect; without
limiting the generality of the foregoing, the Lenders shall have been
given such access to the management, records, books of account,
contracts and properties of the Borrower and its Subsidiaries as they
shall have requested.
(d) All governmental and third party consents and
approvals necessary in connection with the transactions contemplated
hereby shall have been obtained (without the imposition of any
conditions that are not acceptable to the Lenders) and shall remain in
effect, and no law or regulation shall be applicable in the reasonable
judgment of the Lenders that restrains, prevents or imposes materially
adverse conditions upon the transactions contemplated hereby.
(e) The Borrower shall have notified each Lender and the
Agent in writing as to the proposed Effective Date, and the Agent shall
have confirmed to the Borrower in writing that the Effective Date has
occurred.
(f) The Borrower shall have paid all accrued fees and
expenses of the Agent and the Lenders (including the accrued fees and
expenses of counsel to the Agent) that have been previously invoiced to
the Borrower.
(g) On the Effective Date, the following statements shall
be true and the Agent shall have received for the account of each
Lender a certificate signed by a duly authorized officer of the
Borrower, dated the Effective Date, stating that:
(i) The representations and warranties contained
in Section 4.01 are correct on and as of the Effective Date,
and
(ii) No event has occurred and is continuing that
constitutes a Default.
(h) The Agent shall have received on or before the
Effective Date the following, each dated such day, in form and
substance satisfactory to the Agent and (except for the Notes) in
sufficient copies for each Lender:
(i) The Notes to the order of the Lenders to the
extent requested by any Lender pursuant to Section 2.15.
(ii) Certified copies of the resolutions of the
Board of Directors of the Borrower approving this Agreement
and the Notes, and of all documents evidencing other necessary
corporate action and governmental approvals, if any, with
respect to this Agreement and the Notes.
(iii) A certificate of the Secretary or an
Assistant Secretary of the Borrower certifying the names and
true signatures of the officers of the Borrower authorized to
sign this Agreement and the Notes and the other documents to
be delivered hereunder.
19
(iv) A favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇ &
▇▇▇▇▇▇▇, Bermuda counsel to the Borrower and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
LLP, New York counsel for the Borrower, substantially in the
form of Exhibits D-1 and D-2 hereto, respectively, and as to
such other matters as any Lender through the Agent may
reasonably request.
(v) A favorable opinion of Shearman & Sterling,
counsel for the Agent, in form and substance satisfactory to
the Agent.
(i) The Borrower shall have received net proceeds of not
less than $850,000,000 from the public sale of equity interests.
SECTION 3.02. Conditions Precedent to Each Borrowing,
Commitment Increase and Extension Date. The obligation of each Lender to make an
Advance on the occasion of each Borrowing, each Commitment Increase and each
extension of Commitments pursuant to Section 2.18 shall be subject to the
conditions precedent that the Effective Date shall have occurred and on the date
of such Borrowing, the applicable Increase Date or the applicable Extension Date
(a) the following statements shall be true (and each of the giving of the
applicable Notice of Borrowing, request for Commitment Increase, request for
Commitment Extension and the acceptance by the Borrower of the proceeds of such
Borrowing shall constitute a representation and warranty by the Borrower that on
the date of such Borrowing, such Increase Date or such Extension Date such
statements are true):
(i) the representations and warranties contained in
Section 4.01 are correct on and as of such date, before and after
giving effect to such Borrowing, such Commitment Increase or such
Extension Date and to the application of the proceeds therefrom, as
though made on and as of such date, and
(ii) no event has occurred and is continuing, or would
result from such Borrowing, such Commitment Increase or such Extension
Date or from the application of the proceeds therefrom, that
constitutes a Default;
and (b) with respect to any Commitment Increase or Commitment extension, the
Agent shall have received such other approvals, opinions or documents as any
Lender through the Agent may reasonably request.
SECTION 3.03. Determinations Under Section 3.01. For
purposes of determining compliance with the conditions specified in Section
3.01, each Lender shall be deemed to have consented to, approved or accepted or
to be satisfied with each document or other matter required thereunder to be
consented to or approved by or acceptable or satisfactory to the Lenders unless
an officer of the Agent responsible for the transactions contemplated by this
Agreement shall have received notice from such Lender prior to the date that the
Borrower, by notice to the Lenders, designates as the proposed Effective Date,
specifying its objection thereto. The Agent shall promptly notify the Lenders of
the occurrence of the Effective Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the
Borrower. The Borrower represents and warrants as follows:
(a) Each of the Borrower and its Subsidiaries (i) is duly
organized, validly existing and (to the extent applicable) in good
standing under the laws of its jurisdiction of incorporation or
organization, (ii) is duly qualified to do business and (to the extent
applicable) in good standing in each jurisdiction where, because of the
nature of its activities or properties, such qualification is required
except where the failure to qualify would not have a Material Adverse
Effect, (iii) has the requisite corporate power and authority and the
right to own and operate its properties, to lease the property it
operates under lease, and to conduct its business as now and proposed
to be conducted, and (iv) except as disclosed in the Registration
Statement, has obtained all material licenses, permits, consents or
approvals from or by, and has made all
20
filings with, and given all notices to, all governmental authorities
having jurisdiction, to the extent required for such ownership,
operation and conduct (including, without limitation, the consummation
of the transactions contemplated by this Agreement) as to each of the
foregoing, except where the failure to do so would not have a Material
Adverse Effect.
(b) The execution, delivery and performance by the
Borrower of this Agreement and the Notes to be delivered by it, and the
consummation of the transactions contemplated hereby, are within the
Borrower's corporate powers, have been duly authorized by all necessary
corporate action, and do not contravene (i) the Borrower's charter or
by-laws or (ii) law or any contractual restriction binding on or
affecting the Borrower.
(c) No authorization or approval or other action by, and
no notice to or filing with, any governmental authority or regulatory
body or any other third party is required for the due execution,
delivery and performance by the Borrower of this Agreement or the Notes
to be delivered by it, except for those authorizations, approvals,
actions, notices and filings that have been duly obtained, taken, given
or made and are in full force and effect.
(d) This Agreement has been, and each of the Notes to be
delivered by it when delivered hereunder will have been, duly executed
and delivered by the Borrower. This Agreement is, and each of the Notes
when delivered hereunder will be, the legal, valid and binding
obligation of the Borrower enforceable against the Borrower in
accordance with their respective terms, subject to (i) the effect of
any applicable bankruptcy, insolvency, reorganization, moratorium or
similar law affecting creditors' rights generally, (ii) the effect of
general principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law.
(e) The Consolidated pro forma balance sheet of the
Borrower and its Subsidiaries as at April 24, 2002, copies of which
have been furnished to each Lender, fairly present the pro forma
Consolidated financial condition of the Borrower and its Subsidiaries
as at such date, giving effect to the transactions contemplated hereby,
all in accordance with generally accepted accounting principles
consistently applied. Since April 24, 2002, there has been no Material
Adverse Change.
(f) The description of the Quoted Share Retrocession
Agreements (as defined in the Registration Statement) as set forth in
the Registration Statement is not misleading in any material respect.
(g) There is no pending or, to the knowledge of the
Borrower, threatened action, suit, investigation, litigation or
proceeding, including, without limitation, any Environmental Action,
affecting the Borrower or any of its Subsidiaries before any court,
governmental agency or arbitrator that (i) could be reasonably likely
to have a Material Adverse Effect or (ii) purports to affect the
legality, validity or enforceability of this Agreement or any Note or
the consummation of the transactions contemplated hereby.
(h) The Borrower is not engaged in the business of
extending credit for the purpose of purchasing or carrying margin stock
(within the meaning of Regulation U issued by the Board of Governors of
the Federal Reserve System), and no proceeds of any Advance will be
used to purchase or carry any margin stock or to extend credit to
others for the purpose of purchasing or carrying any margin stock.
(i) The Borrower is not an "investment company", or a
company "controlled" by an "investment company", within the meaning of
the Investment Company Act of 1940, as amended.
ARTICLE V
COVENANTS OF THE BORROWER
21
SECTION 5.01. Affirmative Covenants. So long as any
Advance shall remain unpaid or any Lender shall have any Commitment hereunder,
the Borrower will:
(a) Compliance with Laws, Etc. Comply, and cause each of
its Subsidiaries to comply, in all material respects, with all
applicable laws, rules, regulations and orders, such compliance to
include, without limitation, compliance with ERISA and Environmental
Laws, except to the extent that failure to so comply would not
reasonably be expected to have a material negative impact on the
Borrower and its Subsidiaries taken as a whole.
