[EXECUTION COPY]
$200,000,000
364-DAY
CREDIT AND REIMBURSEMENT AGREEMENT
dated as of
December 18, 1997
among
USF&G Corporation
The Banks Listed Herein,
▇▇▇▇▇▇ Guaranty Trust Company of New York,
as Administrative Agent
and
Deutsche Bank AG, New York Branch,
as Documentation Agent
-----------------------------
▇.▇. ▇▇▇▇▇▇ Securities Inc.,
Arranger
Deutsche ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc.,
Co-Arranger
PAGE
TABLE OF CONTENTS
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PAGE
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions.....................................................1
SECTION 1.02. Accounting Terms and Determinations............................17
SECTION 1.03. Types and Classes of Borrowings................................18
ARTICLE 2
THE CREDITS
SECTION 2.01. Commitments to Lend............................................18
SECTION 2.02. Notice of Committed Borrowing..................................19
SECTION 2.03. Money Market Borrowings........................................20
SECTION 2.04. Notice to Banks; Funding of Loans..............................24
SECTION 2.05. Notes..........................................................25
SECTION 2.06. Maturity of Loans..............................................25
SECTION 2.07. Interest Rates.................................................26
SECTION 2.08. Fees...........................................................30
SECTION 2.09. Optional Termination or Reduction of Commitments...............30
SECTION 2.10. Mandatory Termination of Commitments...........................31
SECTION 2.11. Method of Electing Interest Rates..............................31
SECTION 2.12. Mandatory and Optional Prepayments.............................33
SECTION 2.13. General Provisions as to Payments..............................33
SECTION 2.14. Funding Losses.................................................34
SECTION 2.15. Computation of Interest and Fees...............................34
SECTION 2.16. Alternative Currency Advances..................................35
SECTION 2.17. Takeout of Swingline Loans.....................................36
ARTICLE 3
CONDITIONS
SECTION 3.01. Closing........................................................37
SECTION 3.02. Borrowings.....................................................38
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Corporate Existence and Power..................................39
SECTION 4.02. Corporate and Governmental Authorization; No Contravention.....39
SECTION 4.03. Binding Effect.................................................40
SECTION 4.04. Financial Information..........................................40
SECTION 4.05. Litigation.....................................................41
SECTION 4.06. Compliance with ERISA..........................................41
SECTION 4.07. Environmental Matters..........................................41
SECTION 4.08. Taxes..........................................................42
SECTION 4.09. Subsidiaries...................................................42
SECTION 4.10. Not an Investment Company......................................42
SECTION 4.11. Full Disclosure................................................42
ARTICLE 5
COVENANTS
SECTION 5.01. Information....................................................43
SECTION 5.02. Payment of Obligations.........................................45
SECTION 5.03. Maintenance of Property; Insurance.............................45
SECTION 5.04. Conduct of Business and Maintenance of Existence...............46
SECTION 5.05. Compliance with Laws...........................................46
SECTION 5.06. Negative Pledge................................................46
SECTION 5.07. Consolidations, Mergers and Sales of Assets; Ownership
by USF&G Corporation...........................................48
SECTION 5.08. Use of Proceeds................................................48
SECTION 5.09. Ratio of Debt to Adjusted Consolidated Tangible Net Worth......48
SECTION 5.10. Minimum Adjusted Consolidated Tangible Net Worth...............48
SECTION 5.11. Transactions with Affiliates...................................49
ARTICLE 6
DEFAULTS
SECTION 6.01. Events of Default..............................................49
SECTION 6.02. Notice of Default..............................................51
ARTICLE 7
THE AGENTS
SECTION 7.01. Appointment and Authorization..................................52
SECTION 7.02. Agents and Affiliates..........................................52
SECTION 7.03. Action by Agents...............................................52
SECTION 7.04. Consultation with Experts......................................52
SECTION 7.05. Liability of Agents............................................52
SECTION 7.06. Indemnification................................................53
SECTION 7.07. Credit Decision................................................53
SECTION 7.08. Successor Agents...............................................53
SECTION 7.09. Agents' Fees...................................................54
ARTICLE 8
CHANGE IN CIRCUMSTANCES
SECTION 8.01. Basis for Determining Interest Rate Inadequate or Unfair.......54
SECTION 8.02. Illegality.....................................................55
SECTION 8.03. Increased Cost and Reduced Return..............................55
SECTION 8.04. Taxes..........................................................57
SECTION 8.05. Base Rate Loans Substituted for Affected Fixed Rate Loans......59
ARTICLE 9
MISCELLANEOUS
SECTION 9.01. Notices........................................................60
SECTION 9.02. No Waivers.....................................................60
SECTION 9.03. Expenses; Indemnification......................................60
SECTION 9.04. Sharing of Set-offs............................................61
SECTION 9.05. Amendments and Waivers.........................................62
SECTION 9.06. Successors and Assigns.........................................62
SECTION 9.07. Collateral.....................................................64
SECTION 9.08. Governing Law; Submission to Jurisdiction......................64
SECTION 9.09. Counterparts; Integration; Effectiveness.......................64
SECTION 9.10. WAIVER OF JURY TRIAL...........................................65
SECTION 9.11. Existing Credit Agreements.....................................65
Pricing Schedule
Exhibit A - Note
Exhibit B - Money Market Quote Request
Exhibit C - Invitation for Money Market Quotes
Exhibit D - Money Market Quote
Exhibit E - Opinion of the General Counsel of the Borrower
Exhibit F - Opinion of Counsel to the Borrower
Exhibit G - Opinion of Special Counsel for the Agents
Exhibit H - Assignment and Assumption Agreement
364-DAY
CREDIT AND REIMBURSEMENT AGREEMENT
AGREEMENT dated as of December 18, 1997 among USF&G CORPORATION, the
BANKS listed on the signature pages hereof, ▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW
YORK, as Administrative Agent, and DEUTSCHE BANK AG, NEW YORK BRANCH, as
Documentation Agent.
The parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions. The following terms, as used herein, have the
following meanings:
"ABSOLUTE RATE AUCTION" means a solicitation of Money Market Quotes setting
forth Money Market Absolute Rates pursuant to Section 2.03.
"ADJUSTED CD RATE" has the meaning set forth in Section 2.07(b).
"ADJUSTED CONSOLIDATED TANGIBLE NET WORTH" means at any date the
consolidated stockholders' equity of the Borrower and its Consolidated
Subsidiaries (1) plus any unrealized holding losses (or less any unrealized
holding gains), in each case net of relevant adjustments for deferred policy
acquisition costs, on account of available-for-sale debt securities to the
extent reflected therein (together with other adjustments, all as determined in
accordance with Statement of Financial Accounting Standards No. 115 of the
Financial Accounting Standards Board, as amended from time to time, or any
successor provision thereto) and (2) plus, to the extent Qualified Deferrable
Securities Obligations are not included in consolidated stockholders' equity of
the Borrower and its Consolidated Subsidiaries, the Equity Portion of Qualified
Deferrable Securities Obligations (or, if Qualified Deferrable Securities
Obligations are included in consolidated stockholders' equity of the Borrower
and its Consolidated Subsidiaries, less the Debt Portion of Qualified Deferrable
Securities Obligations) and (3) less their consolidated Intangible Assets, all
determined as of such date. For purposes of this definition "Intangible Assets"
means the amount (to the extent reflected in determining such consolidated
stockholders' equity) of (i) all write-ups (other than write-ups resulting from
foreign currency translations, write-ups of assets of a going concern business
made within twelve months after the acquisition of such business and changes
made in accordance with generally accepted accounting principles in the book
value of any Investments in Persons other than the Borrower and its Consolidated
Subsidiaries) subsequent to September 30, 1997 in the book value of any asset
owned by the Borrower or a Consolidated Subsidiary and (ii) all unamortized debt
discount and expense, unamortized deferred charges, goodwill, patents,
trademarks, service marks, trade names, copyrights, organization or
developmental expenses and other intangible assets (other than deferred policy
acquisition costs and net deferred tax assets).
"ADJUSTED LONDON INTERBANK OFFERED RATE" has the meaning set forth in
Section 2.07(c).
"ADMINISTRATIVE AGENT" means ▇▇▇▇▇▇ Guaranty Trust Company of New York, in
its capacity as administrative agent for the Banks hereunder, and its successors
in such capacity.
"ADMINISTRATIVE QUESTIONNAIRE" means, with respect to each Bank, an
administrative questionnaire in the form prepared by the Administrative Agent
and submitted to the Administrative Agent (with a copy to the Borrower) duly
completed by such Bank.
"AFFILIATE" means (i) any Person that directly, or indirectly through one
or more intermediaries, controls the Borrower (a "Controlling Person") or (ii)
any Person (other than the Borrower or a Subsidiary) which is controlled by or
is under common control with a Controlling Person. As used herein, the term
"control" means possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a Person, whether through
the ownership of voting securities, by contract or otherwise.
"AGENT" means the Administrative Agent or the Documentation Agent, and
"AGENTS" means both of them.
"ALTERNATIVE CURRENCIES" means Canadian dollars, French francs, Swiss
francs, Australian dollars, Japanese yen, British pounds sterling, Italian lira
and German deutsche marks, provided that any other currency (except Dollars)
shall also be an Alternative Currency if (i) the Borrower requests, by notice to
the Administrative Agent, that such currency be included as an additional
Alternative Currency for purposes of this Agreement, (ii) such currency is
freely transferable and freely convertible into Dollars, (iii) deposits in such
currency are customarily offered to banks in the London interbank market and
(iv) each Bank either (x) approves the inclusion of such currency as an
additional Alternative Currency for purposes hereof or (y) fails to notify the
Administrative Agent that it objects to such inclusion within five Domestic
Business Days after the Administrative Agent notifies it of the Borrower's
request for such inclusion.
"ALTERNATIVE CURRENCY ADVANCE" means an advance made by a Bank to the
Borrower in an Alternative Currency pursuant to Section 2.16.
"ALTERNATIVE CURRENCY ADVANCE REPORT" has the meaning set forth in Section
2.16(c).
"APPLICABLE LENDING OFFICE" means, with respect to any Bank, (i) in the
case of its Domestic Loans, its Domestic Lending Office, (ii) in the case of its
Euro-Dollar Loans and Alternative Currency Advances, its Euro-Dollar Lending
Office, (iii) in the case of its Money Market Loans, its Money Market Lending
Office and (iv) in the case of its Swingline Loans, its Swingline Lending
Office.
"ASSESSMENT RATE" has the meaning set forth in Section 2.07(b).
"ASSIGNEE" has the meaning set forth in Section 9.06(c).
"BANK" means each bank listed on the signature pages hereof, each Assignee
which becomes a Bank pursuant to Section 9.06(c), and their respective
successors.
"BASE RATE" means, for any day, a rate per annum equal to the higher of (i)
the Prime Rate for such day and (ii) the sum of 1/2 of 1% plus the Federal Funds
Rate for such day.
"BASE RATE LOAN" means a Syndicated Loan which bears interest at the Base
Rate pursuant to the applicable Notice of Committed Borrowing or Notice of
Interest Rate Election or the provisions of Section 2.11(a) or Article 8.
"BENEFIT ARRANGEMENT" means at any time an employee benefit plan within the
meaning of Section 3(3) of ERISA which is not a Plan or a Multiemployer Plan and
which is maintained or otherwise contributed to by any member of the ERISA
Group.
"BORROWER" means USF&G Corporation, a Maryland corporation, and its
successors.
"BORROWER'S 1996 FORM 10-K" means the Borrower's annual report on Form 10-K
for 1996, as filed with the Securities and Exchange Commission pursuant to the
Securities Exchange Act of 1934.
"BORROWER'S LATEST FORM 10-Q" means the Borrower's quarterly report on Form
10-Q for the quarter ended September 30, 1997, as filed with the Securities and
Exchange Commission pursuant to the Securities Exchange Act of 1934.
"BORROWING" has the meaning set forth in Section 1.03.
"CD BASE RATE" has the meaning set forth in Section 2.07(b).
"CD LOAN" means a Syndicated Loan which bears interest at a CD Rate
pursuant to the applicable Notice of Committed Borrowing or Notice of Interest
Rate Election.
"CD MARGIN" has the meaning set forth in Section 2.07(b).
"CD RATE" means a rate of interest determined pursuant to Section 2.07(b)
on the basis of an Adjusted CD Rate.
"CD REFERENCE BANKS" means Deutsche Bank AG, New York Branch, ▇▇▇▇▇▇
Guaranty Trust Company of New York and The Bank of New York.
"CLASS" refers to the determination whether a Loan is a Revolving Credit
Loan or a Term Loan.
"CLOSING DATE" means the date on which the Documentation Agent shall have
received the documents specified in or pursuant to Section 3.01.
"COMMITMENT" means, with respect to each Bank, the amount set forth
opposite the name of such Bank on the signature pages hereof, as such amount may
be reduced from time to time pursuant to Sections 2.09 and 2.10.
"COMMITTED LOAN" means a Syndicated Loan or a Swingline Loan.
"COMMITMENT TERMINATION DATE" means December 17, 1998 or, if any such day
is not a Euro-Dollar Business Day, the next preceding Euro-Dollar Business Day.
"CONSOLIDATED SUBSIDIARY" means at any date any Subsidiary or other entity
the accounts of which would be consolidated with those of the Borrower in its
consolidated financial statements if such statements were prepared as of such
date.
"DEBT" of any Person means at any date, without duplication, (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person to pay the deferred purchase price of property or
services, except trade accounts payable, agents' commissions and other similar
charges and expenses arising in the ordinary course of business, (iv) all
obligations of such Person as lessee which are capitalized in accordance with
generally accepted accounting principles, (v) all non-contingent obligations
(and, for purposes of Section 5.06 and the definitions of Material Debt and
Material Financial Obligations, all contingent obligations) of such Person to
reimburse any bank or other Person in respect of amounts paid under a letter of
credit or similar instrument, (vi) all Debt secured by a Lien on any asset of
such Person, whether or not such Debt is otherwise an obligation of such Person
(but excluding any such Debt to the extent such Debt exceeds the fair market
value of such assets (such fair market value to be established by the Borrower
to the reasonable satisfaction of the Required Banks), unless such Debt is
assumed), (vii) all obligations of such Person to purchase securities (or other
property) which arise out of or in connection with the sale of the same or
substantially similar securities or property and (viii) all Debt of others
Guaranteed by such Person, provided that obligations of any Person referred to
only in clauses (i) through (iii), inclusive, above shall constitute Debt of
such Person only to the extent that they are, or are required to be, recorded on
the financial statements of such Person as a liability under generally accepted
accounting principles.
"DEBT PORTION" of Qualified Deferrable Securities Obligations means at any
time the amount thereof (including, without duplication, any subordinated
Guarantee of payment of Qualified Preferred Securities) that is not the "Equity
Portion" of Qualified Deferrable Securities Obligations.
"DEFAULT" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"DERIVATIVES OBLIGATIONS" of any Person means all obligations (other than
obligations incurred as a result of investments in or writing of futures,
options, swaps or other derivative transactions in respect of, or based upon,
insurance products or risks, including the futures and options contracts
relating to catastrophic losses traded on the Chicago Board of Trade or
otherwise) of such Person in respect of any rate swap transaction, basis swap,
forward rate transaction, commodity swap, commodity option, equity or equity
index swap, equity or equity index option, bond option, interest rate option,
foreign exchange transaction, cap transaction, floor transaction, collar
transaction, currency swap transaction, cross-currency rate swap transaction,
currency option or any other similar transaction (including any option with
respect to any of the foregoing transactions) or any combination of the
foregoing transactions.
"DOCUMENTATION AGENT" means Deutsche Bank AG, New York Branch in its
capacity as documentation agent for the Banks hereunder, and its successors in
such capacity.
"DOLLAR EQUIVALENT" means, as used in each Alternative Currency Advance
Report and in respect of any Alternative Currency Advance, the amount of Dollars
obtained by converting the outstanding amount of currency of such Alternative
Currency Advance, as specified in such Alternative Currency Advance Report, into
Dollars at the spot rate for the purchase of Dollars with such currency as
quoted by the Administrative Agent at approximately 9:00 A.M. (New York City
time) on the date of such Alternative Currency Advance Report (unless another
rate or time is agreed to by the Borrower and the Administrative Agent). The
Dollar Equivalent of any Alternative Currency Advance at any date shall be the
Dollar Equivalent thereof set forth in the Alternative Currency Advance Report
most recently delivered on or prior to such date.
"DOLLARS" and the sign "$" mean lawful money in the United States of
America.
"DOMESTIC BUSINESS DAY" means any day except a Saturday, Sunday or other
day on which commercial banks in New York City are authorized by law to close.
"DOMESTIC LENDING OFFICE" means, as to each Bank, its office located at its
address set forth in its Administrative Questionnaire (or identified in its
Administrative Questionnaire as its Domestic Lending Office) or such other
office as such Bank may hereafter designate as its Domestic Lending Office by
notice to the Borrower and the Administrative Agent; provided that any Bank may
so designate separate Domestic Lending Offices for its Base Rate Loans, on the
one hand, and its CD Loans, on the other hand, in which case all references
herein to the Domestic Lending Office of such Bank shall be deemed to refer to
either or both of such offices, as the context may require.
"DOMESTIC LOANS" means CD Loans or Base Rate Loans or both.
"DOMESTIC RESERVE PERCENTAGE" has the meaning set forth in Section 2.07(b).
"ENVIRONMENTAL LAWS" means any and all federal, state, local and foreign
statutes, laws, judicial decisions, regulations, ordinances, rules, judgments,
orders, decrees, plans, injunctions, permits, concessions, grants, franchises,
licenses, agreements and other governmental restrictions relating to the
environment, the effect of the environment on human health or to emissions,
discharges or releases of pollutants, contaminants, Hazardous Substances or
wastes into the environment including, without limitation, ambient air, surface
water, ground water, or land, or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of pollutants, contaminants, Hazardous Substances or wastes or the
clean-up or other remediation thereof.
"EQUITY PORTION" of Qualified Deferrable Securities Obligations means at
any time the amount of Qualified Deferrable Securities Obligations that does not
exceed the greater of (i) 15% of Total Capital at such time (including, without
duplication, any subordinated Guarantee of payment of the related Qualified
Preferred Securities, but only if such Guarantee guarantees payment only to the
extent that the Subsidiary issuing the Qualified Preferred Securities has funds
on hand available for payment) or (ii) $300,000,000, but only for so long as no
event of default exists under, or with respect to, any Qualified Deferrable
Securities Obligations and no Qualified Deferrable Securities Obligations have
been accelerated or may, with the passage of time or the giving of notice, be
accelerated.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, or any successor statute.
"ERISA GROUP" means the Borrower, any Subsidiary and all members of a
controlled group of corporations and all trades or businesses (whether or not
incorporated) under common control which, together with the Borrower or any
Subsidiary, are treated as a single employer under Section 414 of the Internal
Revenue Code.
"EURO" means the currency of participating member states of the European
Union that adopt a single currency in accordance with the Treaty on European
Union signed February 7, 1992.
"EURO-DOLLAR BUSINESS DAY" means any Domestic Business Day on which
commercial banks are open for international business (including dealings in
dollar deposits) in London.
"EURO-DOLLAR LENDING OFFICE" means, as to each Bank, its office, branch or
affiliate located at its address set forth in its Administrative Questionnaire
(or identified in its Administrative Questionnaire as its Euro-Dollar Lending
Office) or such other office, branch or affiliate of such Bank as it may
hereafter designate as its Euro-Dollar Lending Office by notice to the Borrower
and the Administrative Agent. The Applicable Lending Office for any Alternative
Currency Advance shall be the Euro-Dollar Lending Office of the Bank making such
advance as so set forth and identified unless another office, branch or
affiliate of such Bank is hereafter designated as its Euro-Dollar Lending Office
for such Alternative Currency Advance by notice to the Borrower and the
Administrative Agent.
"EURO-DOLLAR LOAN" means a Syndicated Loan which bears interest at a
Euro-Dollar Rate pursuant to the applicable Notice of Committed Borrowing or
Notice of Interest Rate Election.
"EURO-DOLLAR RATE" means a rate of interest determined pursuant to Section
2.07(c) on the basis of a London Interbank Offered Rate.
"EURO-DOLLAR MARGIN" has the meaning set forth in Section 2.07(c).
"EURO-DOLLAR REFERENCE BANKS" means the principal London offices of
Deutsche Bank AG, ▇▇▇▇▇▇ Guaranty Trust Company of New York and The Bank of New
York.
"EURO-DOLLAR RESERVE PERCENTAGE" has the meaning set forth in Section
2.07(c).
"EVENT OF DEFAULT" has the meaning set forth in Section 6.01.
"EXCLUDED SUBSIDIARY" means any Subsidiary or Insurance Company Subsidiary
other than any (i) Insurance Company Subsidiary with total admitted assets, as
of the date of determination, of $25,000,000 or more and (ii) "Significant
Subsidiary", as defined in Section 210.1-02(v) of Regulation S-X, as amended
from time to time, promulgated by the Securities and Exchange Commission (17
C.F.R. Section 210.1-02(w)).