(b) Payment of Taxes, Etc. Pay and discharge, and cause
each of its Subsidiaries to pay and discharge, before the same shall
become delinquent, (i) all taxes, assessments and governmental charges
or levies imposed upon it or upon its property and (ii) all lawful
claims that, if unpaid, might by law become a Lien upon its property;
provided, however, that neither the Borrower nor any of its
Subsidiaries shall be required to pay or discharge any such tax,
assessment, charge or claim that is being contested in good faith and
by proper proceedings and as to which appropriate reserves are being
maintained.
(c) Maintenance of Insurance. Maintain, and cause each of
its Subsidiaries to maintain, insurance with responsible and reputable
insurance companies or associations in such amounts and covering such
risks as is usually carried by companies engaged in similar businesses
and owning similar properties in the same general areas in which the
Borrower or such Subsidiary operates.
(d) Preservation of Corporate Existence, Etc. Preserve
and maintain, and cause each of its Subsidiaries to preserve and
maintain, its corporate existence, rights (charter and statutory) and
franchises; provided, however, that the Borrower and its Subsidiaries
may consummate any merger or consolidation permitted under Section
5.02(b) and provided further that neither the Borrower nor any of its
Subsidiaries shall be required to preserve any right or franchise if
the Board of Directors of the Borrower or such Subsidiary shall
determine that the preservation thereof is no longer desirable in the
conduct of the business of the Borrower or such Subsidiary, as the case
may be, and that the loss thereof is not disadvantageous in any
material respect to the Borrower, such Subsidiary or the Lenders.
(e) Visitation Rights. At any reasonable time and from
time to time, permit the Agent or any of the Lenders or any agents or
representatives thereof, to examine and make copies of and abstracts
from the records and books of account of, and visit the properties of,
the Borrower and any of its Subsidiaries, and to discuss the affairs,
finances and accounts of the Borrower and any of its Subsidiaries with
any of their officers or directors and with their independent certified
public accountants.
(f) Keeping of Books. Keep, and cause each of its
Subsidiaries to keep, proper books of record and account, in which full
and correct entries shall be made of all financial transactions and the
assets and business of the Borrower and each such Subsidiary in
accordance with generally accepted accounting principles in effect from
time to time and, in the case of an Insurance Subsidiary, in accordance
with SAP.
(g) Maintenance of Properties, Etc. Maintain and
preserve, and cause each of its Subsidiaries to maintain and preserve,
all of its properties that are used or useful in the conduct of its
business in good working order and condition, ordinary wear and tear
excepted.
(h) Transactions with Affiliates. Except as disclosed in
the Registration Statement, conduct, and cause each of its Subsidiaries
to conduct, all transactions otherwise permitted under this Agreement
with any of their Affiliates on terms that are fair and reasonable and
no less favorable to the Borrower or such Subsidiary than it would
obtain in a comparable arm's-length transaction with a Person not an
Affiliate.
(i) Reporting Requirements. Furnish to the Lenders:
22
(i) as soon as available and in any event within
45 days after the end of each of the first three quarters of
each fiscal year of the Borrower, the Consolidated balance
sheet of the Borrower and its Subsidiaries as of the end of
such quarter and Consolidated statements of income and cash
flows of the Borrower and its Subsidiaries for the period
commencing at the end of the previous fiscal year and ending
with the end of such quarter, duly certified (subject to
year-end audit adjustments) by the chief financial officer of
the Borrower as having been prepared in accordance with
generally accepted accounting principles and certificates of
the chief financial officer of the Borrower as to compliance
with the terms of this Agreement and setting forth in
reasonable detail the calculations necessary to demonstrate
compliance with Section 5.03, provided that in the event of
any change in generally accepted accounting principles used in
the preparation of such financial statements, the Borrower
shall also provide, if necessary for the determination of
compliance with Section 5.03, a statement of reconciliation
conforming such financial statements to GAAP;
(ii) as soon as available and in any event within
90 days after the end of each fiscal year of the Borrower, a
copy of the annual audit report for such year for the Borrower
and its Subsidiaries, containing the Consolidated balance
sheet of the Borrower and its Subsidiaries as of the end of
such fiscal year and Consolidated statements of income and
cash flows of the Borrower and its Subsidiaries for such
fiscal year, in each case accompanied by an opinion acceptable
to the Required Lenders by KPMG LLP or other independent
public accountants acceptable to the Required Lenders and
certificates of the chief financial officer of the Borrower as
to compliance with the terms of this Agreement and setting
forth in reasonable detail the calculations necessary to
demonstrate compliance with Section 5.03, provided that in the
event of any change in generally accepted accounting
principles used in the preparation of such financial
statements, the Borrower shall also provide, if necessary for
the determination of compliance with Section 5.03, a statement
of reconciliation conforming such financial statements to
GAAP;
(iii) within 15 days after the date filed with the
Authority for each of its fiscal years, a copy of the Annual
Statement of each Insurance Subsidiary for each fiscal year
commencing on or after December 31, 2002, for such fiscal
year, if any, required by the Authority to be filed, each of
which statements delivered to be prepared in accordance with
SAP and accompanied by the certification of the chief
financial officer or chief executive officer of such Insurance
Subsidiary that such financial statement is complete and
correct and presents fairly in accordance with SAP the
financial position of such Insurance Subsidiary for the period
then ended.
(iv) within five Business Days of receipt, a copy
of any financial examination reports by a governmental
authority with respect to its Insurance Subsidiaries relating
to the insurance business of its Insurance Subsidiaries (when,
and if, prepared); provided, the Borrower shall only be
required to deliver any interim report hereunder at such time
as Borrower has knowledge that a final report will not be
issued and delivered to the Agent within 90 days of any such
interim report.
(v) copies of all filings (other than
nonmaterial tax and insurance rate and other ministerial
regulatory filings) with governmental authorities by the
Borrower or any Subsidiary not later than five Business Days
after such filings are made, including, without limitation,
filings which seek approval of governmental authorities with
respect to transactions between the Borrower or such
Subsidiary and its Affiliates.
(vi) within five Business Days of such notice,
notice of proposed or actual suspension, termination or
revocation of any material License of any Insurance Subsidiary
by any governmental authority or of receipt of notice from any
governmental authority notifying the Borrower or any Insurance
Subsidiary of a hearing relating to such a suspension,
termination or revocation, including any request by a
governmental authority which commits the Borrower or any
Insurance Subsidiary to take, or refrain from taking, any
action or which otherwise materially
23
and adversely affects the authority of the Borrower or any
Insurance Subsidiary to conduct its business.
(vii) within five Business Days of such notice,
notice of any pending or threatened investigation or
regulatory proceeding (other than routine periodic
investigations or reviews) by any governmental authority
concerning the business, practices or operations of the
Borrower or any Insurance Subsidiary.
(viii) promptly, notice of any actual or, to the
best of the Borrower's knowledge, proposed material changes in
the Insurance Code governing the investment or dividend
practices of any Insurance Subsidiary.
(ix) as soon as possible and in any event within
five days after any senior officer becomes aware or should
have become aware of the occurrence of each Default continuing
on the date of such statement, a statement of the chief
financial officer of the Borrower setting forth details of
such Default and the action that the Borrower has taken and
proposes to take with respect thereto;
(x) promptly after the sending or filing
thereof, copies of all reports that the Borrower sends to any
of its securityholders, and copies of all reports and
registration statements that the Borrower or any Subsidiary
files with the Securities and Exchange Commission or any
national securities exchange;
(xi) promptly after the commencement thereof,
notice of all actions and proceedings before any court,
governmental agency or arbitrator affecting the Borrower or
any of its Subsidiaries of the type described in Section
4.01(f); and
(xii) such other information respecting the
Borrower or any of its Subsidiaries as any Lender through the
Agent may from time to time reasonably request.
Reports and financial statements required to be delivered by Borrower
pursuant to clauses (i), (ii), (iii), (v) and (vi) of this subsection
(i) shall be deemed to have been delivered on the date on which the
Borrower posts such reports, or reports containing such financial
statements, on its website on the Internet at ▇▇▇.▇▇▇.▇▇▇ or at such
other website identified by the Borrower in a notice to the Agent and
the Lenders and that is accessible by the Lenders without charge;
provided that the Borrower shall deliver paper copies of such
information to any Lender promptly upon request of such Lender through
the Agent and provided further that the Lenders shall be deemed to have
received the information specified in clauses (i) through (vi) of this
subsection (i) on the date (x) such information is posted at the
website of the Agent identified from time to time by the Agent to the
Lenders and the Borrower and (y) such posting is notified to the
Lenders (it being understood that the Borrower shall have satisfied the
timing obligations imposed by those clauses as of the date such
information is delivered to the Agent).
SECTION 5.02. Negative Covenants. So long as any Advance
shall remain unpaid or any Lender shall have any Commitment hereunder, the
Borrower will not:
(a) Liens, Etc. Create or suffer to exist, or permit any
of its Subsidiaries to create or suffer to exist, any Lien on or with
respect to any of its properties, whether now owned or hereafter
acquired, or assign, or permit any of its Subsidiaries to assign, any
right to receive income, other than:
(i) Permitted Liens,
(ii) purchase money Liens upon or in any real
property or equipment acquired or held by the Borrower or any
Subsidiary in the ordinary course of business to secure the
purchase price of such property or equipment or to secure Debt
incurred solely for the purpose of financing
24
the acquisition of such property or equipment, or Liens
existing on such property or equipment at the time of its
acquisition (other than any such Liens created in
contemplation of such acquisition that were not incurred to
finance the acquisition of such property) or extensions,
renewals or replacements of any of the foregoing for the same
or a lesser amount, provided, however, that no such Lien shall
extend to or cover any properties of any character other than
the real property or equipment being acquired, and no such
extension, renewal or replacement shall extend to or cover any
properties not theretofore subject to the Lien being extended,
renewed or replaced,
(iii) Liens on Invested Assets pursuant to trust,
letter of credit or other security arrangements in connection
with Reinsurance Agreements or Primary Policies, and
(iv) Liens on property of a Person existing at
the time such Person is merged into or consolidated with the
Borrower or any Subsidiary of the Borrower or becomes a
Subsidiary of the Borrower; provided that such Liens were not
created in contemplation of such merger, consolidation or
acquisition and do not extend to any assets other than those
of the Person so merged into or consolidated with the Borrower
or such Subsidiary or acquired by the Borrower or such
Subsidiary,
(v) other Liens securing Debt in an aggregate
principal amount not to exceed $10,000,000 at any time
outstanding,
(vi) the replacement, extension or renewal of any
Lien permitted by clause (iii) above upon or in the same
property theretofore subject thereto or the replacement,
extension or renewal (without increase in the amount or change
in any direct or contingent obligor) of the Debt secured
thereby.
(b) Mergers, Etc. Merge or consolidate with or into, or
convey, transfer, lease or otherwise dispose of (whether in one
transaction or in a series of transactions) all or substantially all of
its assets (whether now owned or hereafter acquired) to, any Person, or
permit any of its Subsidiaries to do so, except that any Subsidiary of
the Borrower may merge or consolidate with or into, or dispose of
assets to, any other Subsidiary of the Borrower, and except that any
Subsidiary of the Borrower may merge into or dispose of assets to the
Borrower, provided, in each case, that no Default shall have occurred
and be continuing at the time of such proposed transaction or would
result therefrom.
(c) Sales, Etc. of Assets. Sell, lease, transfer or
otherwise dispose of, or permit any of its Subsidiaries to sell, lease,
transfer or otherwise dispose of, any assets, or grant any option or
other right to purchase, lease or otherwise acquire any assets if the
assets involved in any such transaction or series of related
transactions (other than investment transactions in the ordinary course
of business) represent more than 10% of the consolidated total assets
of the Borrower and its consolidated Subsidiaries as set forth on the
consolidated balance sheet of the Borrower and its consolidated
Subsidiaries most recently furnished to the Agent hereunder.
(d) Accounting Changes. Make or permit, or permit any of
its Subsidiaries to make or permit, any change in accounting policies
or reporting practices, except as required or permitted by generally
accepted accounting principles or SAP.
(e) Change in Nature of Business. Make, or permit any of
its Subsidiaries to make, any material change in the nature of its
business considered as a whole, as the business of the Borrower and its
Subsidiaries is described in the Registration Statement.
(f) Subsidiary Debt. Permit any of its Subsidiaries to
create or suffer to exist, any Debt other than:
(i) Debt owed to the Borrower or to a wholly
owned Subsidiary of the Borrower,
25
(ii) Debt secured by (x) Liens permitted by
Section 5.02(a) (other than Section 5.02(a)(iii)) aggregating
for all of the Borrower's Subsidiaries not more than
$10,000,000 at any one time outstanding and (y) Liens
permitted by Section 5.02(a)(iii),
(iii) unsecured Debt incurred in the ordinary
course of business aggregating for all of the Borrower's
Subsidiaries not more than $10,000,000 at any one time
outstanding,
(iv) Debt in respect of Hedge Agreements incurred
in the ordinary course of business, and
(v) endorsement of negotiable instruments for
deposit or collection or similar transactions in the ordinary
course of business.
SECTION 5.03. Financial Covenants. So long as any Advance
shall remain unpaid or any Lender shall have any Commitment hereunder, the
Borrower will:
(a) Tangible Net Worth. Maintain an excess of
Consolidated total tangible assets over Consolidated total liabilities
of not less than an amount equal to 70% of the Borrower's Consolidated
tangible net assets over Consolidated total liabilities on the closing
date of the Borrower's initial sale of equity to the public at all
times.
(b) Leverage Ratio. Maintain a ratio of
Consolidated Debt for Borrowed Money (other than Debt secured by Liens
permitted by Section 5.02(a)(iii)) to Consolidated tangible net worth
of not greater than 0.30 : 1.00.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following
events ("Events of Default") shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any
Advance when the same becomes due and payable; or the Borrower shall
fail to pay any interest on any Advance or make any other payment of
fees or other amounts payable under this Agreement or any Note within
three Business Days after the same becomes due and payable; or
(b) Any representation or warranty made by the Borrower
herein or by the Borrower (or any of its officers) in connection with
this Agreement shall prove to have been incorrect in any material
respect when made; or
(c) (i) The Borrower shall fail to perform or observe any
term, covenant or agreement contained in Section 5.01(d), (e), (h) or
(i), 5.02 or 5.03, or (ii) the Borrower shall fail to perform or
observe any other term, covenant or agreement contained in this
Agreement on its part to be performed or observed if such failure shall
remain unremedied for 20 days after written notice thereof shall have
been given to the Borrower by the Agent or any Lender; or
(d) The Borrower or any of its Subsidiaries shall fail to
pay any principal of or premium or interest on any Debt that is
outstanding in a principal or notional amount of at least $50,000,000
in the aggregate (but excluding Debt outstanding hereunder) of the
Borrower or such Subsidiary (as the case may be), when the same becomes
due and payable (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise), and such failure shall continue
after the applicable grace period, if any, specified in the agreement
or instrument relating to such Debt; or any other event shall occur or
condition shall exist under any agreement or instrument relating to any
such Debt and shall continue after the
26
applicable grace period, if any, specified in such agreement or
instrument, if the effect of such event or condition is to accelerate,
or to permit the acceleration of, the maturity of such Debt; or any
such Debt shall be declared to be due and payable, or required to be
prepaid or redeemed (other than by a regularly scheduled required
prepayment or redemption), purchased or defeased, or an offer to
prepay, redeem, purchase or defease such Debt shall be required to be
made, in each case prior to the stated maturity thereof; or
(e) The Borrower or any of its Subsidiaries shall
generally not pay its debts as such debts become due, or shall admit in
writing its inability to pay its debts generally, or shall make a
general assignment for the benefit of creditors; or any proceeding
shall be instituted by or against the Borrower or any of its
Subsidiaries seeking to adjudicate it a bankrupt or insolvent, or
seeking liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief, or composition of it or its debts under
any law relating to bankruptcy, insolvency or reorganization or relief
of debtors, or seeking the entry of an order for relief or the
appointment of a receiver, trustee, custodian or other similar official
for it or for any substantial part of its property and, in the case of
any such proceeding instituted against it (but not instituted by it),
either such proceeding shall remain undismissed or unstayed for a
period of 30 days, or any of the actions sought in such proceeding
(including, without limitation, the entry of an order for relief
against, or the appointment of a receiver, trustee, custodian or other