"EXISTING CREDIT AGREEMENTS" means (i) the Credit and Reimbursement
Agreement dated as of March 29, 1996 among USF&G Corporation, the banks party
thereto, the Letter of Credit Issuing Banks named therein and ▇▇▇▇▇▇ Guaranty
Trust Company of New York, as agent, as amended as of June 30, 1997 (the
"EXISTING ▇▇▇▇▇▇ CREDIT AGREEMENT") and (ii) the Credit Agreement dated as of
March 29, 1996 among USF&G Corporation, the banks party thereto and Deutsche
Bank AG, New York and/or Cayman Island Branches, as agent (the "EXISTING
DEUTSCHE BANK CREDIT AGREEMENT").
"FEDERAL FUNDS RATE" means, for any day, the rate per annum (rounded
upward, if necessary, to the nearest 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Domestic Business Day
next succeeding such day, provided that (i) if such day is not a Domestic
Business Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Domestic Business Day as so published on the
next succeeding Domestic Business Day, and (ii) if no such rate is so published
on such next succeeding Domestic Business Day, the Federal Funds Rate for such
day shall be the average rate quoted to ▇▇▇▇▇▇ Guaranty Trust Company of New
York on such day on such transactions as determined by the Administrative Agent.
"FINAL MATURITY DATE" means the first anniversary of the Commitment
Termination Date or, if such day is not a Euro-Dollar Business Day, the next
preceding Euro-Dollar Business Day.
"FIXED RATE LOANS" means CD Loans or Euro-Dollar Loans or Money Market
Loans (excluding Money Market LIBOR Loans bearing interest at the Base Rate
pursuant to Section 8.01(a)) or any combination of the foregoing.
"GROUP OF LOANS" means at any time a group of Syndicated Loans of the same
Class consisting of (i) all Base Rate Loans of such Class outstanding at such
time, (ii) all Euro-Dollar Loans of such Class having the same Interest Period
at such time or (iii) all CD Loans of such Class having the same Interest Period
at such time; provided that, if a Syndicated Loan of any particular Bank is
converted to or made as a Base Rate Loan pursuant to Section 8.02 or 8.05, such
Loan shall be included in the same Group or Groups of Loans from time to time as
it would have been in if it had not been so converted or made.
"GUARANTEE" by any Person means any obligation, contingent or otherwise, of
such Person directly or indirectly guaranteeing any Debt or other obligation of
any other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such
Debt or other obligation (whether arising by virtue of partnership arrangements,
by agreement to keep-well, to purchase assets, goods, securities or services, to
take-or-pay, or to maintain financial statement conditions or otherwise) or (ii)
entered into for the purpose of assuring in any other manner the obligee of such
Debt or other obligation of the payment thereof or to protect such obligee
against loss in respect thereof (in whole or in part), provided that the term
Guarantee shall not include (i) endorsements for collection or deposit in the
ordinary course of business or (ii) if such Person is an insurance company,
surety bonds and insurance contracts (including financial guarantee insurance
policies) in each case issued in the ordinary course of such Person's business.
The term "Guarantee" used as a verb has a corresponding meaning.
"HAZARDOUS SUBSTANCES" means any toxic, radioactive, caustic or otherwise
hazardous substance, including petroleum, its derivatives, by-products and other
hydrocarbons, or any substance having any constituent elements displaying any of
the foregoing characteristics.
"INDEMNITEE" has the meaning set forth in Section 9.03(b).
"INSURANCE COMPANY SUBSIDIARY" means any Subsidiary domiciled in the United
States of America (including the District of Columbia) and its territories and
possessions or any State thereof and licensed or authorized to do an insurance
business in any of the foregoing.
"INTEREST PERIOD" means: (a) with respect to each Euro-Dollar Loan, the
period commencing on the date of borrowing specified in the applicable Notice of
Committed Borrowing or on the date specified in an applicable Notice of Interest
Rate Election and ending one, two, three or six months thereafter, as the
Borrower may elect in such notice; provided that:
(i) any Interest Period which would otherwise end on a day which is
not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in
another calendar month, in which case such Interest Period shall end on
the next preceding Euro-Dollar Business Day; and
(ii) any Interest Period which begins on the last Euro-Dollar Business
Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Euro-Dollar Business Day of a calendar
month;
(b) with respect to each CD Loan, the period commencing on the date of
borrowing specified in the applicable Notice of Committed Borrowing or on the
date specified in an applicable Notice of Interest Rate Election and ending 30,
60, 90 or 180 days thereafter, as the Borrower may elect in such notice;
provided that any Interest Period which would otherwise end on a day which is
not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day;
(c) with respect to each Money Market LIBOR Loan, the period
commencing on the date of such Loan and ending such whole number of months
thereafter as the Borrower may elect in accordance with Section 2.03; provided
that:
(i) any Interest Period which would otherwise end on a day which is
not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in
another calendar month, in which case such Interest Period shall end on
the next preceding Euro-Dollar Business Day; and
(ii) any Interest Period which begins on the last Euro-Dollar Business
Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Euro-Dollar Business Day of a calendar
month;
(d) with respect to each Money Market Absolute Rate Loan, the period
commencing on the date of such Loan and ending such number of days thereafter
(but not less than seven days) as the Borrower may elect in accordance with
Section 2.03; provided that any Interest Period which would otherwise end on a
day which is not a Euro-Dollar Business Day shall be extended to the next
succeeding Euro-Dollar Business Day;
(e) with respect to each Swingline Loan, the period commencing on the
date of borrowing specified in the applicable Notice of Borrowing and ending
such number of days thereafter (but not more than 10 days) as the Borrower may
elect in such notice; provided that any Interest Period which would otherwise
end on a day which is not a Euro-Dollar Business Day shall be extended to the
next succeeding Euro-Dollar Business Day; and
provided further that:
(x) any Interest Period applicable to any Loan which begins before
the Commitment Termination Date and would otherwise end after the
Commitment Termination Date shall end on the Commitment Termination
Date; and
(y) any Interest Period applicable to any Loan which would otherwise
end after the Final Maturity Date shall end on the Final Maturity Date.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986, as
amended, or any successor statute.
"INVESTMENT" means any investment in any Person, whether by means of share
purchase, capital contribution, loan, time deposit or otherwise.
"LIBOR AUCTION" means a solicitation of Money Market Quotes setting forth
Money Market Margins based on the London Interbank Offered Rate pursuant to
Section 2.03.
"LIEN" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind, or any other type of
preferential arrangement that has the practical effect of creating a security
interest, in respect of such asset. For the purposes of this Agreement, the
Borrower or any Subsidiary shall be deemed to own subject to a Lien any asset
which it has acquired or holds subject to the interest of a vendor or lessor
under any conditional sale agreement, capital lease or other title retention
agreement relating to such asset.
"LOAN" means a Domestic Loan or a Euro-Dollar Loan or a Money Market Loan
or a Swingline Loan and "LOANS" means Domestic Loans or Euro-Dollar Loans or
Money Market Loans or Swingline Loans or any combination of the foregoing.
"LONDON INTERBANK OFFERED RATE" has the meaning set forth in Section
2.07(c).
"MATERIAL ADVERSE EFFECT" means a material adverse effect on the business,
financial position, results of operations or prospects of the Borrower and its
Consolidated Subsidiaries, considered as a whole.
"MATERIAL DEBT" means Debt (other than the Notes) of the Borrower and/or
one or more of its Subsidiaries (other than an Excluded Subsidiary), arising in
one or more related or unrelated transactions, in an aggregate principal or face
amount exceeding $50,000,000 (or its equivalent in any other currency).
"MATERIAL FINANCIAL OBLIGATIONS" means a principal or face amount of Debt
and/or the then-owed payment obligations in respect of Derivatives Obligations
of the Borrower and/or one or more of its Subsidiaries (other than an Excluded
Subsidiary), arising in one or more related or unrelated transactions, exceeding
in the aggregate $50,000,000 (or its equivalent in any other currency).
"MATERIAL PLAN" means at any time a Plan or Plans having aggregate Unfunded
Liabilities in excess of $15,000,000.
"MONEY MARKET ABSOLUTE RATE" has the meaning set forth in Section 2.03(d).
"MONEY MARKET ABSOLUTE RATE LOAN" means a loan to be made by a Bank
pursuant to an Absolute Rate Auction.
"MONEY MARKET LENDING OFFICE" means, as to each Bank, its Domestic Lending
Office or such other office, branch or affiliate of such Bank as it may
hereafter designate as its Money Market Lending Office by notice to the Borrower
and the Administrative Agent; provided that any Bank may from time to time by
notice to the Borrower and the Administrative Agent designate separate Money
Market Lending Offices for its Money Market LIBOR Loans, on the one hand, and
its Money Market Absolute Rate Loans, on the other hand, in which case all
references herein to the Money Market Lending Office of such Bank shall be
deemed to refer to either or both of such offices, as the context may require.
"MONEY MARKET LIBOR LOAN" means a loan to be made by a Bank pursuant to a
LIBOR Auction (including such a loan bearing interest at the Base Rate pursuant
to Section 8.01(a)).
"MONEY MARKET LOAN" means a Money Market LIBOR Loan or a Money Market
Absolute Rate Loan.
"MONEY MARKET MARGIN" has the meaning set forth in Section 2.03(d).
"MONEY MARKET QUOTE" means an offer by a Bank to make a Money Market Loan
in accordance with Section 2.03.
"MULTIEMPLOYER PLAN" means at any time an employee pension benefit plan
within the meaning of Section 4001(a)(3) of ERISA to which any member of the
ERISA Group is then making or accruing an obligation to make contributions or
has within the preceding five plan years made contributions, including for these
purposes any Person which ceased to be a member of the ERISA Group during such
five year period.
"NON-RECOURSE DEBT" means Debt, secured only by real property (including
fixtures and personal property used therein or thereon and the rents, profits
and proceeds arising therefrom), in respect of which the holder of such Debt has
no recourse against the Borrower or any Subsidiary (other than a Subsidiary the
only assets of which consist of such real property (including fixtures and
personal property used therein or thereon and the rents, profits and proceeds
therefrom)) or any asset of the Borrower or any Subsidiary (except such real
property (including fixtures and personal property used therein or thereon and
the rents, profits and proceeds arising therefrom)).
"NOTES" means promissory notes of the Borrower, substantially in the form
of Exhibit A hereto, evidencing the obligation of the Borrower to repay the
Loans, and "NOTE" means any one of such promissory notes issued hereunder.
"NOTICE OF BORROWING" means a Notice of Committed Borrowing (as defined in
Section 2.02) or a Notice of Money Market Borrowing (as defined in Section
2.03(f)).
"NOTICE OF INTEREST RATE ELECTION" has the meaning set forth in Section
2.11.
"OFFICER'S CERTIFICATE" means a certificate signed by the President, any
Vice-President responsible for financial matters, the Treasurer or the
Controller of the Borrower.
"PARENT" means, with respect to any Bank, any Person controlling such Bank.
"PARTICIPANT" has the meaning set forth in Section 9.06(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"PERSON" means an individual, a corporation, a limited liability company, a
partnership, an association, a trust or any other entity or organization,
including a government or political subdivision or an agency or instrumentality
thereof.
"PLAN" means at any time an employee pension benefit plan (other than a
Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Internal Revenue Code and
either (i) is maintained, or contributed to, by any member of the ERISA Group
for employees of any member of the ERISA Group or (ii) has at any time within
the preceding five years been maintained, or contributed to, by any Person which
was at such time a member of the ERISA Group for employees of any Person which
was at such time a member of the ERISA Group.
"PRICING SCHEDULE" means the Schedule attached hereto identified as such.
"PRIME RATE" means the rate of interest publicly announced by ▇▇▇▇▇▇
Guaranty Trust Company of New York in New York City from time to time as its
Prime Rate.
"QUALIFIED DEBT SECURITIES" means Debt securities of the Borrower, provided
that the terms of any such Debt security (i) permit the deferral of principal
and interest payments (other than Tax Interest) for a period of up to five years
(but not beyond the maturity date), as elected by the Borrower, (ii) have a
maturity for payment of principal of not less than 14 3/4 years after the date
of issuance, and (iii) contain subordination terms substantially consistent with
(or more favorable to the Banks than) the subordination terms contained in the
form of Indenture for Subordinated Debt Securities filed as an exhibit to the
Borrower's Registration Statement on Form S-3 (File No. 33-65471) declared
effective by the Securities and Exchange Commission on February 20, 1996.
"QUALIFIED DEFERRABLE SECURITIES OBLIGATIONS" means at any date, without
duplication, the obligations recorded on the consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries in respect of Qualified Debt
Securities and Qualified Preferred Securities issued by the Borrower or any
Subsidiary.
"QUALIFIED PREFERRED SECURITIES" means preferred securities issued by a
Subsidiary, the sole purpose of which is to issue such securities and invest the
proceeds thereof in Qualified Debt Securities, and which preferred securities
are payable solely out of the proceeds of payments on account of such Qualified
Debt Securities. Securities designated 'capital securities' or by another name
shall be deemed 'Qualified Preferred Securities' if they otherwise meet the
requirements set forth herein.
"REFERENCE BANKS" means the CD Reference Banks or the Euro-Dollar Reference
Banks, as the context may require, and "Reference Bank" means any one of such
Reference Banks.
"REGULATION U" means Regulation U of the Board of Governors of the Federal
Reserve System, as in effect from time to time.
"REQUIRED BANKS" means at any time Banks having at least 60% of the
aggregate amount of the Commitments or, if the Commitments shall have been
terminated, holding Notes evidencing at least 60% of the aggregate unpaid
principal amount of the Loans.
"REVOLVING CREDIT LOAN" means a loan made or to be made by a Bank pursuant
to Section 2.01(a).
"REVOLVING CREDIT PERIOD" means the period from and including the
Closing Date to and including the Commitment Termination Date.
"SUBSIDIARY" means, as to any Person, any corporation or other entity of
which securities or other ownership interests having ordinary voting power to
elect a majority of the board of directors or other persons performing similar
functions are at the time directly or indirectly owned by such Person; unless
otherwise specified, "Subsidiary" means a Subsidiary of the Borrower.
"SWINGLINE BANK" means each of ▇▇▇▇▇▇ Guaranty Trust Company of New York,
Deutsche Bank AG, New York Branch and The Bank of New York.
"SWINGLINE LENDING OFFICE" means, as to each Swingline Bank, its office
located at its address set forth in its Administrative Questionnaire (or
identified in its Administrative Questionnaire as its Swingline Lending Office)
or such other office as such Bank may hereafter designate as its Swingline
Lending Office by notice to the Borrower and the Administrative Agent.
"SWINGLINE LOAN" means a loan made by a Swingline Bank pursuant to Section
2.01(c).
"SWINGLINE TAKEOUT LOAN" means a Base Rate Loan made pursuant to Section
2.17.
"SWINGLINE LIMIT" means for each of ▇▇▇▇▇▇ Guaranty Trust Company of New
York and Deutsche Bank AG, New York Branch, the amount of its Commitment and for
The Bank of New York, $10,000,000.
"SYNDICATED LOAN" means a Revolving Credit Loan or a Term Loan provided
that, if any such loan or loans (or portions thereof) are combined or subdivided
pursuant to a Notice of Interest Rate Election, the term "SYNDICATED LOAN" shall
refer to the combined principal amount resulting from such combination or to
each of the separate principal amounts resulting from such subdivision, as the
case may be.
"TAX INTEREST" means any additional amounts payable in respect of Qualified
Debt Securities to reimburse a Subsidiary issuing any related Qualified
Preferred Securities for any taxes or impositions payable by such Subsidiary in
respect of such Qualified Debt Securities during any period in which interest
payments otherwise have been deferred.
"TERM LOAN" means a loan made or to be made by a Bank pursuant to Section
2.01(b).
"TOTAL CAPITAL" means at any date, the consolidated debt and stockholders'
equity of the Borrower and the Consolidated Subsidiaries at such date, including
Qualified Deferrable Securities Obligations. For purposes of determining
"stockholders' equity" when calculating Total Capital, there shall be added any
unrealized holding losses (or subtracted any unrealized holding gains), in each
case net of relevant adjustments for deferred policy acquisition costs, on
account of available-for-sale debt securities to the extent reflected therein
(together with other adjustments, all as determined in accordance with Statement
of Financial Accounting Standards No. 115 of the Financial Accounting Standards
Board, as amended from time to time, or any successor provision thereto).
"UNFUNDED LIABILITIES" means, with respect to any Plan at any time, the
amount (if any) by which (i) the value of all benefit liabilities under such
Plan, determined on a plan termination basis using the assumptions prescribed by
the PBGC for purposes of Section 4044 of ERISA, exceeds (ii) the fair market
value of all Plan assets allocable to such liabilities under Title IV of ERISA
(excluding any accrued but unpaid contributions), all determined as of the then
most recent valuation date for such Plan, but only to the extent that such
excess represents a potential liability of a member of the ERISA Group to the
PBGC or any other Person under Title IV of ERISA.
"UNREFUNDED SWINGLINE LOANS" has the meaning set forth in Section 2.17(b).
"UNITED STATES" means the United States of America, including the States
and the District of Columbia, but excluding its territories and possessions.
SECTION 1.02. Accounting Terms and Determinations. Unless otherwise
specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements
required to be delivered hereunder shall be prepared in accordance with United
States generally accepted accounting principles as in effect from time to time,
applied on a basis consistent (except for changes concurred in by the Borrower's
independent public accountants) with the most recent audited consolidated
financial statements of the Borrower and its Consolidated Subsidiaries delivered
to the Banks; provided that, if the Borrower notifies the Administrative Agent
that the Borrower wishes to amend any covenant in Article 5 to eliminate the
effect of any change in generally accepted accounting principles on the
operation of such covenant (or if the Administrative Agent notifies the Borrower
that the Required Banks wish to amend Article 5 for such purpose), then the
Borrower's compliance with such covenant shall be determined on the basis of
generally accepted accounting principles in effect immediately before the
relevant change in generally accepted accounting principles became effective,
until either such notice is withdrawn or such covenant is amended in a manner
satisfactory to the Borrower and the Required Banks.
SECTION 1.03. Types and Classes of Borrowings. The term "BORROWING" denotes
the aggregation of Loans of one or more Banks to be made to the Borrower
pursuant to Article 2 on a single date and, except in the case of Base Rate
Loans, for a single Interest Period. Borrowings are classified for purposes of
this Agreement either by reference to the pricing of Loans comprising such
Borrowing (e.g., a "EURO-DOLLAR BORROWING" is a Borrowing comprised of
Euro-Dollar Loans) or by reference to the provisions of Article 2 under which
participation therein is determined (i.e., a "SYNDICATED BORROWING" is a
Borrowing under Section 2.01(a) or (b) in which all Banks participate in
proportion to their Commitments, while a "MONEY MARKET BORROWING" is a Borrowing
under Section 2.03 in which the Bank participants are determined on the basis of
their bids in accordance therewith or by reference to the Class of Loans
comprising such Borrowing (e.g. a "TERM BORROWING" is a Borrowing comprised of
Term Loans).
ARTICLE 2
THE CREDITS
SECTION 2.01. Commitments to Lend. (a) Revolving Credit Loans. During the
Revolving Credit Period, each Bank severally agrees, on the terms and conditions
set forth in this Agreement, to make loans to the Borrower pursuant to this
Section from time to time in amounts such that the aggregate principal amount of
Committed Loans by such Bank at any one time outstanding, together with its
participating interests in any Unrefunded Swingline Loans, shall not exceed the
amount of its Commitment. Within the foregoing limits, the Borrower may borrow
under this subsection, repay, or to the extent permitted by Section 2.12, prepay
Loans and reborrow at any time during the Revolving Credit Period under this
subsection.
(b) Term Loans. Each Bank severally agrees, on the terms and conditions set
forth in this Agreement, to make a loan to the Borrower on the Commitment
Termination Date in an aggregate amount up to but not exceeding the amount of
its Commitment.
(c) Swingline Loans. From time to time on or after the Closing Date and
prior to the Commitment Termination Date, each Swingline Bank agrees, on the
terms and conditions set forth in this Agreement, to make loans to the Borrower
pursuant to this subsection from time to time in amounts such that (i) the
aggregate principal amount of its Committed Loans at any one time outstanding
shall not exceed the amount of its Commitment, (ii) the aggregate principal
amount of its Swingline Loans at any one time outstanding shall not exceed the
amount of its Swingline Limit and (iii) the aggregate principal amount of
Swingline Loans at any time outstanding shall not exceed $50,000,000. Within the
foregoing limits, the Borrower may borrow under this subsection, repay, or to
the extent permitted by Section 2.12, prepay Loans and reborrow at any time
during the Revolving Credit Period under this subsection.