similar official for, it or for any substantial part of its property)
shall occur; or the Borrower or any of its Subsidiaries shall take any
corporate action to authorize any of the actions set forth above in
this subsection (e); or
(f) Judgments or orders for the payment of money in
excess of $50,000,000 in the aggregate shall be rendered against the
Borrower or any of its Subsidiaries and either (i) enforcement
proceedings shall have been commenced by any creditor upon such
judgment or order or (ii) there shall be any period of 10 consecutive
days during which a stay of enforcement of such judgment or order, by
reason of a pending appeal or otherwise, shall not be in effect;
provided, however, that any such judgment or order shall not be an
Event of Default under this Section 6.01(f) if and for so long as (i)
the amount of such judgment or order is covered by a valid and binding
policy of insurance between the defendant and the insurer covering
payment thereof and (ii) such insurer, which shall be rated at least
"A" by A.M. Best Company, has been notified of, and has not disputed
the claim made for payment of, the amount of such judgment or order; or
(g) (i) Any Person or two or more Persons acting in
concert (other than St. ▇▇▇▇ or its Subsidiaries) shall have acquired
beneficial ownership (within the meaning of Rule 13d-3 of the
Securities and Exchange Commission under the Securities Exchange Act of
1934), directly or indirectly, of Voting Stock of the Borrower (or
other securities convertible into such Voting Stock) representing 20%
or more of the combined voting power of all Voting Stock of the
Borrower; or (ii) during any period of up to 24 consecutive months,
commencing before or after the date of this Agreement, individuals who
at the beginning of such 24-month period were directors of the Borrower
shall cease for any reason (other than due to death or disability) to
constitute a majority of the board of directors of the Borrower (except
to the extent that individuals who at the beginning of such 24-month
period were replaced by individuals (x) elected by 66-2/3% of the
remaining members of the board of directors of the Borrower or (y)
nominated for election by a majority of the remaining members of the
board of directors of the Borrower and thereafter elected as directors
by the shareholders of the Borrower); or (iii) any Person or two or
more Persons acting in concert (other than St. ▇▇▇▇ or its
Subsidiaries) shall have acquired by contract or otherwise, or shall
have entered into a contract or arrangement that, upon consummation,
will result in its or their acquisition of the power to exercise,
directly or indirectly, a controlling influence over the management or
policies of the Borrower; or
(h) The Borrower or any of its ERISA Affiliates shall
incur, or shall be reasonably likely to incur liability in excess of
$50,000,000 in the aggregate as a result of one or more of the
following: (i) the occurrence of any ERISA Event; (ii) the partial or
complete withdrawal of the Borrower or any of its ERISA Affiliates from
a Multiemployer Plan; or (iii) the reorganization or termination of a
Multiemployer Plan; or
27
(i) The Borrower shall fail to maintain a financial
strength rating from A.M. Best Company of A- or better;
then, and in any such event, the Agent (i) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Borrower, declare the
obligation of each Lender to make Advances to be terminated, whereupon the same
shall forthwith terminate, and (ii) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Borrower, declare the
Advances, all interest thereon and all other amounts payable under this
Agreement to be forthwith due and payable, whereupon the Advances, all such
interest and all such amounts shall become and be forthwith due and payable,
without presentment, demand, protest or further notice of any kind, all of which
are hereby expressly waived by the Borrower; provided, however, that in the
event of an actual or deemed entry of an order for relief with respect to the
Borrower under the Federal Bankruptcy Code, (A) the obligation of each Lender to
make Advances shall automatically be terminated and (B) the Advances, all such
interest and all such amounts shall automatically become and be due and payable,
without presentment, demand, protest or any notice of any kind, all of which are
hereby expressly waived by the Borrower.
ARTICLE VII
THE AGENT
SECTION 7.01. Authorization and Action. Each Lender hereby
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers and discretion under this Agreement as are delegated to
the Agent by the terms hereof, together with such powers and discretion as are
reasonably incidental thereto. As to any matters not expressly provided for by
this Agreement (including, without limitation, enforcement or collection of the
Notes), the Agent shall not be required to exercise any discretion or take any
action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
the Required Lenders, and such instructions shall be binding upon all Lenders
and all holders of Notes; provided, however, that the Agent shall not be
required to take any action that exposes the Agent to personal liability or that
is contrary to this Agreement or applicable law. The Agent agrees to give to
each Lender prompt notice of each notice given to it by the Borrower pursuant to
the terms of this Agreement.
SECTION 7.02. Agent's Reliance, Etc. Neither the Agent nor
any of its directors, officers, agents or employees shall be liable for any
action taken or omitted to be taken by it or them under or in connection with
this Agreement, except for its or their own gross negligence or willful
misconduct. Without limitation of the generality of the foregoing, the Agent:
(i) may treat the Lender that made any Advance as the holder of the Debt
resulting therefrom until the Agent receives and accepts an Assumption Agreement
entered into by an Assuming Lender as provided in Section 2.17 or 2.18, as the
case may be, or an Assignment and Acceptance entered into by such Lender, as
assignor, and an Eligible Assignee, as assignee, as provided in Section 8.07;
(ii) may consult with legal counsel (including counsel for the Borrower),
independent public accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts; (iii) makes
no warranty or representation to any Lender and shall not be responsible to any
Lender for any statements, warranties or representations (whether written or
oral) made in or in connection with this Agreement; (iv) shall not have any duty
to ascertain or to inquire as to the performance, observance or satisfaction of
any of the terms, covenants or conditions of this Agreement on the part of the
Borrower or the existence at any time of any Default or to inspect the property
(including the books and records) of the Borrower; (v) shall not be responsible
to any Lender for the due execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Agreement or any other instrument or
document furnished pursuant hereto; and (vi) shall incur no liability under or
in respect of this Agreement by acting upon any notice, consent, certificate or
other instrument or writing (which may be by telecopier, telegram or telex)
believed by it to be genuine and signed or sent by the proper party or parties.
SECTION 7.03. Citibank and Affiliates. With respect to its
Commitment, the Advances made by it and the Note issued to it, Citibank shall
have the same rights and powers under this Agreement as any other Lender and may
exercise the same as though it were not the Agent; and the term "Lender" or
"Lenders" shall, unless otherwise expressly indicated, include Citibank in its
individual capacity. Citibank and its Affiliates may accept deposits from, lend
money to, act as trustee under indentures of, accept investment banking
engagements from and
28
generally engage in any kind of business with, the Borrower, any of its
Subsidiaries and any Person who may do business with or own securities of the
Borrower or any such Subsidiary, all as if Citibank were not the Agent and
without any duty to account therefor to the Lenders. The Agent shall have no
duty to disclose information obtained or received by it or any of its Affiliates
relating to the Borrower or its Subsidiaries to the extent such information was
obtained or received in any capacity other than as Agent.
SECTION 7.04. Lender Credit Decision. Each Lender
acknowledges that it has, independently and without reliance upon the Agent or
any other Lender and based on the financial statements referred to in Section
4.01 and such other documents and information as it has deemed appropriate, made
its own credit analysis and decision to enter into this Agreement. Each Lender
also acknowledges that it will, independently and without reliance upon the
Agent or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement.
SECTION 7.05. Indemnification. The Lenders agree to
indemnify the Agent (to the extent not reimbursed by the Borrower), ratably
according to the respective principal amounts of the Advances then owed to each
of them (or if no Advances are at the time outstanding, ratably according to the
respective amounts of their Commitments), from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever that may be
imposed on, incurred by, or asserted against the Agent in any way relating to or
arising out of this Agreement or any action taken or omitted by the Agent under
this Agreement (collectively, the "Indemnified Costs"), provided that no Lender
shall be liable for any portion of the Indemnified Costs resulting from the
Agent's gross negligence or willful misconduct. Without limitation of the
foregoing, each Lender agrees to reimburse the Agent promptly upon demand for
its ratable share of any out-of-pocket expenses (including reasonable counsel
fees) incurred by the Agent in connection with the preparation, execution,
delivery, administration, modification, amendment or enforcement (whether
through negotiations, legal proceedings or otherwise) of, or legal advice in
respect of rights or responsibilities under, this Agreement, to the extent that
the Agent is not reimbursed for such expenses by the Borrower. In the case of
any investigation, litigation or proceeding giving rise to any Indemnified
Costs, this Section 7.05 applies whether any such investigation, litigation or
proceeding is brought by the Agent, any Lender or a third party.
SECTION 7.06. Successor Agent. The Agent may resign at any
time by giving written notice thereof to the Lenders and the Borrower and may be
removed at any time with or without cause by the Required Lenders. Upon any such
resignation or removal, the Required Lenders shall have the right to appoint a
successor Agent. If no successor Agent shall have been so appointed by the
Required Lenders, and shall have accepted such appointment, within 30 days after
the retiring Agent's giving of notice of resignation or the Required Lenders'
removal of the retiring Agent, then the retiring Agent may, on behalf of the
Lenders, appoint a successor Agent, which shall be a commercial bank organized
under the laws of the United States of America or of any State thereof and
having a combined capital and surplus of at least $500,000,000. 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, discretion, privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and obligations under this
Agreement. After any retiring Agent's resignation or removal hereunder as Agent,
the provisions of this Article VII shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Agent under this Agreement.
SECTION 7.07. Other Agents. Each Lender hereby
acknowledges that neither the documentation agent nor any other Lender
designated as any "Agent" on the signature pages hereof has any liability
hereunder other than in its capacity as a Lender.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of
any provision of this Agreement or the Notes, nor consent to any departure by
the Borrower therefrom, shall in any event be effective unless the same shall be
in writing and signed by the Required Lenders, and then such waiver or consent
shall be effective only in
29
the specific instance and for the specific purpose for which given; provided,
however, that no amendment, waiver or consent shall, unless in writing and
signed by all the Lenders, do any of the following: (a) waive any of the
conditions specified in Section 3.01, (b) increase the Commitments of the
Lenders, (c) reduce the principal of, or interest on, the Advances or any fees
or other amounts payable hereunder, (d) postpone any date fixed for any payment
of principal of, or interest on, the Advances or any fees or other amounts
payable hereunder, (e) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Advances, or the number of Lenders,
that shall be required for the Lenders or any of them to take any action
hereunder or (f) amend this Section 8.01; and provided further that no
amendment, waiver or consent shall, unless in writing and signed by the Agent in
addition to the Lenders required above to take such action, affect the rights or
duties of the Agent under this Agreement or any Note.
SECTION 8.02. Notices, Etc. All notices and other
communications provided for hereunder shall be in writing (including telecopier,
telegraphic or telex communication) and mailed, telecopied, telegraphed, telexed
or delivered, if to the Borrower, at its address at ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, Attention: Chief Financial Officer, with a copy
to ▇▇▇▇▇ ▇▇▇▇▇▇, Esq., ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇; if to any Initial Lender, at its Domestic Lending
Office specified opposite its name on Schedule I hereto; if to any other Lender,
at its Domestic Lending Office specified in the Assumption Agreement or the
Assignment and Acceptance pursuant to which it became a Lender; and if to the
Agent, at its address at ▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
Bank Loan Syndications Department; or, as to the Borrower or the Agent, at such
other address as shall be designated by such party in a written notice to the
other parties and, as to each other party, at such other address as shall be
designated by such party in a written notice to the Borrower and the Agent. All
such notices and communications shall, when mailed, telecopied, telegraphed or
telexed, be effective when deposited in the mails, telecopied, delivered to the
telegraph company or confirmed by telex answerback, respectively, except that
notices and communications to the Agent pursuant to Article II, III or VII shall
not be effective until received by the Agent. Delivery by telecopier of an
executed counterpart of any amendment or waiver of any provision of this
Agreement or the Notes or of any Exhibit hereto to be executed and delivered
hereunder shall be effective as delivery of a manually executed counterpart
thereof.
SECTION 8.03. No Waiver; Remedies. No failure on the part
of any Lender or the Agent to exercise, and no delay in exercising, any right
hereunder or under any Note shall operate as a waiver thereof; nor shall any
single or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
SECTION 8.04. Costs and Expenses. (a) The Borrower agrees
to pay on demand all reasonable costs and expenses of the Agent in connection
with the preparation, execution, delivery, administration, modification and
amendment of this Agreement, the Notes and the other documents to be delivered
hereunder, including, without limitation, (A) all due diligence, syndication
(including printing, distribution and bank meetings), transportation, computer,
duplication, appraisal, consultant, and audit expenses and (B) the reasonable
fees and expenses of counsel for the Agent with respect thereto and with respect
to advising the Agent as to its rights and responsibilities under this
Agreement. The Borrower further agrees to pay on demand all costs and expenses
of the Agent and the Lenders, if any (including, without limitation, reasonable
counsel fees and expenses), in connection with the enforcement (whether through
negotiations, legal proceedings or otherwise) of this Agreement, the Notes and
the other documents to be delivered hereunder, including, without limitation,
reasonable fees and expenses of counsel for the Agent and each Lender in
connection with the enforcement of rights under this Section 8.04(a).
(b) The Borrower agrees to indemnify and hold harmless
the Agent and each Lender and each of their Affiliates and their officers,
directors, employees, agents and advisors (each, an "Indemnified Party") from
and against any and all claims, damages, losses, liabilities and expenses
(including, without limitation, reasonable fees and expenses of counsel)
incurred by or asserted or awarded against any Indemnified Party, in each case
arising out of or in connection with or by reason of (including, without
limitation, in connection with any investigation, litigation or proceeding or
preparation of a defense in connection therewith) (i) the Notes, this Agreement,
any of the transactions contemplated herein or the actual or proposed use of the
proceeds of the Advances or (ii) the actual or alleged presence of Hazardous
Materials on any property of the Borrower or any of its Subsidiaries or any
Environmental Action relating in any way to the Borrower or any of its
Subsidiaries, except to the extent such claim, damage, loss, liability or
expense is found in a final, non-appealable judgment by a court of
30
competent jurisdiction to have resulted from such Indemnified Party's gross
negligence or willful misconduct. In the case of an investigation, litigation or
other proceeding to which the indemnity in this Section 8.04(b) applies, such
indemnity shall be effective whether or not such investigation, litigation or
proceeding is brought by the Borrower, its directors, equityholders or creditors
or an Indemnified Party or any other Person, whether or not any Indemnified
Party is otherwise a party thereto and whether or not the transactions
contemplated hereby are consummated. The Borrower also agrees not to assert any
claim for special, indirect, consequential or punitive damages against the
Agent, any Lender, any of their Affiliates, or any of their respective
directors, officers, employees, attorneys and agents, on any theory of
liability, arising out of or otherwise relating to the Notes, this Agreement,
any of the transactions contemplated herein or the actual or proposed use of the
proceeds of the Advances.
(c) If any payment of principal of, or Conversion of, any
Eurodollar Rate Advance is made by the Borrower to or for the account of a
Lender other than on the last day of the Interest Period for such Advance, as a
result of a payment or Conversion pursuant to Section 2.07(d) or (e), 2.09 or
2.11, acceleration of the maturity of the Notes pursuant to Section 6.01 or for
any other reason, or by an Eligible Assignee to a Lender other than on the last
day of the Interest Period for such Advance upon an assignment of rights and
obligations under this Agreement pursuant to Section 8.07 as a result of a
demand by the Borrower pursuant to Section 8.07(a), the Borrower shall, upon
demand by such Lender (with a copy of such demand to the Agent), pay to the
Agent for the account of such Lender any amounts required to compensate such
Lender for any additional losses, costs or expenses that it may reasonably incur
as a result of such payment or Conversion, including, without limitation, any
loss (including loss of anticipated profits), cost or expense incurred by reason
of the liquidation or reemployment of deposits or other funds acquired by any
Lender to fund or maintain such Advance.
(d) The Borrower acknowledges that the distribution of
material through an electronic medium is not necessarily secure and that there
are confidentiality and other risks associated with such distribution. All
notices, financial statements, financial and other reports, certificates,
requests and other information materials (the "Communications") and the website
of the Agent (the "Platform") are provided "as is" and "as available". The Agent
does not warrant the accuracy, adequacy or completeness of the Communications or
the Platform and expressly disclaims liability for errors or omissions in the
Communications or the Platform. No warranty of any kind, express, implied or
statutory, including, without limitation, any warranty of merchantability,
fitness for a particular purpose, non-infringement of third party rights or
freedom from viruses or other code defects, is made by the Agent in connection
with the Communications or the Platform.
(e) Without prejudice to the survival of any other
agreement of the Borrower hereunder, the agreements and obligations of the
Borrower contained in Sections 2.10, 2.13 and 8.04 shall survive the payment in
full of principal, interest and all other amounts payable hereunder and under
the Notes.