(d) Amounts. Each Borrowing under Section 2.01(a), (b) or (c) (other than a
Swingline Takeout Borrowing) shall be in an aggregate principal amount of
$5,000,000 or any larger multiple of $1,000,000 (except that any such Borrowing
may be in the aggregate amount available in accordance with Section 3.02(c)) and
shall, in the case of Borrowings under 2.01(a) or (b), be made from the several
Banks ratably in proportion to their respective Commitments.
SECTION 2.02. Notice of Committed Borrowing. The Borrower shall give the
Administrative Agent notice (a "NOTICE OF COMMITTED BORROWING") not later than
(i) 10:30 A.M. (New York City time) on (x) the date of each Base Rate Borrowing
(other than a Swingline Borrowing) , (y) the second Domestic Business Day before
each CD Borrowing and (z) the third Euro-Dollar Business Day before each
Euro-Dollar Borrowing and (ii) 11:00 A.M. (New York City time) on the date of
each Swingline Borrowing , specifying:
(a) the date of such Borrowing, which shall be a Domestic Business Day in
the case of a Domestic Borrowing or a Swingline Borrowing or a Euro-Dollar
Business Day in the case of a Euro-Dollar Borrowing,
(b) the aggregate amount of such Borrowing,
(c) whether the Loans comprising such Borrowing are to be Syndicated Loans
or a Swingline Loan and, in the case of Swingline Loans, the applicable
Swingline Bank;
(d) in the case of a Syndicated Borrowing, whether the Loans comprising
such Borrowing are to be CD Loans, Base Rate Loans or Euro-Dollar Loans, and
(e) in the case of a Fixed Rate Borrowing or Swingline Borrowing, the
duration of the Interest Period applicable thereto, subject to the provisions of
the definition of Interest Period.
SECTION 2.03. Money Market Borrowings.
(a) The Money Market Option. In addition to Committed Borrowings pursuant
to Section 2.01, the Borrower may, as set forth in this Section, request the
Banks during the Revolving Credit Period to make offers to make Money Market
Loans to the Borrower. The Banks may, but shall have no obligation to, make such
offers and the Borrower may, but shall have no obligation to, accept any such
offers in the manner set forth in this Section.
(b) Money Market Quote Request. When the Borrower wishes to request offers
to make Money Market Loans under this Section, it shall transmit to the
Administrative Agent by telex or facsimile transmission a Money Market Quote
Request substantially in the form of Exhibit B hereto so as to be received no
later than 10:30 A.M. (New York City time) on (x) the fifth Euro-Dollar Business
Day prior to the date of Borrowing proposed therein, in the case of a LIBOR
Auction or (y) the Domestic Business Day next preceding the date of Borrowing
proposed therein, in the case of an Absolute Rate Auction (or, in either case,
such other time or date as the Borrower and the Administrative Agent shall have
mutually agreed and shall have notified to the Banks not later than the date of
the Money Market Quote Request for the first LIBOR Auction or Absolute Rate
Auction for which such change is to be effective) specifying:
(i) the proposed date of Borrowing, which shall be a Euro-Dollar
Business Day in the case of a LIBOR Auction or a Domestic Business Day
in the case of an Absolute Rate Auction,
(ii) the aggregate amount of such Borrowing, which shall be $5,000,000
or a larger multiple of $1,000,000,
(iii) the duration of the Interest Period applicable thereto, subject to
the provisions of the definition of Interest Period, and
(iv) whether the Money Market Quotes requested are to set forth a Money
Market Margin or a Money Market Absolute Rate.
The Borrower may request offers to make Money Market Loans for more than one
Interest Period in a single Money Market Quote Request. No Money Market Quote
Request shall be given within five Euro-Dollar Business Days (or such other
number of days as the Borrower and the Administrative Agent may agree) of any
other Money Market Quote Request.
(c) Invitation for Money Market Quotes. Promptly upon receipt of a Money
Market Quote Request, the Administrative Agent shall send to the Banks by telex
or facsimile transmission an Invitation for Money Market Quotes substantially in
the form of Exhibit C hereto, which shall constitute an invitation by the
Borrower to each Bank to submit Money Market Quotes offering to make the Money
Market Loans to which such Money Market Quote Request relates in accordance with
this Section.
(d) Submission and Contents of Money Market Quotes. (i) Each Bank may
submit a Money Market Quote containing an offer or offers to make Money Market
Loans in response to any Invitation for Money Market Quotes. Each Money Market
Quote must comply with the requirements of this subsection (d) and must be
submitted to the Administrative Agent by telex or facsimile transmission at its
offices specified in or pursuant to Section 9.01 not later than (x) 2:00 P.M.
(New York City time) on the fourth Euro-Dollar Business Day prior to the
proposed date of Borrowing, in the case of a LIBOR Auction or (y) 9:30 A.M. (New
York City time) on the proposed date of Borrowing, in the case of an Absolute
Rate Auction (or, in either case, such other time or date as the Borrower and
the Administrative Agent shall have mutually agreed and shall have notified to
the Banks not later than the date of the Money Market Quote Request for the
first LIBOR Auction or Absolute Rate Auction for which such change is to be
effective); provided that Money Market Quotes submitted by the Administrative
Agent (or any affiliate of the Administrative Agent) in the capacity of a Bank
may be submitted, and may only be submitted, if the Administrative Agent or such
affiliate notifies the Borrower of the terms of the offer or offers contained
therein not later than (x) one hour prior to the deadline for the other Banks,
in the case of a LIBOR Auction or (y) 15 minutes prior to the deadline for the
other Banks, in the case of an Absolute Rate Auction. Subject to Articles 3 and
6, any Money Market Quote so made shall be irrevocable except with the written
consent of the Administrative Agent given on the instructions of the Borrower.
(ii) Each Money Market Quote shall be in substantially the form of Exhibit
D hereto and shall in any case specify:
(A) the proposed date of Borrowing,
(B) the principal amount of the Money Market Loan for which each such
offer is being made, which principal amount (w) may be greater than or
less than the Commitment of the quoting Bank, (x) must be $5,000,000 or
a larger multiple of $1,000,000, (y) may not exceed the principal
amount of Money Market Loans for which offers were requested and (z)
may be subject to an aggregate limitation as to the principal amount of
Money Market Loans for which offers being made by such quoting Bank may
be accepted,
(C) in the case of a LIBOR Auction, the margin above or below the
applicable London Interbank Offered Rate (the "Money Market Margin")
offered for each such Money Market Loan, expressed as a percentage
(specified to the nearest 1/10,000th of 1%) to be added to or
subtracted from such base rate,
(D) in the case of an Absolute Rate Auction, the rate of interest per
annum (specified to the nearest 1/10,000th of 1%) (the "Money Market
Absolute Rate") offered for each such Money Market Loan, and
(E) the identity of the quoting Bank.
A Money Market Quote may set forth up to five separate offers by the quoting
Bank with respect to each Interest Period specified in the related Invitation
for Money Market Quotes.
(iii) Any Money Market Quote shall be disregarded if it:
(A) is not substantially in conformity with Exhibit D hereto or does
not specify all of the information required by subsection (d)(ii);
(B) contains qualifying, conditional or similar language;
(C) proposes terms other than or in addition to those set forth in the
applicable Invitation for Money Market Quotes; or
(D) arrives after the time set forth in subsection (d)(i).
(e) Notice to Borrower. The Administrative Agent shall promptly notify
the Borrower of the terms (x) of any Money Market Quote submitted by a Bank that
is in accordance with subsection (d) and (y) of any Money Market Quote that
amends, modifies or is otherwise inconsistent with a previous Money Market Quote
submitted by such Bank with respect to the same Money Market Quote Request. Any
such subsequent Money Market Quote shall be disregarded by the Administrative
Agent unless such subsequent Money Market Quote is submitted solely to correct a
manifest error in such former Money Market Quote. The Administrative Agent's
notice to the Borrower shall specify (A) the aggregate principal amount of Money
Market Loans for which offers have been received for each Interest Period
specified in the related Money Market Quote Request, (B) the respective
principal amounts and Money Market Margins or Money Market Absolute Rates, as
the case may be, so offered and (C) if applicable, limitations on the aggregate
principal amount of Money Market Loans for which offers in any single Money
Market Quote may be accepted.
(f) Acceptance and Notice by Borrower. Not later than 10:30 A.M. (New
York City time) on (x) the third Euro-Dollar Business Day prior to the proposed
date of Borrowing, in the case of a LIBOR Auction or (y) the proposed date of
Borrowing, in the case of an Absolute Rate Auction (or, in either case, such
other time or date as the Borrower and the Administrative Agent shall have
mutually agreed and shall have notified to the Banks not later than the date of
the Money Market Quote Request for the first LIBOR Auction or Absolute Rate
Auction for which such change is to be effective), the Borrower shall notify the
Administrative Agent of its acceptance or non-acceptance of the offers so
notified to it pursuant to subsection (e). In the case of acceptance, such
notice (a "Notice of Money Market Borrowing") shall specify the aggregate
principal amount of offers for each Interest Period that are accepted. The
Borrower may accept any Money Market Quote in whole or in part; provided that:
(i) the aggregate principal amount of each Money Market Borrowing may
not exceed the applicable amount set forth in the related Money Market Quote
Request,
(ii) the principal amount of each Money Market Borrowing must be
$5,000,000 or a larger multiple of $1,000,000,
(iii) acceptance of offers may only be made on the basis of ascending
Money Market Margins or Money Market Absolute Rates, as the case may be, and
(iv) the Borrower may not accept any offer that is described in
subsection (d)(iii) or that otherwise fails to comply with the requirements of
this Agreement.
(g) Allocation by Administrative Agent. If offers are made by two or
more Banks with the same Money Market Margins or Money Market Absolute Rates, as
the case may be, for a greater aggregate principal amount than the amount in
respect of which such offers are accepted for the related Interest Period, the
principal amount of Money Market Loans in respect of which such offers are
accepted shall be allocated by the Administrative Agent among such Banks as
nearly as possible (in multiples of $1,000,000, as the Administrative Agent may
deem appropriate) in proportion to the aggregate principal amounts of such
offers. Determinations by the Administrative Agent of the amounts of Money
Market Loans shall be conclusive in the absence of manifest error.
SECTION 2.04. Notice to Banks; Funding of Loans.
(a) Upon receipt of a Notice of Borrowing, the Administrative Agent shall
promptly notify each Bank of the contents thereof and of such Bank's share (if
any) of such Borrowing and such Notice of Borrowing shall not thereafter be
revocable by the Borrower.
(b) Not later than 12:00 Noon (New York City time) on the date of each
Syndicated Borrowing and not later than 12:30 P.M. (New York City time) on the
date of each Swingline Borrowing, each Bank participating therein shall (except
as provided in subsection 2.04(c)) make available its share of such Borrowing,
in Federal or other funds immediately available in New York City, to the
Administrative Agent at its address referred to in Section 9.01. Unless the
Administrative Agent determines that any applicable condition specified in
Article 3 has not been satisfied, the Administrative Agent will make the funds
so received from the Banks available to the Borrower at the Administrative
Agent's aforesaid address.
(c) If any Bank makes a Term Loan to the Borrower hereunder on a day on
which the Borrower is to repay all or any part of an outstanding Revolving
Credit Loan from such Bank, such Bank shall apply the proceeds of its Term Loan
to make such repayment and only an amount equal to the difference (if any)
between the amount being borrowed and the amount being repaid shall be made
available by such Bank to the Administrative Agent as provided in subsection
2.04(b), or remitted by the Borrower to the Administrative Agent as provided in
Section 2.12, as the case may be.
(d) Unless the Administrative Agent shall have received notice from a Bank
prior to the date of any Borrowing that such Bank will not make available to the
Administrative Agent such Bank's share of such Borrowing, the Administrative
Agent may assume that such Bank has made such share available to the
Administrative Agent on the date of such Borrowing in accordance with
subsections (b) and (c) of this Section 2.04 and the Administrative Agent may,
in reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Bank shall not have so made
such share available to the Administrative Agent, such Bank and the Borrower
severally agree to repay to the Administrative 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 Administrative Agent, at (i) in the case of the Borrower, a rate
per annum equal to the higher of the Federal Funds Rate and the interest rate
applicable thereto pursuant to Section 2.07 and (ii) in the case of such Bank,
the Federal Funds Rate. If such Bank shall repay to the Administrative Agent
such corresponding amount, such amount so repaid shall constitute such Bank's
Loan included in such Borrowing for purposes of this Agreement. Nothing in this
subsection (d) shall be deemed to relieve any Bank from its obligation to extend
Loans hereunder or to prejudice any rights which the Borrower may have against
any Bank as a result of any default by such Bank hereunder. The failure of any
Bank to make Loans hereunder shall not relieve any other Bank from its
obligation to make the Loans required to be made by it hereunder.
SECTION 2.05. Notes. (a) The Loans of each Bank shall be evidenced by a
single Note payable to the order of such Bank for the account of its Applicable
Lending Office in an amount equal to the aggregate unpaid principal amount of
such Bank's Loans.
(b) Each Bank may, by notice to the Borrower and the Administrative Agent,
request that its Loans of a particular type or Class be evidenced by a separate
Note in an amount equal to the aggregate unpaid principal amount of such Loans.
Each such Note shall be in substantially the form of Exhibit A hereto with
appropriate modifications to reflect the fact that it evidences solely Loans of
the relevant type or Class. Each reference in this Agreement to the "Note" of
such Bank shall be deemed to refer to and include any or all of such Notes, as
the context may require.
(c) Upon receipt of each Bank's Note pursuant to Section 3.01(a), the
Administrative Agent shall forward such Note to such Bank. Each Bank shall
record the date, amount, type, Class and maturity of each Loan made by it and
the date and amount of each payment of principal made by the Borrower with
respect thereto, and may, if such Bank so elects in connection with any transfer
or enforcement of its Note, endorse on the schedule forming a part thereof
appropriate notations to evidence the foregoing information with respect to each
such Loan then outstanding; provided that the failure of any Bank to make any
such recordation or endorsement shall not affect the obligations of the Borrower
hereunder or under the Notes. Each Bank is hereby irrevocably authorized by the
Borrower so to endorse its Note and to attach to and make a part of its Note a
continuation of any such schedule as and when required.
SECTION 2.06. Maturity of Loans. (a) Each Revolving Credit Loan shall
mature, and the principal amount thereof shall be due and payable, together with
accrued interest thereon, on the Commitment Termination Date.
(b) Each Term Loan shall mature, and the principal amount thereof shall be
due and payable, together with accrued interest thereon, on the Final Maturity
Date.
(c) Each Swingline Loan included in any Swingline Borrowing and each Money
Market Loan included in any Money Market Borrowing shall mature, and the
principal amount thereof shall be due and payable, together with accrued
interest thereon, on the last day of the Interest Period applicable to such
Borrowing.
SECTION 2.07. Interest Rates. (a) Each Base Rate Loan shall bear interest
on the outstanding principal amount thereof, for each day from the date such
Loan is made until it becomes due, at a rate per annum equal to the Base Rate
for such day. Such interest shall be payable at maturity, quarterly in arrears
on the first day of each March, June, September and December prior to maturity,
and with respect to the principal amount of any Base Rate Loan converted to a CD
Loan or a Euro-Dollar Loan, on the date such amount is so converted. Any overdue
principal of or interest on any Base Rate Loan shall bear interest, payable on
demand, for each day until paid at a rate per annum equal to the sum of 2% plus
the rate otherwise applicable to Base Rate Loans for such day.
(b) Each CD Loan shall bear interest on the outstanding principal amount
thereof, for each day during each Interest Period applicable thereto, at a rate
per annum equal to the sum of the CD Margin for such day plus the Adjusted CD
Rate applicable to such Interest Period; provided that if any CD Loan or any
portion thereof shall, as a result of clause (x) or (y) of the definition of
Interest Period, have an Interest Period of less than 30 days, such portion
shall bear interest during such Interest Period at the rate applicable to Base
Rate Loans during such period. Such interest shall be payable for each Interest
Period on the last day thereof and, if such Interest Period is longer than 90
days, at intervals of 90 days after the first day thereof. Any overdue principal
of or interest on any CD Loan shall bear interest, payable on demand, for each
day until paid at a rate per annum equal to the sum of 2% plus the higher of (i)
the sum of the CD Margin for such day plus the Adjusted CD Rate applicable to
such Loan at the date such payment was due and (ii) the rate applicable to Base
Rate Loans for such day.
"CD MARGIN" means a rate per annum determined in accordance with the
Pricing Schedule.
The "ADJUSTED CD RATE" applicable to any Interest Period means a rate per
annum determined pursuant to the following formula:
[CDBR ]*
ACDR = [----------] + AR
[1.00 - DRP]
ACDR = Adjusted CD Rate
CDBR = CD Base Rate
DRP = Domestic Reserve Percentage
AR = Assessment Rate
----------
* The amount in brackets being rounded upward, if necessary, to the next
higher 1/100 of 1%
The "CD BASE RATE" applicable to any Interest Period is the rate of
interest determined by the Administrative Agent to be the average (rounded
upward, if necessary, to the next higher 1/100 of 1%) of the prevailing rates
per annum bid at 10:00 A.M. (New York City time) (or as soon thereafter as
practicable) on the first day of such Interest Period by two or more New York
certificate of deposit dealers of recognized standing for the purchase at face
value from each CD Reference Bank of its certificates of deposit in an amount
comparable to the principal amount of the CD Loan of such CD Reference Bank to
which such Interest Period applies and having a maturity comparable to such
Interest Period.
"DOMESTIC RESERVE PERCENTAGE" means for any day that percentage (expressed
as a decimal) which is in effect on such day, as prescribed by the Board of
Governors of the Federal Reserve System (or any successor) for determining the
maximum reserve requirement (including without limitation any basic,
supplemental or emergency reserves) for a member bank of the Federal Reserve
System in New York City with deposits exceeding five billion dollars in respect
of new non-personal time deposits in dollars in New York City having a maturity
comparable to the related Interest Period and in an amount of $100,000 or more.
The Adjusted CD Rate shall be adjusted automatically on and as of the effective
date of any change in the Domestic Reserve Percentage.
"ASSESSMENT RATE" means for any day the annual assessment rate in effect on
such day which is payable by a member of the Bank Insurance Fund classified as
adequately capitalized and within supervisory subgroup "A" (or a comparable
successor assessment risk classification) within the meaning of 12 C.F.R.
Section 327.4(a) (or any successor provision) to the Federal Deposit Insurance
Corporation (or any successor) for such Corporation's (or such successor's)
insuring time deposits at offices of such institution in the United States. The
Adjusted CD Rate shall be adjusted automatically on and as of the effective date
of any change in the Assessment Rate.
(c) Each Euro-Dollar Loan shall bear interest on the outstanding principal
amount thereof, for each day during each Interest Period applicable thereto, at
a rate per annum equal to the sum of the Euro-Dollar Margin for such day plus
the Adjusted London Interbank Offered Rate applicable to such Interest Period.
Such interest shall be payable for each Interest Period on the last day thereof
and, if such Interest Period is longer than three months, at intervals of three
months after the first day thereof.
"EURO-DOLLAR MARGIN" means a rate per annum determined in accordance with
the Pricing Schedule.
The "ADJUSTED LONDON INTERBANK OFFERED RATE" applicable to any Interest
Period means a rate per annum equal to the quotient obtained (rounded upward, if
necessary, to the next higher 1/100 of 1%) by dividing (i) the applicable London
Interbank Offered Rate by (ii) 1.00 minus the Euro-Dollar Reserve Percentage.
The "LONDON INTERBANK OFFERED RATE" applicable to any Interest Period means
the average (rounded upward, if necessary, to the next higher 1/16 of 1%) of the
respective rates per annum at which deposits in dollars are offered to each of
the Euro-Dollar Reference Banks in the London interbank market at approximately
11:00 A.M. (London time) two Euro-Dollar Business Days before the first day of
such Interest Period in an amount approximately equal to the principal amount of
the Euro-Dollar Loan of such Euro-Dollar Reference Bank to which such Interest
Period is to apply and for a period of time comparable to such Interest Period.
"EURO-DOLLAR RESERVE PERCENTAGE" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for a member bank of the Federal
Reserve System in New York City with deposits exceeding five billion dollars in
respect of "Eurocurrency liabilities" (or in respect of any other category of
liabilities which includes deposits by reference to which the interest rate on
Euro-Dollar Loans is determined or any category of extensions of credit or other
assets which includes loans by a non-United States office of any Bank to United
States residents). The Adjusted London Interbank Offered Rate shall be adjusted
automatically on and as of the effective date of any change in the Euro-Dollar
Reserve Percentage.