SECTION 8.05. Right of Set-off. Upon (i) the occurrence
and during the continuance of any Event of Default and (ii) the making of the
request or the granting of the consent specified by Section 6.01 to authorize
the Agent to declare the Notes due and payable pursuant to the provisions of
Section 6.01, each Lender and each of its Affiliates is hereby authorized at any
time and from time to time, to the fullest extent permitted by law, to set off
and apply any and all deposits (general or special, time or demand, provisional
or final) at any time held and other indebtedness at any time owing by such
Lender or such Affiliate to or for the credit or the account of the Borrower
against any and all of the obligations of the Borrower now or hereafter existing
under this Agreement and the Note held by such Lender, whether or not such
Lender shall have made any demand under this Agreement or such Note and although
such obligations may be unmatured. Each Lender agrees promptly to notify the
Borrower after any such set-off and application, provided that the failure to
give such notice shall not affect the validity of such set-off and application.
The rights of each Lender and its Affiliates under this Section are in addition
to other rights and remedies (including, without limitation, other rights of
set-off) that such Lender and its Affiliates may have.
SECTION 8.06. Binding Effect. This Agreement shall become
effective (other than Section 2.01, which shall only become effective upon
satisfaction of the conditions precedent set forth in Section 3.01) when it
shall have been executed by the Borrower and the Agent and when the Agent shall
have been notified by each Initial Lender that such Initial Lender has executed
it and thereafter shall be binding upon and inure to the benefit of the
Borrower, the Agent and each Lender and their respective successors and assigns,
except that the Borrower shall not have the right to assign its rights hereunder
or any interest herein without the prior written consent of the Lenders.
31
SECTION 8.07. Assignments and Participations. (a) Each
Lender may and, if demanded by the Borrower (so long as no Default has occurred
and is continuing and following a demand by such Lender pursuant to Section 2.10
or 2.13) upon at least five Business Days' notice to such Lender and the Agent,
will assign to one or more Persons all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a
portion of its Commitment, the Advances owing to it and the Note or Notes held
by it); provided, however, that (i) each such assignment shall be of a constant,
and not a varying, percentage of all rights and obligations under this
Agreement, (ii) except in the case of an assignment to a Person that,
immediately prior to such assignment, was a Lender or an assignment of all of a
Lender's rights and obligations under this Agreement, the amount of the
Commitment of the assigning Lender being assigned pursuant to each such
assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than $5,000,000 or an
integral multiple of $1,000,000 in excess thereof unless the Borrower and the
Agent otherwise agree, (iii) each such assignment shall be to an Eligible
Assignee, (iv) each such assignment made as a result of a demand by the Borrower
pursuant to this Section 8.07(a) shall be arranged by the Borrower after
consultation with the Agent and shall be either an assignment of all of the
rights and obligations of the assigning Lender under this Agreement or an
assignment of a portion of such rights and obligations made concurrently with
another such assignment or other such assignments that together cover all of the
rights and obligations of the assigning Lender under this Agreement, (v) no
Lender shall be obligated to make any such assignment as a result of a demand by
the Borrower pursuant to this Section 8.07(a) unless and until such Lender shall
have received one or more payments from either the Borrower or one or more
Eligible Assignees in an aggregate amount at least equal to the aggregate
outstanding principal amount of the Advances owing to such Lender, together with
accrued interest thereon to the date of payment of such principal amount and all
other amounts payable to such Lender under this Agreement, and (vi) the parties
to each such assignment shall execute and deliver to the Agent, for its
acceptance and recording in the Register, an Assignment and Acceptance, together
with any Note subject to such assignment and a processing and recordation fee of
$3,500 payable by the parties to each such assignment, provided, however, that
in the case of each assignment made as a result of a demand by the Borrower,
such recordation fee shall be payable by the Borrower except that no such
recordation fee shall be payable in the case of an assignment made at the
request of the Borrower to an Eligible Assignee that is an existing Lender, and
(vii) any Lender may, without the approval of the Borrower and the Agent, assign
all or a portion of its rights to any of its Affiliates. Upon such execution,
delivery, acceptance and recording, from and after the effective date specified
in each Assignment and Acceptance, (x) the assignee thereunder shall be a party
hereto and, to the extent that rights and obligations hereunder have been
assigned to it pursuant to such Assignment and Acceptance, have the rights and
obligations of a Lender hereunder and (y) the Lender assignor thereunder shall,
to the extent that rights and obligations hereunder have been assigned by it
pursuant to such Assignment and Acceptance, relinquish its rights (other than
its rights under Section 2.10, 2.13 and 8.04 to the extent any claim thereunder
relates to an event arising prior such assignment) and be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's rights
and obligations under this Agreement, such Lender shall cease to be a party
hereto).
(b) By executing and delivering an Assignment and
Acceptance, the Lender assignor thereunder and the assignee thereunder confirm
to and agree with each other and the other parties hereto as follows: (i) other
than as provided in such Assignment and Acceptance, such assigning Lender makes
no representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or document
furnished pursuant hereto; (ii) such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of the Borrower or the performance or observance by the Borrower of any of its
obligations under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such assignee confirms that it has received a copy of
this Agreement, together with copies of the financial statements referred to in
Section 4.01 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (iv) such assignee will, independently and without
reliance upon the Agent, such assigning Lender 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; (v) such assignee confirms that it is an Eligible Assignee; (vi)
such assignee appoints and authorizes the Agent to take such action as agent on
its behalf and to exercise such powers and discretion under this Agreement as
are delegated to the Agent by the terms hereof, together with such powers and
discretion as are reasonably incidental thereto; and
32
(vii) such assignee agrees that it will perform in accordance with their terms
all of the obligations that by the terms of this Agreement are required to be
performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance
executed by an assigning Lender and an assignee representing that it is an
Eligible Assignee, together with any Note or Notes subject to such assignment,
the Agent shall, if such Assignment and Acceptance has been completed and is in
substantially the form of Exhibit C hereto, (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the Register and
(iii) give prompt notice thereof to the Borrower.
(d) The Agent shall maintain at its address referred to
in Section 8.02 a copy of each Assumption Agreement and each Assignment and
Acceptance delivered to and accepted by it and a register for the recordation of
the names and addresses of the Lenders and the Commitment of, and principal
amount of the Advances owing to, each Lender from time to time (the "Register").
The entries in the Register shall be conclusive and binding for all purposes,
absent manifest error, and the Borrower, the Agent and the Lenders may treat
each Person whose name is recorded in the Register as a Lender hereunder for all
purposes of this Agreement. The Register shall be available for inspection by
the Borrower or any Lender at any reasonable time and from time to time upon
reasonable prior notice.
(e) Each Lender may sell participations to one or more
banks or other entities (other than the Borrower or any of its Affiliates) in or
to all or a portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its Commitment, the Advances
owing to it and any Note or Notes held by it); provided, however, that (i) such
Lender's obligations under this Agreement (including, without limitation, its
Commitment to the Borrower hereunder) shall remain unchanged, (ii) such Lender
shall remain solely responsible to the other parties hereto for the performance
of such obligations, (iii) such Lender shall remain the holder of any such Note
for all purposes of this Agreement, (iv) the Borrower, the Agent and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement and
(v) no participant under any such participation shall have any right to approve
any amendment or waiver of any provision of this Agreement or any Note, or any
consent to any departure by the Borrower therefrom, except to the extent that
such amendment, waiver or consent would reduce the principal of, or interest on,
the Notes or any fees or other amounts payable hereunder, in each case to the
extent subject to such participation, or postpone any date fixed for any payment
of principal of, or interest on, the Notes or any fees or other amounts payable
hereunder, in each case to the extent subject to such participation.
(f) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
8.07, disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Borrower furnished to such Lender
by or on behalf of the Borrower; provided that, prior to any such disclosure,
the assignee or participant or proposed assignee or participant shall agree to
preserve the confidentiality of any Confidential Information relating to the
Borrower received by it from such Lender.
(g) Notwithstanding any other provision set forth in this
Agreement, any Lender may at any time create a security interest in all or any
portion of its rights under this Agreement (including, without limitation, the
Advances owing to it and any Note or Notes held by it) in favor of any Federal
Reserve Bank in accordance with Regulation A of the Board of Governors of the
Federal Reserve System.