(d) Any overdue principal of or interest on any Euro-Dollar Loan shall bear
interest, payable on demand, for each day until paid at a rate per annum equal
to the higher of (i) the sum of 2% plus the Euro-Dollar Margin for such day plus
the Adjusted London Interbank Offered Rate applicable to the Interest Period for
such Loan and (ii) the sum of 2% plus the Euro-Dollar Margin for such day plus
the quotient obtained (rounded upward, if necessary, to the next higher 1/100 of
1%) by dividing (x) the average (rounded upward, if necessary, to the next
higher 1/16 of 1%) of the respective rates per annum at which one day (or, if
such amount due remains unpaid more than three Euro-Dollar Business Days, then
for such other period of time not longer than six months as the Administrative
Agent may select) deposits in dollars in an amount approximately equal to such
overdue payment due to each of the Euro-Dollar Reference Banks are offered to
such Euro-Dollar Reference Bank in the London interbank market for the
applicable period determined as provided above by (y) 1.00 minus the Euro-Dollar
Reserve Percentage (or, if the circumstances described in clause (a) or (b) of
Section 8.01 shall exist, at a rate per annum equal to the sum of 2% plus the
rate applicable to Base Rate Loans for such day).
(e) Each Swingline Loan shall bear interest on the outstanding principal
amount thereof, for each day during the Interest Period applicable thereto, at a
rate per annum equal to the sum of 0.35% plus the New York Interbank Offered
Rate applicable to such Interest Period. Interest on each Swingline Loan shall
be payable at the maturity of such Loan. Any overdue principal of or interest on
any Swingline Loan shall bear interest, payable on demand, for each day until
paid at a rate per annum equal to the sum of 1% plus the Base Rate for such day.
The "NEW YORK INTERBANK OFFERED RATE" applicable to any Interest Period
means the average (rounded upward, if necessary, to the next higher 1/16 of 1%)
of the respective rates per annum at which deposits in Dollars are offered to
each of the CD Reference Banks in the New York interbank market at approximately
12:00 Noon (New York City time) on the first day of such Interest Period in an
amount approximately equal to the principal amount of the Swingline Loan to
which such Interest Period is to apply and for a period of time comparable to
such Interest Period.
(f) Subject to Section 8.01(a), each Money Market LIBOR Loan shall bear
interest on the outstanding principal amount thereof, for the Interest Period
applicable thereto, at a rate per annum equal to the sum of the London Interbank
Offered Rate for such Interest Period (determined in accordance with Section
2.07(c) as if the related Money Market LIBOR Borrowing were a Committed
Euro-Dollar Borrowing) plus (or minus) the Money Market Margin quoted by the
Bank making such Loan in accordance with Section 2.03. Each Money Market
Absolute Rate Loan shall bear interest on the outstanding principal amount
thereof, for the Interest Period applicable thereto, at a rate per annum equal
to the Money Market Absolute Rate quoted by the Bank making such Loan in
accordance with Section 2.03. Such interest shall be payable for each Interest
Period on the last day thereof and, if such Interest Period is longer than three
months, at intervals of three months after the first day thereof. Any overdue
principal of or interest on any Money Market Loan shall bear interest, payable
on demand, for each day until paid at a rate per annum equal to the sum of 2%
plus the Base Rate for such day.
(g) The Administrative Agent shall determine each interest rate applicable
to the Loans hereunder. The Administrative Agent shall give prompt notice to the
Borrower and the participating Banks of each rate of interest so determined, and
its determination thereof shall be conclusive in the absence of manifest error.
(h) Each Reference Bank agrees to use its best efforts to furnish
quotations to the Administrative Agent as contemplated by this Section. If any
Reference Bank does not furnish a timely quotation, the Administrative Agent
shall determine the relevant interest rate on the basis of the quotation or
quotations furnished by the remaining Reference Bank or Banks or, if none of
such quotations is available on a timely basis, the provisions of Section 8.01
shall apply.
SECTION 2.08. Fees. (a) The Borrower shall pay to the Administrative Agent
for the account of the Banks ratably a facility fee at the Facility Fee Rate
(determined daily in accordance with the Pricing Schedule). Such facility fee
shall accrue (i) from and including the date of this Agreement to but excluding
the Commitment Termination Date (or earlier date of termination of the
Commitments in their entirety), on the daily aggregate amount of the Commitments
(whether used or unused) and (ii) from and including the Commitment Termination
Date (or earlier date of termination of the Commitments in their entirety) to
but excluding the date the Loans shall be repaid in their entirety, on the daily
aggregate outstanding principal amount of the Loans.
(b) Accrued fees under this Section shall be payable quarterly, commencing
on December 31, 1997, on each March 31, June 30, September 30 and December 31
and upon the Commitment Termination Date and the Final Maturity Date.
SECTION 2.09. Optional Termination or Reduction of Commitments. The
Borrower may, upon at least three Domestic Business Days' notice to the
Administrative Agent, (i) terminate the Commitments at any time, if no Loans or
Alternative Currency Advances are outstanding at such time or (ii) ratably
reduce from time to time by an aggregate amount of $10,000,000 or any larger
multiple of $5,000,000, the aggregate amount of the Commitments in excess of the
sum of (x) the aggregate outstanding principal amount of the Loans and (y) the
aggregate Dollar Equivalent of all Alternative Currency Advances outstanding.
Upon receipt of any notice pursuant to this Section 2.09, the Administrative
Agent shall promptly notify each Bank of the contents thereof.
SECTION 2.10. Mandatory Termination of Commitments. The Commitments shall
terminate on the Commitment Termination Date.
SECTION 2.11. Method of Electing Interest Rates. (a) The Loans included in
each Syndicated Borrowing shall bear interest initially at the type of rate
specified by the Borrower in the applicable Notice of Committed Borrowing.
Thereafter, the Borrower may from time to time elect to change or continue the
type of interest rate borne by each Group of Loans (subject to subsection (d) of
this Section and the provisions of Article 8), as follows:
(i) if such Loans are Base Rate Loans, the Borrower may elect to
convert such Loans to CD Loans as of any Domestic Business Day or to
Euro-Dollar Loans as of any Euro-Dollar Business Day;
(ii) if such Loans are CD Loans, the Borrower may elect to convert such
Loans to Base Rate Loans or Euro-Dollar Loans or elect to continue such
Loans as CD Loans for an additional Interest Period, subject to Section
2.14 if any such conversion or continuation is effective on any day
other than the last day of an Interest Period applicable to such Loans;
and
(iii) if such Loans are Euro-Dollar Loans, the Borrower may elect to
convert such Loans to Base Rate Loans or CD Loans or elect to continue
such Loans as Euro-Dollar Loans for an additional Interest Period,
subject to Section 2.14 if any such conversion or continuation is
effective on any day other than the last day of an Interest Period
applicable to such Loans.
Each such election shall be made by delivering a notice (a "NOTICE OF INTEREST
RATE ELECTION") to the Administrative Agent not later than 10:30 A.M. (New York
City time) on the third Euro-Dollar Business Day before the conversion or
continuation selected in such notice is to be effective (unless the relevant
Loans are to be converted from Domestic Loans of one type to Domestic Loans of
the other type or are CD Loans to be continued as CD Loans for an additional
Interest Period, in which case such notice shall be delivered to the
Administrative Agent not later than 10:30 A.M. (New York City time) on the
second Domestic Business Day before such conversion or continuation is to be
effective). A Notice of Interest Rate Election may, if it so specifies, apply to
only a portion of the aggregate principal amount of the relevant Group of Loans;
provided that (i) such portion is allocated ratably among the Loans comprising
such Group and (ii) the portion to which such Notice applies, and the remaining
portion to which it does not apply, are each at least $5,000,000 or any larger
amount in multiples of $1,000,000 (unless such portion is comprised of Base Rate
Loans). If no such notice is timely received before the end of an Interest
Period for any Group of CD Loans or Euro-Dollar Loans, the Borrower shall be
deemed to have elected that such Group of Loans be converted to Base Rate Loans
at the end of such Interest Period.
(b) Each Notice of Interest Rate Election shall specify:
(i) the Group of Loans (or portion thereof) to which such notice
applies;
(ii) the date on which the conversion or continuation selected in such
notice is to be effective, which shall comply with the applicable
clause of subsection (a) above;
(iii) if the Loans comprising such Group are to be converted, the new
type of Loans and, if the Loans resulting from such conversion are to
be CD Loans or Euro-Dollar Loans, the duration of the next succeeding
Interest Period applicable thereto; and
(iv) if such Loans are to be continued as CD Loans or Euro-Dollar Loans
for an additional Interest Period, the duration of such additional
Interest Period.
Each Interest Period specified in a Notice of Interest Rate Election shall
comply with the provisions of the definition of Interest Period.
(c) Promptly after receiving a Notice of Interest Rate Election from the
Borrower pursuant to subsection (a) above, the Administrative Agent shall notify
each Bank of the contents thereof and such notice shall not thereafter be
revocable by the Borrower.
(d) The Borrower shall not be entitled to elect to convert any Syndicated
Loans to, or continue any Syndicated Loans for an additional Interest Period as,
CD Loans or Euro-Dollar Loans if (i) the aggregate principal amounts of any
Group of CD Loans or Euro-Dollar Loans created or continued as a result of such
election would be less than $5,000,000 or (ii) a Default shall have occurred and
be continuing when the Borrower delivers notice of such election to the
Administrative Agent.
SECTION 2.12. Mandatory and Optional Prepayments. (a) If, on any date the
sum of (i) the aggregate outstanding principal amount of the Loans and (ii) the
aggregate Dollar Equivalent of all Alternative Currency Advances then
outstanding exceeds 105% of the aggregate amount of the Commitments, then, the
Borrower shall within five Euro-Dollar Business Days prepay outstanding
Committed Loans or Alternative Currency Advances (as selected by the Borrower
and notified to the Banks through the Administrative Agent not less than three
Euro-Dollar Business Days prior to the date of prepayment) to the extent
necessary to eliminate any such excess.
(b) Subject in the case of any Fixed Rate Borrowing to Section 2.14, the
Borrower may, upon at least three Domestic Business Days' notice (except in the
case of Base Rate Loans or Swingline Loans, in which case upon one Domestic
Business Day's notice) to the Administrative Agent, prepay any Group of Domestic
Loans (or Money Market Loans bearing interest at the Base Rate pursuant to
Section 8.01(a)) or upon at least three Euro-Dollar Business Days' notice to the
Administrative Agent, prepay any Group of Euro-Dollar Loans, in each case in
whole at any time, or from time to time in part in amounts aggregating
$5,000,000 or any larger multiple of $1,000,000, by paying the principal amount
to be prepaid together with accrued interest thereon to the date of prepayment.
Each such optional prepayment shall be applied to prepay ratably the Loans of
the several Banks included in such Group or Borrowing.
(c) Except as provided in Section 2.12(b) , the Borrower may not prepay all
or any portion of the principal amount of any Money Market Loan prior to the
maturity thereof except with the consent of the Bank which made such Loan.
(d) Upon receipt of a notice of prepayment pursuant to this Section, the
Administrative Agent shall promptly notify each Bank of the contents thereof and
of such Bank's ratable share (if any) of such prepayment and such notice shall
not thereafter be revocable by the Borrower.
SECTION 2.13. General Provisions as to Payments. (a) The Borrower shall
make each payment of principal of, and interest on, the Loans and of fees
hereunder, not later than 12:00 Noon (New York City time) on the date when due,
in Federal or other funds immediately available in New York City and without
offset or counterclaim, to the Administrative Agent at its address referred to
in Section 9.01. The Administrative Agent will promptly distribute to each Bank
its ratable share of each such payment received by the Administrative Agent for
the account of the Banks. Whenever any payment of principal of, or interest on,
the Domestic Loans or the Swingline Loans or of fees shall be due on a day which
is not a Domestic Business Day, the date for payment thereof shall be extended
to the next succeeding Domestic Business Day. Whenever any payment of principal
of, or interest on, the Euro-Dollar Loans shall be due on a day which is not a
Euro-Dollar Business Day, the date for payment thereof shall be extended to the
next succeeding Euro-Dollar Business Day unless such Euro-Dollar Business Day
falls in another calendar month, in which case the date for payment thereof
shall be the next preceding Euro-Dollar Business Day. Whenever any payment of
principal of, or interest on, the Money Market Loans shall be due on a day which
is not a Euro-Dollar Business Day, the date for payment thereof shall be
extended to the next succeeding Euro-Dollar Business Day. If the date for any
payment of principal is extended by operation of law or otherwise, interest
thereon shall be payable for such extended time.
(b) Unless the Administrative Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the Banks hereunder
that the Borrower will not make such payment in full, the Administrative Agent
may assume that the Borrower has made such payment in full to the Administrative
Agent on such date and the Administrative Agent may, in reliance upon such
assumption, cause to be distributed to each Bank on such due date an amount
equal to the amount then due such Bank. If and to the extent that the Borrower
shall not have so made such payment, each Bank shall repay to the Administrative
Agent forthwith on demand such amount distributed to such Bank together with
interest thereon, for each day from the date such amount is distributed to such
Bank until the date such Bank repays such amount to the Administrative Agent, at
the Federal Funds Rate.
SECTION 2.14. Funding Losses. If the Borrower makes any payment of
principal with respect to any Fixed Rate Loan or any Fixed Rate Loan is
continued for an additional Interest Period or converted to a different type of
Loan (pursuant to Article 2, 6 or 8 or otherwise) on any day other than the last
day of an Interest Period applicable thereto, or the last day of an applicable
period fixed pursuant to Section 2.07(d), or if the Borrower fails to borrow,
prepay, convert or continue any Fixed Rate Loans after notice has been given to
any Bank in accordance with Section 2.04(a), 2.11(c) or 2.12(d), the Borrower
shall reimburse each Bank within 15 days after demand for any resulting loss or
expense incurred by it (or by an existing or prospective Participant in the
related Loan), including (without limitation) any loss incurred in obtaining,
liquidating or employing deposits from third parties, but excluding loss of
margin for the period after any such payment, conversion or continuation or
failure to borrow, prepay, convert or continue, provided that such Bank shall
have delivered to the Borrower a certificate as to the amount of such loss or
expense, which certificate shall be conclusive in the absence of manifest error.
SECTION 2.15. Computation of Interest and Fees. Interest based on the Prime
Rate hereunder shall be computed on the basis of a year of 365 days (or 366 days
in a leap year) and paid for the actual number of days elapsed (including the
first day but excluding the last day). All other interest and fees shall be
computed on the basis of a year of 360 days and paid for the actual number of
days elapsed (including the first day but excluding the last day).
SECTION 2.16. Alternative Currency Advances. (a) Requests for Offers. From
time to time after the Closing Date and prior to the Commitment Termination Date
the Borrower may request any or all of the Banks to make offers to make
Alternative Currency Advances to the Borrower. Each Bank may, but shall have no
obligation to, make such offers on terms and conditions as are satisfactory to
such Bank, and the Borrower may, but shall have no obligation to, accept any
such offers. Each Alternative Currency Advance shall be subject to the
conditions of clauses (c) through (e), inclusive, of Section 3.02 and to such
other conditions as are agreed upon by the Borrower and the Bank making such
Alternative Currency Advance, and the making of any Alternative Currency Advance
shall be deemed to be a representation and warranty by the Borrower on the date
thereof as to the facts specified in such clauses (c) through (e), inclusive.
(b) Promissory Notes; Status as Loans. If required by the Bank making such
advance, each Alternative Currency Advance shall be evidenced by a single
promissory note of the Borrower in an amount equal to the principal amount of
such Alternative Currency Advance, such promissory note to be in form mutually
satisfactory to the Borrower and such Bank. An Alternative Currency Advance
shall not be a Loan (as defined in Section 1.01 hereof) and a promissory note
issued pursuant to this subsection (b) shall not be a Note (as defined in such
Section 1.01); provided that, for the purposes of Sections 5.08, 6.01, 8.03(a),
8.04, 9.03, 9.04, 9.05 and 9.06 and of the first clause of Article 5, an
Alternative Currency Advance shall be a Loan and a promissory note issued in
connection therewith shall be a Note; provided further that for the purposes of
Sections 2.14, 8.03(a) and 8.04, an Alternative Currency Advance shall be deemed
to be a Euro-Dollar Loan.
(c) Reports to Administrative Agent. The Borrower shall deliver to the
Administrative Agent a report in respect the Alternative Currency Advances (an
"ALTERNATIVE CURRENCY ADVANCE REPORT") on the date on which each Alternative
Currency Advance is made and on the first Euro-Dollar Business Day of each
calendar month thereafter on which any Alternative Currency Advance is
outstanding, specifying for each Alternative Currency Advance then outstanding:
(i) the date on which such advance was or is being made;
(ii) the Alternative Currency of such advance;
(iii) the Dollar Equivalent of the advance; and
(iv) the Dollar Equivalent of all Alternative Currency Advances then
outstanding.
Each Alternative Currency Advance Report shall be delivered to the
Administrative Agent not later than 10:30 A.M. (New York City time) on the date
on which it is required to be delivered.
(d) Maturity; No Prepayment. Each Alternative Currency Advance shall
mature, and the principal amount thereof shall be due and payable on the date
agreed upon by the Borrower and the Bank making such Alternative Currency
Advance, which date shall be no later than the Commitment Termination Date.
Except as required by Section 2.12(a), no Alternative Currency Advance may be
prepaid without the consent of the Bank making such Alternative Currency
Advance.
(e) Substitution of Euro for National Currency. If any Alternative Currency
is replaced by the Euro, the Euro may be tendered in payment of any outstanding
amount denominated in such Alternative Currency at the conversion rate specified
in, or otherwise calculated in accordance with, the regulations adopted by the
Council of the European Union relating to the Euro. No replacement of an
Alternative Currency by the Euro shall discharge, excuse or otherwise affect the
performance of any obligation of the Borrower under this Agreement or the Notes.
SECTION 2.17. Takeout of Swingline Loans. (a) In the event that any
Swingline Loan shall not be repaid in full by the maturity thereof, the
Administrative Agent shall, on behalf of the Borrower (the Borrower hereby
irrevocably directing and authorizing the Administrative Agent so to act on its
behalf), give a Notice of Borrowing requesting the Banks, including the
Swingline Banks, to make a Base Rate Borrowing on the maturity date of such
Swingline Borrowing in an amount equal to the unpaid principal amount of such
Swingline Borrowing. Each Bank will make the proceeds of its Base Rate Loan
included in such Borrowing available to the Administrative Agent for the account
of the Swingline Bank which made such Swingline Loan on such date in accordance
with Section 2.04. The proceeds of such Base Rate Borrowing shall be immediately
applied to repay such Swingline Borrowing.
(b) If, for any reason, a Base Rate Borrowing may not be (as determined by
the Administrative Agent in its sole discretion), or is not, made pursuant to
subsection (a) above to refund a Swingline Loan as required by said subsection,
then, effective on the date such Borrowing would otherwise have been made, each
Bank severally, unconditionally and irrevocably agrees that it shall purchase an
undivided participating interest in such Swingline Loan (an "UNREFUNDED
SWINGLINE LOAN") in an amount equal to the amount of the Loan which otherwise
would have been made by such Bank pursuant to subsection (a), which purchase
shall be funded by the time such Loan would have been required to be funded
pursuant to Section 2.04 by transfer to the Administrative Agent, for the
account of such Swingline Bank, in immediately available funds, of the amount of
its participation.
(c) Whenever, at any time after a Swingline Bank has received from any Bank
payment in full for such Bank's participating interest in a Swingline Loan, such
Swingline Bank (or the Administrative Agent on its behalf) receives any payment
on account thereof, such Swingline Bank (or the Administrative Agent, as the
case may be) will promptly distribute to such Bank its participating interest in
such payment (appropriately adjusted, in the case of interest payments, to
reflect the period of time during which such Bank's participating interest was
outstanding and funded); provided, however, that in the event that such payment
is subsequently required to be returned, such Bank will return to such Swingline
Bank (or the Administrative Agent, as the case may be) any portion thereof
previously distributed by such Swingline Bank (or the Administrative Agent, as
the case may be) to it.
(d) Each Bank's obligation to purchase and fund participating interests
pursuant to this Section shall be absolute and unconditional and shall not be
affected by any circumstance, including, without limitation: (i) any setoff,
counterclaim, recoupment, defense or other right which such Bank or the Borrower
may have against a Swingline Bank, or any other Person for any reason
whatsoever; (ii) the occurrence or continuance of a Default or the failure to
satisfy any of the conditions specified in Article 3; (iii) any adverse change
in the condition (financial or otherwise) of the Borrower; (iv) any breach of
this Agreement by the Borrower or any Bank; or (v) any other circumstance,
happening or event whatsoever, whether or not similar to any of the foregoing.
ARTICLE 3
CONDITIONS
SECTION 3.01. Closing. The closing hereunder shall occur upon receipt by
the Documentation Agent of the following documents, each dated the Closing Date
unless otherwise indicated:
(a) a duly executed Note for the account of each Bank dated on or before
the Closing Date complying with the provisions of Section 2.05;
(b) an opinion of the Deputy General Counsel of the Borrower, substantially
in the form of Exhibit E hereto and covering such additional matters relating to
the transactions contemplated hereby as the Required Banks may reasonably
request;
(c) an opinion of Piper & Marbury, counsel for the Borrower, substantially
in the form of Exhibit F hereto and covering such additional matters relating to
the transactions contemplated hereby as the Required Banks may reasonably
request;
(d) an opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel for the Agents,
substantially in the form of Exhibit G hereto and covering such additional
matters relating to the transactions contemplated hereby as the Required Banks
may reasonably request;
(e) evidence satisfactory to it that all fees payable by the Borrower to
the Documentation Agent and the Administrative Agent pursuant to Section 7.09
shall have been paid in full;
(f) evidence satisfactory to it of the payment of all principal of and
interest on any loans outstanding under, and of all other amounts payable under,
the Existing Credit Agreements; and
(g) all documents the Documentation Agent may reasonably request relating
to the existence of the Borrower, the corporate authority for and the validity
of this Agreement and the Notes, and any other matters relevant hereto, all in
form and substance satisfactory to the Documentation Agent.
The Documentation Agent shall promptly notify the Borrower, the Banks and the
Administrative Agent of the Closing Date, and such notice shall be conclusive
and binding on all parties hereto.
SECTION 3.02. Borrowings. The obligation of any Bank to make a Loan on the
occasion of any Borrowing, is subject to the satisfaction of the following
conditions; provided that if such Borrowing is a Swingline Takeout Borrowing,
only the conditions set forth in clauses 3.02(b) and 3.02(c) must be satisfied:
(a) the fact that the Closing Date shall have occurred on or prior to
January 1, 1998;
(b) receipt by the Administrative Agent of a Notice of Borrowing as
required by Section 2.02 or 2.03, as the case may be;
(c) the fact that, immediately after such Borrowing, (i) the sum of the
aggregate outstanding principal amount of the Loans and the aggregate Dollar
Equivalent of all Alternative Currency Advances then outstanding will not exceed
the aggregate amount of the Commitments and (ii) the aggregate outstanding
principal amount of Swingline Loans will not exceed $50,000,000;
(d) the fact that, immediately before and after such Borrowing, no Default
shall have occurred and be continuing;
(e) the fact that the representations and warranties of the Borrower
contained in this Agreement (except the representations and warranties set forth
in Sections 4.04(c) or 4.05) shall be true on and as of the date of such
Borrowing.
Each Borrowing hereunder shall be deemed to be a representation and warranty by
the Borrower on the date of such Borrowing as to the facts specified in clauses
(c), (d) and (e) of this Section.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that:
SECTION 4.01. Corporate Existence and Power. The Borrower is a corporation
duly incorporated, validly existing and in good standing under the laws of the
State of Maryland, and has all corporate powers and all governmental licenses,
authorizations, consents and approvals required to carry on its business as now
conducted, other than such licenses, authorizations, consents and approvals
which, if not held or obtained by the Borrower, do not, in the aggregate, have a
Material Adverse Effect.
SECTION 4.02. Corporate and Governmental Authorization; No Contravention.
The execution, delivery and performance by the Borrower of this Agreement and
the Notes are within the Borrower's corporate powers, have been duly authorized
by all necessary corporate action, require no action by or in respect of, or
filing with, any governmental body, agency or official and do not contravene, or
constitute a default under, any provision of applicable law or regulation or of
the articles of incorporation or by-laws of the Borrower or of any agreement,
judgment, injunction, order, decree or other instrument binding upon the
Borrower or any of its Subsidiaries or result in the creation or imposition of
any Lien on any asset of the Borrower or any of its Subsidiaries.
SECTION 4.03. Binding Effect. This Agreement constitutes a valid and
binding agreement of the Borrower and each Note, when executed and delivered in
accordance with this Agreement, will constitute a valid and binding obligation
of the Borrower, in each case enforceable in accordance with its terms.
SECTION 4.04. Financial Information.
(a) The consolidated statement of financial position and shareholders'
equity of the Borrower and its Consolidated Subsidiaries as of December 31, 1996
and the related consolidated statements of operations and cash flows for the
fiscal year then ended, reported on by Ernst & Young LLP and set forth in the
Borrower's 1996 Form 10-K, a copy of which has been delivered to each of the
Banks, fairly present, in conformity with United States generally accepted
accounting principles, the consolidated financial position of the Borrower and
its Consolidated Subsidiaries as of such date and their consolidated results of
operations and cash flows for such fiscal year.
(b) The unaudited consolidated statement of financial position and
shareholders' equity of the Borrower and its Consolidated Subsidiaries as of
September 30, 1997 and the related unaudited consolidated statements of
operations and cash flows for the nine months then ended, set forth in the
Borrower's Latest Form 10-Q, a copy of which has been delivered to each of the
Banks, fairly present, in conformity with United States generally accepted
accounting principles applied on a basis consistent with the financial
statements referred to in subsection (a) of this Section, the consolidated
financial position of the Borrower and its Consolidated Subsidiaries as of such
date and their consolidated results of operations and cash flows for such nine
month period (subject to normal year-end adjustments).
(c) Except as disclosed in the Borrower's Latest Form 10-Q or in any Form
8-K filed by the Borrower under the Securities Exchange Act of 1934 after the
Borrower's Latest Form 10-Q and provided to the Banks prior to the date of this
Agreement, since December 31, 1996 there has been no Material Adverse Effect.
(d) A copy of a duly completed and signed Annual Statement or other similar
report of or for each Insurance Company Subsidiary in the form filed with the
governmental body, agency or official which regulates insurance companies in the
jurisdiction in which such Insurance Company Subsidiary is domiciled for the
year ended December 31, 1996 has been delivered to the Administrative Agent on
behalf of each of the Banks and fairly presents, in accordance with statutory
accounting principles, the information contained therein.
SECTION 4.05. Litigation. Subject to matters disclosed in the financial
statements referred to in Sections 4.04(a) and 4.04(b), there is no action, suit
or proceeding pending against, or to the knowledge of the Borrower threatened
against or affecting, the Borrower or any of its Subsidiaries before any court
or arbitrator or any governmental body, agency or official in which there is a
reasonable expectation of an adverse decision which reasonably could be expected
to have a Material Adverse Effect or which in any manner draws into question the
validity of this Agreement or the Notes.
SECTION 4.06. Compliance with ERISA. Each member of the ERISA Group has
fulfilled its obligations under the minimum funding standards of ERISA and the
Internal Revenue Code with respect to each Plan and is in compliance in all
material respects with the presently applicable provisions of ERISA and the
Internal Revenue Code with respect to each Plan. No member of the ERISA Group
has (i) sought a waiver of the minimum funding standard under Section 412 of the
Internal Revenue Code in respect of any Plan, (ii) failed to make any
contribution or payment to any Plan or Multiemployer Plan or in respect of any
Benefit Arrangement, or made any amendment to any Plan or Benefit Arrangement,
which in either case would trigger the provisions of Section 412(n) or
401(a)(29) of the Internal Revenue Code (or any corresponding provisions of
ERISA) or (iii) incurred any liability under Title IV of ERISA other than a
liability to the PBGC for premiums under Section 4007 of ERISA.
SECTION 4.07. Environmental Matters. In the ordinary course of its
business, the Borrower conducts an ongoing review of the effect of Environmental
Laws on the business, operations and properties of the Borrower and its
Subsidiaries, in the course of which it identifies and evaluates associated
liabilities and costs (including, without limitation, any capital or operating
expenditures required for clean-up or closure of properties presently or
previously owned, any capital or operating expenditures required to achieve or
maintain compliance with environmental protection standards imposed by law or as
a condition of any license, permit or contract, any related constraints on
operating activities, including any periodic or permanent shutdown of any
facility or reduction in the level of or change in the nature of operations
conducted thereat, any costs or liabilities in connection with off-site disposal
of wastes or Hazardous Substances, and any actual or potential liabilities to
third parties, including employees, and any related costs and expenses). On the
basis of this review, the Borrower has reasonably concluded that such associated
liabilities and costs, including the costs of compliance with Environmental
Laws, are unlikely to have a Material Adverse Effect.
SECTION 4.08. Taxes. The Borrower and its Subsidiaries have filed all
United States Federal income tax returns and all other material tax returns
which are required to be filed by them and have paid all taxes due pursuant to
such returns or pursuant to any assessment received by the Borrower or any
Subsidiary, other than any such assessments being contested in good faith by
appropriate proceedings and for which any reserves required under generally
accepted accounting principles have been established. The charges, accruals and
reserves on the books of the Borrower and its Subsidiaries in respect of taxes
or other governmental charges are, in the opinion of the Borrower, adequate in
all material respects.
SECTION 4.09. Subsidiaries. Each of the Borrower's corporate Subsidiaries
(other than Excluded Subsidiaries) is a corporation duly incorporated, validly
existing and in good standing under the laws of its jurisdiction of
incorporation, and has all corporate powers and all material governmental
licenses, authorizations, consents and approvals required to carry on its
business as now conducted.
SECTION 4.10. Not an Investment Company. The Borrower is not an "investment
company" within the meaning of the Investment Company Act of 1940, as amended.
SECTION 4.11. Full Disclosure. All information heretofore furnished by the
Borrower to any Agent or Bank for purposes of or in connection with this
Agreement or any transaction contemplated hereby is, and all such information
hereafter furnished by the Borrower to any Agent or Bank will be, true and
accurate in all material respects on the date as of which such information is
stated or certified. The Borrower has disclosed to the Banks in writing any and
all facts which materially and adversely affect or may affect (to the extent the
Borrower can now reasonably foresee), the business, operations or financial
condition of the Borrower and its Consolidated Subsidiaries, taken as a whole,
or the ability of the Borrower to perform its obligations under this Agreement.
ARTICLE 5
COVENANTS
The Borrower agrees that, so long as any Bank has any Commitment hereunder
or any amount payable under any Note remains unpaid:
SECTION 5.01. Information. The Borrower will deliver to each of the Banks:
(a) as soon as available and in any event within 95 days after the end of
each fiscal year of the Borrower, a consolidated statement of financial position
and shareholders' equity of the Borrower and its Consolidated Subsidiaries as of
the end of such fiscal year and the related consolidated statements of
operations and cash flows for such fiscal year, setting forth in each case in
comparative form the figures for the previous fiscal year, all reported on in a
manner acceptable to the Securities and Exchange Commission by Ernst & Young LLP
or other independent public accountants of nationally recognized standing;
(b) as soon as available and in any event within 60 days after the end of
each of the first three quarters of each fiscal year of the Borrower, a
consolidated statement of financial position and shareholders' equity of the
Borrower and its Consolidated Subsidiaries as of the end of such quarter and the
related consolidated statements of operations and cash flows for such quarter
and for the portion of the Borrower's fiscal year ended at the end of such
quarter, setting forth in the case of such consolidated statements of operations
and cash flows in comparative form the figures for the corresponding quarter and
the corresponding portion of the Borrower's previous fiscal year, all certified
(subject to normal year-end adjustments) as to fairness of presentation,
generally accepted accounting principles and consistency by the chief financial
officer or the chief accounting officer of the Borrower;
(c) simultaneously with the delivery of each set of financial statements
referred to in clauses (a) and (b) above, an Officer's Certificate (i) setting
forth in reasonable detail the calculations required to establish whether the
Borrower was in compliance with the requirements of Sections 5.09 and 5.10 on
the date of such financial statements and (ii) stating whether any Default
exists on the date of such certificate and, if any Default then exists, setting
forth the details thereof and the action which the Borrower is taking or
proposes to take with respect thereto;
(d) simultaneously with the delivery of each set of financial statements
referred to in clause (a) above, a statement of the firm of independent public
accountants which reported on such statements (i) whether anything has come to
their attention in the course of their examination of the financial statements
of the Borrower and its Subsidiaries to cause them to believe that any Default
existed on the date of such statements and (ii) confirming the calculations set
forth in the officer's certificate delivered simultaneously therewith pursuant
to clause (c) above;
(e) within five days after any officer of the Borrower obtains knowledge of
any Default, if such Default is then continuing, an Officer's Certificate
setting forth the details thereof and the action which the Borrower is taking or
proposes to take with respect thereto;
(f) within 120 days after the end of each fiscal year of each Insurance
Company Subsidiary, a copy of a duly completed and signed Annual Statement (or
any successor form thereto) required to be filed by such Insurance Company
Subsidiary with the governmental body, agency or official which regulates
insurance companies in the jurisdiction in which such Insurance Company
Subsidiary is domiciled, in the form submitted to such governmental body, agency
or official;
(g) within 60 days after the end of the second fiscal quarter of United
States Fidelity and Guaranty Company and Fidelity and Guaranty Life Insurance
Company, respectively, a copy of a duly completed and signed Quarterly Statement
(or any successor form thereto) required to be filed by each such company with
the governmental body, agency or official which regulates insurance companies in
the jurisdiction in which such company is domiciled, in the form submitted to
such governmental body, agency or official;
(h) promptly upon the mailing thereof to the shareholders of the Borrower
generally, copies of all financial statements, reports and proxy statements so
mailed;
(i) promptly upon the filing thereof, copies of all registration statements
(other than the exhibits thereto and any registration statements on Form S-8 or
its equivalent) and reports on Forms 10-K, 10-Q and 8-K (or their equivalents)
which the Borrower shall have filed with the Securities and Exchange Commission;
(j) if and when any member of the ERISA Group (i) gives or is required to
give notice to the PBGC of any "reportable event" (as defined in Section 4043 of
ERISA) with respect to any Plan, other than a reportable event for which 30-day
notice to the PBGC has been waived, or knows that the plan administrator of any
Plan has given or is required to give notice of any such reportable event, a
copy of the notice of such reportable event given or required to be given to the
PBGC; (ii) receives notice of complete or partial withdrawal liability under
Title IV of ERISA or notice that any Multiemployer Plan is in reorganization, is
insolvent or has been terminated, a copy of such notice; (iii) receives notice
from the PBGC under Title IV of ERISA of an intent to terminate, impose
liability (other than for premiums under Section 4007 of ERISA) in respect of,
or appoint a trustee to administer any Plan, a copy of such notice; (iv) applies
for a waiver of the minimum funding standard under Section 412 of the Internal
Revenue Code, a copy of such application; (v) gives notice of intent to
terminate any Plan under Section 4041(c) of ERISA, a copy of such notice and
other information filed with the PBGC; (vi) gives notice of withdrawal from any
Plan pursuant to Section 4063 of ERISA, a copy of such notice; or (vii) fails to
make any payment or contribution to any Plan or Multiemployer Plan or in respect
of any Benefit Arrangement or makes any amendment to any Plan or Benefit
Arrangement which in either case would trigger the provisions of Section 412(n)
or 401(a)(29) of the Internal Revenue Code (or any corresponding provisions of
ERISA), a certificate of the chief financial officer or the chief accounting
officer of the Borrower setting forth details as to such occurrence and action,
if any, which the Borrower or applicable member of the ERISA Group is required
or proposes to take; and
(k) from time to time such additional information regarding the financial
position or business of the Borrower and its Subsidiaries as the Administrative
Agent, at the request of any Bank, may reasonably request.
SECTION 5.02. Payment of Obligations. The Borrower will pay and discharge,
and will cause each Subsidiary (other than an Excluded Subsidiary) to pay and
discharge, at or before maturity, all their respective material obligations and
liabilities, including, without limitation, tax liabilities, except where the
same may be contested in good faith by appropriate proceedings, and will
maintain, and will cause each Subsidiary to maintain, in accordance with
generally accepted accounting principles, appropriate reserves for the accrual
of any of the same.
SECTION 5.03. Maintenance of Property; Insurance. (a) The Borrower will
keep, and will cause each Subsidiary to keep, all property useful and necessary
in its business in good working order and condition, ordinary wear and tear
excepted.
(b) The Borrower will maintain or cause to be maintained with financially
sound and reputable insurers or through self-insurance programs appropriate to
the type and amount of the risk insured, insurance with respect to its
properties and business, and the properties and business of its Subsidiaries,
against loss or damage of the kinds customarily insured against by reputable
companies in the same or similar businesses, such insurance to be of such types
and in such amounts (with such deductible amounts) as is customary for such
companies under similar circumstances. The Borrower will furnish to the Banks,
upon request from the Administrative Agent, information presented in reasonable
detail as to the insurance so carried.
SECTION 5.04. Conduct of Business and Maintenance of Existence. The
Borrower will continue, and will cause each Subsidiary (other than any Excluded
Subsidiary) to continue, to engage in all material respects in business of the
same general type as now conducted by the Borrower and its Subsidiaries, and
will preserve, renew and keep in full force and effect, and will cause each
Subsidiary (other than any Excluded Subsidiary) to preserve, renew and keep in
full force and effect, their respective corporate existence and their respective
rights, privileges and franchises necessary or desirable in the normal conduct
of business, other than such corporate existences, rights, privileges and
franchises which, if not preserved, renewed or kept in force, will not have, in
the aggregate, a Material Adverse Effect.
SECTION 5.05. Compliance with Laws. The Borrower will comply, and cause
each Subsidiary to comply, with all applicable laws, ordinances, rules,
regulations, and requirements of governmental authorities (including, without
limitation, Environmental Laws and ERISA and the rules and regulations
thereunder) except where the necessity of compliance therewith is contested in
good faith by appropriate proceedings or where the failure to comply with such
laws, ordinances, rules, regulations and requirements will not, in the
aggregate, have a Material Adverse Effect.
SECTION 5.06. Negative Pledge. Neither the Borrower nor any Subsidiary will
create, assume or suffer to exist any Lien on any asset now owned or hereafter
acquired by it, except:
(a) Liens existing on the date of this Agreement securing Debt outstanding
on the date of this Agreement in an aggregate principal or face amount not
exceeding $100,000,000;
(b) any Lien existing on any asset of any corporation at the time such
corporation becomes a Subsidiary and not created in contemplation of such event;
(c) any Lien on any asset securing Debt incurred or assumed for the purpose
of financing all or any part of the cost of acquiring such asset, provided that
such Lien attaches to such asset concurrently with or within 90 days after the
acquisition thereof;
(d) any Lien on any asset of any corporation existing at the time such
corporation is merged or consolidated with or into the Borrower or a Subsidiary
and not created in contemplation of such event;
(e) any Lien existing on any asset prior to the acquisition thereof by the
Borrower or a Subsidiary and not created in contemplation of such acquisition;
(f) any Lien arising out of the refinancing, extension, renewal or
refunding of any Debt secured by any Lien permitted by any of the foregoing
clauses or clause (j) below of this Section, provided that such Debt is not
increased and is not secured by any additional assets;
(g) Liens arising in the ordinary course of its business (including Liens
arising in the ordinary course of its insurance business) which (i) do not
secure Debt or Derivatives Obligations, (ii) do not secure any obligation
(except obligations arising in the ordinary course of its insurance business) in
an amount exceeding $75,000,000 and (iii) do not in the aggregate materially
detract from or impair the use or value of the asset or assets subject thereto
in the operation of its business;
(h) Liens on cash and cash equivalents securing Derivatives Obligations,
provided that the aggregate amount of cash and cash equivalents subject to such
Liens may at no time exceed $25,000,000;
(i) Liens securing obligations (1) of the type referred to in clause (vii)
of the definition of Debt, as long as such Liens arise in the ordinary course of
the Borrower's or the Subsidiary's, as the case may be, business and such Liens
are in amounts and otherwise are on terms consistent with then existing
practices in the repurchase business and (2) of a borrower (or securities
lending agent) in any loaned securities, or Liens held by a borrower (or
securities lending agent) against collateral such borrower has posted, in either
case in securities lending transactions with the Borrower or a Subsidiary (where
the Borrower or the Subsidiary is the lender of securities), as long as, in
either case, such Liens arise in the ordinary course of the Borrower's or the
Subsidiary's, as the case may be, business and such Liens are in amounts and
otherwise on terms consistent with then existing practices in the securities
lending business;
(j) Liens securing Non-Recourse Debt;
(k) Liens on securities or cash of any Insurance Company Subsidiary which
secure its obligations as a reinsurer (as opposed to a ceding insurance company)
under reinsurance contracts entered into with Persons which are licensed or
authorized to do an insurance business in any jurisdiction;
(l) Any Liens secured by accounts receivable of, and other amounts owed to,
Westchester Premium Acceptance Corporation (or any successor), a Subsidiary,
securing a principal amount of Debt incurred by such Subsidiary from time to
time of not more than $60,000,000; and
(m) Liens not otherwise permitted by the foregoing clauses of this Section
securing Debt in an aggregate principal or face amount at any date not to exceed
7.5% of Adjusted Consolidated Tangible Net Worth.