SECTION 8.08. Confidentiality. Neither the Agent nor any
Lender shall disclose any Confidential Information to any other Person without
the consent of the Borrower, other than (a) to the Agent's or such Lender's
Affiliates and their officers, directors, employees, agents and advisors and, as
contemplated by Section 8.07(f), to actual or prospective assignees and
participants, and then only on a confidential basis, (b) as required by any law,
rule or regulation or judicial process, (c) as requested or required by any
state, federal or foreign authority or examiner regulating banks or banking and
(d) in connection with the exercise of any remedies hereunder or any suit,
action or proceeding relating to this Agreement or the enforcement of rights
hereunder.
SECTION 8.09. Governing Law. This Agreement and the Notes
shall be governed by, and construed in accordance with, the laws of the State of
New York.
33
SECTION 8.10. Execution in Counterparts. This Agreement
may be executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 8.11. Judgment. (a) If for the purposes of
obtaining judgment in any court it is necessary to convert a sum due hereunder
in U.S. dollars into another currency, the parties hereto agree, to the fullest
extent that they may effectively do so, that the rate of exchange used shall be
that at which in accordance with normal banking procedures the Agent could
purchase Dollars with such other currency at Citibank's principal office in
London at 11:00 A.M. (London time) on the Business Day preceding that on which
final judgment is given.
(b) The obligation of the Borrower in respect of any sum
due from it in any currency (the "Primary Currency") to any Lender or the Agent
hereunder shall, notwithstanding any judgment in any other currency, be
discharged only to the extent that on the Business Day following receipt by such
Lender or the Agent (as the case may be), of any sum adjudged to be so due in
such other currency, such Lender or the Agent (as the case may be) may in
accordance with normal banking procedures purchase the applicable Primary
Currency with such other currency; if the amount of the applicable Primary
Currency so purchased is less than such sum due to such Lender or the Agent (as
the case may be) in the applicable Primary Currency, the Borrower agrees, as a
separate obligation and notwithstanding any such judgment, to indemnify such
Lender or the Agent (as the case may be) against such loss, and if the amount of
the applicable Primary Currency so purchased exceeds such sum due to any Lender
or the Agent (as the case may be) in the applicable Primary Currency, such
Lender or the Agent (as the case may be) agrees to remit to the Borrower such
excess.
SECTION 8.12. Jurisdiction, Etc. (a) Each of the parties
hereto hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or the Notes, or for recognition or enforcement of
any judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in any such New York State court or, to
the extent permitted by law, in such federal court. The Borrower hereby agrees
that service of process in any such action or proceeding brought in the any such
New York State court or in such federal court may be made upon CT Corporation
System at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(the "Process Agent") and the Borrower hereby irrevocably appoints the Process
Agent its authorized agent to accept such service of process, and agrees that
the failure of the Process Agent to give any notice of any such service shall
not impair or affect the validity of such service or of any judgment rendered in
any action or proceeding based thereon. The Borrower hereby further irrevocably
consents to the service of process in any action or proceeding in such courts by
the mailing thereof by any parties hereto by registered or certified mail,
postage prepaid, to the Borrower at its address specified pursuant to Section
8.02. Each of the parties hereto agrees that a final judgment in any such action
or proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Nothing in this
Agreement shall affect any right that any party may otherwise have to bring any
action or proceeding relating to this Agreement or the Notes in the courts of
any jurisdiction.
(b) Each of the parties hereto irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection that it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement or
the Notes in any New York State or federal court. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action or proceeding in any
such court.
34
SECTION 8.13. Waiver of Jury Trial. Each of the Borrower,
the Agent and the Lenders hereby irrevocably waives all right to trial by jury
in any action, proceeding or counterclaim (whether based on contract, tort or
otherwise) arising out of or relating to this Agreement or the Notes or the
actions of the Agent or any Lender in the negotiation, administration,
performance or enforcement thereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
PLATINUM UNDERWRITERS HOLDINGS, LTD.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Title: President and CEO
CITIBANK, N.A.,
as Agent
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Title: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, VP
Citibank N.A.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
22nd Floor
▇▇▇-▇▇▇-▇▇▇▇
Initial Lenders
CITIBANK, N.A.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Title: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, VP
Citibank N.A.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
22nd Floor
▇▇▇-▇▇▇-▇▇▇▇
35
JPMORGAN CHASE BANK
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Title: Vice President
36
BANK OF AMERICA, N.A.
By /s/ ▇▇▇▇▇▇ ▇▇▇▇
----------------------------------
Title: Vice President
37
FLEET NATIONAL BANK
By [SIGNATURE ILLEGIBLE]
----------------------------------
Title: Portfolio Manager
▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ BANK AND TRUST COMPANY
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
Title: Vice President
39
SCHEDULE I
PLATINUM UNDERWRITERS HOLDINGS, LTD.
364-DAY CREDIT AGREEMENT
APPLICABLE LENDING OFFICES
------------------------------------------------------------------------------------------------------------------
Name of Initial Lender Commitment Domestic Lending Office Eurodollar Lending Office
------------------------------------------------------------------------------------------------------------------
Bank of America, N.A. $ 17,500,000 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
T: ▇▇▇-▇▇▇-▇▇▇▇ T: ▇▇▇-▇▇▇-▇▇▇▇
F: ▇▇▇-▇▇▇-▇▇▇▇ F: ▇▇▇-▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------------
Citibank, N.A. $ 35,000,000 Two Penns Way ▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇ ▇▇▇▇▇
T: ▇▇▇ ▇▇▇-▇▇▇▇ T: ▇▇▇ ▇▇▇-▇▇▇▇
F: ▇▇▇ ▇▇▇-▇▇▇▇ F: ▇▇▇ ▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------------
Fleet National Bank $ 15,000,000 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
T: ▇▇▇-▇▇▇-▇▇▇▇ T: ▇▇▇-▇▇▇-▇▇▇▇
F: ▇▇▇-▇▇▇-▇▇▇▇ F: ▇▇▇-▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------------
JPMorgan Chase Bank $ 17,500,000 ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇ Chase Manhattan Plaza,
▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇
T: ▇▇▇ ▇▇▇-▇▇▇▇ T: ▇▇▇ ▇▇▇-▇▇▇▇
F: ▇▇▇ ▇▇▇-▇▇▇▇ F: ▇▇▇ ▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------------
State Street Bank and $ 15,000,000 ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Loan ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Loan
Trust Company Dept ▇-▇▇ ▇▇▇▇ ▇-▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇ ▇▇▇▇▇
T: ▇▇▇-▇▇▇-▇▇▇▇ T: ▇▇▇-▇▇▇-▇▇▇▇
F: ▇▇▇-▇▇▇-▇▇▇▇ F: ▇▇▇-▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------------
Total of Commitments: $100,000,000
EXHIBIT A - FORM OF
PROMISSORY NOTE
U.S.$_______________ Dated: _______________, 200_
FOR VALUE RECEIVED, the undersigned, PLATINUM UNDERWRITERS
HOLDINGS, LTD., a company organized under the laws of Bermuda (the "Borrower"),
HEREBY PROMISES TO PAY to the order of _________________________ (the "Lender")
for the account of its Applicable Lending Office on the Termination Date (each
as defined in the Credit Agreement referred to below) the principal sum of
U.S.$[amount of the Lender's Commitment in figures] or, if less, the aggregate
principal amount of the Advances made by the Lender to the Borrower pursuant to
the 364-Day Credit Agreement dated as of June 21, 2002 among the Borrower, the
Lender and certain other lenders parties thereto, JPMorgan Chase Bank and Bank
of America, N.A., as syndication agents, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., as sole lead
arranger and Book Manager, and Citibank, N.A., as Agent for the Lender and such
other lenders (as amended or modified from time to time, the "Credit Agreement";
the terms defined therein being used herein as therein defined) outstanding on
the Termination Date.
The Borrower promises to pay interest on the unpaid principal
amount of each Advance from the date of such Advance until such principal amount
is paid in full, at such interest rates, and payable at such times, as are
specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the
United States of America to Citibank, as Agent, at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, in same day funds. Each Advance owing to the Lender by the
Borrower pursuant to the Credit Agreement, and all payments made on account of
principal thereof, shall be recorded by the Lender and, prior to any transfer
hereof, endorsed on the grid attached hereto which is part of this Promissory
Note.