SECTION 5.07. Consolidations, Mergers and Sales of Assets; Ownership by
USF&G Corporation. The Borrower will not (i) consolidate or merge with or into
any other Person, other than a merger in which the Borrower is the surviving
corporation or a merger solely for the purpose of reincorporating the Borrower
in another jurisdiction, in each case provided no Default shall exist at, or
immediately after, such merger, or (ii) sell, lease or otherwise transfer,
directly or indirectly, all or substantially all of the assets of the Borrower
and its Subsidiaries, taken as a whole, to any other Person. The Borrower will
at all times own all of the outstanding voting securities, other than directors'
qualifying shares, of United States Fidelity and Guaranty Company.
SECTION 5.08. Use of Proceeds. The proceeds of the Loans made under this
Agreement will be used by the Borrower for general corporate purposes. None of
such proceeds will be used, directly or indirectly, for the purpose, whether
immediate, incidental or ultimate, of buying or carrying any "margin stock"
within the meaning of Regulation U, other than "margin stock" issued by the
Borrower.
SECTION 5.09. Ratio of Debt to Adjusted Consolidated Tangible Net Worth.
The aggregate amount of Debt (other than (1) Non-Recourse Debt and (2) the
Equity Portion of Qualified Deferrable Securities Obligations, but including the
Debt Portion of Qualified Deferrable Securities Obligations) of the Borrower and
its Subsidiaries shall at no time exceed 55% of Adjusted Consolidated Tangible
Net Worth.
SECTION 5.10. Minimum Adjusted Consolidated Tangible Net Worth. Adjusted
Consolidated Tangible Net Worth will at no time be less than the sum of (i)
$1,300,000,000 plus (ii) 50% of the consolidated net income of the Borrower and
its Consolidated Subsidiaries for the period commencing on January 1, 1998 and
ending at the end of the Borrower's then most recent fiscal quarter (treated for
this purpose as a single accounting period). For purposes of this Section, if
consolidated net income of the Borrower and its Consolidated Subsidiaries for
any period shall be less than zero, the amount calculated pursuant to clause
(ii) above for such period shall be zero.
SECTION 5.11. Transactions with Affiliates. The Borrower will not, and will
not permit any Subsidiary to, directly or indirectly, pay any funds to or for
the account of, make any investment (whether by acquisition of stock or
indebtedness, by loan, advance, transfer of property, guarantee or other
agreement to pay, purchase or service, directly or indirectly, any Debt, or
otherwise) in, lease, sell, transfer or otherwise dispose of any assets,
tangible or intangible, to, or participate in, or effect any transaction in
connection with any joint enterprise or other joint arrangement with, any
Affiliate unless such payment, investment, lease, sale, transfer, disposition,
participation or transaction is on terms and conditions at least as favorable to
the Borrower or such Subsidiary as the terms and conditions which would apply in
a similar transaction with a Person not an Affiliate; provided, however, that
the foregoing provisions of this Section shall not prohibit the Borrower from
declaring or paying any lawful dividend or distribution so long as, after giving
effect thereto, no Default shall have occurred and be continuing.
ARTICLE 6
DEFAULTS
SECTION 6.01. Events of Default. If one or more of the following events
("Events of Default") shall have occurred and be continuing:
(a) the Borrower shall fail (i) to pay when due any principal of any Loan
or (ii) to pay within five days of the due date thereof any interest on any Loan
or any fees or any other amount (other than the principal of any Loan) payable
hereunder;
(b) the Borrower shall fail to observe or perform any covenant contained in
Sections 5.06 to 5.11, inclusive;
(c) the Borrower shall fail to observe or perform any covenant or agreement
contained in this Agreement (other than those covered by clause (a) or (b)
above) for 30 days after notice thereof has been given to the Borrower by the
Administrative Agent at the request of any Bank;
(d) any representation, warranty, certification or statement made by the
Borrower in this Agreement or in any certificate, financial statement or other
document delivered pursuant to this Agreement shall prove to have been incorrect
in any material respect when made (or deemed made);
(e) the Borrower or any Subsidiary shall fail to make any payment owed by
it in respect of any Material Financial Obligations when due or within any
applicable grace period;
(f) any event or condition shall occur which results in the acceleration of
the maturity of any Material Debt or enables (or, with the giving of notice or
lapse of time or both, would enable) the holder of such Debt or any Person
acting on such holder's behalf to accelerate the maturity thereof;
(g) the Borrower or any Subsidiary (other than an Excluded Subsidiary)
shall commence a voluntary case or other proceeding seeking rehabilitation,
dissolution, conservation, liquidation, reorganization or other relief with
respect to itself or its debts under any bankruptcy, insolvency or other similar
law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, rehabilitator, dissolver, conservator, custodian or other
similar official of it or any substantial part of its property, or shall consent
to any such relief or to the appointment of or taking possession by any such
official in an involuntary case or other proceeding commenced against it, or
shall make a general assignment for the benefit of creditors, or shall fail
generally to pay its debts as they become due, or shall take any corporate
action to authorize any of the foregoing;
(h) an involuntary case or other proceeding shall be commenced against the
Borrower or any Subsidiary (other than an Excluded Subsidiary) seeking
rehabilitation, dissolution, conservation, liquidation, reorganization or other
relief with respect to it or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, rehabilitator, dissolver, conservator, custodian or other
similar official of it or any substantial part of its property, and such
involuntary case or other proceeding shall remain undismissed and unstayed for a
period of 60 days; or an order for relief shall be entered against the Borrower
or any Subsidiary (other than an Excluded Subsidiary) under the federal
bankruptcy laws as now or hereafter in effect; or any governmental body, agency
or official shall apply for, or commence a case or other proceeding to seek, an
order for the rehabilitation, conservation, dissolution or other liquidation of
the Borrower or any Subsidiary (other than an Excluded Subsidiary) or of the
assets or any substantial part thereof of the Borrower or any such Subsidiary or
any other similar remedy;
(i) any member of the ERISA Group shall fail to pay when due an amount or
amounts aggregating in excess of $15,000,000 which it shall have become liable
to pay under Title IV of ERISA; or notice of intent to terminate a Material Plan
shall be filed under Title IV of ERISA by any member of the ERISA Group, any
plan administrator or any combination of the foregoing; or the PBGC shall
institute proceedings under Title IV of ERISA to terminate, to impose liability
(other than for premiums under Section 4007 of ERISA) in respect of, or to cause
a trustee to be appointed to administer any Material Plan; or a condition shall
exist by reason of which the PBGC would be entitled to obtain a decree
adjudicating that any Material Plan must be terminated; or there shall occur a
complete or partial withdrawal from, or a default, within the meaning of Section
4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which
could cause one or more members of the ERISA Group to incur a current payment
obligation in excess of $15,000,000;
(j) enforceable judgments or orders for the payment of money in excess of
$50,000,000 (or its equivalent in any other currency) in the aggregate shall be
rendered and entered against the Borrower or any Subsidiary (other than an
Excluded Subsidiary) and such judgments or orders shall continue unsatisfied and
unstayed for a period of 30 days; or
(k) any person or group of persons (within the meaning of Section 13 or 14
of the Securities Exchange Act of 1934, as amended) shall have acquired
beneficial ownership (within the meaning of Rule 13d-3 promulgated by the
Securities and Exchange Commission under said Act) of 30% or more of the
outstanding shares of common stock of the Borrower; or, during any period of
twelve consecutive calendar months, individuals who were directors of the
Borrower on the first day of such period shall cease to constitute a majority of
the board of directors of the Borrower;
then, and in every such event, the dministrative Agent shall (i) if requested by
Banks having more than 50% in aggregate amount of the Commitments, by notice to
the Borrower terminate the Commitments and they shall thereupon terminate, and
(ii) if requested by Banks holding Notes evidencing more than 50% of the
aggregate principal amount of the Loans, by notice to the Borrower declare the
Notes to be, and the Notes (together with accrued interest thereon) shall
thereupon become, immediately due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by the
Borrower; provided that, in the case of any of the Events of Default specified
in clause (g) or (h) above with respect to the Borrower, without any notice to
the Borrower or any other act by the Administrative Agent or the Banks, the
Commitments shall thereupon terminate and the Notes (together with accrued
interest thereon, if any) shall become immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower.
SECTION 6.02. Notice of Default. The Administrative Agent shall give notice
to the Borrower under Section 6.01(c) promptly upon being requested to do so by
any Bank and shall thereupon notify all the Banks thereof.
ARTICLE 7
THE AGENTS
SECTION 7.01. Appointment and Authorization. Each Bank irrevocably appoints
and authorizes each Agent to take such action as agent on its behalf and to
exercise such powers under this Agreement and the Notes as are delegated to such
Agent by the terms hereof or thereof, together with all such powers as are
reasonably incidental thereto.
SECTION 7.02. Agents and Affiliates. ▇▇▇▇▇▇ Guaranty Trust Company of New
York and Deutsche Bank AG, New York Branch shall have the same rights and powers
under this Agreement as any other Bank and may exercise or refrain from
exercising the same as though they were not each an Agent, and ▇▇▇▇▇▇ Guaranty
Trust Company of New York and Deutsche Bank AG, New York Branch and each of
their respective affiliates, may accept deposits from, lend money to, and
generally engage in any kind of business with the Borrower or any Subsidiary or
affiliate of the Borrower as if they were not each an Agent hereunder.
SECTION 7.03. Action by Agents. The obligations of the Agents hereunder are
only those expressly set forth herein. Without limiting the generality of the
foregoing, neither Agent shall be required to take any action with respect to
any Default, except, in the case of the Administrative Agent, as expressly
provided in Article 6.
SECTION 7.04. Consultation with Experts. The Agents may consult with legal
counsel (who may be counsel for the Borrower), independent public accountants
and other experts selected by it and shall not be liable for any action taken or
omitted to be taken by it in good faith in accordance with the advice of such
counsel, accountants or experts.
SECTION 7.05. Liability of Agents. Neither Agent nor any of their
respective affiliates nor any of the respective directors, officers, agents or
employees of the foregoing shall be liable for any action taken or not taken by
it in connection herewith (i) with the consent or at the request of the Required
Banks or (ii) in the absence of its own gross negligence or willful misconduct.
Neither Agent nor any of their respective affiliates nor any of the respective
directors, officers, agents or employees of the foregoing shall be responsible
for or have any duty to ascertain, inquire into or verify (i) any statement,
warranty or representation made in connection with this Agreement or any
borrowing hereunder; (ii) the performance or observance of any of the covenants
or agreements of the Borrower; (iii) the satisfaction of any condition specified
in Article 3, except receipt of items required to be delivered to such Agent;
(iv) the validity, effectiveness or genuineness of this Agreement, the Notes or
any other instrument or writing furnished in connection herewith; or (v) any
Alternative Currency Advance or any action or failure to act relating thereto.
Neither Agent shall incur any liability by acting in reliance upon any notice,
consent, certificate, statement, or other writing (which may be a bank wire,
telex, facsimile transmission or similar writing) believed by it to be genuine
or to be signed by the proper party or parties.
SECTION 7.06. Indemnification. Each Bank shall, ratably in accordance with
its Commitment, indemnify each Agent, their respective affiliates and the
respective directors, officers, agents and employees of the foregoing (to the
extent not reimbursed by the Borrower) against any cost, expense (including
counsel fees and disbursements), claim, demand, action, loss or liability
(except such as result from such indemnitees' gross negligence or willful
misconduct) that such indemnitees may suffer or incur in connection with this
Agreement or any action taken or omitted by such indemnitees hereunder.
SECTION 7.07. Credit Decision. Each Bank acknowledges that it has,
independently and without reliance upon the Agents or any other Bank, and based
on such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Bank also
acknowledges that it will, independently and without reliance upon the Agents or
any other Bank, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking any action under this Agreement.
SECTION 7.08. Successor Agents. Each Agent may resign at any time by giving
notice thereof to the Banks and the Borrower. Upon any such resignation, the
Required Banks shall have the right to appoint a successor Agent. If no
successor Agent shall have been so appointed by the Required Banks, and shall
have accepted such appointment, within 30 days after the retiring Agent gives
notice of resignation, then the retiring Agent may, on behalf of the Banks,
appoint a successor Agent, which shall be a commercial bank organized or
licensed under the laws of the United States of America or of any State thereof
and having a combined capital and surplus of at least $300,000,000. Upon the
acceptance of its appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the rights
and duties of the retiring Agent, and the retiring Agent shall be discharged
from its duties and obligations hereunder. After any retiring Agent's
resignation hereunder as Agent, the provisions of this Article shall inure to
its benefit as to any actions taken or omitted to be taken by it while it was
Agent.
SECTION 7.09. Agents' Fees. The Borrower shall pay to each Agent for its
own account fees in the amounts and at the times previously agreed upon between
the Borrower and such Agent.
ARTICLE 8
CHANGE IN CIRCUMSTANCES
SECTION 8.01. Basis for Determining Interest Rate Inadequate or Unfair. If
on or prior to the first day of any Interest Period for any Fixed Rate
Borrowing:
(a) the Administrative Agent is advised by the Reference Banks that
deposits in Dollars (in the applicable amounts) are not being offered to the
Reference Banks in the relevant market for such Interest Period, or
(b) in the case of a Committed Borrowing, Banks having 50% or more of the
aggregate amount of the Commitments advise the Administrative Agent that, by
reason of adverse conditions generally affecting either the certificate of
deposit market in the United States or the London interbank market, the Adjusted
CD Rate or the Adjusted London Interbank Offered Rate (as the case may be) as
determined by the Administrative Agent will not adequately and fairly reflect
the cost to such Banks of funding their CD Loans or Euro-Dollar Loans, as the
case may be, for such Interest Period,
the Administrative Agent shall forthwith give notice thereof to the Borrower and
the Banks, whereupon until the Administrative Agent notifies the Borrower that
the circumstances giving rise to such suspension no longer exist, (i) the
obligations of the Banks to make CD Loans or Euro-Dollar Loans, as the case may
be, or to continue or convert outstanding Loans as or into CD Loans or Euro-
Dollar Loans shall be suspended and (ii) each outstanding CD Loan or Euro-
Dollar Loan, as the case may be, shall be converted into a Base Rate Loan on the
last day of the then current Interest Period applicable thereto. Unless the
Borrower notifies the Administrative Agent at least two Domestic Business Days
before the date of any Fixed Rate Borrowing for which a Notice of Borrowing has
previously been given that it elects not to borrow on such date, (i) if such
Fixed Rate Borrowing is a Committed Borrowing, such Borrowing shall instead be
made as a Base Rate Borrowing and (ii) if such Fixed Rate Borrowing is a Money
Market LIBOR Borrowing, the Money Market LIBOR Loans comprising such Borrowing
shall bear interest for each day from and including the first day to but
excluding the last day of the Interest Period applicable thereto at the Base
Rate for such day. Promptly after the Administrative Agent and the Banks
reasonably determine that the circumstances giving rise to a notice pursuant to
subsection (b) above no longer exist, the Administrative Agent shall notify the
Borrower, and the obligation of the Banks to make, convert and continue
Euro-Dollar Loans and CD Loans shall be reinstated.
SECTION 8.02. Illegality. If, on or after the date of this Agreement, the
adoption of any applicable law, rule or regulation, or any change in any
applicable law, rule or regulation, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by any Bank (or its Euro-Dollar Lending Office) with any request or directive
after the date of this Agreement (whether or not having the force of law) of any
such authority, central bank or comparable agency shall make it unlawful or
impossible for any Bank (or its Euro-Dollar Lending Office) to make, maintain or
fund its Euro-Dollar Loans and such Bank shall so notify the Administrative
Agent, the Administrative Agent shall forthwith give notice thereof to the other
Banks and the Borrower, whereupon until such Bank notifies the Borrower and the
Administrative Agent that the circumstances giving rise to such suspension no
longer exist, the obligation of such Bank to make Euro-Dollar Loans, or to
continue or convert outstanding Loans as or into Euro-Dollar Loans, shall be
suspended. Before giving any notice to the Administrative Agent pursuant to this
Section, such Bank shall designate a different Euro-Dollar Lending Office if
such designation will avoid the need for giving such notice and will not, in the
judgment of such Bank, be otherwise disadvantageous to such Bank. If such notice
is given, each Euro-Dollar Loan of such Bank then outstanding shall be converted
to a Base Rate Loan either (a) on the last day of the then current Interest
Period applicable to such Euro-Dollar Loan if such Bank may lawfully continue to
maintain and fund such Loan as a Euro-Dollar Loan to such day or (b) immediately
if such Bank shall determine that it may not lawfully continue to maintain and
fund such Loan as a Euro-Dollar Loan to such day.
SECTION 8.03. Increased Cost and Reduced Return. (a) If on or after (x) the
date hereof, in the case of any Committed Loan or any obligation to make
Committed Loans or (y) the date of the related Money Market Quote, in the case
of any Money Market Loan, the adoption of any applicable law, rule or
regulation, or any change in any applicable law, rule or regulation, or any
change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Bank (or its Applicable Lending
Office) with any request or directive after such date (whether or not having the
force of law) of any such authority, central bank or comparable agency shall
impose, modify or deem applicable any reserve (including, without limitation,
any such requirement imposed by the Board of Governors of the Federal Reserve
System, but excluding (i) with respect to any CD Loan any such requirement
included in an applicable Domestic Reserve Percentage and (ii) with respect to
any Euro-Dollar Loan any such requirement included in an applicable Euro-Dollar
Reserve Percentage), special deposit, insurance assessment (excluding, with
respect to any CD Loan, any such requirement reflected in an applicable
Assessment Rate) or similar requirement against assets of, deposits with or for
the account of, or credit extended by, any Bank (or its Applicable Lending
Office) or shall impose on any Bank (or its Applicable Lending Office) or on the
United States market for certificates of deposit or the London interbank market
any other condition affecting its Fixed Rate Loans, its Note or its obligation
to make Fixed Rate Loans and the result of any of the foregoing is to increase
the cost to such Bank (or its Applicable Lending Office) of making or
maintaining any Fixed Rate Loan, or to reduce the amount of any sum received or
receivable by such Bank (or its Applicable Lending Office) under this Agreement
or under its Note with respect thereto, by an amount deemed by such Bank to be
material, then, within 15 days after demand by such Bank (with a copy to the
Administrative Agent), the Borrower shall pay to such Bank such additional
amount or amounts as will compensate such Bank for such increased cost or
reduction.
(b) If any Bank shall have determined in good faith that, after the date
hereof, the adoption of any applicable law, rule or regulation regarding capital
adequacy, or any change in any such law, rule or regulation, or any change in
the interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or any request or directive after the date hereof
regarding capital adequacy (whether or not having the force of law) of any such
authority, central bank or comparable agency (including any determination by any
such authority, central bank or comparable agency that, for purposes of capital
adequacy requirements, the Commitments hereunder do not constitute commitments
with an original maturity of one year or less), has or would have the effect of
reducing the rate of return on capital of such Bank (or its Parent) as a
consequence of such Bank's obligations hereunder to a level below that which
such Bank (or its Parent) could have achieved but for such adoption, change,
request or directive (taking into consideration its policies with respect to
capital adequacy) by an amount deemed by such Bank to be material, then from
time to time, within 15 days after demand by such Bank (with a copy to the
Administrative Agent), the Borrower shall pay to such Bank such additional
amount or amounts as will compensate such Bank (or its Parent) for such
reduction.
(c) Each Bank will promptly notify the Borrower and the Administrative
Agent of any event of which it has knowledge, occurring after the date hereof,
which will entitle such Bank to compensation pursuant to this Section and will
designate a different Applicable Lending Office if such designation will avoid
the need for, or reduce the amount of, such compensation and will not, in the
judgment of such Bank, be otherwise disadvantageous to such Bank. A certificate
of any Bank claiming compensation under this Section and setting forth the
additional amount or amounts to be paid to it hereunder shall, if submitted in
good faith, be conclusive in the absence of manifest error; provided that any
certificate delivered pursuant to this Section 8.03(c) shall (i) in the case of
a certificate in respect of amounts payable pursuant to Section 8.03(a), set
forth in reasonable detail the basis for and the calculation of such amounts,
and (ii) in the case of a certificate in respect of amounts payable pursuant to
Section 8.03(b), set forth at least the same amount of detail in respect of the
calculation of such amounts as such Bank provides in similar circumstances to
other similarly situated borrowers and also include a statement by such Bank
that it has allocated to its Commitment or outstanding Loans or other
obligations hereunder no greater than a substantially proportionate amount of
any reduction of the rate of return on such Bank's capital due to the matters
described in Section 8.03(b) as it has allocated to each of its other
commitments to lend or to participate therein or any outstanding loans or
unreimbursed drawings or participations therein to similarly situated borrowers
that are affected similarly by such adoption or change. Subject to the
foregoing, in determining such amount, such Bank may use any reasonable
averaging and attribution methods.
SECTION 8.04. Taxes. (a) For purposes of this Section 8.04, the following
terms have the following meanings:
"TAXES" means any and all present or future taxes, duties, levies, imposts,
deductions, charges or withholdings with respect to any payment by the Borrower
pursuant to this Agreement or under any Note, and all liabilities with respect
thereto, excluding (i) in the case of each Bank and the Administrative Agent,
taxes imposed on its income, and franchise or similar taxes imposed on it, by a
jurisdiction under the laws of which such Bank or the Administrative Agent (as
the case may be) is organized or in which its principal executive office is
located or, in the case of each Bank, in which its Applicable Lending Office is
located, or, in the case of the Administrative Agent and each Bank, such taxes
which would not have been imposed on the Administrative Agent or such Bank but
for any present or former connection between the Administrative Agent or such
Bank and the jurisdiction imposing such tax (other than any such connection
arising from the Administrative Agent or the Bank having executed, delivered or
performed its obligations or received a payment under, or enforced, this
Agreement or the Notes) and (ii) in the case of each Bank, any United States
withholding tax imposed on such payments but only to the extent that such Bank
(a) is subject to United States withholding tax at the time such Bank first
becomes a party to this Agreement or (b) subsequently becomes subject to United
States withholding tax solely by reason of the change of its Applicable Lending
Office by such Bank.
"OTHER TAXES" means any present or future stamp or documentary taxes and
any other excise or property taxes, or similar charges or levies (other than
franchise taxes or taxes imposed on the net income of a Bank or the
Administrative Agent), which arise from any payment made pursuant to this
Agreement or under any Note or from the execution or delivery of, or otherwise
with respect to, this Agreement or any Note.
(b) Any and all payments by the Borrower to or for the account of any Bank
or the Administrative Agent hereunder or under any Note shall be made without
deduction for any Taxes or Other Taxes; provided that, if the Borrower shall be
required by law to deduct any Taxes or Other Taxes from any such payments, (i)
the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section 8.04) such Bank or the Administrative Agent (as the case may
be) receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions, (iii) the
Borrower shall pay the full amount deducted to the relevant taxation authority
or other authority in accordance with applicable law and (iv) the Borrower shall
furnish to the Administrative Agent, at its address referred to in Section 9.01,
the original or a certified copy of a receipt evidencing payment thereof.
(c) The Borrower agrees to indemnify each Bank and the Administrative Agent
for the full amount of Taxes or Other Taxes (including, without limitation, any
Taxes or Other Taxes imposed or asserted by any jurisdiction on amounts payable
under this Section 8.04) paid by such Bank or the Administrative Agent (as the
case may be) and any liability (including penalties, interest and expenses)
arising therefrom or with respect thereto. This indemnification shall be paid
within 15 days after such Bank or the Administrative Agent (as the case may be)
makes demand therefor.
(d) Each Bank organized under the laws of a jurisdiction outside the United
States, on or prior to the date of its execution and delivery of this Agreement
in the case of each Bank listed on the signature pages hereof and on or prior to
the date on which it becomes a Bank in the case of each other Bank, and from
time to time thereafter if requested in writing by the Borrower (but only so
long as such Bank remains lawfully able to do so), shall provide the Borrower
with Internal Revenue Service form 1001 or 4224, as appropriate, or any
successor form prescribed by the Internal Revenue Service, certifying that such
Bank is entitled to benefits under an income tax treaty to which the United
States is a party which exempts the Bank from United States withholding tax or
reduces the rate of withholding tax on payments of interest for the account of
such Bank or certifying that the income receivable pursuant to this Agreement is
effectively connected with the conduct of a trade or business in the United
States.
(e) For any period with respect to which a Bank has failed to provide the
Borrower with the appropriate form pursuant to Section 8.04(d) (unless such
failure is due to a change in treaty, law or regulation occurring subsequent to
the date on which such form originally was required to be provided), such Bank
shall not be entitled to indemnification under Section 8.04(b) or (c) with
respect to Taxes imposed by the United States; provided that if a Bank, which is
otherwise exempt from or subject to a reduced rate of withholding tax, becomes
subject to Taxes because of its failure to deliver a form required hereunder,
the Borrower shall take such steps as such Bank shall reasonably request to
assist such Bank to recover such Taxes.
(f) If the Borrower is required to pay additional amounts to or for the
account of any Bank pursuant to this Section 8.04, then such Bank will change
the jurisdiction of its Applicable Lending Office if, in the judgment of such
Bank, such change (i) will eliminate or reduce any such additional payment which
may thereafter accrue and (ii) is not otherwise disadvantageous to such Bank.
SECTION 8.05. Base Rate Loans Substituted for Affected Fixed Rate Loans. If
(i) the obligation of any Bank to make or to continue or convert outstanding
Loans as or to Euro-Dollar Loans has been suspended pursuant to Section 8.02 or
(ii) any Bank has demanded compensation under Section 8.03 or 8.04 with respect
to its CD Loans or Euro-Dollar Loans and the Borrower shall, by at least five
Euro-Dollar Business Days' prior notice to such Bank through the Administrative
Agent, have elected that the provisions of this Section shall apply to such
Bank, then, unless and until such Bank notifies the Borrower that the
circumstances giving rise to such suspension or demand for compensation no
longer exist:
(a) all Loans which would otherwise be made by such Bank as (or continued
as or converted to) CD Loans or Euro-Dollar Loans, as the case may be, shall
instead be Base Rate Loans (on which interest and principal shall be payable
contemporaneously with the related Fixed Rate Loans of the other Banks), and
(b) after each of its CD Loans or Euro-Dollar Loans, as the case may be,
has been repaid (or converted), all payments of principal which would otherwise
be applied to repay such Fixed Rate Loans shall be applied to repay its Base
Rate Loans instead.
If such Bank notifies the Borrower that the circumstances giving rise to
such suspension or demand for compensation no longer exist, the principal amount
of each such Base Rate Loan shall be converted into a CD Loan or Euro-Dollar
Loan, as the case may be, on the first day of the next succeeding Interest
Period applicable to the related CD Loans or Euro-Dollar Loans of the other
Banks.
ARTICLE 9
MISCELLANEOUS
SECTION 9.01. Notices. All notices, requests and other communications to
any party hereunder shall be in writing (including bank wire, telex, facsimile
transmission or similar writing) and shall be given to such party: (x) in the
case of the Borrower or the Agents, at its address, facsimile number or telex
number set forth on the signature pages hereof, (y) in the case of any Bank, at
its address, facsimile number or telex number set forth in its Administrative
Questionnaire or (z) in the case of any party, at such other address, facsimile
number or telex number as such party may hereafter specify for the purpose by
notice to the Administrative Agent and the Borrower. Each such notice, request
or other communication shall be effective (i) if given by telex, when such telex
is transmitted to the telex number specified in this Section and the appropriate
answerback is received, (ii) if given by facsimile transmission, when
transmitted to the facsimile number specified in this Section and confirmation
of receipt is received, (iii) if given by mail, 72 hours after such
communication is deposited in the mails with first class postage prepaid,
addressed as aforesaid or (iv) if given by any other means, when delivered at
the address specified in this Section; provided that notices to the
Administrative Agent under Article 2 or Article 8 shall not be effective until
received.
SECTION 9.02. No Waivers. No failure or delay by either Agent or any Bank
in exercising any right, power or privilege hereunder or under any Note shall
operate as a waiver thereof nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. The rights and remedies herein provided shall be
cumulative and not exclusive of any rights or remedies provided by law.
SECTION 9.03. Expenses; Indemnification. (a) The Borrower shall pay (i) all
out-of-pocket expenses of the Agents, including the reasonable fees and
disbursements of special counsel for the Agents, in connection with the
preparation and administration of this Agreement, any waiver or consent
hereunder or any amendment hereof or any Default or alleged Default hereunder
and (ii) if an Event of Default occurs, all out-of-pocket expenses incurred by
each Agent and each Bank, including (without duplication) the reasonable fees
and disbursements of outside counsel in connection with such Event of Default
and collection, bankruptcy, insolvency and other enforcement proceedings
resulting therefrom.
(b) The Borrower agrees to indemnify each Agent and each Bank, their
respective affiliates and the respective directors, officers, agents and
employees of the foregoing (each an "Indemnitee") and hold each Indemnitee
harmless from and against any and all liabilities, losses, damages, costs and
expenses of any kind, including, without limitation, the reasonable fees and
disbursements of counsel, which may be incurred by such Indemnitee in connection
with any investigative, administrative or judicial proceeding (whether or not
such Indemnitee shall be designated a party thereto) brought or threatened
relating to or arising out of this Agreement or any actual or proposed use of
proceeds of Loans hereunder; provided that no Indemnitee shall have the right to
be indemnified hereunder for such Indemnitee's own gross negligence or willful
misconduct as determined by a court of competent jurisdiction and provided
further, that no Bank shall have the right to be indemnified hereunder in any
such proceeding wherein the parties thereto are only such Bank and any other
Person (other than a Bank) to whom such Bank shall have granted a participation
in, or assigned all or a proportionate part of, its Commitment or its Loans or
Notes or its rights or obligations hereunder or under its Notes.
SECTION 9.04. Sharing of Set-offs. Each Bank agrees that if it shall, by
exercising any right of set-off or counterclaim or otherwise, receive payment of
a proportion of the aggregate amount of principal and interest due with respect
to any Note held by it which is greater than the proportion received by any
other Bank in respect of the aggregate amount of principal and interest due with
respect to any Note held by such other Bank, the Bank receiving such
proportionately greater payment shall purchase such participations in the Notes
held by the other Banks, and such other adjustments shall be made, as may be
required so that all such payments of principal and interest with respect to the
Notes held by the Banks shall be shared by the Banks pro rata; provided that
nothing in this Section shall impair the right of any Bank to exercise any right
of set-off or counterclaim it may have and to apply the amount subject to such
exercise to the payment of indebtedness of the Borrower other than its
indebtedness hereunder. The Borrower agrees, to the fullest extent it may
effectively do so under applicable law, that any holder of a participation in a
Note, whether or not acquired pursuant to the foregoing arrangements, may
exercise rights of set-off or counterclaim and other rights with respect to such
participation as fully as if such holder of a participation were a direct
creditor of the Borrower in the amount of such participation.
SECTION 9.05. Amendments and Waivers. Any provision of this Agreement or
the Notes may be amended or waived if, but only if, such amendment or waiver is
in writing and is signed by the Borrower and the Required Banks (and, if the
rights or duties of either Agent or any Swingline Bank are affected thereby, by
such Person); provided that no such amendment or waiver shall, unless signed by
all the Banks, (i) increase or decrease the Commitment of any Bank (except for a
ratable decrease in the Commitments of all Banks) or subject any Bank to any
additional obligation, (ii) reduce or forgive the principal of or rate of
interest on any Loan or any fees hereunder, except as provided below, (iii)
postpone the date fixed for any payment of principal of or interest on any Loan
or any fees hereunder or for the termination of any Commitment, (iv) release any
collateral furnished pursuant to Section 6.03 unless no Default then exists or
(v) change the percentage of the Commitments or of the aggregate unpaid
principal amount of the Notes, or the number of Banks, which shall be required
for the Banks or any of them to take any action under this Section or any other
provision of this Agreement.
SECTION 9.06. Successors and Assigns. (a) The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, except that the Borrower may not assign or
otherwise transfer any of its rights under this Agreement without the prior
written consent of all Banks.
(b) Any Bank may at any time grant to one or more banks or other
institutions (each a "Participant") participating interests in its Commitment or
any or all of its Loans. In the event of any such grant by a Bank of a
participating interest to a Participant, whether or not upon notice to the
Borrower, the Swingline Banks and the Agents, such Bank shall remain responsible
for the performance of its obligations hereunder, and the Borrower, the
Swingline Banks and the Agents shall continue to deal solely and directly with
such Bank in connection with such Bank's rights and obligations under this
Agreement. Any agreement pursuant to which any Bank may grant such a
participating interest shall provide that such Bank shall retain the sole right
and responsibility to enforce the obligations of the Borrower hereunder
including, without limitation, the right to approve any amendment, modification
or waiver of any provision of this Agreement; provided that such participation
agreement may provide that such Bank will not agree to any modification,
amendment or waiver of this Agreement described in clause (i), (ii), (iii) or
(iv) of Section 9.05 without the consent of the Participant. The Borrower agrees
that each Participant shall, to the extent provided in its participation
agreement, be entitled to the benefits of Article 8 with respect to its
participating interest. An assignment or other transfer which is not permitted
by subsection (c) or (d) below shall be given effect for purposes of this
Agreement only to the extent of a participating interest granted in accordance
with this subsection (b).
(c) Any Bank may at any time assign to one or more banks or other financial
institutions (each an "Assignee") all, or a proportionate part (equivalent to an
initial Commitment of not less than $10,000,000, and provided that after giving
effect thereto the Commitment of the assigning Bank is equivalent to an initial
Commitment of not less than $10,000,000) of all, of its rights and obligations
under this Agreement and the Notes, and such Assignee shall assume such rights
and obligations, pursuant to an Assignment and Assumption Agreement in
substantially the form of Exhibit H hereto executed by such Assignee and such
transferor Bank, with (and subject to) the subscribed consent of the Borrower
and the Administrative Agent, which in each case shall not be unreasonably
withheld, and the Swingline Banks; provided that if an Assignee is an affiliate
of such transferor Bank or was a Bank immediately prior to such assignment, no
such consent of the Borrower shall be required; and provided further that such
assignment may, but need not, include rights of the transferor Bank in respect
of outstanding Money Market Loans or Alternative Currency Advances. Upon
execution and delivery of such instrument and payment by such Assignee to such
transferor Bank of an amount equal to the purchase price agreed between such
transferor Bank and such Assignee, such Assignee shall be a Bank party to this
Agreement and shall have all the rights and obligations of a Bank with a
Commitment as set forth in such instrument of assumption, and the transferor
Bank shall be released from its obligations hereunder to a corresponding extent,
and no further consent or action by any party shall be required. Upon the
consummation of any assignment pursuant to this subsection (c), the transferor
Bank, the Administrative Agent and the Borrower shall make appropriate
arrangements so that, if required, a new Note is issued to the Assignee. In
connection with any such assignment, the transferor Bank or, in the case of an
assignment made pursuant to subsection (f) below, the Borrower shall pay to the
Administrative Agent an administrative fee for processing such assignment in the
amount of $2,500. If the Assignee is not incorporated under the laws of the
United States of America or a state thereof, it shall deliver to the Borrower
and the Administrative Agent certification as to exemption from deduction or
withholding of any United States federal income taxes in accordance with Section
8.04.
(d) Any Bank may at any time assign all or any portion of its rights under
this Agreement and its Note to a Federal Reserve Bank. No such assignment shall
release the transferor Bank from its obligations hereunder.
(e) No Assignee, Participant or other transferee of any Bank's rights shall
be entitled to receive any greater payment under Section 8.03 or 8.04 than such
Bank would have been entitled to receive with respect to the rights transferred,
unless such transfer is made with the Borrower's prior written consent or by
reason of the provisions of Section 8.02, 8.03 or 8.04 requiring such Bank to
designate a different Applicable Lending Office under certain circumstances or
at a time when the circumstances giving rise to such greater payment did not
exist.
(f) The Borrower shall have the right to require that any Bank assign all
of its rights and obligations under this Agreement and its Notes (including any
outstanding Money Market Loans) to a new bank or an existing Bank if (i) in the
case of a new bank, such new bank shall be acceptable to the Required Banks and
(ii) such new bank or Bank, as the case may be, shall enter into an Assignment
and Assumption Agreement therefor with such assigning Bank subject to the
provisions of subsection (c) above, pursuant to which such new bank or Bank, as
the case may be shall purchase the outstanding Loans of the assigning Bank at
par plus accrued interest and shall pay to the assigning Bank all accrued fees
and the Borrower shall pay to the assigning Bank all other amounts then owing to
it under this Agreement.
SECTION 9.07. Collateral. Each of the Banks represents to each Agent and
each of the other Banks that it in good faith is not relying upon any "margin
stock" (as defined in Regulation U) as collateral in the extension or
maintenance of the credit provided for in this Agreement.
SECTION 9.08. Governing Law; Submission to Jurisdiction. This Agreement and
each Note shall be governed by and construed in accordance with the laws of the
State of New York. The Borrower hereby submits to the nonexclusive jurisdiction
of the United States District Court for the Southern District of New York and of
any New York State court sitting in New York City for purposes of all legal
proceedings arising out of or relating to this Agreement or the transactions
contemplated hereby. The Borrower irrevocably waives, to the fullest extent
permitted by law, any objection which it may now or hereafter have to the laying
of the venue of any such proceeding brought in such a court and any claim that
any such proceeding brought in such a court has been brought in an inconvenient
forum.
SECTION 9.09. Counterparts; Integration; Effectiveness. This Agreement may
be signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement constitutes the entire agreement and understanding
among the parties hereto and supersedes any and all prior agreements and
understandings, oral or written, relating to the subject matter hereof. This
Agreement shall become effective upon receipt by the Documentation Agent of
counterparts hereof signed by each of the parties hereto (or, in the case of any
party as to which an executed counterpart shall not have been received, receipt
by the Documentation Agent in form satisfactory to it of telegraphic, telex,
facsimile or other written confirmation from such party of execution of a
counterpart hereof by such party).
SECTION 9.10. WAIVER OF JURY TRIAL. EACH OF THE BORROWER, THE AGENTS, THE
SWINGLINE BANKS AND THE BANKS HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 9.11. Existing Credit Agreements. The Banks that are parties to the
Existing ▇▇▇▇▇▇ Credit Agreement or the Existing Deutsche Bank Credit Agreement,
comprising the "REQUIRED BANKS", in each case as defined therein, and the
Borrower agree that the commitments under the Existing ▇▇▇▇▇▇ Credit Agreement
or the Existing Deutsche Bank Credit Agreement, as the case may be, shall
terminate in their entirety simultaneously with and subject to the occurrence of
the Closing Date under this Agreement and that the Borrower shall be obligated
to pay the accrued letter of credit fees (in the case of the Existing ▇▇▇▇▇▇
Credit Agreement) and facility fees thereunder to but excluding the Closing
Date. Each Bank which is a party hereto and to the Existing ▇▇▇▇▇▇ Credit
Agreement hereby waives the notices required to be given pursuant to Section
2.09 thereof to terminate the "Commitments" (as defined therein) and each Bank
which is a party hereto and to the Existing Deutsche Bank Credit Agreement
hereby waives the notices required to be given pursuant to Section 2.10 thereof,
to terminate the "Commitments" (as defined therein).
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
USF&G CORPORATION
By /s/▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇ ▇. ▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
Corporate Center
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ - ▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile number: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK, as Administrative Agent
By /s/▇▇▇▇▇ ▇. DELL'AQUILA
Name: ▇▇▇▇▇ ▇. Dell'Aquila
Title: Vice President
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. Fall
Telex number: 177615
Facsimile number: (▇▇▇) ▇▇▇-▇▇▇▇
DEUTSCHE BANK AG, NEW YORK BRANCH,
as Documentation Agent
By /s/▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
By /s/▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Telex number: 429166
Facsimile number: (▇▇▇) ▇▇▇-▇▇▇▇
Commitments
$20,000,000 ▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK
By /s/▇▇▇▇▇ ▇. DELL'AQUILA
Name: ▇▇▇▇▇ ▇. Dell'Aquila
Title: Vice President
$20,000,000 DEUTSCHE BANK AG, NEW YORK AND/OR
CAYMAN ISLANDS BRANCHES
By /s/▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
By /s/▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President
$16,000,000 THE BANK OF NEW YORK
By /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
$16,000,000 BANKBOSTON, N.A.
By /s/▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
$16,000,000 CITIBANK, N.A.
By /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Attorney-In-Fact
$16,000,000 THE FIRST NATIONAL BANK OF MARYLAND
By /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
$16,000,000 MELLON BANK, N.A.
By /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
$16,000,000 NATIONSBANK, N.A.
By /s/▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
$8,000,000 ABN AMRO BANK N.V.
By /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
By /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
$8,000,000 BANK ONE, TEXAS, N.A.
By /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
$8,000,000 CRESTAR BANK, a Virginia
banking corporation
By /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Vice President
$8,000,000 FIRST UNION NATIONAL BANK
By /s/▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
$8,000,000 MERCANTILE-SAFE DEPOSIT & TRUST
COMPANY
By /s/▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
$8,000,000 THE NORTHERN TRUST COMPANY
By /s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
$8,000,000 WACHOVIA BANK, N.A.
By /s/M. ▇▇▇▇▇▇ ▇▇▇▇, III
Name: M. ▇▇▇▇▇▇ ▇▇▇▇, III
Title: Vice President
$8,000,000 ▇▇▇▇▇ FARGO BANK, N.A.
By /s/▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
By /s/▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Assistant Vice President
-------------------
Total Commitments
$200,000,000
PRICING SCHEDULE
The "Euro-Dollar Margin", "CD Margin" and "Facility Fee Rate" for any day
are the respective percentages set forth below in the applicable row under the
column corresponding to the Status that exists on such day:
Status Level I Level II Level III Level IV Level V
Euro-Dollar Margin 0.23% 0.245% 0.26% 0.34% 0.45%
CD Margin 0.355% 0.37% 0.385% 0.465% 0.575%
Facility Fee Rate 0.07% 0.08% 0.09% 0.11% 0.15%
For purposes of this Schedule, the following terms have the following
meanings, subject to the final two paragraphs of this Schedule:
"Level I Status" exists at any date if, at such date, the Borrower's senior
unsecured long-term debt is rated at least A- by S&P or A3 by Moody's.