This Promissory Note is one of the Notes referred to in, and
is entitled to the benefits of, the Credit Agreement. The Credit Agreement,
among other things, (i) provides for the making of Advances by the Lender to the
Borrower from time to time in an aggregate amount not to exceed at any time
outstanding the U.S. dollar amount first above mentioned, the indebtedness of
the Borrower resulting from each such Advance being evidenced by this Promissory
Note and (ii) contains provisions for acceleration of the maturity hereof upon
the happening of certain stated events and also for prepayments on account of
principal hereof prior to the maturity hereof upon the terms and conditions
therein specified.
PLATINUM UNDERWRITERS HOLDINGS, LTD.
By __________________________
Title:
ADVANCES AND PAYMENTS OF PRINCIPAL
-------------------------------------------------------------------------------------------------------------------
AMOUNT OF
AMOUNT OF PRINCIPAL PAID UNPAID PRINCIPAL NOTATION
DATE ADVANCE OR PREPAID BALANCE MADE BY
-------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------
2
EXHIBIT B - FORM OF
NOTICE OF BORROWING
Citibank, N.A., as Agent
for the Lenders parties
to the Credit Agreement
referred to below
▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
[Date]
Attention: Bank Loan Syndications Department
Ladies and Gentlemen:
The undersigned, Platinum Underwriters Holdings, ltd., refers
to the 364-Day Credit Agreement, dated as of June 21, 2002 (as amended or
modified from time to time, the "Credit Agreement", the terms defined therein
being used herein as therein defined), among the undersigned, certain Lenders
parties thereto, JPMorgan Chase Bank and Bank of America, N.A., as syndication
agents, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., as sole lead arranger and Book Manager, and
Citibank, N.A., as Agent for said Lenders, and hereby gives you notice,
irrevocably, pursuant to Section 2.02 of the Credit Agreement that the
undersigned hereby requests a Borrowing under the Credit Agreement, and in that
connection sets forth below the information relating to such Borrowing (the
"Proposed Borrowing") as required by Section 2.02(a) of the Credit Agreement:
(i) The Business Day of the Proposed Borrowing is
_______________, 200_.
(ii) The Type of Advances comprising the Proposed
Borrowing is [Base Rate Advances] [Eurodollar Rate Advances].
(iii) The aggregate amount of the Proposed Borrowing is
$_______________.
[(iv) The initial Interest Period for each Eurodollar Rate
Advance made as part of the Proposed Borrowing is _____ month[s].]
The undersigned hereby certifies that the following statements
are true on the date hereof, and will be true on the date of the Proposed
Borrowing:
(A) the representations and warranties contained in
Section 4.01 of the Credit Agreement are correct, before and after
giving effect to the Proposed Borrowing and to the application of the
proceeds therefrom, as though made on and as of such date; and
(B) no event has occurred and is continuing, or would
result from such Proposed Borrowing or from the application of the
proceeds therefrom, that constitutes a Default.
Very truly yours,
PLATINUM UNDERWRITERS HOLDINGS, LTD.
By __________________________
Title:.
EXHIBIT C - FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the 364-Day Credit Agreement dated as of
June 21, 2002 (as amended or modified from time to time, the "Credit Agreement")
among Platinum Underwriters Holdings, ltd., a company organized under the laws
of Bermuda (the "Borrower"), the Lenders (as defined in the Credit Agreement)
JPMorgan Chase Bank and Bank of America, N.A., as syndication agents, ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ Inc., as sole lead arranger and Book Manager, and Citibank, N.A.,
as agent for the Lenders (the "Agent"). Terms defined in the Credit Agreement
are used herein with the same meaning.
The "Assignor" and the "Assignee" referred to on Schedule I
hereto agree as follows:
1. 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 as of the date hereof equal to the percentage interest specified on
Schedule 1 hereto of all outstanding rights and obligations under the Credit
Agreement. After giving effect to such sale and assignment, the Assignee's
Commitment and the amount of the Advances owing to the Assignee will be as set
forth on Schedule 1 hereto.
2. The Assignor (i) represents and warrants that it is
the legal and beneficial owner of the interest being assigned by it hereunder
and that such interest is free and clear of any adverse claim; (ii) makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Credit Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement or any other
instrument or document furnished pursuant thereto; (iii) makes no representation
or warranty and assumes no responsibility with respect to the financial
condition of the Borrower or the performance or observance by the Borrower of
any of its obligations under the Credit Agreement or any other instrument or
document furnished pursuant thereto; and (iv) attaches the Note, if any, held by
the Assignor [and requests that the Agent exchange such Note for a new Note
payable to the order of [the Assignee in an amount equal to the Commitment
assumed by the Assignee pursuant hereto or new Notes payable to the order of the
Assignee in an amount equal to the Commitment assumed by the Assignee pursuant
hereto and] the Assignor in an amount equal to the Commitment retained by the
Assignor under the Credit Agreement, [respectively,] as specified on Schedule 1
hereto].
3. The Assignee (i) confirms that it has received a copy
of the Credit Agreement, together with copies of the financial statements
referred to in Section 4.01 thereof and such other documents and information as
it has deemed appropriate to make its own credit analysis and decision to enter
into this Assignment and Acceptance; (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 as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the Credit Agreement; (iii) confirms that it is an Eligible Assignee; (iv)
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers and discretion under the Credit Agreement as are
delegated to the Agent by the terms thereof, together with such powers and
discretion as are reasonably incidental thereto; (v) agrees that it will perform
in accordance with their terms all of the obligations that by the terms of the
Credit Agreement are required to be performed by it as a Lender; and (vi)
attaches any U.S. Internal Revenue Service forms required under Section 2.13 of
the Credit Agreement.
4. Following the execution of this Assignment and
Acceptance, it will be delivered to the Agent for acceptance and recording by
the Agent. The effective date for this Assignment and Acceptance (the "Effective
Date") shall be the date of acceptance hereof by the Agent, unless otherwise
specified on Schedule 1 hereto.
5. Upon such acceptance and recording by the Agent, as
of the Effective Date, (i) the Assignee shall be a party to the Credit Agreement
and, to the extent provided in this Assignment and Acceptance,
have the rights and obligations of a Lender thereunder and (ii) the Assignor
shall, to the extent provided in this Assignment and Acceptance, relinquish its
rights and be released from its obligations under the Credit Agreement.
6. Upon such acceptance and recording by the Agent, from
and after the Effective Date, the Agent shall make all payments under the Credit
Agreement and the Notes in respect of the interest assigned hereby (including,
without limitation, all payments of principal, interest and facility fees with
respect thereto) to the Assignee. The Assignor and Assignee shall make all
appropriate adjustments in payments under the Credit Agreement and the Notes for
periods prior to the Effective Date directly between themselves.
7. This Assignment and Acceptance shall be governed by,
and construed in accordance with, the laws of the State of New York.
8. This Assignment and Acceptance may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement. Delivery of an
executed counterpart of Schedule 1 to this Assignment and Acceptance by
telecopier shall be effective as delivery of a manually executed counterpart of
this Assignment and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused
Schedule 1 to this Assignment and Acceptance to be executed by their officers
thereunto duly authorized as of the date specified thereon.
2
Schedule 1
to
Assignment and Acceptance
Percentage interest assigned: _____%
Assignee's Commitment: $______
Aggregate outstanding principal amount of Advances assigned: $______
Principal amount of Note payable to Assignee: $______
Principal amount of Note payable to Assignor: $______
Effective Date*: _______________, 200_
[NAME OF ASSIGNOR], as Assignor
By __________________________
Title:
Dated: _______________, 200_
[NAME OF ASSIGNEE], as Assignee
By __________________________
Title:
Dated: _______________, 200_
Domestic Lending Office:
[Address]
Eurodollar Lending Office:
[Address]
------------------
* This date should be no earlier than five Business Days after the
delivery of this Assignment and Acceptance to the Agent.
3
Accepted [and Approved]** this
__________ day of _______________, 200_
CITIBANK, N.A., as Agent
By_____________________________________
Title:
[Approved this __________ day
of _______________, 200_
PLATINUM UNDERWRITERS HOLDINGS, LTD.
By__________________________________]*
Title:
------------------
** Required if the Assignee is an Eligible Assignee solely by reason of
clause (iii) of the definition of "Eligible Assignee".
* Required if the Assignee is an Eligible Assignee solely by reason of
clause (iii) of the definition of "Eligible Assignee".
4
EXHIBIT D - FORM OF
OPINION OF COUNSEL
FOR THE BORROWER