"Level II Status" exists at any date if, at such date, (i) the Borrower's
senior unsecured long-term debt is rated at least BBB+ by S&P or Baa1 by Moody's
and (ii) Level I Status does not exist.
"Level III Status" exists at any date if, at such date, (i) the Borrower's
senior unsecured long-term debt is rated at least BBB by S&P or Baa2 by Moody's
and (ii) neither Level I Status nor Level II Status exists.
"Level IV Status" exists at any date if, at such date, (i) the Borrower's
senior unsecured long-term debt is rated at least BBB- by S&P or Baa3 by Moody's
and (ii) none of Level I Status, Level II Status and Level III Status exists.
"Level V Status" exists at any date if, at such date, no other Status
exists.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc., and its successors.
"S&P" means Standard & Poor's Ratings Services, and its successors.
"Status" refers to the determination of which of Level I Status, Level II
Status, Level III Status, Level IV Status or Level V Status exists at any date.
The credit ratings to be utilized for purposes of this Schedule are those
assigned to the senior unsecured long-term debt securities of the Borrower
without third-party credit enhancement, and any rating assigned to any other
debt security of the Borrower shall be disregarded. The rating in effect at any
date is that in effect at the close of business on such date.
If the Borrower is split-rated and the rating differential is one level,
the higher of the two ratings will apply (e.g. A-/Baa1 results in Level I Status
and BBB+/Baa2 results in Level II Status). If the Borrower is split-rated and
the ratings differential is more than one level, the average of the two ratings
(or the higher of any two intermediate ratings) shall be used (e.g. A-/Baa2
results in Level II Status, as does A-/Baa3).
EXHIBIT A
NOTE
New York, New York
, 19
For value received, USF&G CORPORATION, a Maryland corporation (the
"Borrower"), promises to pay to the order of (the "Bank"), for the account of
its Applicable Lending Office, the unpaid principal amount of each Loan made by
the Bank to the Borrower pursuant to the Credit Agreement referred to below on
the maturity date therefor specified in the Credit Agreement. The Borrower
promises to pay interest on the unpaid principal amount of each such Loan on the
dates and at the rate or rates provided for in the Credit Agreement. All such
payments of principal and interest shall be made in lawful money of the United
States in Federal or other immediately available funds at the office of ▇▇▇▇▇▇
Guaranty Trust Company of New York, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇.
All Loans made by the Bank, the respective types, Classes and maturities
thereof and all repayments of the principal thereof shall be recorded by the
Bank and, if the Bank so elects in connection with any transfer or enforcement
hereof, appropriate notations to evidence the foregoing information with respect
to each such Loan then outstanding may be endorsed by the Bank on the schedule
attached hereto, or on a continuation of such schedule attached to and made a
part hereof; provided that the failure of the Bank to make any such recordation
or endorsement shall not affect the obligations of the Borrower hereunder or
under the Credit Agreement.
This note is one of the Notes referred to in the 364-Day Credit and
Reimbursement Agreement dated as of December 18, 1997 among the Borrower, the
banks listed on the signature pages thereof, ▇▇▇▇▇▇ Guaranty Trust Company of
New York, as Administrative Agent, and Deutsche Bank AG, New York Branch, as
Documentation Agent (as the same may be amended from time to time, the "Credit
Agreement"). Terms defined in the Credit Agreement are used herein with the same
meanings. Reference is made to the Credit Agreement for provisions for the
prepayment hereof and the acceleration of the maturity hereof.
USF&G CORPORATION
By___________________
Title: Vice President
Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
Class and Amount of
Amount of Type of Principal Maturity Notation
Date Loan Loan Repaid Date Made by
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
EXHIBIT B
Form of Money Market Quote Request
[Date]
To: ▇▇▇▇▇▇ Guaranty Trust Company of New York
(the "Administrative Agent")
From: USF&G Corporation
Re: 364- Day Credit and Reimbursement Agreement (the
"Credit Agreement") dated as of December 18,
1997 among the Borrower, the Banks listed on
the signature pages thereof, the
Administrative Agent, and Deutsche Bank AG,
New York Branch, as Documentation Agent
We hereby give notice pursuant to Section 2.03 of the Credit Agreement
that we request Money Market Quotes for the following proposed Money Market
Borrowing(s):
Date of Borrowing: __________________
Principal Amount(1) Interest Period(2)
$
Such Money Market Quotes should offer a Money Market [Margin]
[Absolute Rate].[The applicable base rate is the London Interbank Offered Rate.]
Terms used herein have the meanings assigned to them in the Credit
Agreement.
USF&G CORPORATION
By_________________
Title:
__________
(1) Amount must be $5,000,000 or a larger multiple of $1,000,000.
(2) Not less than one month (LIBOR Auction) or not less than 7 days
(Absolute Rate Auction), subject to the provisions of the definition of Interest
Period.
EXHIBIT C
Form of Invitation for Money Market Quotes
To: [Name of Bank]
Re: Invitation for Money Market Quotes to
USF&G Corporation (the "Borrower")
Pursuant to Section 2.03 of the 364-Day Credit and Reimbursement Agreement
dated as of December 18, 1997 among the Borrower, the Banks parties thereto, the
undersigned, as Administrative Agent, and Deutsche Bank AG, New York Branch, as
Documentation Agent, we are pleased on behalf of the Borrower to invite you to
submit Money Market Quotes to the Borrower for the following proposed Money
Market Borrowing(s):
Date of Borrowing: __________________
Principal Amount Interest Period
$
Such Money Market Quotes should offer a Money Market [Margin] [Absolute
Rate]. [The applicable base rate is the London Interbank Offered Rate.]
Please respond to this invitation by no later than [2:00 P.M.] [9:30 A.M.]
(New York City time) on [date].
▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK, as Administrative Agent
By__________________________________
Authorized Officer
EXHIBIT D
Form of Money Market Quote
To: ▇▇▇▇▇▇ Guaranty Trust Company of New York,
as Administrative Agent
Re: Money Market Quote to USF&G Corporation
(the "Borrower")
In response to your invitation on behalf of the Borrower dated
__________, we hereby make the following Money Market Quote on the following
terms:
1. Quoting Bank: ________________________________
2. Person to contact at Quoting Bank:
-----------------------------
3. Date of Borrowing: ____________________(3)
4. We hereby offer to make Money Market Loan(s) in the following principal
amounts, for the following Interest Periods and at the following rates:
Principal Interest Money Market
Amount(4) Period(5) [Margin(6)] [Absolute Rate(7)]
$
$
[Provided, that the aggregate principal amount of Money Market Loans
for which the above offers may be accepted shall not exceed
$____________.]**
We understand and agree that the offer(s) set forth above, subject to
the satisfaction of the applicable conditions set forth in the 364-Day Credit
and Reimbursement Agreement dated as of December 18, 1997 among the Borrower,
the Banks listed on the signature pages thereof, yourselves, as Administrative
Agent, and Deutsche Bank AG, New York Branch, as Documentation Agent,
irrevocably obligates us to make the Money Market Loan(s) for which any offer(s)
are accepted, in whole or in part.
Very truly yours,
[NAME OF BANK]
Dated:_______________ By:__________________________
Authorized Officer
__________
(3) As specified in the related Invitation.
(4) Principal amount bid for each Interest Period may not exceed principal
amount requested. Specify aggregate limitation if the sum of the individual
offers exceeds the amount the Bank is willing to lend. Bids must be made for
$5,000,000 or a larger multiple of $1,000,000.
(5) Not less than one month or not less than 7 days, as specified in the
related Invitation. No more than five bids are permitted for each Interest
Period.
(6) Margin over or under the London Interbank Offered Rate determined for
the applicable Interest Period. Specify percentage (to the nearest 1/10,000 of
1%) and specify whether "PLUS" or "MINUS"
(7)Specify rate of interest per annum (to the nearest 1/10,000th of 1%).
EXHIBIT E
OPINION OF THE
DEPUTY GENERAL COUNSEL OF THE BORROWER
To the Banks and the Agents
Referred to Below
c/o Deutsche Bank AG,
New York Branch,
as Documentation Agent
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
I am Deputy General Counsel for USF&G Corporation (the "Borrower") and have
acted in such capacity in connection with the 364-Day Credit and Reimbursement
Agreement (the "Credit Agreement") dated as of December 18, 1997 among the
Borrower, the banks parties thereto, ▇▇▇▇▇▇ Guaranty Trust Company of New York,
as Administrative Agent, and Deutsche Bank AG, New York Branch, as Documentation
Agent. Terms defined in the Credit Agreement are used herein as therein defined.
This opinion is being rendered to you at the request of my client pursuant to
Section 3.01(b) of the Credit Agreement.
I have examined originals or copies, certified or otherwise identified to
my satisfaction, of such documents, corporate records, certificates of public
officials and other instruments and have conducted such other investigations of
fact and law as I have deemed necessary or advisable for purposes of this
opinion.
Upon the basis of the foregoing, I am of the opinion that:
1. The Borrower is a corporation validly existing and in good standing
under the laws of Maryland, and has all corporate powers required to carry on
its business as now conducted.
2. The Borrower has all governmental licenses, authorizations, consents and
approvals required to carry on its business as now conducted, other than such
licenses, authorizations, consents and approvals which, if not held or obtained
by the Borrower, do not, in the aggregate, have a Material Adverse Effect.
3. The execution, delivery and performance by the Borrower of the Credit
Agreement and the Notes are within the Borrower's corporate powers, have been
duly authorized by all necessary corporate action, require no action by the
Borrower by or in respect of, or filing by the Borrower with, any governmental
body, agency or official and do not contravene, or constitute a default under,
any provision of applicable law or regulation or of the articles of
incorporation or by-laws of the Borrower.
4. To the best of my knowledge after responsible inquiry, the execution,
delivery and performance by the Borrower of the Credit Agreement and the Notes
do not contravene, or constitute a default under, any provision of any material
agreement, judgment, injunction, order, decree or other instrument binding upon
the Borrower or any of its Subsidiaries or result in the creation or imposition
of any material Lien on any asset of the Borrower or any of its Subsidiaries.
5. There is no action, suit or proceeding pending or, to the best of my
knowledge, threatened against or affecting the Borrower or any of its
Subsidiaries before any court or arbitrator or any governmental body, agency or
official, in which there is a reasonable expectation of an adverse decision
which reasonably could be expected to materially adversely affect the business,
consolidated financial position or consolidated results of operations of the
Borrower and its Consolidated Subsidiaries, considered as a whole, or which in
any manner draws into question the validity of the Credit Agreement or the
Notes, except as may have been disclosed in the financial statements referred to
in Section 4.04(a) and (b) of the Credit Agreement.
6. Each of the Borrower and the Borrower's corporate Subsidiaries named
below is a corporation validly existing and in good standing under the laws of
its jurisdiction of incorporation, and has all corporate powers and all material
governmental licenses, authorizations, consents and approvals required to carry
on its business as now conducted, other than such licenses, authorizations,
consents and approvals which, if not held or obtained by the Borrower or such
Subsidiary, do not, in the aggregate, have a Material Adverse Effect. The
Subsidiaries referred to in this paragraph are United States Fidelity and
Guaranty Company and Fidelity and Guaranty Life Insurance Company. ▇▇▇▇▇ ▇▇▇▇ &
▇▇▇▇▇▇▇▇ may rely on this opinion in connection with the rendering by such firm
of an opinion to you dated the date hereof with respect to the Agreement.
Very truly yours,
EXHIBIT F
OPINION OF
COUNSEL FOR THE BORROWER
To the Banks and the Agents
Referred to Below
c/o Deutsche Bank AG,
New York Branch,
as Documentation Agent
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
We have acted as counsel for USF&G Corporation (the "Borrower") in
connection with the 364-Day Credit and Reimbursement Agreement (the "Credit
Agreement") dated as of December 18, 1997 among the Borrower, the banks parties
thereto, ▇▇▇▇▇▇ Guaranty Trust Company of New York, as Administrative Agent, and
Deutsche Bank AG, New York Branch, as Documentation Agent. Terms defined in the
Credit Agreement are used herein as therein defined. This opinion is being
rendered to you at the request of our client pursuant to Section 3.01(c) of the
Credit Agreement.
We have examined originals or copies, certified or otherwise identified to
our satisfaction, of such documents, corporate records, certificates of public
officials and other instruments and have conducted such other investigations of
fact and law as we have deemed necessary or advisable for purposes of this
opinion. In rendering this opinion, we have assumed that all documents submitted
to us as originals are authentic, all documents submitted to us as certified or
photostatic copies conform to the original document, all signatures on all
documents submitted to us for examination are genuine, and all public records
received are accurate and complete.
Upon the basis of the foregoing, we are of the opinion that the Credit
Agreement constitutes a valid and binding agreement of the Borrower and each
Note constitutes a valid and binding obligation of the Borrower, in each case
enforceable in accordance with its terms, except as the same may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights generally and
by general principles of equity (including public policy limitations on the
indemnification provisions thereof).
You may rely upon this opinion only in connection with the transactions
being consummated pursuant to the Credit Agreement and neither you nor any other
person may rely upon or use this opinion for any other purpose whatsoever.
However, ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ may rely on this opinion in connection with the
rendering by such firm of an opinion to you dated the date hereof with respect
to the Agreement.
Very truly yours,
EXHIBIT G
OPINION OF
▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, SPECIAL COUNSEL
FOR THE AGENTS
To the Banks and the Agents
Referred to Below
c/o Deutsche Bank AG,
New York Branch,
as Documentation Agent
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
We have participated in the preparation of the 364-Day Credit and
Reimbursement Agreement (the "Credit Agreement") dated as of December 18, 1997
among USF&G Corporation, a Maryland corporation (the "Borrower"), the banks
parties thereto (the "Banks"), ▇▇▇▇▇▇ Guaranty Trust Company of New York, as
Administrative Agent (the "Administrative Agent") and Deutsche Bank AG, New York
Branch, as Documentation Agent (the "Documentation Agent" and together with the
Administrative Agent, the "Agents"), and have acted as special counsel for the
Agents for the purpose of rendering this opinion pursuant to Section 3.01(d) of
the Credit Agreement. Terms defined in the Credit Agreement are used herein as
therein defined.
We have examined originals or copies, certified or otherwise identified to
our satisfaction, of such documents, corporate records, certificates of public
officials and other instruments and have conducted such other investigations of
fact and law as we have deemed necessary or advisable for purposes of this
opinion.
Upon the basis of the foregoing, we are of the opinion that the Credit
Agreement constitutes a valid and binding agreement of the Borrower and each
Note constitutes a valid and binding obligation of the Borrower, in each case
enforceable in accordance with its terms, except as the same may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights generally and
by general principles of equity.
We are members of the Bar of the State of New York and the foregoing
opinion is limited to the laws of the State of New York and the federal laws of
the United States of America. In giving the foregoing opinion, we express no
opinion as to the effect (if any) of any law of any jurisdiction (except the
State of New York) in which any Bank is located which limits the rate of
interest that such Bank may charge or collect. Insofar as the foregoing opinion
involves matters governed by the laws of Maryland, we have relied, without
independent investigation, upon the opinions of J. ▇▇▇▇▇▇▇ ▇▇▇▇▇, Deputy General
Counsel of the Borrower, and of Piper & Marbury, counsel for the Borrower, a
copy of each of which has been delivered to you.
This opinion is rendered solely to you in connection with the above matter.
This opinion may not be relied upon by you for any other purpose or relied upon
by any other Person without our prior written consent.
Very truly yours,
EXHIBIT H
ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of _________, 19__ among [ASSIGNOR] (the "Assignor"),
[ASSIGNEE] (the "Assignee"), USF&G CORPORATION (the "Borrower"), ▇▇▇▇▇▇ GUARANTY
TRUST COMPANY OF NEW YORK, as Administrative Agent (the "Administrative Agent"),
and ▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK and DEUTSCHE BANK, NEW YORK
BRANCH, as Swingline Banks (the "Swingline Banks").
W I T N E S S E T H
WHEREAS, this Assignment and Assumption Agreement (the "Agreement") relates
to the 364-Day Credit and Reimbursement Agreement dated as of December 18 1997
among the Borrower, the Assignor and the other Banks party thereto, as Banks,
the Administrative Agent, and Deutsche Bank AG, New York Branch, as
Documentation Agent (the "Credit Agreement");
WHEREAS, as provided under the Credit Agreement, the Assignor has a
Commitment to make Loans to the Borrower in an aggregate principal amount at any
time outstanding not to exceed $__________;
WHEREAS, Committed Loans made to the Borrower by the Assignor under the
Credit Agreement in the aggregate principal amount of $__________ are
outstanding at the date hereof; and
WHEREAS, the Assignor proposes to assign to the
Assignee all of the rights of the Assignor under the Credit Agreement in
respect of a portion of its Commitment thereunder in an amount equal to
$__________ (the "Assigned Amount"), together with a corresponding portion of
its outstanding Committed Loans, and the Assignee proposes to accept assignment
of such rights and assume the corresponding obligations from the Assignor on
such terms; NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
SECTION 1. Definitions. All capitalized terms not otherwise defined herein
shall have the respective meanings set forth in the Credit Agreement.
SECTION 2. Assignment. The Assignor hereby assigns and sells to the
Assignee without recourse all of the rights of the Assignor under the Credit
Agreement to the extent of the Assigned Amount, and the Assignee hereby accepts
such assignment from the Assignor and assumes all of the obligations of the
Assignor under the Credit Agreement to the extent of the Assigned Amount,
including the purchase from the Assignor of the corresponding portion of the
principal amount of the Committed Loans made by the Assignor outstanding at the
date hereof. Upon the execution and delivery hereof by the Assignor, the
Assignee[, the Borrower], each Swingline Bank and the Administrative Agent and
the payment of the amounts specified in Section 3 required to be paid on the
date hereof (i) the Assignee shall, as of the date hereof, succeed to the rights
and be obligated to perform the obligations of a Bank under the Credit Agreement
with a Commitment in an amount equal to the Assigned Amount, and (ii) the
Commitment of the Assignor shall, as of the date hereof, be reduced by a like
amount and the Assignor released from its obligations under the Credit Agreement
to the extent such obligations have been assumed by the Assignee. The assignment
provided for herein shall be without recourse to the Assignor.
SECTION 3. Payments. As consideration for the assignment and sale
contemplated in Section 2 hereof, the Assignee shall pay to the Assignor on the
date hereof in Federal funds the amount heretofore agreed between them.(8) It is
understood that commitment and/or facility fees accrued to the date hereof are
for the account of the Assignor and such fees accruing from and including the
date hereof in respect of the Assigned Amount are for the account of the
Assignee. Each of the Assignor and the Assignee hereby agrees that if it
receives any amount under the Credit Agreement which is for the account of the
other party hereto, it shall receive the same for the account of such other
party to the extent of such other party's interest therein and shall promptly
pay the same to such other party.
[SECTION 4. Consent of the Borrower, the Swingline Banks and the
Administrative Agent. This Agreement is conditioned upon the consent of the
Borrower, the Swingline Banks and the Administrative Agent pursuant to Section
9.06(c) of the Credit Agreement. The execution of this Agreement by the
Borrower, the Swingline Banks and the Administrative Agent is evidence of this
consent. Pursuant to Section 9.06(c) the Borrower agrees to execute and deliver
a Note payable to the order of the Assignee to evidence the assignment and
assumption provided for herein.]
_________
(8) Amount should combine principal together with accrued interest and
breakage compensation, if any, to be paid by the Assignee, net of any portion of
any upfront fee to be paid by the Assignor to the Assignee. It may be preferable
in an appropriate case to specify these amounts generally or by formula rather
than as a fixed sum.
_________
SECTION 5. Non-Reliance on Assignor. The Assignor makes no representation
or warranty in connection with, and shall have no responsibility with respect
to, the solvency, financial condition, or statements of the Borrower, or the
validity and enforceability of the obligations of the Borrower in respect of the
Credit Agreement or any Note. The Assignee acknowledges that it has,
independently and without reliance on the Assignor, and based on such documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement and will continue to be responsible for
making its own independent appraisal of the business, affairs and financial
condition of the Borrower.
SECTION 6. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
SECTION 7. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
and delivered by their duly authorized officers as of the date first above
written.
[ASSIGNOR]
By__________________
Title:
[ASSIGNEE]
By_________________
Title:
USF&G CORPORATION
By_________________
Title:
▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK, as Administrative Agent and
Swingline Bank
By_________________
Title:
DEUTSCHE BANK, NEW YORK BRANCH,
as Swingline Bank
By_________________
Title: